Lawsuit over Keywords...a Weighty Issue

• Feb. 19, 2002

...and so it starts.  A different kind of search engine war.

Not the AltaVistas and Googles battling it out on the "who's more relevant" front but disgruntled website owners taking it upon themselves to right the wrongs of perceived non-relevant listings showing up on pay-per-click listings.

The latest company to join the fray is Mark Nutritionals, a diet firm based out of San Antonio Texas.  Their main complaint is that their trademarked phrase "Body Solutions" is turning up competitor's sites when a search is done on pay-for-placement engines including Overture (formerly GoTo.com), FindWhat.com, AltaVista and Kanoodle.

At the time of writing this article, a search done on Overture.com produces Mark Nutritionals' site bodysolutions.com in 7th spot on the search results page, behind competitors such as Twin Lab Products and Calorad2002, sitting in 2nd and 3rd place, respectively.

Mark Nutritionals, seeking damages from each engine in the amount of $10 million in compensatory and $100 million in punitive damages, says that these search engines are putting consumers at risk when they accept money in knowing violation of trademark rights.  None of the named engines in this latest lawsuit have come forward with comments on the suit itself.

Similar lawsuits and criticism of pay-per-click engines is a growing trend and perhaps precedent was set back in 1999 when Excite.com agreed to settle a suit that the cosmetics company Estee Lauder filed against them, after Excite.com sold search engine listings for two of Estee Lauder's trademarked phrases to competitors.  The outcome of this latest action may seem cut-and-dried, however, the search engines will likely have good arguments in their own defense. 

On Overture.com, of all 6 listings currently ahead of bodysolutions.com on the results page of a search for "Body Solutions", the description of each link clearly states that the resulting site provides a comparison between their own product and Body Solutions, or a product review of Body Solutions.  This is arguably relevant content, and relevancy is the criteria most pay for placement engines use to determine if they will accept money from a site for placement of a particular term.

How many Pepsi commercials have we seen where Pepsi is comparing themselves to Coke in a blind taste test, and vice versa?  Each trademarked brand is mentioning the competition's brand, using the comparison to sell its own product.  Is this the same situation on the pay-per-click engines?

On the other hand, if a searcher is typing in the term "Body Solutions", there is a reasonable expectation that the searcher is looking for information on this exact product and could be frustrated when receiving search results for other sites.  If the searcher's intention was to compare Body Solutions with similar products, he/she may be expected to type "Body Solutions comparison", "Body Solutions vs." or even "Body Solutions product review" as a search term on the engines instead.

If it were the case that paid engines were selling Body Solutions' competitors the search phrase "Body Solutions comparison" rather than the trademarked "Body Solutions", would Mark Nutritionals still have a case?

The search engine industry is still in its youth and this will not be the last we hear of lawsuits such as these.  The outcome of these proceedings will likely have a huge effect on how pay for placement engines conduct their business in the future.  We will be waiting to see, though, if it is for the better of the engines, the advertisers or the searchers.

For more information, read this article:
http://www.internetnews.com/IAR/article/0,,12_966901,00.html

 

Petra Leinemann