• by Mark Naples , January 30, 2004

But, this time it's in Search, not in online profiling or the merging of online and offline data via a "common" cookie.

When I was lobbying for stronger consumer privacy protections in the 107th Congress, legislators would complain to me that I kept talking about business issues, and not consumer issues. I'd reply that the only issues that they needed to address were the business issues - which would make the consumer issues moot.

Back then, few Web publishers or retailers knew whether or not they owned their users exclusively. Some probably still don't. To a consumer, this is a privacy issue. To a Web business, it's a Brand protection issue.

The good guys won a couple of years ago, and most site owners understand this "owning your user" thing more than they used to. Profiling and personal data collection across sites doesn't happen anymore, at least among the top 200 sites. But, today, the privacy/brand protection issue is back. Sure enough, it's alive and well in Search under the rubric of "Trademark Protection." Sound familiar?

This is how it's manifesting itself today. There are three key ways that a Search marketer can take advantage of unknowing brand managers - or knowing brand managers who do not have the statutory wherewithal to remedy the problem.

1. Domain name hijacking. This is not unlike embedding Meta-tags to increase relevance to Search Engines, only it's more insidious. Have you ever clicked on a listing for a certain brand, only to have the link take you to some aggregator that you'd never heard of - or worse? That is the result of this kind of hijacking. And it makes all the good guys - from the true brand to the Search engine itself - into losers.
2. Keyword bidding on Trademarks. Sometimes, when a pirate has purchased someone else's domain name, they've done so through making sure they've outbid the good guys. With the right kind of bid management software, almost anyone can bid on a certain domain or brand name. Even the rightful owners of brands can see their name bids rise from the pirates bidding them up.
3. Pop-Ups and other dynamic ad units that are timed to obscure your brand. We all know why this is bad news for brands that have spent millions, only to be obscured by a pop-up when the right page shows up. Some of the travel sites still do this, and it makes me wonder if anyone from the brands is paying attention.

So, how do these practices hurt the brands of the companies whose marketing dollars pay our freight? Consumer perception and habits can become diminished. If a premium hotel chain is trying to protect its room rate, but an aggregator is offering a $480 room for $85 a night, and it's the aggregator's site that comes up when a user keys in the hotel chain's name, why would that consumer ever call or search for that hotel again?

Think that sort of thing doesn't happen much? It happens thousands of times every day. Such brand dilution is bad news for the interactive budgets of companies who don't know how the game is played online. An aggregator or some other entity that hijacks a branded keyword can bottom feed against that brand's equity. This will reduce traffic to the branded site, take business from them, and perhaps worst of all, eliminate CRM opportunities between the brand and the consumer who initially sought them.

"It's vital to work with the right Search engine marketing firm, and to be vigilant against trademark theft at all times," said Jens Thraenhart, Director of Internet Strategy for the prestigious Fairmont Hotels and Resorts chain. "There are solutions to the kind of trademark and brand theft that's been taking place in Search. It has to come from all the players, but mostly from the brand managers and decision-makers themselves who have the most to lose and the most to gain. All the search engines and every reputable SEM practitioner should be watching too, because it hurts our entire industry."

And the results if this is not remedied? A little bit less than a year ago, I warned in this space that the Feds were going to regulate email just like they had telemarketing unless the industry got its act together and learned to police itself. A few months later, the "CAN-SPAM" Bill could have and should have been prevented.

Unless the Search industry as a whole motivates against trademark infringement to protect the brands that are funding this market's growth, look for similar regulation in the next Congress, if not sooner. The Feds have done it before, and they won't be shy about doing it again in such a prominent and growing segment of our industry.