*Expert Witness States That Keyword Meta Tags Influence The Ranking of Search Engines

by Dynamix Web Design

Ott just pointed out on his blog the expert witness of Frank Farance in the case Jenzabar Inc v. Long Bow Group Inc. in which the expert witness points out that the use of  specific terms in both the KEYWORD meta-tag and the TITLE tag (positively) influenced the ranking of the relevant pages. This comes as a solid surprise as Google has just expressed lately that the use of the KEYWORD meta tag in the header of a web page does not influence the ranking of this site in its results.

However the Farance stated that:

However, when numbering the factors taken into account for the ranking of search results and mentioning the “TITLE” meta tag or the “DESCRIPTION” meta tag, the “KEYWORD” meta tag is not listed:

Still, further down (31) in the witness Farance points out that (1) most webpages of the defendant had pretty (‘copy and paste’) similar headers (that’s the part with all the meta tags),and (2) that only some pages had carefully filled headers. Of these pages whose headers where carefully filled with information ONLY (3) the page relating to the defendant contained keywords that were not also displayed in the visible (body) part of the webpage.

So in my understanding, Farance argues that this fact was critical for the ranking by Google.

My conclusion:

As I have learned during my professional career not to argue with technicians, I can only state with all due respect that I find the witness not conclusive as it e.g. omits all the other factors relevant for the linking of a webpage such as e.g. the number of incoming links pointing onto the pages related to the defendant. I get the impression that the pages in question were optimized for search engines, which would on one hand explain why they contained so many keywords and on the other hand, why they were de facto ranked at a “higher” position in the Google search result.

Furthermore I find it interesting that there is no explicit statement about the influence of the KEYWORD meta tag alone but only about the combined influence of “the TITLE and the KEYWORD meta tag” together. This is surprising as the subsequent paragraphs focus only onto the content of KEYWORD meat tag and I reckon that some people might not notice this detail.

*Highly interesting video about “Social Media”, but … where are the footnotes?

A friend from Edinburgh posted this video on facebook a couple of hours ago. I haven’t had time to really think about the information presented in the video … or to go to the website provided and and to check out “the source data“. Anyway, here’s the link:  http://socialnomics.net/

Since attending the “Müncher Medientage” (Media/Marketing Symposium) in 2008 in know that everything lawyers and marketeers say should be checked and double checked as both groups usually excel in their ability to sell you an “a” for a “b“… No offense guys…

*Graphical Representation of the Keyword Advertising Process by Jim Jansen

Chart by J. Jansen

I am currently working on the “law of unfair competition” part of my thesis, but for anyone interested, the chart is definitely worth a look and might be a good starting point for anyone really interested in the topic. Just click onto the thumbnail or >>here<<

What a shame Jansen has stopped posting on his blog…

*No more “Paid Inclusions”: Yahoo is the last main SE to drop this practise

copied from clicktune.eu

The issue of Online Marketing is full of misleading terms and once too often some of these are misunderstood. A term jurists have -luckily- almost missed out to confuse, but which had devastating potential anyway, is the term of the “Paid inclusion“.

The practise of “Paid Inclusion” stems from around the year 2000, when search engines were still mainly directories and due to the absence of a crawler (robot) webmasters had to submit their pages to search engines to be added to their index. However the fee paid lead to or accelerated the inclusion of the site into the index of the search engines and in some cases to the fact that the respective site even got crawled more often etc.

However, Paid Inclusions did NOT influence the ranking on the websites on the SERP. Thus “Paid Inclusion” is NOT the same as e.g. “Keyword Advertising“, “Keyword Buying / Paid Placement.

For a detailed analysis please read Danny Sullivan on this topic.

As Yahoo was said to be the last search engine offering this service, Kevin Newcomb of ClickZ sees this as the “end of an era” and some wise expert concludes:

“I see this as a sign that the industry is growing up, that we don’t need something like this anymore“

*Graphical summary of the GA’s opinion on the French Keyword Advertising cases

Having pondered about the GA’s opinion for some time I’d now like to sum my conclusions up. I’ve especially considered the statements published by Mackenzie, Ott, the IPKat and van Hoboken.

To enlarge the pictures just click onto the thumbnail above or onto the picture below. Although I’ve really tried to find a way to display most aspects of the opinion in a simple and comprehensible way, I do not recommend it for people who searching for an introduction into the topic, as the stuff is still quite complicated.

My criticism:

First of all I really do like the GA’s general view of the issue and agree with him e.g. on the nature of the internet. However, I do have to wonder if the ECJ will follow the GA on all issues. So for example…

- I am looking forward to seeing if the ECJ will agree with the GA’s splitting of the keyword advertising process into two separate issues and thus seeing the booking of the keywords by the advertiser as a non-commercial act and the selling of the keywords as a seperate service to the linking of ads to websites.

click to enlarge

- I share the GA’s view on the likeliness of confusion and welcome the fact that the GA kind of follows the “multi factor test“, as suggested by the District Court of Massachusetts.

- I am reluctant to agree that the search process should be compared to “caching” and the process of displaying ads to “hosting“. In my opinion, it doesn’t make much sense to “forcefully expand” the existing provisions to fit onto these two concepts as well. Clear-cut exceptions would be more useful, but would require the EU Comission to act; something it is apparently a bit reluctant to do…

- I am also very sceptical towards guiding claims against AdWords and the advertiser towards national liability rules, as I think that harmonised laws would create more certainty & security for business and consumers and thus be far more efficient.

click to enlarge

I’d appreciate any comments.

*UK reference for preliminary ruling on Keyword Advertising – Interflora v Marks&Spencer

As I’ve just learnt on the IPKats website the questions referred by the England and Whales Hight Court of Justice at the 22nd of May 2009 on Interflora, Inc. Interflora British Unit v Marks and Spencer PLC Flowers Direct Online Limited [2009] EWHC 1095 (Ch) have just been published on the Curia website.

Reading the reference is a bit encumbered by the fact that apparently someone has forgotten to add the numbers in front of each questions. This makes it slightly more difficult to read. Thus I’ve added the numbers in front of each paragraph, added titles to the three sections and added some comments.

[Liability of the advertiser]

“1. Where a trader [advertiser] which is a competitor of the proprietor of a registered trade mark and which sells goods and provides services identical to those covered by the trade mark via its website (i) selects a sign which is identical (in accordance with the Court’s ruling in Case C-291/00) with the trade mark as a keyword for a search engine operator’s sponsored link service, [a keyword suggested by Google?] (ii) nominates the sign as a keyword, [selects the keyword himself?] (iii) associates the sign with the URL of its website, [creates and ad?] (iv) sets the cost per click that it will pay in relation to that keyword, (v) schedules the timing of the display of the sponsored link and (vi) uses the sign in business correspondence relating to the invoicing and payment of fees or the management of its account with the search engine operator [uses the sign in AdWords to manage its account?], but the sponsored link does not itself include the sign or any similar sign [an "Adv-"], do any or all of these acts constitute “use” of the sign by the competitor within the meaning of Article 5(l)(a) of First Council Directive 89/104/EEC¹ of 21 December 1988 (“the Trade Marks Directive”) and Article 9(l)(a) of Council Regulation 40/94² of 20 December 1993 on the Community trade mark (“the CTM Regulation”)?

2. Is any such use “in relation to” goods and services identical to those for which the trade mark is registered within the meaning of Article 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation?

3. Does any such use fall within the scope of either or both of:

(a) Article 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation; and

(b) (assuming that such use is detrimental to the distinctive character of the trade mark or takes unfair advantage of the repute of the trade mark) Article 5(2) of the Trade Marks Directive and Article 9(l)(c) of the CTM Regulation?

4. Does it make any difference to the answer to question 3 above if:

(a) the presentation of the competitor’s sponsored link in response to a search by a user by means of the sign in question is liable to lead some members of the public to believe that the competitor is a member of the trade mark proprietor’s commercial network [the confusion issue] contrary to the fact; or

(b) the search engine operator does not permit trade mark proprietors in the relevant Member State of the Community to block the selection of signs identical to their trade marks as keywords by other parties? [AdWords trademark policy issue]

[Liability by Google/AdWords]

5. Where the search engine operator (i) presents a sign which is identical (in accordance with the Court’s ruling in Case C-291/00) [Article 5(1)(a) ... must be interpreted as meaning that a sign is identical with the trade mark where it reproduces, without any modification or addition, all the elements constituting the trade mark or where, viewed as a whole, it contains differences so insignificant that they may go unnoticed by an average consumer.] with a registered trade mark to a user within search bars located at the top and bottom of search pages that contain a sponsored link to the website of the competitor referred to in question 1 above, (ii) presents the sign to the user within the summary of the search results, [in the organic search results?] (iii) presents the sign to the user by way of an alternative suggestion when the user has entered a similar sign in the search engine, ["Do you mean"-function] (iv) presents a search results page to the user containing the competitor’s sponsored link [not as a part of the organic search results] in response to the entering by the user of the sign and (v) adopts the user’s use of the sign by presenting the user with search results pages containing the competitor’s sponsored link [only the user uses the sign!], but the sponsored link does not itself include the sign or any similar sign ["Adv-"], do any or all of these acts constitute “use” of the sign by the search engine operator within the meaning of Article 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation?

6. Is any such use “in relation to” goods and services identical to those for which the trade mark is registered within the meaning of Article 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation?

7. Does any such use fall within the scope of either or both of:

(a) Article 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation; and

(b) (assuming that such use is detrimental to the distinctive character of the trade mark or takes unfair advantage of the repute of the trade mark) Article 5(2) of the Trade Marks Directive and Article 9(l)(c) of the CTM Regulation?

8. Does it make any difference to the answer to question 7 above if:

(a) the presentation of the competitor’s sponsored link in response to a search by a user by means of the sign in question is liable to lead some members of the public to believe that the competitor is a member of the trade mark proprietor’s commercial network contrary to the fact; or [confusion issue again]

(b) the search engine operator does not permit trade mark proprietors in the relevant Member State to block the selection of signs identical to their trade marks as keywords by other parties? [AdWords TM policy issue again]

[Directive 2000/31 & accessory liability]

9. If any such use does fall within the scope of either or both of Article 5(l)(a) of the Trade Marks Directive/Article 9(l)(a) of the CTM Regulation and Article 5(2) of the Trade Marks Directive/Article 9(l)(c) of the CTM Regulation:

(a) does such use consist of or include “the transmission in a communication network of information provided by a receipt of the service”, and if so does the search engine operator “select or modify the information”, within the meaning of Article 12(1) of European Parliament and Council Directive 2000/31/EC³ of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (“the E-commerce Directive”)?

(b) does such use consist of or include “the automatic, intermediate and temporary storage of information, performed for the sole purpose of making more efficient the information’s onward transmission to other recipients of the service upon their request” within the meaning of Article 13(1) of the E-commerce Directive?

(c) does such use consist of or include “the storage of information provided by a recipient of the service” within the meaning of Article 14(1) of the E-commerce Directive?

(d) if the use does not consist exclusively of activities falling within the scope of one or more of Article 12(1), 13(1) and 14(1) of the E-Commerce Directive, but includes such activities, is the search engine operator exempted from liability to the extent that the use consists of such activities and if so may damages or other financial remedies be granted in respect of such use to the extent that it is not exempted from liability?

10. If the answer to question 9 above is that the use does not consist exclusively of activities falling within the scope of one or more of Articles 12-14 of the Ecommerce Directive, may the competitor be held jointly liable for the acts of infringement of the search engine operator by virtue of national law on accessory liability?”

*Have you ever wanted to look into your personal records at Google?

Reading my favourite Austrian newspaper this morning I came across a very interesting new Google Service. “Google Dashboard” is a service, that not only allows you to check out what data Google has recorded about you (pretty much everything you do/did while being logged in at Google, Gmail, YouTube, etc.), but at the same site offers you links to the relevant privacy settings page of each of Google’s products(!).  To be honest, I think that’s almost too good to be true. (Just compare that to how Austrian companies are actually  complying with the “Right of Information” granted by section 26 of the Austrian Data Protection Act- DSG 2000)

However it is not possible to possible to actually delete stored information through this application and Ott mentions that there are some services, as e.g. the Google Toolbar, which are not listed in the Dashboard.

Anyway, check it out yourself by clicking here or watch the video first.

*Sect. 26 Austrian Data Protection Act – “Lex Unheared Of”

First things first: I’ve finally received an answer to all of my three requests which I posted on the 8th  June 2009.

For a short description of the rights referred to the individual [Right to Information, "Auskunftsrecht"] according to section 26 of the Austrian Data Protection Act [original title: Bundesgesetz über den Schutz personenbezogener Daten (Datenschutzgesetz 2000 - DSG 2000)] as well as for a link to German/English version of the law please see my previous post >>here<<.

Very short summary: according to section 26 of the Austrian Data Protection act, every  individual (data subject) may ask entities holding (any kind) of information about the data subject, free of charge, once a year and within 8 weeks, to disclose all the information stored about him/her/it.

How it all started: At a legal symposium in early 2009 a speaker mentioned that the Austrian Data Protection act was kind of a LEX IMPERFECTA as it was very difficult to actually get the requested information from from e.g. his bank. So, while waiting for the opinion of the GA I sent out letters to 3 entities, asking them to reveal which kind of information they’ve stored about me.

I’ve tried it anyway, and here is my summary:

Deltavista GmbH: As there was no clear description on the website of the Deltavista GmbH of how to file a request, a week was wasted before tDeltavista received my letter containing all the necessary documents (copy of my driving license). Anyhow, on the 18th of June I received a letter including “all” the information they have stored about me. The information  included my name (not the correct / full one) and the addresses at which I’ve lived in Austria. Furthermore it said that this information has not been “used” within the last year and that they do not have a creditworthiness history about me. I have to say I am satisfied with the speed of delivery and the content of the information. It is still interesting to see that in their presentation Deltavista listed one bank to be one of their clients. I have a bank account at this (foreign) bank, but  however no information about this bank account didn’t show up in my records presented by Deltavista. I took that as a good sign. Solid and quick.

T-Mobile Austria: Getting the information from T-mobile was not easy but the staff was very nice and helpful, although they honestly didn’t have the slightest clue what I was talking about. After being forwarded to the legal department, after having talked to many nice ladies (one of which tried to convince me that such requests could only be filed by a court order ,  the lady at the legal department asked me what information exactly I was requesting, which was a bit difficult as I didn’t really have a clue what kind of information they might be holding about me in the first place. On the 20th of July I finally received the requested information in the form of  dodgy print outs from their computer system. Friendly & helpful, but a bit unorganized.

Bank Austria – Unicredit: Reaching the legal department was by far the hardest bit as the main questions were always “why” and “what exactly”? I guess what saved me was that, as the head of my local branch was continuously very extremly reluctant to assist with my request, I couldn’t help but mention that I am a jurist and that I am submitting my request for research purposes and that I was timing my request and taking down the names of all the people involved (I guess that was after my third conversation with him). As a result he kind of refused to talk to me (“I am not authorised, bla, bla, bla…. “) anymore, but finally promised to forward my request to the legal department of my bank. This was the point at which I signed up for the Domain www.bankaustria-unzufriedene.at. Once having reached the legal department (call them, they won’t inform you that they’ve received your request), everything went quite swiftly and I have to say that when I received the letter from the bank on the 1st of August (the deadline prescribed by law ended on Monday the 3rd of August and I received the letter by express mail on Saturday the 1st) I was more than surprised. Apparently someone had really put some thought into how to prepare the information for their customers. Very, very well done. There was a tiny question left which was answered with a two minute conversation with a friendly employee at my local bank. After managing to get past the head of the branch; not fast but excellent quality.

CONCLUSION: The problem seems to be that companies such as T-mobile and Bank Austria still  haven’t informed their first level support staff about the customer rights arising out of section 26 DSG. Once the customer/client has made it to the legal department he/she has already reached his goal

*Fighting Fire with Fire… Online Reputation Management Tips by Google

The advice by Google on its blog may be compared to the tips for fighting a forest fire:

1: Be careful and think before you publish information about you. (avoid)

2: If there is something you don’t like, go to the source and fight against it there = contact the site’s webmaster. (extinguish)

3: If “2″ doesn’t work out, post even more content yourself, pushing the “bad source” out of the screen. Or, open a Google Profile… (fighting fire with fire)

*New BGH meta tag decision “Partnerprogramm”

I’ve just discovered on  IPKat blog a new decision by the  BGH [BGH, Urteil vom 07.10.2009 - Az. I ZR 109/06] on the topic of meta tagging or other SEO methods and the liability of advertiser. This is thus NOT and keyword advertising case.

In the Partnerprogramm case the TM (“ROSE”) of a claimant (www.roseversand.de) was found to be used by an web-advertising company 0049-net GmbH which got hired by the defendant (www.raddiscount.de) , a  competitor of Rose, to promote the defendants website.  The core problem of the case does not lie in the trademark use issue but on the liability of the defendant for the trade mark infringement by the advertising website. The courts have had no troubles to find an infringement as the TM of the claimant got used in the search results of the advertising company which then directed possible customers to the website of the defendant and thus the courts for an confusion of origin.

The BGH states that:

1. Wird ein als Suchwort verwendetes – geschütztes – Zeichen dazu verwendet, das Ergebnis des Auswahlverfahrens in der Trefferliste einer Internetsuchmaschine zu beeinflussen und den Nutzer auf diese Weise zu einer Internetseite des Verwenders zu führen, liegt eine markenmäßige Benutzung vor. (vgl. BGH, Urteil vom 18.05.2006 – Az. I ZR 183/03, MIR 2006, Dok. 196 – Impuls; BGH, Urteil vom 08.02.2007 – Az. I ZR 77/04, MIR 2007, Dok. 287 – AIDOL; BGH, Urteil vom 22.01.2009 – Az. I ZR 30/07, MIR 2009, Dok. 063 – Beta Layout; BGH, Beschluss vom 22.01.2009 – Az. I ZR 125/07, MIR 2009, Dok. 050 – Bananabay).

[translation by Austrotrabant] If a protected sign [trade mark] ]is used as search term [keyword] to influence the decision-process [?ranking procedure?] on the search result page of a internet search engines and thus guides the user to the website of the person using the advertising service [advertiser], this constitutes trademark use.

I am of the opinion that the IPKat blog somehow got this decision wrong when they  labelled it as “Liability for AdWords” but I agree with Uli Hildebrandt when he states that:

The BGH clarifies an issue concerning liability for links. A company that pays commission to another company which has a link to the first company’s offers and infringes a trade mark with this concrete link is itself liable for the link.