Research On Trademark Infringement Issues Of Keyword Advertising On Internet Trading Platform

Keyword advertising,also known as "biding ranking advertising",was initially widely used in the search engine service industry.Later,due to its huge profitability and the characteristics of adapting to the promotion of online shopping advertisements,it was introduced by major online trading platforms and became a new type of Internet advertising.Because businesses purchasing keyword advertising services often set other people’s text trademarks as keywords,keyword advertising has triggered a series of trademark infringement lawsuits.However,the current law does not clearly stipulate whether the use of keywords under this type constitutes trademark use.In practice,the identification of more complex keyword advertisement types is unclear,and the infringement judgment standards are not uniform.Therefore,it is very difficult to solve the trademark infringement problem of keyword advertisements.The first chapter of this paper mainly clarifies the basic concepts and existing problems of keyword advertising on online trading platforms,and concludes that there are two types of common disputes on online trading platforms..The first type is to set up advertising links on pure search engines such as Baidu,and click on the link to jump to the online trading platform.The second category is the use of keywords to search within the online trading platform,and the specific product or service appears on the result page.Through analysis,these two categories are in line with the "explicit use" and "implicit use" of keywords.Online trading platforms should have different legal statuses according to their different roles in keyword advertising.The online trading platform is the advertiser when placing keyword advertisements for self-operated stores;When conducting in-platform bidding advertisements for third-party stores,the identity is the advertising publisher,similar to search engines such as Baidu;When tenants place keyword advertisements on third-party search engines,the online trading platform is only a virtual counter renter and only provides online technical support.At the same time,Chapter 1 clarifies that the provisions of "trademark use" in the current legislation are too general,and the terms "direct infringement" and "indirect infringement" are mixed;judicial practice ignores the "trademark use" element in the determination of infringement,and the standards for determining indirect infringement liability are not uniform.Chapters 2 and 3 respectively study the types of "explicit use" and "implicit use" of keywords,and analyze whether the keywords "explicit use" and "implicit use" meet the criteria for trademark infringement cases,whether the advertiser constitutes trademark infringement,so as to explore the responsibility of the online trading platform.It is concluded that in my country,"trademark use" and "confusion" are necessary conditions for trademark infringement,and both are indispensable;and the keyword "explicit use" may constitute trademark use,and consumers "double misidentification" can constitute Confusion.On this basis,it is defined that when online trading platforms place keyword advertisements for self-operated stores,they should bear direct responsibility for trademark infringement of keyword advertisements;When conducting in-platform bidding advertisements for third-party stores,on the premise that the advertiser constitutes a trademark infringement,the online trading platform shall be liable for indirect trademark infringement;When the tenants place keyword advertisements on third-party search engines,the online trading platform shall not be liable for the trademark infringement of keyword advertisements.The fourth chapter puts forward legal suggestions on the trademark infringement of keyword advertisements on the basis of the previous analysis and summary.In terms of legislation,it is legally clarified that "the trademark displayed in the link that triggers the paid advertisement" belongs to the use of the trademark,integrates the terms of direct trademark infringement,sets up the "indirect infringement" clause separately,and replaces the expression "intentionally" with "knowingly or should have known";Improve the duty of care of online trading platforms.In terms of law enforcement,this article recommends that law enforcement departments unite major online trading platforms,experts and scholars in the field of intellectual property,industry associations and representatives of trademark owners to build a professional intellectual property team,and use the search advantages of online trading platforms to establish a trademark database and research and development" "Automatic filtering" technology to supervise online trading platforms to conduct pre-review of keywords.From the judicial aspect,this article suggests that courts strengthen the determination of "trademark use" and regard "trademark use" as a prerequisite and necessary condition for the establishment of trademark infringement in keyword advertisements on online trading platforms.In the specific judgment of "trademark use",judicial practice should strictly follow the standard of "use in commercial activities and used to identify the source of goods",and only the keyword "dominant use" constitutes "trademark use".Confusion in the field of trademark infringement may be constituted only in the case of "double misidentification".The objective standard of "duty of care" is adopted when identifying the "fault" of the online trading platform.If it is found through "database comparison + filtering" that the trademark corresponding to the keyword is indeed not in the database,it can be determined that the online service provider has fulfilled its duty of care in advance;After the keyword advertisement is placed,for the behavior of the advertiser to change the link jumping page without authorization,the "notification + deletion" rule is used to determine the responsibility of the online trading platform.