In the era of Internet,information are scattered in different corners.It is impossible for users to get information by browsing the web page one by one.Providers of search engine service provide information retrieval and positioning services for users,which plays an increasingly important role in daily life.In order to promote products or services,enterprises are constantly seeking new ways.After seeing the opportunity accurately,providers use search engine technology to launch a new marketing service model,which is known as bidding ranking.Bidding ranking brings publicity to the enterprise,but causes a series of infringement disputes.For example,enterprises often set other’s registered trademarks as keywords,item information or website content,and the trademark rights need to be protected.Now,the number of trademark infringement cases caused by bidding ranking is increasing in China’s judicial practice.While the court has reached a certain consensus on trademark infringement,there are many differences,such as whether bidding ranking is a simple information retrieval technology or an advertisement,and whether the use of other people’s trademarks constitutes trademark infringement.The position of providers and how to determine the subjective fault lead to different judgments in the same case,which seriously affects the judicial authority and the protection of trademark rights.Based on the principle of balancing the interests of all parties,this paper attempts to analyze the above disputes in order to find a way of coordination between bidding ranking and trademark rights.Firstly,according to the E-commerce,the bidding ranking in e-commerce platform is a kind of advertisement.I think that the bidding ranking in traditional search engine can be applied by analogy.Meanwhile,bidding ranking conforms to the characteristics and elements of advertising,which is essentially a form of advertising.Secondly,"the use of trademarks" and "confusion" are the constituent elements of trademark infringement,among which "the use of trademarks" is the precondition.Standards of "the use of trademarks" are lacking in our country,I think that we should combine "commercial use","publicity","prominent use of trademarks" and "reasonable use of trademarks ".The recessive use of other people’s trademarks can’t be recognized as "the use of trademarks",because it doesn’t meet the standards of "publicity".At the same time,the theory of "pre-sale confusion" is reasonable,which has certain legitimacy and can be directly combined with the standard of the possibility of confusion to determine trademark infringement.Generally speaking,If the overt use of others’ trademarks in the bidding ranking constitutes "the use of trademarks"and "confusion",it can be recognized as trademark infringement.The court needs to make a judgment in combination with individual cases.Thirdly,the bidding ranking includes two parts:front-end advertisement and link website.The provider only provides technical link service for the setting of link website,which should be recognized as the Internet Service Provider.In the front-end advertisement,the provider participates in the production and release of the advertisement,which is publisher and operator of advertisement.Finally,the court should determine the subjective fault of providers together with the advertising law and the tort law.In the prior stage of the contract,the provider shall bear the obligation of review and identification stipulated in the advertising law;in the intermediate stage,the subjective fault of the provider can be judged according to "red flags ralea" of the tort law;in the later stage,the provider shall be regulated by "safe harbor rule" of the tort law. |