There has always been controversy over whether the implicit use of others’ trademarks in backstage keyword advertisements constitutes trademark infringement or unfair competition.Backstage keyword advertisement is featured by the implicit use of a trademark,which means the trademark in question does not appear within the view of search engine users on the search results page or on the target website page.Under this circumstance,the trademark cannot play the function of identifying the source of goods or services.In practice,there is a unified view on the determination of trademark infringement,which is that backstage keyword advertising does not constitute trademark infringement.The doctrinal debate is whether the US doctrine of initial interest confusion should be introduced to regulate it domestically.In this article,we divide the constitutive elements of trademark infringement into separate judgments on trademarked use and likelihood of confusion,and respond to the frontier theoretical viewpoint in light of the development of the Internet,discussing the non-necessity of introducing the initial confusion theory to regulate background-type keyword advertising at this stage,and arguing that the traditional confusion standard should be adhered to in determining that such use does not lead to likelihood of confusion in the sense of trademark law.There is a wide divergence in theory and practice regarding the determination of unfair competition.This article summarizes the paths and criteria adopted by various courts in such cases,and agrees that the "likelihood of confusion" criterion should be adopted in practice as the threshold for determining whether backstage keyword advertising constitutes unfair competition.Then,from the perspective of protecting free competition,we analyze the balance of interests of the parties involved in the act,and discuss that the application of the "likelihood of confusion" standard is the most conducive way to protect free competition in the market.Along these lines,we propose a specific regulatory path for the typical situations of backstage keyword advertisements,as well as suggestions for improving the relevant legal system. |