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Search Engines: Direction or Distraction?
Brooke Whitesell
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 Lenahan 8).

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 hold.

Works Cited

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- 15.

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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