Search engines sued over 'pay-for-placement'

The US-based maker of a weight-loss system has taken legal action against four search engines this week, alleging that their...

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,, 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."

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