In the context of the deep integration of digital economy and market competition, setting commercial identifiers as search keywords has become an important business strategy for operators to compete for online traffic, enhance brand exposure, and gain competitive advantages. However, with the increasing commercial value of keywords, it has also given rise to the phenomenon of “keyword hijacking”—using others’ commercial identifiers without authorization to seize commercial opportunities by “free-riding” and “piggybacking” on the fame of other brands. This new type of unfair competition act mainly manifests in the following ways: purchasing others’ commercial identifiers as keywords for bidding ranking in search engines to promote one’s own links to the top; adding others’ commercial identifiers or product names to one’s own product titles on e-commerce platforms to divert traffic; and using others’ commercial identifiers as promotional tags for opportunistic marketing of one’s own content on social media/short video platforms, etc.
To curb such improper practices, Article 7(2) of the Anti-Unfair Competition Law as revised in 2025 explicitly includes acts of “unauthorized… setting another person’s product name, enterprise name (including its abbreviation or trade name), registered trademark, or unregistered well-known trademark as a search keyword, thereby misleading others into believing that their goods are the goods of another person or that they have a specific connection with another person” as a confusing conduct, thereby providing clearer legal basis for the application of law to such conduct. This article will, in combination with the law revision and recent judicial practices in regulating keyword hijacking, offer some practical suggestions for the right protection for enterprises.
Judicial Practice: “Visible Use” and “Invisible Use” of Keywords
Prior to the 2025 revision, confusing conduct were primarily prescribed in Article 6 of the Anti-Unfair Competition Law, covering unauthorized use of others’ “static identifiers” with certain fame, including product names and decorations, enterprise names, domain names, etc.. To regulate keyword setting behaviors, courts mainly applied the provision of “other confusing conduct that sufficiently mislead others into believing that their goods are those of another person or that they have a specific connection with another person” in Article 6 through expansive interpretation in judicial practice. In practice, keyword setting behaviors are categorized into “visible use” and “invisible use.” In the case of “visible use,” public searches for relevant keywords triggers the direct display of links or advertising content containing the keywords, which constitutes a relatively clear use of a commercial identifier. Therefore, there is a general consensus among courts at all levels in applying Article 6 of the Anti-Unfair Competition Law to regulate “visible use.”
In the case of “invisible use,” however, the keyword is only set in the back-end and is not displayed in the links or advertising content presented to the relevant public. There is controversy over the determination of such acts. Some courts hold that, if the promotional content does not display a specific keyword, the relevant public will not perceive the keyword and will not associate it with the goods or services provided by the advertiser. Therefore, such use will not cause confusion and does not constitute a confusing conduct[1]. However, some courts, after taking into account factors such as the specific form presented on the front-end search results page, the similarity and relevance of the goods/services provided by both parties, and the subjective malice of the actor, believe that “invisible use” may also mislead the relevant public into perceiving a specific connection between the sources of goods/services or the business entities, thereby constituting a confusing conduct[2]. It is worth noting, however, that even if “invisible use” falls short of constitute a confusing conduct, it may still violate the principles of good faith and commercial ethics established in Article 2 of the Anti-Unfair Competition Law, and thus still be deemed an act of unfair competition.
The enactment of the 2025 revision has, to a certain extent, put an end to the controversy over whether “invisible use” can constitute a confusing act. The revised provision makes no distinction between “visible use” and “invisible use” of keywords, but instead establishes a unified regulatory standard based on whether the conduct “misleads others into believing that their goods are the goods of another person or that they have a specific connection with another person.” This approach focuses on the impact of confusing conduct on consumers’ perceptions and decision-making.
In judicial practice, the key review points for infringement cases involving keyword hijacking mainly include:
l Determination of Confusing Conduct: In judicial practice, it is not required to prove that actual confusion has occurred. Instead, the courts determine whether there is a “likelihood of confusion” by comprehensively considering the following factors, including:
(1) Distinctiveness of the relevant commercial identifier: The relevant commercial identifier should possess distinctiveness and be capable of identifying the source of goods/service.
(2) Similarity between the keyword and the commercial identifier: In judicial practice, the principles and methods for determining the similarity of trademarks are usually referred to by courts when comparing the relevant keyword and commercial identifier as a whole, in their essential parts, and in isolation.
(3) Market recognition and fame of the relevant commercial identifier: In judicial practice, whether the relevant commercial identifier has certain fame is an important basis for determining the likelihood of confusion. Confusion is more likely to occur when the relevant public has a certain level of perception and recognition over the relevant commercial identifier. To prove the popularity of their commercial identifiers, rights holders need to provide evidence such as advertising and promotion materials, sales data, awards and honors, media coverage, and the perception of the relevant public.
(4) Subjective intent of the actor: If the actor has the intent to maliciously imitate or free-ride on another’s goodwill, it may substantiate a finding of likelihood of confusion. In contrast, if the actor was unaware and should not have been aware of another’s commercial identifier, it may weigh against a finding of likelihood of confusion.
l Subject of Infringement Liability: The revised Article 7(3) of the Anti-Unfair Competition Law further explicitly stipulates that “a business operator shall not aid others in committing confusing conduct.” Therefore, in keyword hijacking infringement cases, in addition to advertisers who directly set keywords, platforms or technical service providers may also be found liable if they engage in acts such as proactively pushing infringing keywords to advertisers through intelligent expansion via back-end algorithms, or neglect their reasonable obligation to filter obviously infringing keywords.
l Legal Liability: In keyword hijacking infringement cases, courts typically order the infringer to cease the infringement (including stopping the use of the relevant keywords, deleting or modifying the relevant product titles and link descriptions, etc.) Courts generally also support the rights holder’s reasonable claims for compensation and expenses incurred in stopping the infringement. Since it is usually difficult to accurately calculate the actual losses suffered by the rights holder or the profits obtained by the infringer, under most circumstances, courts will determine a compensation amount within the statutory limit (not more than CNY 5 million) by comprehensively considering factors such as the fame of the rights holder’s commercial identifier, the nature, duration, and scope of the infringing act, and the degree of subjective malice of the infringer. In cases where the goodwill of the rights holder has been severely damaged, courts may also order the infringer to eliminate the impact, such as publishing a corrective statement in media outlets or on websites.
Rights Protection in Practice: From “Passive Response” to “Proactive Prevention and Control”
Given that keyword settings can be quickly adjusted through technical means, they are characterized by strong concealment, rapid dissemination, and significant difficulty in evidence fixation. As a result, enterprises often find themselves in a passive position in protecting their rights. However, the revised law now provides a clearer legal basis for combating this type of infringement, while technological advancements enables the monitoring, tracking, and real-time evidence collection of infringing acts, enterprises no longer need to remain passive. They can now take proactive action from the following aspects to strengthen prevention and control:
l Dynamic Monitoring and Real-time Evidence Collection: Enterprises can use online monitoring tools and social media sentiment analysis tools to track, in real-time, the use of their commercial identifiers as keywords on search engines, e-commerce platforms, and advertising platforms. Once an infringement is detected, they should promptly use blockchain evidence collection software or platforms to capture evidence in real-time regarding the search result pages, advertising placement records, infringing content, etc., thereby securing key evidence like the timing of keyword settings, the location and duration of display.
l Accurate Calculation of Compensation: Enterprises can obtain traffic data such as the ranking and number of clicks of infringing keywords through traffic tracking tools. They can also apply to the court for retrieval of back-end records of the infringer’s keyword settings and relevant financial data (such as advertising costs, order volumes, etc.) This provides a more accurate basis for damage calculations based on the actual losses and the infringer’s profits.
l Diverse Approaches to Resolving Disputes: In addition to traditional civil litigation, enterprises may also flexibly employ the following measures to combat infringement from multiple angles:
(1) Online Platform Complaints: Currently, major search engines and e-commerce platforms have generally established complaint channels for keyword-related violations, which enable prompt takedown of infringing keywords and links.
(2) Administrative Reporting: Enterprises may report infringement to local market regulatory authorities where the infringer located through channels such as the 12315 Platform. According to Article 23 of the Anti-Unfair Competition Law, engaging in confusing conduct may result in a fine of up to five times the illegal business turnover or CNY 250,000, which may serve as a strong deterrent to the infringer.
(3) Behavioral Injunctions: Major promotional events such as “11/11” and “6/18” are peak periods for keyword hijacking infringements, which may cause irreparable and significant damage to rights holders. Enterprises can apply to the court for behavioral injunction to stop the infringement in a timely manner and minimize losses.
l Strengthen Intellectual Property Layout: Enterprises should continuously optimize their trademark layout and moderately engage in defensive registrations, ensuring the registration and standardized use of their corporate names including abbreviations and trade names, and record copyrights for original product packaging and decoration designs, thereby establishing a multi-dimensional and layered rights protection system. Enterprises should actively use and promote their commercial identifiers, continuously enhance brand recognition, and pay attention to collecting and preserving materials that demonstrate the fame of the brand, so as to lay a solid foundation of evidence for enforcement actions.
Conclusion
The 2025 revision of the Anti-Unfair Competition Law clarifies the regulation of keyword setting behavior, which provides both judicial authorities clear guidelines and rights holders enhanced legal remedies. Enterprises can leverage legal instruments and effective technical measures to proactively establish a systematic monitoring and response mechanism against keyword hijacking, to safeguard their legitimate rights and interests while advancing fair market competition.
This article was originally published by Asia IP.
If you have any question about the protection of intellectual property rights, please feel free to send us emails. For patent-related matters, please send to info@afdip.com. For trademark/litigation/legal matters, please send to info@bhtdlaw.com.
