Great News For Paysite Owners

It's no surprise that one of the major search engines has ended the practice of selling trademarked brand keywords to competitors. But it is a surprise that the motivation comes not from legal setbacks but from business
pressures.

Yahoo (nee Overture) has long been more restrictive than Google in allowing this type of advertising. To buy a competitor's brand keywords you had to pass human review by Yahoo editors looking to be sure that there was relevant page content on your landing page to justify the use of the keyword.

In practice this meant that you had to have a feature comparison or some other type of comparative content in order to pass muster. Yahoo would also disapprove your competitive comparison if it was false or misleading. Of course this was something that could become quite subjective and contentious.

Google, on the other hand, sells competitive trademarked keywords without such a "comparative" standard or any review process, other than to require that the competitive mark is not used in the actual ad copy.

Generally, it is up to the advertiser and its agency to police compliance. Google's legal department is relatively quick to act on violations that are brought to its attention. Therefore, good SEM service needs to include monitoring the client's trademarked keywords to detect and report competitors who are breaking Google's rules. This can include not just use of marks within ads but also incorporating the mark into a URL. On behalf of Napster, we were able to have Google shut down a competitor who was using the URL "www.better-than-Napster.com".

Google's practice has been the subject of much litigation here and abroad. In the recent Geico vs. Google case, Google's right to sell such keywords in the U.S. was affirmed. However, in France, a court ruled against Google in a lawsuit brought by Louis Vuitton. As a result, Google will not sell competitive trademarked keywords in Europe. But wherever the practice is allowed, it has proved to be one of the most effective SEM techniques.

In the Geico case, the court's reasoning was that competitive keyword ads were analogous to a merchant who buys a billboard across the street from a competitor. Suppose you are heading to the Ford dealership to buy a pickup.
If you see a billboard on the way for a Chevy pickup, then GM might intercept your purchase "intent" and entice you to the Chevy dealer. Of course others, particularly plaintiff's attorneys, see the search engine equivalent less as valid comparative advertising and more as blatant trademark infringement. Such is the argument being raised in several other pending lawsuits against Google.

It's against this background that Yahoo shook up many of its search advertisers by sending out a notice that read:

"In order to more easily deliver quality user experiences when users search on terms that are trademarks, Yahoo! Search Marketing has determined that we will no longer allow bidding on keywords containing competitor trademarks."

The new policy is effective March 1 and effectively ends the practice of trademark keyword bidding on Yahoo. The only exceptions to the new rule are for resellers, who must actually sell or facilitate the sale of the trademarked good or service and for truly informational sites where substantial information about the trademarked good or service must be provided and competitive products cannot be promoted or sold.

So why has Yahoo implemented this new standard? Surely this takes a goodly chunk out of Yahoo's keyword search revenue, even if it frees up the time of many an over-worked editor. Unlike Google, Yahoo has not been the subject of major litigation on this issue. So it is unlikely that impetus for the move came from the legal department. Instead, speculation has focused on business reasons for the policy change. Search Engine Watch's Danny Sullivan has suggested that the reason may well be Yahoo's desire to court big brand advertisers. Especially those that would like to tie their offline ads back to Search. Unlike Google, Yahoo has large scale deals with major brands to advertise across their entire portal. Their sales force may well be tired of hearing from advertisers who are irate that their brand has been "hijacked" by competitors in the search listings while they are at the same time paying a great deal of money to Yahoo. Many of the biggest brands have yet to put but a toe in the water in terms of internet advertising. To lure these brands into the pool, Yahoo appears willing to sacrifice short term search income from those brand's competitors.

Will Google succumb to the same pressures? At this point is seems unlikely.

They continue to mount an aggressive defense to the lawsuits filed against them. As Google does not have a portal component, they do not have the same motivation as does Yahoo to court big advertisers. The early success of Google Adwords was with smaller businesses for whom Search was a level playing field to compete with the big guy. Google seems disinclined to spurn this base in order to earn the love of the big brands. For Google, any policy change is more likely to be motivated by an adverse legal ruling than by business pressures.

http://www.imediaconnection.com/content/8482.asp

Basically, if someone is using one of your site names and sending traffic elsewhere on the Yahoo ads, you can get those ads removed.

Should be interesting to see who, if anyone, follows suit with this.

Regards,

Lee