The US-based maker of a weight-loss system has taken legal action
against four search engines this week, alleging that their policy
of letting advertisers pay to appear in top-ranked search results
violated US trademark and fair-competition laws.
Mark Nutritionals, which sells the Body Solutions weight loss
system, filed suit against AltaVista, Kanoodle.com, FindWhat.com
and Overture Services on 28 January, asking for at least $10m (
£7.08m) in compensatory damages and $100m (£71m) in punitive
damages from each company.
The plaintiff claimed that when "Body Solutions" is typed into the
search engines' query field, rival sites using the Body Solutions
name appear ahead of the company's official site. Mark Nutritionals
is accusing the search engines of allowing advertisers to employ a
"bait-and-switch" scheme whereby companies can use the Body
Solutions name on their site and then pay to appear as a top query
result. Not only does this infringe on Mark Nutritionals' trademark
and violate fair competition rules, the company claimed, but it
also confuses consumers.
AltaVista refused to comment on the suit Thursday. No one from the
three other search engines were available for comment.
Danny Sullivan, a consultant and journalist who maintains the
Search Engine Watch Web site, which gives tips and information on
searching the Web, said that "every major search engine in the US"
employs pay-for-placement search results and that this complaint is
nothing new.
However, he believes that Mark Nutritionals' consumer confusion
argument may carry weight with the court. The trademark violation
argument could be more difficult, he said, given free speech and
comparative advertising laws.
A Web site claiming that its weight loss product is better than
Body Solutions' product is protected under comparative advertising,
for example.
Consumers searching for truth and objectivity have apparently got
the wrong idea about search engines. Overture, formerly known as
GoTo, is not really a search engine. The company bills itself as a
pay-for-performance search provider that allows companies to bid
for search-result placement based on relevant keywords.
A handful of big name search engines incorporate Overture's
results, including AltaVista, and those of America Online, Lycos,
Yahoo, and Netscape. Kanoodle and FindWhat are also more akin to
advertisers than search engines.
In fact, Sullivan said that AltaVista was the only true search
engine among the defendants, and added that he believes that they
got singled out just because Mark Nutritionals' Body Solutions did
not appear in the site's top-ranked listings.
"AltaVista just got tossed in. It's unfair," said Sullivan. "Of
the four, the case against AltaVista will be the weakest."