Research On The Trademark Infringement Liability Of Advertisers In Keyword Advertising

With the rapid development of e-commerce,as an important means of marketing,online advertising has attracted more and more attention.The bidding ranking service,also known as Keyword Advertising,also has a growing share of corporate advertising investment.In the process of participating in the bidding rankings,many companies tend to set more high-profile trademarks as keywords in order to obtain more trading opportunities and user attention.While this kind of behavior is for the benefit of itself,there is also a risk of causing confusion and misunderstanding forrelevant network users and infringement of the exclusive right of registered trademarks.This makes the legality of the bidding ranking service a problem which is worthy of exploration in trademark law.The difference between the network environment and the traditional market makes the identification of trademark infringement more challenging.This article explores the trademark infringement liability of advertisers who use other people's trademarks as keywords in the bidding service.In view of the fact that the judicial practice and academic materials related to the bidding ranking service in the EU region including Germany are relatively rich,and the legal structures of trademark infringement in the EU,Germany and China are also similar,this paper will use comparative methods and empirical case studies,based on China's current judicial practice and laws,combine with foreign practice and theoretical experience,trying to provide practical suggestions for the identification of trademark infringement liability in China's bidding service from a different perspective.Apart from the introduction and the conclusion,the body is divided into four parts:The first part "Overview of Bidding Ranking Service" : it mainly introduces the concept of bidding ranking,the operation mode and the interests of all parties involved.Pursuant to the provision of Article 2 of PRC Advertising Law,bidding ranking service is in line with the characteristics of commercial advertising.The author tends to define it as advertising rather than information technology retrieval service.The second part "Judicial Controversy" : first a brief introduction to current regulations of trademark infringement liability in terms of bidding ranking service in China.By sorting out and classifying the cases of trademark infringement from 2010 on,four points are found which need to be clarify in the following parts:(1)Some courts have not clarified that use of trademark should be a kind of use which functions as identification of source;(2)Most courts believe that back-end bidding does not constitute trademark use;(3)Confusion in sales is subject to pre-sale confusion theory;(4)The standard of the back-end bidding ranking is far from consent and not comprehensive enough.The third part "Exploration ofuse of trademark" : After defining the term "use of trademark",one of the constitutive requirement for that is use in commerce,and the second requirement is trademark use.Combined with current Chinese academic research,the shortcomings of the trademark function infringement theory in EU law and German law will be analysed,which clarifys trademark use as premise in the identification of trademark infringement.Based on the concept of trademark use,it is argued that the use of trademarks inback-end bidding ranking constitutes use of the trademark.The fourth part "The Application of Initial Interest Confusion Theory" : it mainly demonstrates the necessity of introducing the initial interest confusion theory in the bidding rankings.With a series of cases of the European Court of Justice and the German Federal Court,a set ofmethods are summerised for application of the initial interest confusion theory to the bidding ranking service.