The Identification Of "Setting Competitors As Paid Search Keywords" From The Perspective Of Anti-unfair Competition Law

Paid search is a technological means that affects searching results through human manipulation.It is a new type of means to compete over the Internet.Existing studies have mostly placed their emphasis on whether this behavior constitutes trademark infringement from the perspective of trademark law,while few studies have discussed the justification of this behavior from the perspective of Anti-unfair Competition Law.Keyword setting behavior is not included or specifically referred to in Chapter II of Anti-unfair Competition law,which laid out an exclusive list of specific unfair competition acts.Therefore,reference could only be made to the general term of Article II of Anti-unfair Competition Law in order to regulate such behavior.Precedents established by the court were mostly based on a moral evaluation stemming from the principle of good faith,in seek of the protection of the competitors' interests.However,Anti-unfair Competition Law has gone through the transition from "protecting competitors" to "protecting competition",and it aims to protect all market participants,not only competitors,but also consumers and public interests.Therefore,it is necessary to consider the interests of the three parties,and try to achieve a balance amongst all.For the competitors,others' keyword setting behaviors have stole their business opportunities.In a free and fully competitve market,however,business opportunities,markets,and trading parties are all free and circulated without a clear ownership.The loss of competitors' business opportunities is not a sufficient condition to obtain protection from Anti-unfair Competition Law.From the perspective of consumers,their shopping options have not been negatively affected,and the presence of product diversity is more likely to reduce shopping costs.From the perspective of market order,allowing others to purchase keywords does impose a certain positive effect in promoting information circulation and increasing competition vitality.The advantages outweigh the disadvantages.Therefore,under the premise that the paid search promotion link does not contain actual confusing,false or misleading information,this behavior should be defined as free competition behavior.Conversely,if paid search results have the possibility of causing confusion among consumers,it will constitute unfair competition that is prohibited by Article 6 of Anti-unfair Competition Law.