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Study on Issues of Trademark Infringement of Adwords

Author: QinJie
Tutor: WangQian
School: East China University of Political Science
Course: Legal
Keywords: Adwords Search Engine Service Provider Direct Infringement Indirect Infringement Duty of Care
CLC: D923.43
Type: Master's thesis
Year: 2011
Downloads: 146
Quote: 1
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Abstract


"Adwords", a new network product, has played a more and more important role in the increasingly well-developed marketing activities of network. Indeed, "Adwords" and "Bidding Rank" has been bringing great amount of Internet users much convenience, while the hidden dangers of trademark infringement exists in it. Out current legal system of trademark does not explicitly regulate the responsibilities of the search engine service provider on such tort; In legal practice, some Courts did not reach an agreement on the issue of search engines providers’ responsibilities. Therefore, it is not beneficial to protection of trademark holders’ interests. This thesis raises some issues from three cases, and makes deep study on how search engine service provider should be liable for their. Adwords service.The paper consists of three parts: introduction, body and conclusion.The Introduction part is about the purpose of this thesis: making deep study of search engine service providers’ responsibilities while supplying the service of Adwords, in the hope of raising correct understanding and feasible rules for current legal practice.The body part consists of two chapters:The first chapter, beginning with the "LV-Google case", and analyses the essential features of the behavior of using others’ trademark as the keywords in Adwords, on the basis, the character gives some comments on "EJC" judgment of "LV.v.Google case". The Author starts from the working principles of Adwords, and points out the behavior that search engine service provider using others’ trademark as the keywords in Adwords is not direct infringement of trademark. Although search engine service providers supply others’ trademark as keyword for advertisers, and arrange advertisement displaying on the web page of searching results, it is not within the scope of "using trademark". And then the author analyses the correct understanding of the issue.The second chapter, on the basis of "Volkwagon.v.Baidu case" and "Nedfon.v.Google case" and "LV.v.Google case", raises issues that using others’ trademark as keywords may constitute indirect infringement of trademark. The chapter first analyzes the search engine service providers have no legal obligation of active supervision in providing Adwords service and search engine service provider should bear a reasonable subjective duty of care. Then the chapter clarifies the search engine service provider’ fault under the "Red Flag standards" and "notice and takedown" rules. Finally, the author comments the relevant cases on the court’s decision: in the judgment of "Volkwagon.v.Baidu case" the court mistakenly believed that Baidu has legal obligation of investigating the validity of keywords; and in "Green Wind - Google case" judgment, the court insisted on the correct point of view that search engine provide has no obligation of pre-examination; in "LV-Google case", EJC also considered that the search engine service provider has no obligation of active monitoring and put forward relevant circumstances and the applicable conditions of exemption.The conclusion part, according to analysis of the previous two chapters, the author sums up the two issues of how to correctly understand search engine service provider’ using other’s trademark as a keyword and how to identify the search engine service provider’s subjective duty of care.

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CLC: > Political, legal > Legal > Chinese law > China and France > Intellectual property rights > Trademark law
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