Analysis On The Cases Of Keyword Infringement In Pay Per Click Service

In the pay per click service,in order to attract n etwork users,advertisement publishers often take the same or similar logo as their promotion Keywords without the consent of the trademark owner,which leads to a series of civil disputes.Based on the summary and analysis of 79 civil judgments from 2013 to 2021,it can be found that the dispute focus of such cases in practice is mainly concentrated in three aspects:first,whether the advertisement publisher constitutes trademark infringement,second,whether the advertisement publisher constitutes unfair competition,and third,whether the search engine bears responsibility.Firstly,as for whether the advertisement publisher’s behavior constitutes trademark infringement,we should distinguish the different settings of keywords,so as to judge whether dif ferent types of behavior constitute trademark use and whether there is the possibility of confusion.Keyword setting includes background setting type,foreground setting type and remote setting type;Setting keywords in the background cannot indicate goods or services,and does not constitute the use of trademarks;Based on the pre-sale confusion theory,the front desk setting behavior may lead to confusion,but like the remote setting behavior,other different factors need to be comprehensively considered to judge whether the possibility of confusion exists.Secondly,as for whether the advertisement publishers’ s behavior constitutes unfair competition,We should comprehensively consider the impact of behavior on consumers,operators and market competition order in the way of interest measurement.Since the setting of keywords in the background increases consumer welfare,the reduction of trading opportunities for trademark owners is not caused by the advertisement publishers’ s behavior,and the behavior does not violate the market competition mechanism,the advertisement publishers’ s behavior of setting key words only in the b ackground does not constitute unfair competition.In addition,due to the progressive relationship between the application of the trademark law and the anti unfair competition law,the a pplication of the trademark law has priority for the foreground and re mote setting types.If the advertisement publisher’s behavior has constituted trademark infringement,the anti unfair competition law is generally no longer applicable for consideration.If it does not constitute trademark infringement,the legitimacy of c ompetition should be judged by the anti unfair competition law.Finally,as for whether the search engine should bear the responsibility,three fact ors should be considered: the direct infringement of the advertisement publishers,the objective act of help ing the infringement by the search engine,and the subjective fault of the search engine.Subjective fault should be specifically identified in combination with the situation before,during and after the pay per click service.If the search engine performs the obligation of review and identification in advance,follows the red flag principle in the process and the notice deletion rule afterwards,there is no subjective fault.