Civil Liability for Trademark Initial Interest Confusion to Keywords in US and Current Evaluation in Taiwan —Centering on Search Engine and Information Storage Service Provider

Civil Liability for Trademark Initial Interest Confusion to Keywords in US and Current Evaluation in Taiwan —Centering on Search Engine and Information Storage Service Provider

 

Title
Civil Liability for Trademark Initial Interest Confusion to Keywords in US and Current Evaluation in Taiwan —Centering on Search Engine and Information Storage Service Provider
Author
Fa-Chang Cheng
Keywords
Search Engine, Initial Interest Confusion, Keyword, Indirect
Torts Liability, Trademark Law
Abstract
The enormous data collection power in search engine providers and the tremendous
data storage power in information storage service providers arouse strong
concerns about initial interest confusion to trademark use among the trademark
owners. This article indicates that US judicial practice overreads the trademark use
to keyword search mechanism in search engine providers and storage service providers
as direct trademark infringement. This phenomenon not only tears down the
fundamental torts theory but also strikes the inappropriate balance between the protection
of trademark owners and the importance of Internet development. This article
concludes that the indirect torts liability would be the most appropriate solution
to resolve the trademark dispute for keywords initial confusion regarding search engine and information storage service if Taiwan follows the US experience. To get
through the transitional stage until reaching the ultimate indirect tort liability for
search engine providers and information storage providers, this article would suggest
that to set minimum behavior requirements through the enactment of the Electronic
Communications Act be the first step. With respect to implementing indirect
tort liability into Taiwan’s legal system, the author also conceives a tentative contributory
liability (induced infringement liability) provision to the Taiwan Trademark
Law, which is based upon the counterpart in the US legal system.
Abstract Article

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