关键词推广商标侵权问题研究——以关键词推广服务提供者的义务为中心

Study of Trademark Infringement in Key Words Promotion——Specially focus on key words promoter’s obligation

近年来,关键词推广所导致的商标侵权问题是网络商标领域的高发问题,同时该问题在学术界和司法实务上也面临很多争议。通过考察国内外司法判例和关键词推广服务提供者企业的商标政策,可以对关键词推广服务提供者在商标侵权方面的义务归纳为:关键词推广服务提供者不负有审查关键词是否侵犯他人商标的义务,但负有相关注意义务。从注意义务的范围来看,其对商标在关键词推广系统内部的使用不负注意义务;对商标在搜索结果页面中推广信息中的呈现,服务提供者应以一般理性人的标准,尽合理的注意义务,在明知或者应知关键词的外部呈现会侵犯他人商标权时,应及时采取措施,停止侵权。同时,其应提供便捷的投诉渠道,供权利人发出侵权通知。

Recent years, trademark infringement problem which was brought by using key words promotion has become a multiple and high rate incident. Many disputes on this issue have been shown both in the academic and in the judicial practice. Through the systematic review of domestic and international judicial precedents,we can draw a conclusion that key words service providers should burden obligation on the trademark infringement like:service providers are generally considered that they needn’t take any duty to review whether their keyword infringes other’s trademark rights or not. But,they owe a duty to pay their attention to them appropriately. On the other hand,as for the range of the duty of care,however,it is usually considered that they will not exist within the key word promotion by using system. Despite this,service provider should regard himself as a Reasonable Person who did and burden his duty correspondingly. Besides,timely measures should be taken to stop the infringement when the problem of some external presentation of keyword’s infringement happened. In this case,convenient channels should be provided to guarantee the notice be issued for the right holders simultaneously.