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Academic affiliation: Oklahoma State University
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Search engines are a key aspect to finding information on the Internet. Although
helpful, search engines accept payment from Web sites that want to have priority
placement in the results. Those sites would normally be included in the list of sites but
would be lower on the list (Tantono et al. 21). This is known as "paid placement"
(Tantono et al. 21). Web designers and advertisers use paid placement ads and metatags
to market their own product through another's Web site or trademark. A detail that is
often overlooked is that paid placement ads are not search results, they are advertisements
at the very top of the list but are made to look like search results to manipulate the
consumer. " The practice of allowing advertisers to target messages, via the use of the
competitors' marks has generated a great deal of litigation in the U.S" (Stewart 14). The
courts however have not been very consistent with their rulings, leaving it up to the
infringed upon companies to press charges. Therefore, there needs to be stricter
regulations on paid placement ads and metatags because consumers are being distracted
by unclear distinctions between search engine results and sponsored sites.
Advertising on the Internet is at an all time high right now. Advertisers are finding
a technique that is saving them precious dollars in advertising, yet still showcasing their
product to consumers. The use of metatags is one of those devious ways. "Metatags are
machine understandable information for the World Wide Web that can be used by
Internet search engines when trying to locate Web site pages" (Canaan and Lenahan 7).
The purpose of metatags is to assist search engines in classifying pages. Search engines
locate the Web sites in two different ways; by scanning the actual text of the Web pages
or by scanning the Web page metatags. Metatags are helpful when searching for a vague
object, but Web designers are using metatags to distract business from a trademarked
company's site to their own site. Web designers embed metatags in to source codes of the
Web pages to identify the contents of the Web site (Canaan and Lenahan 7). The problem
presents itself when "A term used as a metatag need not be found in the text of a Web
page, all that is required is that the metatags are related to the content of the Web site"
(Canaan and Lenahan 9). After the Web page designer has successfully embedded the
trademark by using a metatag into the Web page, the search engine may read the metatag
so that the intruder's Web site appears in the list of sites identified by the search engine
as bearing the trademark (Canaan and Lenahan 8). In this situation, the consumer will
enter into the competitor's Web site knows that the competitor is not the owner of the
trademarked product. The consumer may decide then that because they are already at that
site they will remain there and purchase the competitor's product rather than continue to
search for the trademarked site's product they were initially searching for. The diversion
from a trademarked site to another has become known as "initial interest confusion"
(Canaan and Lenahan 8). Unfortunately, metatags have not proven to be enough of a
threat for courts to make a consistent ruling on the subject, leaving a need for
enforcement on trademark infringement laws.
Metatags are just one aspect of initial interest confusion, paid placement ads are
another way of manipulative advertising. Paid placement ads are commonly confused as
the first links listed on the search results. Often there is a list of three or four sites listed at
the top of the page; those are the paid placement ads. The problem with paid placement
ads is that they are not clearly marked. Advertisers and marketers use all the advantages
they can by making paid placement ads blend into the page of search results. On the
MSN search engine results page the paid placement ads are in the same text and color as
the search engines. The paid placement ads are lightly enclosed with a powder blue box
with phrases like "sponsored links" or "Sponsored sites" written on the top left of the
box. These phrases are normally in smaller print and in a light gray shade, thus making it
very hard to distinguish which are the paid placement ads and which are the search
engine results. In 2002 in response to complaints from Commercial Alert, the FTC
advised search engines to disclose their paid placement ads (Tantono et. al.21).
Commercial Alert, which is a non-profit organization, reported a list of companies such
as; AOL Time Warner, Looksmart, Ltd., and Microsoft Corp. that were displaying results
of a user's search for Web sites in order of relevance to the search terms (Tantono et.
al.21). These sites were doing nothing wrong by advertising with the search results,
however they made a conscious decision to disclose the fact that they were paid
advertising rather than search results (Tantono et.al.21). Concealment of the Web sites
intentions can lead to misunderstanding to consumers and violates Section 5 of the FTC
Act, 15 U.S.C. 45 (a)(1) (Tantono et. al. 21). Even with this violation little will be done
for two reasons: search engines often do not pick up the offending Web page and the
remedy beyond removal of the offending ad is generally not available (Canaan and
The concept of metatags and paid placement ads are often too complex for
consumers, and they may not realize that stealing a company's name to advertise their
own or purposely making their site more accessible by diverting the consumer from
competitors' site is also illegal. A search engine can choose to sell certain words or
phrases to major cooperations, such as "hotel" or "restaurant", once the cooperations buy
the words they enter into the database to be advertised. The companies that bought the
generic words now pay the company more money for placement in the advertising box at
the top of the page where the advertised sites are listed. The advertisers want their sites to
blend as much as possible with the other search results listed hoping that a user will enter
their site, remains there, and possibly purchases their products instead of searching on for
the initial site in mind. Users may enter the advertisers site for different reasons, either
they misread the results page thinking this was the first result therefore maybe the best
result; or the user simply might not want to take the time to weed through all the other
sites listed on the page. Advertisers are banking on disguising their site and deceptively
leading users to their own site. Some might see this as genius marketing strategy, but
when taking a closer look, "This activity presents a very large problem because of the
potential cost of this kind of theft opportunity," said Craig Prusher, associate general
counsel (Larson 11). Prusher later went on stating, "This diversion of opportunity is
something you could calculate in the hundreds and thousands, if not millions of dollars, it
is something we have never seen before-people stealing, franchise opportunities" (Larson
11). Although there may be instances when an idea may be copied, Prusher is stating that
it has never been seen at such a level. With advertising on the Internet continually to
grow so rapid the opportunity to steal an idea and hide it is ever present.
Metatags and paid placement ads are certainly ways to advertise a company's Web
site, but because the consequences for misuse of these tools are so minor companies will
continue to manipulate until they are punished thoroughly. Traditionally, the courts have
denied trademark protection to personal names unless the trademarked claimant can show
secondary meaning, that is, can prove that consumers have come to associate the
trademark claimant's goods or services (Oswald 117). Trademark protection is
complicated in the use of paid placement ads because evidence of trademark infringement
is difficult to find. The FTC gives recommendations to clarify the advertisements on
search engine results while still allowing companies to participate in paid placement
advertising. In order to provide stronger regulations on advertising so that the user will
not become confused by indistinguishable advertisements the search engines should
"distinguish any paid ranking search from non-paid results with clear and conspicuous
disclosures, clearly and conspicuously explain and disclose the use of paid placement,
and make no affirmative statement that might mislead consumers as to the basis on which
a search result is generated" (Tantono et.al.21). Those suggestions work best with
preventing confusion on paid placement ads, but for metatags the solution may be
different. Search engines should be equipped with trademark options so the user can
specify to exactly what they are searching for. With stricter regulations on paid placement
ads and metatags consumers will become better directed to what they are searching for
and companies can restore their confidence back into the validity of the trademark they
Canaan, Karen, and John C. Lenahan. "Making the Demand for the "Cessation of
Trademark Infringement via Metatag Use" More Convincing." Intellectual
Property & Technology Law Journal 14.1 (2002): 7-12.
Larson, Polly. "It's 10 p.m. Do You Know Where Your Trademark Is?" Franchising
World 36.8 (2004): 10-11.
Oswald, Lynda J. "When Is a Name Not a Name? Descriptive Versus Suggestive Marks."
Academy of Marketing Science Journal 33.1 (2005): 117-19.
Stewart, David. "Trademark Quandary for Web Marketers." Brandweek 46.1 (2005): 14-
Tantono, Welly., et. al. "FTC Advises Search Engines to Disclose Paid Placements"
Intellectual Property & Technology Law Journal 14.10 (2002): 21-22.
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