Judicial Determination Of "Recessive Use" Of Others’ Commercial Identifies In Bidding Ranks

More and more people use the search engines and the Internet information search technology to obtain more information,which means that people have more choices in obtaining information.The expansion of the market and the continuous progress of search engine technology make this neutral technology as the fundamental formation of a set of perfect bidding ranking business model.The actor through the purchase of bidding ranking service,set up keywords,improve the probability of its enterprise to be searched.In this process,in order to be searched by more potential consumers,the actor sets the commercial logo of others as a keyword to attract the attention of potential consumers and obtain more business transaction opportunities.When a consumer searches with someone else’s business logo,a link to a business that buys a bid ranking service actor appears.Confusion among consumers can be caused by the use of other people’s commercial marks,which should be regulated through Article 6 of the Trademark Law or the Anti-Unfair Competition Law.However,some scholars believe that the implicit use behavior that does not cause confusion is beneficial to the rights and interests of consumers,promotes market competition,and does not constitute unfair competition.In judicial judgments,the court usually makes reasoning based on general provisions,judging whether the defendant’s behavior constitutes unfair competition from the perspective of whether the defendant’s behavior violates the principle of good faith and business ethics and is unfair.However,there is no uniform standard for the court’s judgment result.Because this kind of behavior can indeed improve the welfare of consumers,and bring more business opportunities to the doer,but it will damage the interests of the owners of commercial signs,there is a dilemma.In this process,the court generally considers that the platform is not responsible for its helping behavior.However,with the determination of the nature of the bidding ranking as advertising in the E-commerce Law,the college will re-examine the auditing obligation and responsibility of the platform.Based on applied research methods and comprehensive access to legal literature,this paper analyzes whether such implicit use of other people’s commercial logos constitutes unfair competition and whether the platform bears responsibility.The structure is as follows:The first part is the introduction.The research purpose and significance of this study,literature review,content and method of this paper are included in the first part;The second part mainly briefly introduces the case as well as the focus of the dispute.The case is introduced via referring to the relative cases,so as to conclude and summarize the focus of the dispute of the case: whether the implicit use of others’ commercial marks in the bidding ranking constitutes unfair competition and whether the platform should bear the responsibility;The third part first introduces the definition and function of commercial logo.It’s found that this article belongs to the implicit use of other people’s commercial logo and it does not cause confusion.Therefore,it is believed that this article is not applicable to Article 6 of Trademark Law or Anti-Unfair Competition Law.Secondly,according to the general terms of the Anti-Unfair Competition Law,the behavior in this case is unfair.Meanwhile,after weighing the value rank of rights and interests of consumers,rights of operators and market order,it is evaluated and analyzed that unfair competition lies in this case.Finally,by combining the Electronic Commerce Law with the Advertising Law,the legal nature of the bidding ranking is clarified as advertising,and clarifies the obligation of the platform form review;The fourth part mainly puts forward some suggestions on the reasonable application of the general terms of the Anti-Unfair Competition Law and the audit obligation of optimizing the platform.