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Infringe on trademark right of Keyword Search advertisement

Inhoi Park 1,  Shin， Mi-Ri 2

1명지대학교
2특허법인 아이퍼스

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이 논문은 동아대학교 법학연구소 연구윤리위원회 회의 최종판정(2020.02.15.) 결과 연구부정행위(부당한 저자표시, 표절)가 확인되어 게재가 취소된 논문임.

ABSTRACT

Keyword search advertising is a kind of online advertising, which is an advertisement technique that allows an advertiser who has contracted with a search service provider to be exposed on a screen where search results are displayed when a search word is entered in a search engine of a search site. These keyword search ads are targeted advertisements, so they are only exposed to those who are interested in them. Also, for this reason, when the advertiser uses a specific trademark as a keyword, the keyword searcher is in conflict with the trademark owner and infringes the trademark right. By comparison, the United States states in the US federal trademark law article 45 that what is included in the “commercial use” of a trademark is important, so it is important whether this is a “commercial use” under Article 45 when discussing trademark infringement. In accordance with Article 32(1)(a) of the US Federal Trade Act, the provisions of Article 43(a) and (C) of the Act provide for the misrepresentation of origin And the unfair competition and dilution caused by the infringement of the establishment is recognized. The theory of whether these keyword search ads infringe the trademark is that the confusion can be caused when the provider attracts the consumer due to the special environment of the Internet. When discussing the initial interest confusion doctrine and trademark infringement Trademark use theory, which claims that there must be ‘use of trademarks’ consistent with the definition of ‘trade use’ as laid down in the federal trademark law, as a precondition for trademark infringement before judging the existence of confusion or dilution. As a result, both sides have in common that the notion of ‘trademark use’ in the current trademark law is not appropriate to cover the meaning of ‘trademark use’ in the current market situation of the internet market. If the behavior of keyword search ad is affirmed against trademark infringement, the problem of responsibility of search service provider and advertiser that can be considered as the subject of the action corresponds to the problem to be solved. In order to solve this problem, it is necessary to make clear definition rules and the responsibilities of service providers to reflect the fact that online advertising such as keyword search ads related to trademarks are easily confused with consumers and that search service providers have a great influence. It would be desirable to establish regulations on exemption.

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