Research On Legal Regulation Of Implicit Use Of Other People’s Trademarks In Keyword Search

Keywords search promotion is a kind of search engine to provide new Internet advertising mode,this form has less investment,promotion effect advantage,loved by most Internet companies,the marketing way of better results in the market at the same time,also caused a lot of legal problems.For example,in the practice of setting other people’s registered trademark in the background as whether the search keywords is trademark use,trademark confusion,whether the promotion method is launched according to law,whether the court has not formed a unified judgment on this,and the academic circle has not formed a consensus on this issue.The core function of the trademark is the recognition function,and the trademark right should be protected with the recognition function as the boundary.The use of trademarks should be easily recognized by consumers and play an important role in identifying the sources of goods or services.Trademark infringement should take "trademark use" as the precondition.From the two aspects of trademark use and confusion possibility,the search behavior of hidden use of other enterprises does not constitute infringement of trademark,so it does not constitute trademark infringement.However,when the act meets the conditions constituting unfair competition,the act may be deemed as unfair competition to regulate it.Trademark use plays an important role in the judgment of trademark infringement.By analyzing the provisions of Chinese Taiwan,the European Union,the United States and the research of related similar cases,we explore its experience,and then provide reference for China’s judicial practice.Through the targeted selection of hidden use cases,it is concluded that in the current judicial practice of China,whether the behavior constitutes trademark infringement and constitutes unfair competition,and the success rate of search engine service providers is very low.At the same time,our country regulation keyword trademark search using others trademark legislation also has problems,mainly for the current concept of trademark use and its legal status in trademark infringement without clear provisions,the recessive use whether conform to the conditions of unfair competition also lack of unified standards,and search service tort compensation liability requirements lack of clear provisions.In view of the current situation of China’s judicial practice and the problems existing in legislation,the author puts forward corresponding suggestions to improve the hidden use of trademarks for keyword search in China.First of all,it can clearly stipulate through judicial interpretation that this behavior does not meet the constitutive requirements of trademark infringement,and then does not constitute trademark infringement.Secondly,the judicial interpretation clearly stipulates the conditions of unfair competition,and in the relevant judicial practice,whether the behavior constitutes unfair competition can be comprehensively determined through the conditions that constitute unfair competition.Finally,the judicial interpretation stipulates that search engine service providers should provide the necessary review process when providing services,and if there is no relevant prior review,they should bear the corresponding legal responsibility.