Discussion on the Infringement of Keyword Advertising

Keywords play a leading role to business websites.  In order to increase website clicks, sometimes enterprises would purchase trademarks orphrases / words related to their business as keyword advertising.

Keyword adverting could be divided into two types, “natural keyword” and “keyword insertion”.  The“natural keyword” one, is to set up keywords to trigger advertisements to pop out, but those keywords are not used in the content of those popped out advertisements.

On the other hand, the “keyword insertion” one not only trigger the advertisement to pop out by searching those keywords, but it could also insert those keywords to the advertisements titles and make keywords connected to advertisements more closely. u   

The “natural keyword” only provides the ability toset up keywords to trigger advertisements to pop out, but those keywords are not used in the content of those title or content of those popped out advertisements.

For instance, the following is an example of “keyword insertion” cited from Google:

Regarding “natural keyword” search result, if the user entered the key phrase “Probiotics” in Google toolbar, one of the examples will be as follows:

As to whether the use of a competitor’s trademark in keyword advertising constitutes trademark infringement,  our court decisions are as follows:      

1. The court held that in the “keyword insertion” advisement, the enterprise and the advertiser not only set up keywords to trigger the advertisement, but also use the keyword insertion function provided by searching engines, such usage was obvious for marketing purpose of its goods or services on the Internet, not just the internal use as a keyword to trigger the advertisement.  Therefore, “keyword insertion” advertising constitutes an act of trademark infringement, and is an unfair competition which violates the Fair Trade Law. 
2. The court held that in the “natural keyword research”, the search term was entered by Internet users, thus this is not an action of using the trademark for promoting goods and services by  the searching engine provider, the enterprise and the advertiser.  The keyword trademark was not showed on the linked webpage.  Therefore, the searching engine provider’s program command for web linking should not be regarded as the use of trademark, and no confusion is caused.  But, it is a controversial issue as to whether natural keyword search constitutes unfair competition. 

As to this subject under our practice, it remains to be seen the further decisions of court.