Posts Tagged 'Keyword Buying'

*’Paid Inclusion’ / ‘Keyword Buying’ – A Dangerous Road To Go For Microsoft

Microsoft’s search engine Bing.com is obviously currently testing a new layout which includes advertisements among its search results while insufficiency labelling them as advertising. This practise is known as ‘paid inclusion’ or ‘keyword buying’ on could prove as a dangerous road to go for Microsoft.

Yahoo! has already tried to go this way in 2009 but soon again ended its paid inclusion program after intensive controversy on this issue. Continue reading ‘*’Paid Inclusion’ / ‘Keyword Buying’ – A Dangerous Road To Go For Microsoft’

*Google Is Showing Ads Within Its Search Results – Or Are You Aware Of the Difference Between ‘Natural’ and ‘Integrated’ Search Results?

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.

Continue reading ‘*Google Is Showing Ads Within Its Search Results – Or Are You Aware Of the Difference Between ‘Natural’ and ‘Integrated’ Search Results?’

*Google Suggest: The Perfect Spot For Ads?

While pondering about a clear definition of the term “Keyword Advertising” I stumbled across the Google Suggest function, which is available to German and Austrian users since 1 April 2009 and I was wondering how the suggestions there are ranked. There are however clearly not ranked alphabetically or according to the number of pages correlating to the topic and the ranking does not correlate to the ranking of the subsequent search result.

When typing in the query “How to get” today on Google.us offered me following suggestions:

I decided to chose non of the suggestions but instead carry out a search based solely on the query “How to get” and I received following SERP:


As you can see on the SERP, the ranking of the suggestions does not correlate to the ranking of the websites. Thus I consulted the Google help files to learn more about the ranking and I was told that:

“If you’re signed in to your Google Account and have Web History enabled, suggestions are drawn from searches you’ve done, searches done by users all over the world, sites in our search index, and ads in our advertising network. If you’re not signed in to your Google Account, no history-based suggestions are displayed.”

I am accessing the internet from a public WiFi-network and I am not logged into my Google account so I guess the suggestions are ranked based on the previous searches from the IP-Adr of the public building I am surfing from. (The Sistrix SEO blog does offer an explanation of how the results are ranked, which I however, don’t understand.) What’s clear however is, that these suggestions DO heavily influence web traffic and have led to an steep increase in hits on sits ranked on top in the suggestions (SEO-blog.de, Bloofusion).

Change of traffic for two search terms which were previously used as synonyms

Ads within Google Suggestions:

The search results however are, one way or another, ranked by Google. Thus, although ads in Google suggestions won’t fall under the definition by Fain/Pedersen they could be seen as Paid Inclusions/Keyword Buying.

Although the webstandard-blog contemplates that ads inside the Google Suggestions would be very efficient, I am highly sceptical about that as I think that users would, following the principle of banner blindness mostly ignore it.

Suggestions by Google.com for "What is Wikip"

Legal analysis:

I think that the question of trademark use shall be judged quite similar to the use TM in ordinary Keyword Advertising. It has to be noticed however that the suggestions, realting to a query entered by the user and containing a TM, are offered in real time and in close proximity to the user’s query. Thus the chance that users might see a correlation between the search term entered and the ad displayed might be, contrary to ordinary Keyword Advertising, higher. Seeing a correlation between the ad and the user query would thus be the key for the (main) trademark function (description of origin of a good or a service) being impaired.

From an unfair competition point of view the “distracting presumptive customers” argument (“Abfangen von Kunden vor dem Geschäftslokal eines Mitbewerbers) shall not be applicable due to the early stage of the search, while the “passing off / slipstream riding/coattail-riding” argument (schmarozerische Rufausbeutung) might be valid one as users are more likely to see a correlation between their query and the ad.

*Paid Inclusions on Google Product Search?

Searchengineland.com has reported that Google has been testing Paid Inclusions (= Keyword Buying = advertisement inside the list of organic search results = ads not sufficiently separated from organic results) and provided a screenshot as proof thereof. Please note the small “AD” buttons next to the first three search results. [Special thanks to Stefan Kauf of kamjomi for this information]

Red circles added by austrotrabant

Expanded view of screenshot above. Red cicles added by austrotrabant

.

I think that Google should be very, very careful doing so, as the Austrian OGH in Case C-278/08 (BergSpechte) as well as the Dutch “Hoge Raad de Nederlanden” in Case C-558/08 (Primakabin) are already considering the currently layout (where ads above the search results are displayed on a yellow-brown background and labelled as Sponsored links in the lower right corner) to display ads “inside the search results” to constitute a case of Paid Placement while Google attorneys have always claimed that Google clearly separates “organic” search results and “paid” advertisement. Thus personally I’d be very surprised to see Google attempting such a move before the ECJ has rendered a decision on the pending keyword advertising cases.

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

Screen shot 2009-11-16 at 13.36.30

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

*Keyword Advertising vs. Keyword Buying

Displaying advertisement, which is identifiable as such on the result pages of search engines are commonly referred to as “Keyword Advertising“. Displaying advertisement in such a way users perceive them search results is considered to be “Keyword Buying“**.[at least about a year ago; now the wikipedia.org-entry apparently has disappeared]

When reading the references of the four national courts (for a list of the cases, please refer to my Legal-Links Tab) which have asked the ECJ for a preliminary ruling I’ve noticed that the Austrian as well as the Dutch court are actually seeing advertisement displayed above the search results as (Top-Ad) as part of the search results and thus Keyword Buying! So when talking about the likeliness of confusion this is something to be considered.

Still, all four courts agree that advertisement displayed beside the (organic) search results (Side-Ads) are to be seen as advertisement beside the list of search results. None of the references actually deals with a case where the advertisement actually contained a (competitor’s) sign. (Adv-)

** Thiele, RdW 2001, 454; Hüsch, Keyword Advertising und Keyword Buying (2005) 20.

*Translation issue – Primakabin

When reading the English version of the Reference for a Preliminary Ruling on the Primakabin case (C-558/08) published in the Official Journal of the EU, I was very surprised as first question 1(a) of the document reads like this:

“…a reference to the advertiser’s website appears either [1] in the list of web-pages found or [2] as an advertisement on the right-hand side of the page showing the results of the search, under the heading “Sponsored Links” which is…”

Strictly following the logic of this text the Dutch court apparently assumes that we’ve got a case of Keyword Buying here, as the advertisements are not marked as such an mixed with the search results.

The Austrian OGH has actually been using a very similar argument since its Wein&Co decision in 2007, and has asked the ECJ in its first subquestion of Prelim. Ruling Bergspecht if Top-Ads (advertisement shown above the organic search results) should be seen as part of the search result or as advertisemtens.

As the view of the Dutch court still surprised me quite a lot I decided also to read also the German version of the same document, which reads like this:

Wird in die Suchmaschine ein solcher Suchbegriff eintetippt, so erscheint” (if such a keyword is entered into the search engine) [1]eine Verweisung auf die Webseite des Anzeigenkungen” (a link to the advertisers website), “oder” (or) [2]eine Liste mit gefundenen Seiten” (list of search results), “oder auch” (or furthermore) [3]eine Anzeige rechts auf der Seite mit den Ergebnissen unter der Überschrift” (or an advertisement on the right side of the site of the search results under the heading)

So, in my understanding the German version sees three(!) different parts, which are separated in the text (trough three “oder“), while the Dutch version sees just two options (separated by two “or“).

So, does anyone here speak Dutch so that we can find out if the Dutch Court sees the (Top-) ads as part of the list of (organic) search results?

Picture 1

Thank you!

German version of the reference
English version of the reference
Dutch version of the reference

*Ref. Prelim. ruling “Bergspecht” (OGH)

After the very confusing Wein&Co decision, in which the Austrian Supreme Court (OGH) found that ads bearing an opponents brand (Adv+) violate Austrian trademark law, the court in the Bergspecht case approached the ECJ concerning ads that don’t (Adv-).

Furthermore the OGH brought forward questions on the likeliness of confusion depending on the position of the (Adv-) advertisement .

In its Wein&Co decision the OGH found that Ads displayed above the search results (Top Ads) are to be seen as part of the search results[!] (ergo: Keyword Buying).
In Bergspecht the court refers to Top Ads as “advertisement being a part of and/or not clearly labelled as advertisement“.

20090413_chile-presentation0372

For a German version of the chart please press >>here<<


This Satelite Doesn’t Beep But It ‘Tweets’

Please click here if you want to follow this blog on Twitter.

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 93 other followers

Author’s Rights

Stopline.at

Stopline.at - Online reporting hotline for child pornography and nationalsocialist content on the internet
JuraBlogs - Die Welt juristischer Blogs
Herdict.org

Previous Posts:

RSS Techdirt

  • An error has occurred; the feed is probably down. Try again later.
wordpress stat

Follow

Get every new post delivered to your Inbox.

Join 93 other followers