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.
There have been no court ruling on this matter so far, but the author is positive that if Microsoft continues with this layout this practise will soon be tested in court as an ad, triggered by a protected sign and shown among organic search results would most likely adversely affect a trade marks function of indicating origin and would most probably also seen as an act of unfair competition.
Although pretty much all reasonable IT-jurists know that the practise of misleading meta-tags is legal history (as effectively all search engines ignore the keyword-meta already since 2006) ‘paid inclusion’ could in the author’s opinion NOT be compared to the abuse of meta-tags. While meta-tags pose an act by the advertiser/website owner, trying to deceive the search engine and the users, paid inclusion on the other side requires the cooperation of the advertiser/website owner and the search engine. Thus meta tagging cases were directed against the advertiser, paid inclusion would lead to cases against search engine advertising operators.
In a screenshot posted on the RKB-blog and subsequently on Search Engine Land, the advertisement is only being marked as advertisement by a light blue arrow on the right hand side of the advisement (click on the picture to enlarge).