关键词广告中的商标侵权行为认定
发布时间：2018-12-06 08:45
【摘要】：关键词广告屡遭非议,其争议主要集中在三方面：因关键词的不当选择和使用造成的商标侵权纠纷；因恶意点击造成的恶意侵权；及因使用不实信息造成的诚信纠纷。本文将着重对其中的商标侵权进行讨论,后两者不做赘述。下文将主要从三部分讨论关键词广告中的商标侵权行为。第一部分,关键词广告引发的争议概述。本部分主要对关键词广告商标侵权中涉及的基本内容进行区分界定和简要介绍。主要涉及关键词广告的概念及其专有名词的解释,关键词广告的简要发展史,此类特殊商标侵权中涉及到的三方主体的界定等等；明确关键词广告中存在的主要争议,即主体方面的争议,适用法律的争议及各方之间存在的利益纷争和利益平衡,并对其作出讨论；第二部分,关键词广告中的商标侵权行为分析。本部分是本文讨论的重点。通过分析借鉴英美法国家已有的规定及案例,从我国现存的法律条文和案例出发,探讨关键词广告中商标侵权的构成要件及其特殊之处。重点讨论商标使用和混淆两大构成要件的成立条件和适用途径。因此类商标侵权各国无论是法律规定还是现实案例,无论是早期还是如今都存在较大争议,故本文在进行实际案例讨论时,将以前述两个构成要件为主要判断基准,同时参考其他相关因素,如实际混淆,侵权人的主观状态,商标的知名度等,并对其举证方式进行探究,以期最大程度上做到具体问题具体分析。在讨论上述构成要件的基础上,剖析关键词广告购买者和搜索引擎商的行为并对其进行定性分析；第三部分,关键词广告中的商标侵权责任承担。本部分主要讨论当搜索引擎商和关键词购买者成立商标侵权时,其责任承担和划分方式；及我国是否存在知识产权间接侵权的规定；其应承担连带责任还是按份责任,按份责任的划分标准及相关归责原则的适用等。在上述讨论基础上,对互联网引擎商常引用的免责事由和原则进行罗列,并分析其各自适用的前提条件。其中,重点讨论避风港原则和技术中立原则,另外商标法对商标专用权的限制如合理使用等也会提及。最后,在对主要问题进行讨论的同时,有鉴于关键词广告的有益一面,其发展态势及在短时间内难以改变的现状,讨论目前已具备的客观救济途径,并结合之前的案例,对关键词广告中涉及到的三方主体分别提出相应的建议,以期在现有的法律框架和救援途径的基础上,倡导其从自身出发做出相应改变,净化网络环境,维持网络秩序,实现网络市场中的公平正义。
[Abstract]:Keywords are frequently criticized, and the disputes mainly focus on three aspects: trademark infringement disputes caused by improper choice and use of keywords; malicious infringement caused by malicious clicks; and credibility disputes caused by the use of false information. This article will focus on the trademark infringement, the latter two do not elaborate. Below will discuss the trademark infringement in the keyword advertisement mainly from three parts. The first part is an overview of the controversy caused by keyword advertising. This part mainly defines and briefly introduces the basic content involved in keyword advertising trademark infringement. It mainly involves the concept of keyword advertising and the explanation of proper nouns, the brief history of keyword advertising, the definition of the tripartite subject involved in the infringement of this kind of special trademark, and so on. Make clear the main dispute in the keyword advertisement, namely the dispute of the subject, the dispute of the applicable law, the interest dispute and the balance of interests between the parties, and make a discussion on it; The second part is the analysis of trademark infringement in keyword advertisement. This part is the focus of this paper. By analyzing the existing regulations and cases of Anglo-American countries and proceeding from the existing legal provisions and cases in our country, this paper probes into the constitutive elements and special points of trademark infringement in keyword advertisements. This paper mainly discusses the establishment conditions and applicable ways of the two constitutive elements of trademark use and confusion. No matter whether the law or the actual cases exist in this kind of trademark infringement countries, whether in the early stage or now, this paper will take the above two elements as the main criterion when discussing the actual cases. At the same time, reference to other relevant factors, such as actual confusion, the subjective state of the infringer, trademark popularity and so on, and explore the way of proof, in order to maximize the specific problem specific analysis. On the basis of discussing the above elements, this paper analyzes and qualitatively analyzes the behavior of keyword buyers and search engines. The third part, the liability of trademark infringement in keyword advertising. This part mainly discusses whether there is indirect infringement of intellectual property right in our country, when the search engine and keyword buyer establish trademark infringement, its responsibility is assumed and divided. Should it undertake joint and several liability or according to the share liability, according to the division of responsibility standards and the application of the relevant principles of liability and so on. On the basis of the above discussion, the exonerations and principles often cited by Internet engine operators are listed, and their respective applicable preconditions are analyzed. Among them, the principle of safe haven and the principle of technology neutrality are mainly discussed, and the restrictions of trademark law on the exclusive right of trademark, such as reasonable use, will also be mentioned. Finally, while discussing the main problems, in view of the beneficial side of keyword advertising, its development situation and the current situation which is difficult to change in a short period of time, the paper discusses the existing objective relief ways, and combines with previous cases. The corresponding suggestions are put forward to the three parties involved in the keyword advertisement, in order to advocate their corresponding changes from their own point of view, purify the network environment and maintain the network order on the basis of the existing legal framework and rescue approaches. To achieve fairness and justice in the network market.
【学位授予单位】：北京外国语大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.43
，
本文编号：2365769
[Abstract]:Keywords are frequently criticized, and the disputes mainly focus on three aspects: trademark infringement disputes caused by improper choice and use of keywords; malicious infringement caused by malicious clicks; and credibility disputes caused by the use of false information. This article will focus on the trademark infringement, the latter two do not elaborate. Below will discuss the trademark infringement in the keyword advertisement mainly from three parts. The first part is an overview of the controversy caused by keyword advertising. This part mainly defines and briefly introduces the basic content involved in keyword advertising trademark infringement. It mainly involves the concept of keyword advertising and the explanation of proper nouns, the brief history of keyword advertising, the definition of the tripartite subject involved in the infringement of this kind of special trademark, and so on. Make clear the main dispute in the keyword advertisement, namely the dispute of the subject, the dispute of the applicable law, the interest dispute and the balance of interests between the parties, and make a discussion on it; The second part is the analysis of trademark infringement in keyword advertisement. This part is the focus of this paper. By analyzing the existing regulations and cases of Anglo-American countries and proceeding from the existing legal provisions and cases in our country, this paper probes into the constitutive elements and special points of trademark infringement in keyword advertisements. This paper mainly discusses the establishment conditions and applicable ways of the two constitutive elements of trademark use and confusion. No matter whether the law or the actual cases exist in this kind of trademark infringement countries, whether in the early stage or now, this paper will take the above two elements as the main criterion when discussing the actual cases. At the same time, reference to other relevant factors, such as actual confusion, the subjective state of the infringer, trademark popularity and so on, and explore the way of proof, in order to maximize the specific problem specific analysis. On the basis of discussing the above elements, this paper analyzes and qualitatively analyzes the behavior of keyword buyers and search engines. The third part, the liability of trademark infringement in keyword advertising. This part mainly discusses whether there is indirect infringement of intellectual property right in our country, when the search engine and keyword buyer establish trademark infringement, its responsibility is assumed and divided. Should it undertake joint and several liability or according to the share liability, according to the division of responsibility standards and the application of the relevant principles of liability and so on. On the basis of the above discussion, the exonerations and principles often cited by Internet engine operators are listed, and their respective applicable preconditions are analyzed. Among them, the principle of safe haven and the principle of technology neutrality are mainly discussed, and the restrictions of trademark law on the exclusive right of trademark, such as reasonable use, will also be mentioned. Finally, while discussing the main problems, in view of the beneficial side of keyword advertising, its development situation and the current situation which is difficult to change in a short period of time, the paper discusses the existing objective relief ways, and combines with previous cases. The corresponding suggestions are put forward to the three parties involved in the keyword advertisement, in order to advocate their corresponding changes from their own point of view, purify the network environment and maintain the network order on the basis of the existing legal framework and rescue approaches. To achieve fairness and justice in the network market.
【学位授予单位】：北京外国语大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.43
，
本文编号：2365769
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