What do you expect when you go to a search engine?

No doubt the common expectation works like this: You'd like to find exactly the right responses to your keyword in the order of importance to you. And you expect the answers to be like the local newspaper: an impartial, balanced, and fair reflection of your question.

What you actually get is now the subject of increasing debate, however.

Last month, Commerical Alert, a group allied with Ralph Nader, filed a formal complaint with the Federal Trade Commission alleging that eight major search engine firms -- AltaVista Co., AOL Time Warner Inc., Direct Hit Technologies, iWon Inc., LookSmart Ltd., Microsoft Corp. and Terra Lycos S.A. -- had engaged in deceptive advertising.

"For years, search engine companies have incorporated advertising into their websites in ways that do not affect search results, such as banner ads," says Consumer Alert. "But some search engines have recently adopted three advertising practices which may affect search results: paid placement, inclusion and submission."

The group defines the three practices this way:

• Paid placement is advertising that is outside of the editorial content of the search results, sometimes above or below the editorial content, or in a sidebar.

• Paid inclusion is advertising within the editorial content of the search results, though it does not necessarily guarantee a certain position within the results.

• Paid submission is the practice of requiring payment to speed up the processing of a listing, though it rarely guarantees that a site will in fact be listed by the search engine.

Of the three practices, the consumer group objected only to the first two: "This complaint, said the group, "concerns the practices of paid placement and paid inclusion without clear and conspicuous disclosure that the ads are, in fact, ads."

In other words, the objection is not to payments for placement per se, but rather than such paid placements should be disclosed. Like newspapers, the idea is that editorial content and advertising should be separate and that ads should be plainly identified as something other than editorial matter.

What's notable about the Consumer Alert complaint is that it excludes two well-known search engines: Goto.com and Google.com.

Goto openly tells advertisers and site visitors that it "puts you in the driver's seat when it comes to sending customers to your site. You choose where your Web site appears in our search results, set the price-per-click, and control the amount of customer traffic you receive. With GoTo, you pay for targeted, pre-qualified traffic."

To go back to newspapers, GoTo is perhaps best described as the online equivalent of an "advertorial" service. For instance, you might have a daily paper with a 32-page heating and air conditioning insert. The insert has both articles and ads, but the articles are prepared by the advertising department.

Google -- like many search engines -- carries ads which relate to keyword quests. Search for "Realtor" and you get a list of broker-related sites and a related ad at the top of the page. As of yesterday, the Google ad was for HomeGain.

With Google it's obvious that an ad is an ad. The ad is above and apart from the listings. It has a different colored background and it's clearly labeled, "Sponsored Link."

Speaking for Google, Cindy McCaffrey told SearchEngineWatch.com that "We have no plans for a paid inclusion program. As we've stated in the past, our search results represent our editorial integrity, and we have no plans to alter our automated process, which works very well in gathering information and delivering highly relevant results."

So is that it? Show that an ad is an ad and everything is fine?

Not quite.

There is the matter of how ads are tied to keywords.

There's no dispute that if you look up the keyword "water" the term is within the stream of public use. But what if you looked up "Perrier" and an ad for a competing brand showed up? Perrier is a brand. The U.S. government will tell you it's a registered trademark.

There's a huge difference between words in common usage and trademarks which are a form of intellectual property. So the question is this: Can I buy advertising so that each time your trademark is searched my ad comes up?

Danny Sullivan, a search engine authority and editor of SearchEngineWatch.com says that, "trademark owners don't have complete control over their terms. There are fair use issues and comparative advertising issues which can allow the use of those terms by others."

The two court cases usually cited in this matter concern Playboy and Estee Lauder.

The magazine publisher argued that Excite could not relate banner ads to the keyword "playboy" or "playmate." Playboy lost this case, in part because the judge ruled that the terms at issue could be generic rather than specific to a company product or service.

Estee Lauder sued Excite and iBeauty in Germany because advertising was sold to iBeauty -- advertising that would appear when users searched for "Estee Lauder." A German court ordered the firms to discontinue the ads. (See: iBeauty and Estee Lauder make up, CNET, August 8, 200)

What will happen next? The FTC could act or court opinions might turn consistently for or against keyword ad links. The end result will be important to search engines, advertisers, and trademark holders. After all, as Sullivan points out, tying ads to keywords has been successful to this point.

"That's one reason," says Sullivan, "why places like GoTo are seeing a rise in ad revenue versus others seeing a drop."

Resources:

Buying Your Way In To Search Engines, Search Engine Watch.

Search-engine ads sully trademarks, lawsuits contend, Seattle Times

Compliance on the Web: Are Device Makers Vulnerable?, Medical Device & Diagnostic Industry Magazine

For more articles by Peter G. Miller, please press here.

Published: August 7, 2001

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