China: 不满天猫不当设置关键词,网易向天猫提出1000 万索赔(不正当竞争案件)

Last Updated: 4 May 2018
Article by HFG Law Firm

(图片来源于网络)

近日,海淀法院发布消息称,其已经受理网易公 司(原告, NASDAQ: NTES)诉天猫公司(被告, 中国最大的B2C 购物网站)的反不正当竞争纠纷案 件。原告网易公司认为,天猫公司在360 搜索引擎中 设置与惠惠及惠惠购物助手相关关键词的行为,使网 络用户对于服务来源极易产生混淆和误认,影响了其 运营模式,造成了巨额经济损失。被告天猫公司应对 上述侵权行为应承担立即停止侵权、赔礼道歉、赔偿 经济损失1000 万元的法律责任。

原告网易公司为惠惠网站及惠惠购物助手软件 的运营主体,惠惠网站及惠惠购物助手软件主要为消 费者提供导购的服务,内容包括向消费者提供电商平 台商品的历史价格信息和全网比价信息。原告使用 360 搜索引擎时发现,输入"惠惠"及"惠惠助手" 等关键词,检索显示的结果并没有将惠惠网相关的链 接放于优先位置,而是天猫网的相关链接。

原告网易公司认为,被告天猫公司在360 搜索中 设定"惠惠"相关搜索关键词的行为属于不正当竞争。 一方面,天猫公司的上述行为设置的关键词包含网易 公司拥有的惠惠商标名称、网站名称、软件名称,混 淆了惠惠商标、网站、惠惠助手软件与天猫网站的关 系,使网络用户对于服务来源极易产生混淆和误认, 从而点击相关链接跳转至天猫网站。另一方面,天猫 公司明知惠惠名称与其无关,却使用有关惠惠的关键 词参与360 竞价排名推广,系未经网易公司许可利用 惠惠品牌的知名度与美誉度以及庞大的用户基础提 升自己曝光度,达到为自己网站进行导流的目的,谋 取不正当利益。惠惠网站作为导购网站,与多个电商 平台存在CPS 广告分成,天猫网的上述行为将本属 于惠惠网站的用户流量劫持到天猫网站,使得惠惠网 站无法通过用户点击取得广告分成,从根本上影响了 网易公司的运营模式,降低了惠惠网站及惠惠软件的 用户粘性,构成对网易公司合法经营行为的不当滋扰, 其行为违反了《反不正当竞争法》

HFG 评论】

近期竞价排名纠纷案件频发。HFG 主任律师李蕾(LannyLEE)介绍,在司法实践中,涉及使用他人注册 商标或者企业字号作为搜索引擎关键词的案例主要从侵犯注册商标权或者反不正当竞争两个方面

一般而言,竞价排名构成不正当竞争行为,根据目前的司法实践,主要包含以下四个要件:a)原、被告属 于同业竞争对手;b)侵权人有将包含与权利人涉案商标相同的文字、字母设置为搜索关键词的主观故意;c) 侵权人告的行为确实改变了百度搜索的结果;d)侵权人提出其对注册商标要素正当使用的抗辩不能成立。

如果侵权人提供的商品或服务,与权利人的注册商标所核准的服务构成类似商品或者服务,则构成商标侵 权行为。需要补充说明的是,2016 年4 月,北京市高级人民法院发布《涉及网络知识产权案件审理指南》, 其中第39 条规定:" 搜索引擎服务提供者提供的竞价排名服务,属信息检索服务"。

本案中原告网易公司为惠惠网站及惠惠购物助手软件的运营主体,曾经在35 类上申请文字商标"惠惠", 但并未获得核准。其采用不正当竞争作为案由提起诉讼,可能也是唯一的途径。目前,本案正在进一步审理中。

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