Keyword Ownership: What it is and Where it's Headed

By Richard Zwicky
Posted Monday, June 28, 2004

Have you ever got one of those silly emails that offers to let you own a keyword? Silly question. How many such emails do you get every day?

A number of such services regularly email me offering keyword ownership of premium keywords for $300/year. They say that anyone can type the keyword I bought in the address bar of Internet explorer, instead of typing in a URL, and they will be sent directly to my site. In total it seems that there are about 2% of Internet users worldwide who have enabled one type or another of this system, spread out between a few competitive services.

Data shows that between 4% and 7% of search queries are performed by entering something in the address bar. By default for IE users, these searches are automatically routed through to MSN search. Many of us however have installed so much software over time, and unknowingly, some of this software has re-routed these search queries to other search portals, such as iGetNet, or others. This often happens if you've installed any file sharing software. We have all heard / read about how many extra 'features' come with programs like Kazaa. This means that your default search from the address bar may no longer be MSN, and may have been rerouted elsewhere, but the basic principle still applies. Of the queries that are actually run from an address bar, at least half of them are unintentionally instigated by people mistyping the desired URL. This means that between 2% and 4% of Internet users actually search via their address bar.

So how exactly do these address bars work? There are many of these companies offering this kind of service, with each one of them selling the very same keywords to different and sometimes competing companies. To make things worse, the keywords you might buy will only work with the issuing companys proprietary address bar plug-in. Then, to actually offer search capabilities from the address bar, each of these service providers needs to get individual Internet users to download and install their plug-in, and remember to run searches from the address bar.

How effective can a marketing strategy of this nature be when the various tools are not interchangeable, theres numerous competitors selling the same key words to different companies, and you are targeting only a small fraction of Internet users? If your ad is being displayed because its similar to the search query, are you paying for irrelevant results? This can happen; If there is not a perfect match to a search query, the next closest match may be displayed.

Competing with these companies is any search engine that offers its own toolbar. You can download a toolbar from any number of engines, and run searches on any key word or phrase quickly and easily. You then get the search engines selection of closest matches, from all the web sites they have indexed. They offer more than just one choice, and dont cost anything

Who Started This?
Started in 1998, Realnames was the first company that tied searching via the address bar to a web browser. At the time, it was touted as a value added solution for businesses around the world who were attempting to get their products found quickly, but didn't want customers to have to wade through a sea of Web addresses to reach their destination.

In part, it was deemed necessary because so few web site operators were search engine savvy, and fewer still knew anything about search engine optimization and promotion. What the Realnames solution did was allow a web site operator to buya keyword, and then when any user of Internet Explorer would type that keyword into the IE address toolbar, they would get directed to the web site that owned the keyword.

The company hoped to profit from businesses which wanted to reach Internet users who would type keywords into their browsers address bar instead of remembering the url, or going through a standard search interface.

Unfortunately for the company, the service was entirely dependent on Microsoft; and when Microsoft stopped supporting the technology in May 2002, the company was forced to close. The reason it was so totally dependent was simple; Unlike the new companies on the market today, Realnames did not depend on an end user downloading and installing a plugin, instead it was essentially integrated into Internet Explorer by Microsoft. Therefore everyone who used IE automatically had the plugin.

The Legal Question
Each of the companies offering these services has a policy designed to ensure that a web site only buys keywords related to their content, and their review process is designed to keep cybersquatters from hijacking popular names and products. Unfortunately, there is no way to guarantee that any one of these keyword ownership services adheres to any naming standard, or even ensures that any purchaser has the legal right to any of the terms they are buying. This means that the rights to copyrighted material like "Pepsi" or generic words like "business" could end up in the hands of the first buyer. While Pepsiis a well known brand name, there are millions of copyrighted and trademark protected terms, covered in multiple jurisdictions. For these services to police copyright and trademark infringement would not be cost effective or practical.

In the summer of 1999, the U.S. Court of Appeals for the Ninth Circuit, denied Playboy's request for an injunction barring a search engine from selling advertising based on the terms playboyand playmate. In the precedent setting ruling regarding keyword advertising, Judge Stotler of the United States District Court in Santa, Ana, California, dismissed a lawsuit brought by Playboy Enterprises against the search engine Excite, Inc. and Netscape. The ruling limited the online rights of trademark holders, as it recognized that a trademark may be used without authorization by search engines in advertising sales practices.

Playboy claimed that the search engines were displaying paid banner ads from pornographic web sites whenever "playboy" or "playmate" were used as a search term. As the owner of the trademarks for both terms, Playboy argued that the use of its trademarks for a third party sales scheme was trademark infringement and branding dilution.

In the ruling dismissing Playboy's case, the Judge found that Excite had not used the trademarks "playboy" and "playmate" in an unlawful manner. This was because Excite had not used the trademarked words to identify Excites own goods or services and therefore trademark infringement laws did not apply. It was further determined that even if there was trademark usage, there was no infringement because there was no evidence that consumers confused Playboy products with the services of Excite or Netscape.

What about within Meta Tags?
Is it illegal to use trademarked terms in your meta tags? Sometimes. The problem occurs with how and why you are using the terms. Web sites that use the tags in a deceptive manner have lost legal battles. However, legitimate reasons to use the terms have resulted in successful defenses.

In a case involving Playboy, the firm was able to prove trademark infringement, based on use of their trademark in meta tags, url and content on the web site. The case was filed by the firm against web site operators for stuffing their web pages with the words Playboyand Playmatehundreds of times. Furthermore, the defendants were also using the terms Playboy and Playmate in the site names, URLs, and slogans. In this case the Judge ruled for Playboy, as there was a clear case of trademark infringement.

In the separate case, Playboy vs. Terri Welles, the court refused Playboys request. The reason was simple. Terri Welles was Playboy's 1981 Playmate of the Year. She had used the terms "Playmate" and "Playboy" on her web pages and within her meta tags, and the Court felt she had a legitimate right to use them to accurately describe herself, and to ensure that the search engines could catalog her web site properly within their databases. Playboy's appeal was dismissed on Feb. 1, 2002.

In Summary
It is clear that if you have a legitimate reason to use a trademarked word or phrase in your web site you can. You may also rent their ownership from one of the keyword ownershipcompanies. Be careful, though, it is possible that may get sued.

Does the technology work? Yes, but only for some of the approximately 3% of Internet users worldwide who have installed any one of a variety of competing plugins that enable this type of searching. I stress a fraction of the 3%, as you would need to buy the keywords from each individual vendor to ensure reaching all 2%.

About the Author
Richard Zwicky is a founder and the CEO of Metamend Software, (www.metamend.com), a Victoria B.C. based firm whose cutting edge Search Engine Optimization software is recognized as the world leader in its field. Employing a staff of 10, the firm's business comes from around the world, with clients from every continent. Most recently the company was recognized for their geo-locational, or GIS, along with their phraseology technology and context sensitive search technologies.