| Invisible usage of others’ commercial signs for paid listing means that others’ commercial signs are only used as keywords for searching,but link titles and web page contents do not contain them at all.This kind of behavior does not constitute a trademark use,nor is it an unfair competition act specified in Law of the People’s Republic of China against Unfair Competition.Consequently,it can only be judged according to the general terms of the law against unfair competition,but there are still many disputes and problems in the application of the general provisions.Divergence about damage and failure to judge whether this business model violates the principle of good faith are the most prominent ones.The application of the general provisions requires three elements: business operator,damage and unfairness.Actually,the damage caused by invisible usage can be regarded as pure economic loss.However,the loss in competition is neutral,and the key to legality is whether the competition act is unfair.In terms of the determination of unfairness,the two-sidedness of competition and multi-benefit structure make it necessary to measure interest,which is the ideal choice to realize the legislative purposes.First,it can be concluded that implicit use enables consumers to enjoy information advantages and diverse choices at a minimal cost.Second,even if this model will reduce business opportunities for business logo owners,it also has a benefit-filling effect.Third,implicit use will make competition more fierce,prompting operators to work harder to improve product quality and reputation,which will create a more viable competitive state.In addition to benefit measurement,from the perspective of system interpretation,it can be found that the provision about unfair competition in the Internet emphasize "maliciousness" of competitors.Specifically,the subjective state of implicit use is to seize business opportunities and irrelevant to maliciousness.In summary,unfairness cannot be established in implicit use,and therefore this behavior does not constitute unfair competition. |
