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Ad partThe issue of trademark infringement and unfair competition is not…

- - - - SE
        
        關鍵字中
        
        美國早中晚見解
        
        1-800 product placement
        
        Rescuecom-use in commerce
        
        initial condusion
        
        Functionality：功能性原則：Rosetta Stone Ltd. v. Google, Inc.
        
        歐洲見解
      - 廣告主
        
        關鍵字中
        
        肯定：因為使用者大部分都知道是商標才會去GOOGLE
        
        否定：不會有使用者認為是商標（ internet user hard to recongonize that the keywords is use as TM
        the vital decidsion is ''the consumer (internet user) conciousenus
        
        廣告文案中
      - Ebay
        
        歐洲見解
    - - 共同侵權
      - 主要侵權
      - 幫助侵權
  - - - 法條
        
        by the 15 U.S.C. 1114 (SECTION 32 OF THE LANHAM ACT): REMEDIES; INFRINGEMENT; INNOCENT INFRINGEMENT BY PRINTERS AND PUBLISHERS, which can divided into four element:
        
        That they own the valid mark which means the plaintiff's trademark should valid and be protected by the USA federal trademark Act.
        
        Defendant used the mark in commerce and without the Plaintiff's authorization which means the Defendant did not obtain the consent by the trademark owner
        
        Defendant used the mark (or an imitation of it) "in connection with the sale, distribution, or advertising" of goods or services.
        
        Defendant's use of the mark is likely to confuse consumers which means the use of the sign makes the likelihood of confusion and make the associated by the consumer
        
        Rosetta Stone v. Google, 676 F.3d 144 (4th Cir. 2012).
      - 定義
        
        The Lanham Act (also refer as US Trademark) regulate the ''use in commerce'' as a requirement which has been effective for 70 years. it applies to the trademark applications based on use in commerce and offers to the court or the administrative organization such as USPTO the evidence that proves the intention and uses in commerce.in order to reach the requirement of the statute, the use shall be with bona fide and in the normal course of the trade.the interpretation of ''use in commerce'' may differ when are called upon to file proof of such use the goods and service, but show the sign in an active way.in the aspect of goods, a mark or sign is affixed to the merchandise and such goods are sold in the transaction or transport in commerce, while in the service when the mark or sign is used in describing the services or provided as a promotional material. both of them shall let the consumer recongnize that is the trademark
        
        https://www.inta.org/INTABulletin/Pages/Defining_Use_in_Interstate_Commerce_7117.aspx
        
        Section 45 of the Trademark Act defines "use in commerce" as a bona fide use of a trademark in the ordinary course of trade. If the mark is used with goods it will be deemed to be used in commerce when the mark is placed on the goods, on the containers of the goods, displays associated with the goods, or on the tags or labels, and if the nature of the goods makes the placement of the mark impracticable, then on documents associated with the goods or its sale. In addition, the goods must be sold or transported in commerce.Regarding services, there must be use of the trademark in connection with the sale or advertising of the services and the services are rendered in commerce. Offering services via the Internet has been held to constitute use in commerce because the services are made available to consumers on a national or international level. An applicant is not required to specify the type of commerce in which the trademark is used in its application.Another important point is that use in commerce must be lawful use. Without lawful use a party cannot establish trademark priority. See CreAgri, Inc. v. USANA Health Sciences, Inc., 474 F.3d 626, 81 U.S.P.Q.2d 1592 (9th Cir. 2007), where the plaintiff was not able to establish priority rights because he failed to comply with labeling requirements of the Food, Drug, and Cosmetic Act. See also In re Midwest Tennis & Track Co., 29 U.S.P.Q.2d 1386, 1993 WL 562977 (TTAB 1993).Moreover, use in commerce will be interpreted with flexibility to account for different industries' practices which may include less traditional uses such as infrequent sales of large or expensive items, test market sales, or ongoing shipments of a new drug to clinical investigators by a company awaiting FDA approval. If a third party is looking to attack a party's use of the mark, often it will be alleged that the use is "token" use, not genuine trademark use, or that the use was de minimis and non commercial in nature. It is clear that the meaning of "use in the ordinary course of trade" will vary from one industry to another.
        
        https://www.ny-trademark-lawyer.com/for-the-purposes-of-trademark-law-what-is-use-in-commerce.html
        
        Use in commerce’ may have different meanings with regards to liability than it does with regards to gaining rights for registration. See Rescuecom Corp. v. Google Inc., 562 F. 3d 123 (2nd Cir. 2009). A restrictive definition of "use in commerce" as set forth in §45 defines standards of qualification for an owner to register a mark and receive the benefits and protection of the Trademark Act. These standards are not the same definitions as used for determining liability.
        
        http://trademarkregisterfaq.com/useincommerce.html
    - - 肯定說（前提說）：法條文義解釋＋一定要符合商標法規定的使用
        
        A Search-Costs Theory Dogan, Stacey L. and Lemley, Mark A., A Search-Costs Theory of Limiting Doctrines in Trademark Law. Trademark Reporter, Vol. 97, No. 6, November-December 2007; Stanford Public Law Working Paper No. 977320. Available at SSRN: https://ssrn.com/abstract=977320
        
        some trademark defenses unambiguously lower consumer search costs and thus promote the goals of trademark law.
        
        A Search-Costs Theory of Limiting Doctrines in Trademark Law- Only when individuals or companies use trademarks to promote their products or services, they have the motivation to make confusion and interference to the consumers by the trademarks. Only such "use" should be prohibited by trademark law
        
        把關
      - 否定說（混淆就算說）：：僵化思考＋合理使用的抗辯基礎在哪＋使用應該勾稽於消費者＋增加法無明文限制＋如果結果是有混淆誤認之虞，則商標使用已在其中＝侵權使用僅要求最低限度使用＋商標使用的認定亦應與消費者因誤導作成購買決定相連結＋\商標侵害法理在數為時代的質變以商標使用與初始興趣混淆為基點反省與檢討 \沈宗輪
        
        （一）mccarthy ：商標從未明確要求「當作商標使用」為侵權行為的要件→超越文義解釋，作出法無明文的限制
        
        （二）如果採前提說，那只要「沒有使用」就沒有侵權，那為何還有「合理使用」的抗辯？“Trademarks and Unfair Competition: Law and Policy, 4th Edition.” ProtoView, vol. 1, no. 18, 2014, pp. ProtoView, Vol.1(18).
        
        （三）美國絕大多數都是認定為商標使用，混淆誤認才是重點，，，把商標使用變成決定性因素不能貼近市場情況；
        
        應該跳脫形式討論，直接進行商標侵權的實質判斷，
        
        （四）美國商標法的商標使用不包含「使用人需有表彰自己之商品或服務來源之意思」，因此未表彰＝不構成商品使用是不正確的
        
        淺談維權使用與侵權使用的不同：
        
        維權使用：真實使用的事實＋表彰自己商品或服務來源
        
        侵權使用 70二三款：近似混淆誤認等等＋不需要表彰
  - - - MC arguing that the doctrine does not exist, and that likelihood of confusion is the only requirement for infrigement
- - - - P.163
        
        it appears to be the most relevant search result and not an advertisement.what Res alleges is that by the manner of Google display of sponsored links of competing brands in response to a
        search for res brand name,google creates a likelihood of consumer confusion as to tm,the searcher is likely believe mistakenly that the different name which appears is affiliate with the brand name sought in the search and will not suspect, cuz the fact is not adequately
        signaled by google presentation, that this is not the most relevant response to the seach