Text/Jiang Lianer As a "post-90s elderly", the author has recently become confused about applications. One day, I originally wanted to download "Pinxixi" (purely fiction) in an app store, but the first search result shows another online shopping app!

text/Jiang Lianer

As a "post-90s elderly", the author has recently become confused about applications. One day, I originally wanted to download "Pinxixi" (purely fiction) in an app store, but the first search result shows another online shopping app! My first reaction was that I had typed a typo. However, when I looked closely, the words in the input box were correct, but there was a small line of words next to this search result that showed "advertising". What's going on? What legal issues are behind this?

It turns out that in addition to the natural ranking of search engines, there is also "bidding ranking". The so-called bidding ranking does not use the matching degree between keywords and search results as the standard for the results to be presented, but different operators freely bid for the ranking of their search results under specific keywords. The higher the bid, the operator can require the search engine platform to present the search results they specify to users in the order they specified. For example, when this search for "Pinxixi" was found, the top result showed that another online shopping app was the bidding ranking mechanism.

(Picture comes from the search results of a certain application market)

In recent years, with the booming development of e-commerce, operators have used competitors' brands/font sizes/trademarks (hereinafter collectively referred to as "competitor elements") as bidding ranking advertising services for keyword purchasing platforms, which has actually been common. Taking the use of keywords as an example, there are actually two types of bidding rankings: one is to directly use competitor elements in the title displayed in the search results or the linked website. For example, searching for "Pinxixi" in a certain degree, the first result is "Look for Pinxixi and come to Slash Yida.com". Click in but find that it is Slash Yida.com's homepage, which has nothing to do with Pinxixi - this is "explicit keyword placement". In practice, the act of explicit keyword delivery undoubtedly constitutes infringement. For example, in Tencent v. 4399 [(2016) Guangdong 0106 Minchu No. 17797] and Tencent v. Liujianfang [(2018) Jing 0108 Minchu No. 19830], the courts believed that the defendant's explicit keyword delivery behavior infringed on the plaintiff's exclusive right to the plaintiff's relevant trademark.

In addition, there is also an implicit keyword placement: that is, the title and link website displayed in the search results do not use competitor elements, but directly display the seller's own brand/font size/trademark. For example, searching for "Pinxixi" in a certain degree, the first result is directly displayed as "Zheyidawang". After clicking in, it is found that it is the homepage of Zheyidawang, and there are no elements of Zhexixi.

In practice, the court's referee caliber of implicit keyword delivery behavior does not seem to be unified. Next, the author will take you to briefly sort out these referee rules.

(Picture comes from the search results of a certain application market)

[Rules Summary]

1, constitutes trademark infringement : Use the reputation of the plaintiff's trademark for commercial purposes to attract consumers to visit their company's website, achieve the effect of promoting their company's products, and constitute trademark use; and damages the rights that the plaintiff should enjoy as the exclusive right holder of the trademark in order to create, use and maintain the trademark.

——Shanghai Meistech Ecological Technology Co., Ltd. v. Wuxi Angus Construction Technology Co., Ltd. infringement dispute case [ (2011) Su Zhimin Zhongzi No. 33]

2, constitutes unfair competition : The defendant seized the plaintiff's trading opportunities, reduced the economic benefits that the plaintiff should obtain for this trading opportunity, violated the principle of honesty and trustworthiness that should be followed in market competition , damaged the plaintiff's legitimate rights and interests, disrupted the normal market order, and constituted unfair competition.

— Beijing Paxingtianji Technology Development Co., Ltd. and Ledong Tianxia (Beijing) Sports Technology Co., Ltd. Unfair competition dispute case [(2019) Beijing 73 Minzhong No. 2991]

3, does not constitute trademark infringement, and constitutes unfair competition : The plaintiff's trademark logo does not appear in the defendant's promotion link and subsequent reposted web pages. The relevant public will not confuse and misidentify the source of the product, and does not constitute trademark infringement; but this behavior will inevitably enable the defendant to obtain the benefits of increasing access to the website by using the Internet users' understanding of the plaintiff and its products, which in turn squeezes out the plaintiff's market interests, reduces its competitive advantage, and constitutes unfair competition.

— Beijing Baidu Netxun Technology Co., Ltd. and Xinhui Jiangyu Information Industry Co., Ltd. Unfair competition dispute [(2018) Jingmin Rebirth No. 177]

4, does not constitute trademark infringement, does not constitute unfair competition : The defendant sets the plaintiff's trademark text as the promotion link keyword. The internal operation of the computer system does not directly display the word as a commercial logo to the public in the title, description or website page of its promotion link, and will not allow the public to identify it as a trademark that distinguishes the source of the goods and is not trademarked. The defendant's behavior did not cause the Internet users who searched for "plaintiff's trademark" information to mistakenly choose the defendant's service because they cannot find or find the plaintiff's website link in the search results or misidentify the defendant's services. Their behavior has not yet reached the level of violating the principle of honesty and trustworthiness and recognized business ethics, and has not caused actual damage to the plaintiff's legitimate rights and interests, and does not constitute unfair competition.

——A dispute case involving infringement of trademark rights between Chongqing Jinma Industrial Co., Ltd. and Beijing Baidu Netxun Technology Co., Ltd. and Nanjing Milan Zunrong Wedding Photography Co., Ltd. [(2017) Su Minshen No. 2676]

【Rules Detailed explanation]

1, constitutes trademark infringement : Use the reputation of the plaintiff's trademark for commercial purposes to attract consumers to visit their company's website, achieve the effect of promoting their company's products, and constitute trademark use; and damages the rights that the plaintiff should enjoy as the exclusive right holder of the trademark in order to create, use and maintain the trademark.

——Shanghai Meistech Ecological Technology Co., Ltd. v. Wuxi Angus Construction Technology Co., Ltd. infringement dispute case [ (2011) Su Zhimin Zhongzi No. 33]

Case summary: Plaintiff Meistech Company is the exclusive right holder of the "Mestech" trademark. Without obtaining the plaintiff's permission, the defendant Amgus Company purchased the bidding ranking service of the search engine " Google " by paying promotion fees, and used the four words "Mestech" as keywords for "select" so that when the public searched for the keyword "Mestech", the first entry found was "PHT optical hydrogen ion air purification device". The website under the entry finally pointed to was the website of Amgus Company.

Referee's opinion:

. Generally speaking, users who enter the keyword "Mestech" for a specific search are often consumers who have a certain understanding of the products or services identified by the "Mestech" trademark. Due to the infringement, the above-mentioned users have access to the website of Amgus, thereby increasing Amgus' trading opportunities. Angus Company uses the reputation of the Mestech trademark for commercial purposes to attract consumers to visit their company's websites and achieves the effect of promoting their company's products. Therefore, the alleged infringement in the case constitutes trademark use.

. The defendant's behavior objectively makes the relevant public mistakenly believe that the goods sold by Angus have specific connections with Mestech, causing confusion when selecting goods.Moreover, because the two companies sell similar products and face the same potential consumer groups, consumers who are willing to buy "Mestech" products enter the Amgus website when using "Mestech" for specific searches, which will inevitably seize the market share of Mestech, which will damage the rights that Mestech, as the exclusive right holder of "Mestech" trademark, should enjoy in creating, using and maintaining the trademark.

(Picture from the Internet)

2, constitutes unfair competition : The defendant seized the plaintiff's trading opportunities, reduced the economic benefits that the plaintiff should obtain for this trading opportunity, violated the principle of honesty and trustworthiness that should be followed in market competition, damaged the plaintiff's legitimate rights and interests, disrupted the normal market order, and constituted unfair competition.

——Unfair competition dispute case between Beijing Taxingtianji Technology Development Co., Ltd. and Ledong Tianxia (Beijing) Sports Technology Co., Ltd. [(2019) Beijing 73 Minzhong No. 2991]

Case summary: Taxingtianji Company enjoys the registered trademark of "Taixingtianji". The defendant Ledong Tianxia Company purchased a promotion service with the keyword "Traveling the Sky", which resulted in the search for the aforementioned keywords on Baidu . The second search result was "Gym Investment_Traditional Gym Intelligence_Small Input and Large Output". Click on this title and enter the Ledong Tianxia website.

referee's opinion:

. As an operating entity with the same region, industry and direct competitive relationship with the Tiaoxingtian Company, Ledong Tianxia Company should know the font size and trademark of Tiaoxingtian Company, but in order to promote its own business and website, "Tiaoxingtian" is set as Baidu promotion keyword, and subjectively, it obviously has the intention to cling to the goodwill of "Tiaoxingtian".

. Although the link title and description of the second search result do not include "Traveling the Sky" smart fitness product, some users who want to pay attention to "Traveling the Sky" smart fitness product will be confused about whether "Traveling the Sky" has a certain relationship with Ledong Tianxia Company after seeing the search result, and click the link to enter the Ledong Tianxia Company website to browse. Among these users, it is very likely that users will become users of Ledong Tianxia Company. Ledong Tianxia Company seized the trading opportunities of Tianji Company, reducing the economic benefits it deserves for this trading opportunity, violating the principle of honesty and trustworthiness that should be followed in market competition, and constitutes unfair competition behavior of .

(Picture from the Internet)

3, does not constitute trademark infringement and constitutes unfair competition : The plaintiff's trademark logo does not appear in the defendant's promotion link and subsequent reposted web pages. The relevant public will not confuse and misidentify the source of the product, and does not constitute trademark infringement; but this behavior will inevitably enable the defendant to obtain the benefits of increasing access to the website by using the Internet users' understanding of the plaintiff and its products, which in turn squeezes out the plaintiff's market interests, reduces its competitive advantage, and constitutes unfair competition.

——A dispute between Beijing Baidu Netxun Technology Co., Ltd. and Xinhui Jiangyu Information Industry Co., Ltd. and other unfair competition with Xinhui Jiangyu Information Industry Co., Ltd. [(2018) Jingmin Re-177]

Case summary: Xinhui Jiangyu Company registered trademarks such as "Jolimark", " Yingmei ". The defendant Epson Company purchased the bidding ranking service for Baidu Company for keywords, so that the above keywords are entered in the search bar. The first item of the search result is the defendant's promotion link, and the words "promotion" are displayed below. Click the result to enter the homepage of Epson Company.

Referee's opinion:

. During the above search engine bidding ranking process, the trademark logo that appears as keywords has not been affected, and the trademark logo of Xinhui Jiangyu Company does not appear in the promotion link of Epson and the subsequent redirected web pages. The relevant public will not confuse and misunderstand the product source.

. This behavior makes Internet users who want to search for Xinhui Jiangyu Company and its products through this keyword not only get the search results for Xinhui Jiangyu Company and its products they originally wanted, but also get the search results for Epson Company and its products. This behavior will inevitably allow Epson to obtain the benefits of increasing access to its website by using the Internet users' awareness of Xinhui Jiangyu Company and its products, which in turn squeezes out the market interests of Xinhui Jiangyu Company, reduces its competitive advantage, and constitutes unfair competition.

(Picture from "Yingmei" official WeChat)

4, does not constitute trademark infringement and does not constitute unfair competition : The defendant sets the plaintiff's trademark text as a promotion link keyword and operates internally in the computer system, and does not directly use the word as a commercial logo on the title, description of its promotion link or its website Displaying it to the public on the website page will not allow the public to identify it as a trademark that distinguishes the source of the goods and is not a trademark use; the defendant's behavior did not cause the online users who searched for "plaintiff's trademark" information to mistakenly choose the defendant's service because they cannot find or find the plaintiff's website link in the search results or are confused and misidentified by the defendant's services. Their behavior has not yet reached the level of violating the principle of honesty and trustworthiness and recognized business ethics, and has not caused actual damage to the plaintiff's legitimate rights and interests, and does not constitute unfair competition.

——A dispute case between Chongqing Jinma Industrial Co., Ltd. and Beijing Baidu Netxun Technology Co., Ltd. and Nanjing Milan Zunrong Wedding Photography Co., Ltd. infringement of trademark rights [(2017) Su Minshen No. 2676]

Case summary: Milan Company sets the text "Mrs. Jin" in the combination trademark involved in the case as a keyword for Baidu promotion service in the backend of the computer system, resulting in the first link in the search for "Mrs. Jin" is the official website of Mrs. Jin, and the third one is Milan Company. After clicking, the trademark is neither displayed to users as a commercial logo, nor does it have the words "Mrs. Jin" related to the word "Mrs. Jin".

Referee’s opinion:

. Ordinary Internet users can fully identify the difference between the plaintiff and the defendant based on their cognitive ability. Therefore, the setting of this keyword will not allow users to identify it as a trademark that distinguishes the source of goods or services, and does not belong to the trademark use in the sense of trademark law . After searching for "Mrs. Jin", the website link of Mrs. Jin's company is still displayed and ranked first, which has ensured the visibility of Mrs. Jin's website to consumers, and the promotion function of Mrs. Jin's company's trademark has not been affected.

. Although Milan Company uses the "Mrs. Jin" text in the trademark involved in Mrs. Jin's case as the keyword for the promotion link to increase the chances of its website and service advertisements appearing in search results, taking into account the specific circumstances of the promotion link it set, the characteristics of the keyword advertising market, and the cognitive level of the Internet users, its behavior has not yet reached a level that violates the principle of honesty and trustworthiness and recognized business ethics. The promotion link set up by Milan Company and its company website did not borrow the name of Mrs. Jin, nor did it cause the relevant public to confuse and misunderstand the source of the service. Its behavior did not constitute a use of Mrs. Jin's goodwill, and did not cause actual damage to Mrs. Jin's legal rights and interests. Its behavior did not constitute unfair competition.

(Picture from Baidu Encyclopedia)

It can be seen that in the early stages of the introductory keyword placement behavior, some plaintiffs filed lawsuits directly on the grounds of trademark infringement, and the court had different opinions on whether such behavior constitutes trademark infringement. Later, with the development of judicial practice, some plaintiffs would seek protection on the grounds of trademark infringement and unfair competition. The courts often believed that such behaviors did not constitute trademark infringement; but if the defendant's search results rank high and were higher than the plaintiff, it would mostly constitute unfair competition. In recent years, as such cases become more mature, most plaintiffs will choose to file a lawsuit directly on the grounds of unfair competition, and the courts often believe that it constitutes unfair competition.

Therefore, from the perspective of compliance, the risk of using competitor elements for implicit keywords is still relatively high. Even if it does not constitute trademark infringement, it may be considered unfair competition. In addition, from the perspective of users, under the fast-paced life, the "post-90s elderly" seem to prefer to obtain effective information "simple and rough" and excessive advertising will not only not be favored, but will even arouse users' disgust to a certain extent, which is really not worth the effort.

"Zhou Gongguanyu" is produced by an elite lawyer team led by Zhou Junwu, senior partner of Beijing Jincheng Tongda Law Firm.

Zhou Junwu's lawyer team is mainly engaged in legal business such as intellectual property rights and civil and commercial dispute resolution. He has extremely rich experience in many fields such as cultural entertainment, film and television games, and the Internet. He is one of the earliest and leading professional entertainment law teams in China.

The honors of lawyer Zhou Junwu include:

Chambers and Partners "Asia Pacific Legal Guide" "Media and Entertainment" field has been on the list for three consecutive years. Band 1 Lawyer (2020-2022)

"Asia Law Overview" (Asialaw Profiles) Asian leading legal lawyer list Excellent lawyers in the field of "Media and Entertainment" (2022-2023)

LEGALBAND Leading lawyers in the field of sports and entertainment in China (2014-2022)

"China's Outstanding Intellectual Property Lawyer TOP50" list lawyers (2021)

First Cultural and Entertainment Rule of Law Selection "Outstanding Entertainment Lawyer" (2020)

Tonsen Reuters ALB China's Top 15 Litigation Lawyers (2019)

Thomson Reuters ALB China's Top 15 TMT Lawyers (2019)

Excellent Lawyers in the Entertainment and Sports Field Recommended by Commercial Law (2016)

Excellent Intellectual Property Lawyers in Beijing (2013)

[Disclaimer] The content of this article belongs to the author's personal opinion and does not represent the legal opinions of Beijing Jincheng Tongda Law Firm on related issues. If you need legal advice or expert consultation, please seek targeted answers from professional qualifications

(Editor: Yang Yunfan)