Posts Tagged 'Online Marketing'

*’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’

*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.

*Merging Online Price Comparison & Local Search & Navigation All On Your Mobile

Google is about to close the last gaps in its services for users which plan to purchase a product off-line.

Imagine you are desperately trying to tick the last boxes on your X-mas shopping list but the new camera your son has asked you gives you a headache as you have feeling you that your trusted camera dealer is selling the desired article at disproportional price. Unfortunately you’ve forgotten to check online on your favorite product comparison site at which price the product is sold normally. So what do you do?


You either take your mobile phone and search for the product on Google Product Search (still a BETA) “manually” or your use the Barcode Scanner of your Android Phone and wait for the phone to tell you which store/retailer is selling the product at the lowest price.

To find the desired store just use Google’s Local Search which, once supplied with the GPS information from your mobile will show you the best buy close to your phones location and will supply you with additional information such as the opening hours of the respective shop/retailer. And in case you’ve got problems reading maps, Google Maps Navigation will be pleased to guide you to the shop.

(For more information about Google Product Search please click >>here<<)


It is, however, very interesting to note that Google prominently and expressively states that (you will now see why I am so interested in this topic):

“Google’s product search results are automatically generated by our ranking software. Google does not accept payment for inclusion of products in our search results, nor do we place sellers’ sites higher in our results if they’re advertisers or offer to pay for that placement.”

and

“Google Product Search does not, however, sell products, nor are there preferred sellers who always show up as the first result regardless of what search you enter. Our job is to find the product you want and point you to the store that sells it based on our assessment of what’s most relevant to your search. We don’t accept payment for inclusion in our results themselves, and all advertising that appears on Google Product Search is clearly labeled as “Sponsored Links.

.

Please see below for a sample “web” Google Product Search” SERP:

"classic" Google Product Search screenshot

Please note that the Top Ad is clearly labeled ad "Sponsored Link" and that the ad itself is place on a yellow-brown background

Here a sample of the “mobile” SERP:

"mobile" Google Product Search screenshot

Please note that the mobile SERP does not contain ANY ads etc.


It has however to be pointed out that Google Maps, which is also the basis for Google Local Search and Google Maps Navigation does accept payments to supply user with extra information about businesses (“Ad Extensions“). For the issue of consumer confusion on mobile devices please refer to my previous post.

*’Why Buy an Imitation?': Acts of Unfair Competition Through Keyword Advertising

Advertisers should better not imply in their keyword ads that their competitors are selling cheap counterfeit products of inferior quality.

Eric Goldman mentioned this case (Morningware, Inc. v. Hearthware Home Products, Inc.) on his blog in mid-November 2009.

Morningware and Hearthware (=NuWave) both offer “counter-top electric ovens“. On their websites both companies point out that they hold “Worldwide patentsetc. The products seem to targeted at people who first learnt about this product by telemarketing (“As Seen on TV“). The products in fact indeed look almost identical. Please see here and here. To summarise: both companies appear to be selling portable, electrical ovens at an impressive price (above 100 USD) to most presumably couch-potatoes-customers who appear to be likely to be convinced/tricked into the purchase of such a product by marketing claims such as “worldwide patent” and “most affordable way of cooking” or extra “free” items, such as e.g. “the Custom Carrying Case” and “FREE Two NuWave Twister Multi-Purpose Blenders”.

The defendant has booked the plaintiff’s trade mark to trigger his ads. What makes the case so interesting however is the text of the Ad by Heartware: “The Real NuWave ® Oven Pro Why Buy an Imitation? 90 Day Gty.

sample-ad created by the author

Because the defendant had not referenced the plaintiff’s trademark in the ad copy, Google would not act on behalf of the plaintiff, meaning that the trademark owner had to go to court to fight against the display of this ad. For a summary of Google’s TM policy, see here.


As I am currently working on the unfair competition part of my thesis, § 7 of the Austrian UWG (law on unfair competition) immediately came to my mind, which forbids entrepreneurs from using false statements/derogatory speech in advertising. So, while totally pointless and derogatory statements are covered by the sweeping clause of § 1 UWG, false (factual-)statements (that could however be proved to be true) are sanctioned by § 7 UWG.

The OGH has always interpreted the meaning of the term statement widely, so implicit, indirect or subtle statements are also covered.[0] Furtermore it is not necessary to explicitly name the competitor, its enough if he is “obviously affected” by the statement. [1]

The Austrian Supreme Court has thus ruled that following statements to be factual” statements: that a competitor’s product is a “almost copy” („weitgehende Kopie”; [2]), that a competitor’s product is a “discount product” („Diskontprodukt”; [3]), that a competitor’s product is “rubbish ” („Klumpert”; [4]), the claim that a competitor is violating intellectual property rights through its products (Patentrechtsverletzung [5]).


Now looking at the AdWord at hand I can spot various indications pointing towards my assumption that such an ad, displayed in Austria (or: directed at uses in Austria) would lead to the application of § 7 UWG and thus would find that the ad constitutes an act of unfair competition as the the ads implies that the plaintiff”s products are a “cheap” (inferior) “copy” (counterfeit) of a “®“- protected (patent or trademark protected) product.

This, together with the fact that users exposed to this ad were searching for the trademark of the plaintiff, amounts to stating that the plaintiff is selling cheap counterfeits of inferior quality and would thus, if not proven true,  constitute an act of unfair competition under Austrian law. Thus, the defendant would most probably (in my opinion this is not a case of Art 10 ECHR; freedom of speech) be subject to an obligation for omission, damages and revocation.

References:
[0] Handig in Wiebe/Kodek (Hrsg) UWG, § 7 Rz 25ff.
[1] OGH 18.03.1997, 4 Ob 47/97h –Staubfrei- wbl 1997, 309 [Schmidt].
[2] OGH 24.07.1976,  4 Ob 320/76 – Stahlkanalverbau- ÖBl 1977, 11.
[3] OGH 29.01.1991, 4 Ob 5/91 – Diskontprodukt – ÖBl 1991, 224 = ecolex 1991, 331.
[4] OGH 03.10.1972, 4 Ob 344/72 – Espressomaschinen- ÖBl 1973, 105.
[5] OGH 01.06.1999, 4 Ob 72/99p – Spritzgusswerkzeuge- ÖBl 2000, 35 = GRUR Int 2000, 558.

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