The Research On Trademark And Unfair Competition Of Keyword Advertising

In the context of the growing development of the Internet advertising model,both theoretical and practical circles have been discussing and disputing the determination of keyword advertising infringement issues.The core of the keyword advertising issue lies in the distinction between the types of keyword setting behavior and the evaluation of search results triggered by different types of behavior.The Internet era has had a great impact on the transaction mode between equal subjects,the way of information dissemination,and the cognitive concept of network users,but this does not shake that the determination originally used for traditional trademark infringement and improper behavior is still applicable to the Internet era.The author will take the two types of behavior from the explicit use and implicit use of keywords as the entry point to screen the different search results brought by the use of different keywords.The author tries to clarify the objective behavior standard of the actor through the different search effects brought by the actor at different stages of the use of keywords,which will help to determine whether the use of keywords constitutes trademark infringement or unfair competition and provide solution ideas.After the advertiser signs a network service agreement with the platform,the platform,in order to avoid liability,will be screened by the advertiser as well as optimized by the advertiser,so although the main body of the use of keywords is the advertiser,only the direct infringement liability of the advertiser can be explored.However,the study of keyword advertising should not exclude the analysis of the indirect responsibility of the platform,otherwise the problem cannot be analyzed thoroughly.In the infringement determination,the platform can generally only constitute indirect infringement if it does not actively set the keywords as well as optimize the keywords for intervention.The responsibility of the platform will be determined by the red flag principle and the windbreak principle.In this way,the infringement problem of keyword advertising is sorted out,and the path of analysis and solution for the keyword advertising problem is explored.In the first chapter of this paper,the current status of research on keyword advertising in practice and the problems that arise are described.In practice,courts differ in their determination of whether the acts involved constitute trademark infringement or unfair competition,and there is a wide divergence of views on whether trademark infringement is a prerequisite for trademark infringement,how to determine trademark use,and how to determine the likelihood of confusion.Chapter 2 of this paper analyzes whether keyword advertising is regulated by the trademark law or by the anti-unfair competition law in the case of explicit use.First,the author discusses the explicit use of keywords and trademark use,that is,whether the act belongs to trademark use.Only when the act of trademark use is judged,it is necessary to continue to explore whether it constitutes trademark infringement.Next,the elements of trademark infringement are clarified,and it is considered that the explicit use of keywords and the independent and prominent use of trademarks by advertisers constitute trademark infringement.Then we enter into the field of antiunfair competition to explore whether,if it does not constitute trademark infringement,it is necessary to consider whether the subject’s intervention behavior for keywords has changed the ranking order,and if it has changed the order in the search page in the first place or exceeded the ranking of the right holder,which is greatly different from the ordinary search,it is suspected to constitute unfair competition.Chapter 3 of this article analyzes how to regulate keyword advertising in the case of implicit use.Since the trademark of the right holder does not appear in the search page,it does not constitute trademark use,i.e.,it does not constitute trademark infringement.Whether it constitutes an act of unfair competition,the author,by sorting out practical cases,believes that we cannot capture the subjective intent of the advertiser,but can analyze the specific behavioral effect by setting up objective behavioral standards,i.e.,whether the intervention behavior for keywords exceeds the behavioral boundary.Thus,we can judge whether it constitutes an act of unfair competition.When the advertiser interferes with the keywords,resulting in the ranking of the advertiser’s website over the right holder or even to the first place,it is deemed to constitute an act of unfair competition.Chapter 4 of this paper focuses on analyzing the infringement liability of the ISPs.Only when the advertiser is found to be infringing,it is necessary to explore the liability of the network service provider.The author firstly describes the three issues involved in the liability of the platform,followed by the identification of the subjective fault of the platform;and finally analyzes the duty of care of the platform.In conclusion,in determining the responsibility of the platform,we should first examine whether its behavior is in line with the Sony rules and whether it intervenes in the keywords;if there is no intervention,then we should examine whether it has fulfilled its corresponding duty of care in the three stages and whether there is subjective fault to determine whether the platform is responsible.The last part of this article is the conclusion.After the analysis of the whole article,for the discussion of keyword advertising,we should first clarify the type of behavior,i.e.whether it belongs to explicit or implicit use;then explore what legal effects are produced by different types of behavior,and analyze them one by one;only when the advertiser’s behavior is characterized as direct infringement,then we need to discuss the platform’s responsibility.In the author’s opinion,for the explicit use of keywords,if the advertiser makes independent,significant use of the keywords,it constitutes trademark infringement;conversely,it is necessary to examine whether the effect of the act of keyword intervention exceeds the standard of conduct,i.e.whether the ranking of the advertiser’s website in the search page exceeds that of the right holder or reaches the first place on the page.If it does,it constitutes unfair competition.For the implicit use of keywords,it does not constitute trademark infringement,but when the advertiser’s intervention on keywords exceeds the standard of conduct,it also constitutes unfair competition and is subject to the regulation of the anti-unfair competition law.