Andy Rooney from CBS’ Sixty Minutes made famous, “Have you ever wondered?” The more basic threshold questions should have been, “Did you even notice?” and “Does anyone even care?” Mr. Rooney had a knack for making us take notice, perhaps after the fact, because we never cared to wonder, at least, before he asked in the first place. In the raging world of keyword advertising, all three burning questions are itching for answers, so here goes, in reverse order.
First, almost everyone cares about online keyword advertising today. In fact, the GEICO® caveman may be the only one that doesn’t, but GEICO corporate certainly does, given the large keyword trademark infringement lawsuit it had against Google®, discussed here. Keyword advertising is big business ($21.1 billion in 2007, click here for FTC report) for the search engines that sell the advertising (i.e., Google®, Yahoo!®, MSN®, ASK®, AOL®, Lycos®, and AltaVista®, among others). Given this, the FTC certainly cares and has even issued alerts on the subject. Domainers also care a great deal, as do others with more traditional business models that pay for preferred listing of their keyword ads. For proof that Utah seems to care the most about keyword ad regulation, click here. Last, but certainly not least, trademark owners care a lot about keyword advertising, especially when competitors purchase keywords that match or mimic their valuable trademarks. (For a detailed catalog and analysis of trademark litigation showing how much litigants and the courts care about keyword advertising, check out the Search Engines links on The Trademark Blog and Professor Eric Goldman’s Technology & Marketing Blog.)
Second, as to the “did you even notice” question, it is a frightening statistic, but even as late as 2002, the FTC was warning search engines a “Consumers Union national survey found that 60% of Internet users had no idea that certain search engines were paid fees to list some sites more prominently than others in their search results.” This caused the FTC to recommend that search engines “clearly and conspicuously” disclose when paid-for placements appear among unbiased search results to avoid the potential for “consumer deception.” Even now, there still must be an appreciable number of reasonable consumers who have never noticed the subtle search engine phrases like “Sponsored Links,” and don’t know what they are, much less appreciate that certain search results obtain priority and top-line status because an advertiser has paid for it. What consumers actually notice and understand about the appearance of a search engine’s results-page will be critical in deciding “likelihood of confusion” in future keyword trademark cases.
Finally, taking the first question last, “have you ever wondered” why your favorite search engine uses a phrase like “Sponsored Links” or a similar one, instead of more certain phrases like “Paid Advertisements” or “Paid Advertising Results”? If not, I’m predicting much attention will be given by litigants and the courts to search engine use of these discrete “sponsor”-type “notice” phrases. After all, if lawyers must prominently display the blunt “Advertising Material” phrase when soliciting certain people (“Sponsored Reading Material” simply won’t cut it), why is it that search engines are able to freely use seemingly ambiguous phrases like, “Sponsored Links” (Google® and AOL®), “Sponsored Sites” (MSN®), “Sponsor Results” (Yahoo!®), “Sponsored Results” (Ask® and Lycos®), and “Sponsored Matches” (AltaVista®)? They are ambiguous because they beg the question of “sponsored” by whom? Equally confusing is the fact that the federal trademark statute protects not only against “likelihood of confusion” as to source, but sponsorship too. As such, it is worth examining whether these curious “sponsor”-type “notice” phrases actually reduce confusion or magnify likely confusion as to sponsorship, at least. No doubt, a great deal of time and effort will be devoted to surveying how consumers understand these phrases, if it already hasn’t been done yet behind closed doors.