Google announced on the 3rd of February that Top-Ads (these are the ads shown above the -organic- search results and placed on a coloured background) will be shown in a slightly different style in the future.
Ads on Google are shown in a layout that is different from the layout of the (organic) search results. The different layouts thus might help users can (more easily) distinguish between them. The more similar the layout of ads are to the layout of search results, the more difficult it is for a user to correctly differentiate between the two.
From a legal point of view the differentiation between ads and search results is not only important from the point of the obligation to label commercial communication as such but also from a law of unfair competition point of view. As proven in the past by numerous ‘AdWords’-cases there also exists a trademark law aspect of this issue.
Interpreting the ECJ’s Google France decision:
The ECJ has expressed e.g. in Google France, that if an advertiser books a third-party trademark as a keyword to trigger the display of his/her ad, the user might be mistakes as to the fact of an economical connection between the TM owner and the advertiser. The court in para 97 of Google France also stated that the website of the trademark owner is (usually) to be found within the search results. One could interpret the ECJ’s ruling to imply that users will more likely assume an economical connection if the information he/she is clicking on is shown in the search results.
The ECJ also provided some very vague criteria for the national courts to decide if such an economical connection would/could be assumed by the users in respect to ads shown outside of the search results. If a national courts finds in respect to the disputed ad that an average users would assume such a connection between an ad and the trademark they previously entered as a search term, the ‘function of indicating origin‘ would be ‘adversely affected‘ and thus the trademark would be infringed. Out of the five cases that were referred to the ECJ only the Austrian case (‘BergSpechte‘) has already been decided, finding that in the disputed case users would assume an economical connection and thus ruling that the claimant’s TM rights were infringed.
The Google AdWords Layouts:
Ads on Google AdWords basically consist out of 1.) a headline (blue font, underlined, 25 characters), 2.) two lines of description (35 characters each) and 3.) the Display-URL (a shortened version of the URL the ad is linked to).
The title may contain up to max. 25 characters is written in a blue, underlined, font. The description lines, which are up to 35 characters each, are in black while the Display-URL is usually shown in a green font. If the search term is included in the text of the ad is shown in a bold font. If a user has already previously clicked onto the ad, the title is shown in purple, instead of in blue colour.
When drafting the ad, advertisers are presented an input-mask in which they can enter the text of the ad and instantly see what the ad will look like as a Side-Ad:
Already in the past, in a Top-Ad the two description lines were put beside each other, creating a three line-layout (below), while the Side-ads followed the four lines layout on white background (example above, on the right).
What’s so great about Top-Ads?
Top-Ads are the ads shown above the search result and a considered to be the most precious spot to advertise on Google, as the ad is right in the way of the users’ F-shaped eye-scanning pattern. To ads are also highly disputed as e.g. the Austrian OGH from 2007 (Wein&Co) until 2011 (BergSpechte) ruled, that Top-Ads due to their insufficient labelling as ads should be considered as being part of the search result as they were perceived by the user as being the uppermost part of the search result.
Although an advertiser has the chance to (at least in the very beginning, that means before the ‘quality index‘ of the ad takes effect) to improve the position of the ad by the hight of the bid for the keyword, advertisers can not ex ante tell if their ad will be shown on the right side, beside the search results (Side-Ad), or above the search results (Top-Ad).
Comparing The Layout Of Search Results and Ads on Google:
When comparing the layout of the Top-Ads to the layout of search results the main differences are
- that the ads there shown on a coloured background,
- that the text of the title-line in the ads was significantly shorter than the text line of an average search ad,
- search results are generally larger than ads and
- that search results have further options next to the URL of the search result (e.g. Cache, Similar, the Preview-symbol, etc. ).
The New Top-Ad Layout:
One of the differences just mentioned however ceased to exist this week. After extensive testing in the US and the UK Google announced that … “where each line appears to be a distinct sentence and ends in the proper punctuation, description line 1 will be moved to the headline and separated by a hyphen. As a result, some top placement ads will have longer headlines” and also provided an example. In fact this change means that the first description line move up to join the headline. The basis three-line layout thus stays the same; only the proportions within the three lines changed.
So boiling it all down, the essential question is if this change will make it harder for users to differentiate whether they are clicking on an ad or on a search result.
Yes, but only to a very limited extent as for sure this change will not support users to correctly differentiate and might thus be seen as a further (small) step to blur the line between ads and search results. However at the same time research has shown that users anyway don’t really pay attention to the difference as long as they are satisfied with the information they are getting. And if Google says the click-rate is higher under the new Top-Ad layout I am quite confident that they will have done extensive testing to ensure users don’t mind and if there is someone who knows what users want … I guess that’s Google
Concerning the labelling of the top-ad, to be fair, it also has to be mentioned that as far as the differentiation between Top-ads and search results is concerned, Google is still doing very well in labelling it’s ads… at least compared to Bing.com where the light blue coloured background (RGB: 245/250/255) of the 2-line Top-Ads is almost invisible on my (D22W-1T LCD) monitor.
PS: If Google keeps changing the layout of his search results and trademark complaint policies I will not publish my thesis as a legal thesis but as a book listing all the changes since 2006