Research On The Legal Liability Of Search Engine Keyword Advertising Service Providers

Keyword Advertising is a kind of commercial service,which is produced by search engine technology,and its service providers interfere with natural search results under the operation of the technology.Because of its flexible fees and accurate response to user needs,it has become a new choice for many businesses to conduct marketing and promotion.However,many illegal phenomena have also arisen,especially false propaganda,trademark infringement,and unfair competition caused by arbitrary setting of other people’s trademarks as search keywords.From the perspective of service content and purpose,the keyword advertising is a kind of commercial advertisement,which has the character of popularization and profit.However,in our country’s current laws,the "Advertising Law" does not does not make a clear identification about its nature,the "Trademark Law" have difficulty in defining accurately the illegality of the infringement,and the "Anti-Unfair Competition Law" only has limited effects.More importantly,the liability of service providers is even more difficult to find in these laws.Besides,in judicial practice,judges have different understandings about the nature of keyword advertising,the determination of torts and the liability of service providers,which has led to confusion in the administration of justice.In order to effectively regulate the keyword advertising service providers,it is necessary to clarify the above issues.Firstly,the advertiser identity of the publisher can be determined on the basis of determining the attributes of the keyword advertising and combining with the service content and behavior of the service provider.Secondly,we can divide the torts of keyword setting into explicit and implicit use,and identify trademark torts and Unfair competition separately.Finally,on the premise of direct infringement of trademark and Unfair competition,we can combine the obligations of advertisement publishers to distinguish them from general online information service providers,thereby excluding the application of "notification + deletion",pursuing its legal responsibility according to the theory of indirect infringement.In order to solve the above-mentioned problems,it is essential to clarify the advertising attribute of the keyword advertising and the advertiser identity of its service provider in China’s “Advertising Law”,so that the legal obligations and responsibilities can be determined.It is necessary to apply limited "pre-sale confusion" and improve the indirect infringement liability system in the infringement of keyword advertising trademarks.Only with such a multi-pronged approach can a comprehensive keyword advertising service provider legal liability system be established,and then fundamentally rectify the chaos of keyword advertising.