By accepting payments for the display of extra in information (‘tags‘) in its (‘integrated’) search results, Google is, strictly speaking, displaying ads within its list of natural search results and thus breaking a long-lasting habit. Although the payment does not influence the ranking of the search results and the ‘tags’ are labelled “SPONSORED”, it will be more difficult for Google to argue in the future that users can easily spot the difference between search results and ads.
The ECJ’s point of view:
The ECJ described Google’s activity in its C-278/08 ‘Bergspechte‘ decision as follows:
5 When an internet user performs a search in the Google search engine on the basis of one or more words, the search engine will display the sites which appear best to correspond to those keywords, in decreasing order of relevance. These are referred to as the ‘natural’ results of the search.
6 In addition, Google offers a paid referencing service called ‘AdWords’. That service enables any economic operator, by means of the reservation of one or more keywords, to obtain the placing, in the event of a correspondence between one or more of those words and that/those entered as a request in the search engine by an internet user, of an advertising link to its site. That advertising link appears under the heading ‘sponsored links’, which is displayed either on the right-hand side of the screen, to the right of the natural results, or on the upper part of the screen, above the natural results. [emphasis added by the author]
So, we conclude that according to the ECJ Google shows search results according to a user query and that if ads are shown they will be labelled as “sponsored links” and will be placed above or besides the search results.
To boil it down, the ECJ identified three criteria:
- order of search results not being influenced
- ads labelled as such
- placed above or on the right side of the search results
Google’s point of view:
Google itself when explaining the search engine results page (SERP) also points out that ads are placed on top or besides the search results:
When you search Google, you’ll often see text ads above and along the side of the search results pages.
The help files also explain the content of the search results:
Google’s search technology looks for the most relevant information across all types of internet content, so your results can include images, maps, videos, news articles, books, and more. [emphasis and red colour added by author]
Please keep the red word “more” in mind when examining point 6 (3) of Google’s 10 business principles:
Advertising on Google is always clearly identified as a “Sponsored Link,” so it does not compromise the integrity of our search results. We never manipulate rankings to put our partners higher in our search results and no one can buy better PageRank. Our users trust our objectivity and no short-term gain could ever justify breaching that trust.
So, if you read carefully, Google is stressing that they do not allow anyone to influence the ranking and that they will always help the user to clearly identify the ads so as to never compromise the search results. Google however in its principles does not state that the ads will always be shown outside of the search results.
Google Paces & Ads within the Integrated Results:
Since April 2010 Google has been offering a service called Google Places. This service used to be called Place pages and e.g. shop owners could sign up for it for free to make their shop be shown as a search result, independently of their web-presence. Users could rate and comment on these search results and the service soon became very popular.
Since April 2010 shop owners can not only display basic information, but in return for a small fee also ask Google to display additional information (special offers, photos, website) related to their business. These additional pieces of information (or, to be honest, let’s call them advertisements/commercial content) are called ‘tags’ and are then labelled as ‘Sponsored’ content within the search results.
In the screenshot below ‘tags’ are shown in red, natural search results in blue, integrated results in yellow and good old ads in purple (click to enlarge).
Here a brief quote from Google Places Help:
Local customers already search Google for the products and services you offer. By creating a free business listing with Google Places, you can help them find your business more easily. Adding a tag to your Google Places listing allows you to highlight info that you want your customers to see.
[...] Tags do not affect search result rankings; they simply add more information to a Google Places listing when it appears in search results.Signing up and adding your tag takes less than 5 minutes. All you need is a verified business listing and a valid credit card – just visit your Google Places Dashboard and look for the “Create Tag” link to get started. [Emphasis added by author]
Coming to the end of a long post we have to conclude that out of the three principles stipulated by the ECJ, as far as its integrated search results are concerned, Google only fulfilla the two criteria of not influencing the ranking and labelling the ads. In light of the ‘tags’ used to display ads within the (integrated) search results, the third one, concerning the position of the ads, cannot be upheld.
What does that mean for Keyword advertising litigation? Probably not much as, for one thing, the cases in front of the ECJ concerned cases where advertiser booked keywords to trigger their ads. When paying Google to display a ‘tag’ users do not influence Google in its ranking decision as to whether or not to display the search result. This means that the whole issue described above is a matter of search engine optimisation (SEO) and not of keyword advertising.
One thing that might however prove very, very cumbersome for Google is that the third principle used to be a very strong argument against any form user confusion or the wrongful assumption of an economic relation (between the owner of a trade mark and an advertiser). Before Google Places things seemed much easier and the rule of thumb was that information that was on the right side or on a yellowish/purple background was usually from a third party, while the owner of a trademark was usually to be found within the (organic) search results.
This is now no longer true and we will have to wait and see how this will influence the national courts’ view on the matter of whether or not ads shown in response to the query for a trademark will lead to the user’s assumption of an economical connection which would mean an impairment of the function of indication origin and as a consequence would make the advertiser liable of trademark infringement.
Possible reactions by the courts:
The courts could reason as following: users assume that the ranking of search results is based on a neutral algorithm and that the ads outside the results are paid advertisements which might not be related to the search term entered. Thus users, when entering a trademark as a query expect the website of the trademark owner to be in the search results rather than in the ads on top or besides the search results.
As a consequence…
a: users could get used to the fact that commercial content is shown inside the search result and thus they might assume that not only the search results but also the ads displayed are somehow related to the query entered. An ad shown in response to a TM-query would be assumed to be somehow economically connected to the TM-holder (-> trademark infringement)
b: users could conclude that they can’t trust search results anymore…
b.a. … but would continue using Google anyway as they have gotten used to this practice anyway.
b.b. … and would stop using Goole and would migrate to another search engine.
c. Google could manage to persuade the courts that there is a difference between 1: (natural) search results on the one hand which are all ad-free and 2: integrated search results on the other hand which contain some advertising but which are however ranked on a fairly unbiased basis and finally 3: ads which are shown outside of the natural and the integrated search results.
d. Courts and practitioners will ignore the tags and/or apply the rules established for SEO and meta-tags.
Any suggestions, dear readers?