Behavioral ads and keywords-Powered – Updated Legal Hot Button Issues Internet Advertising

Copyright © 2009 Chip Cooper

Safire's New Political Dictionary defines "hot" as follows: A word or a question that ignites anger, fear, excitement, or emotional response.

Safire definition is consistent with two issues of Internet advertising – the ads and keyword performance – to perfection. Two events in the early months of 2009 show how these hot topics are being developed and how they ultimately may affect Internet advertising in a fundamental way.

Behavioral Advertising

Relevance is a key concept in advertising. With it, advertisers' messages hit home with buyers and increase conversions. Without it, messages from advertisers are wasted on the blind eyes and deaf.

Behavioral ads are advertising on the Internet to a new level of relevancy. Behavioral Technology track user behavior on the Web, including sites visited, duration of visits, content viewed, and searches. All these data are analyzed and a model of behavior occurs for a class of user connecting user demographic. Behavioral advertising networks and targeted ads that are relevant to demographic line.

The recent announcement by Google (with its AdSense network), and Facebook are beginning to separate behavior has aroused ads growing interest in privacy related issues. Concerns: lack of transparency in relation to harvesting practices and risk disclosure the information gathered, particularly sensitive information.

The Federal Trade Commission (FTC) has expressed interest in the privacy of behavior related to advertising, even before the announcement of Google and Facebook. In November 2007, the FTC held an open debate to discuss issues of privacy of publicity online behavior. Subsequently, the FTC has developed the proposed Principles Based on comments received at the town hall debates.

In February 2009, FTC staff has issued a report entitled "Principles of self-behavior for online advertising" (Principles). These principles are designed to encourage industry self-regulation to protect the privacy of consumers' activities online advertising.

The development of new listings behavior is that – if the three U.S. members of Congress have their way – ads behavior moves from self-regulation by federal law.

There Interestingly, the legislative effort is bipartisan. Rep. Cliff Stearns (R. Florida.), Rep. Rick Boucher (D.-Va.) and Representative Joe Barton (R.-Texas) working to introduce a bill to Congress to regulate the advertising of behavior. Boucher said the sites that participate in behavioral advertising should be required to obtain permission explicit user, and the obligation to disclose how they collect and use data.

Keyword Advertising

In the last four years, cases of ads triggered by keywords have been strongly contested. The dispute is now a familiar – if a search engine like Google will allow advertisers to pay Using per-click keywords that are also signs of a competitor for the purposes of triggering your ads on a results page.

Legal issues arise when a competitor purchases a competitor's trademark as a keyword. The Lanham Act (federal trademark law) prohibits:

Use * in " trade and

"* Risk of confusion."

To prevail, the plaintiff must satisfy two elements above.

The legal battle has focused on the use "in commerce" issue, the courts are hopelessly divided on the issue. Schools find that the ads are triggered by keywords key "use in commerce for the plaintiffs (the owners marks). On the contrary, the courts found that ads for keywords do not trigger a" use in trade "in favor of the accused (Promoters – search engines and their advertisers customers).

Until the April 3, 2009, 2nd Circuit (Connecticut, New York and Vermont) found that use of a trademark in keyword advertising triggered, provided that the mark is internal and not visible, does not amount to "use in trade "- which favors the defendant-advertisers.

On April 3, 2009, the second circuit reversed its position on the use "in commerce" question. In the case of Rescuecom v. Google, the Second Circuit ruled on a motion to dismiss the recommendation of Google and selling brand competitors Rescuecom amounted to a use "in commerce." Although this decision went against Google, Google can still prevail if the case reached the court after conclusion that there is no risk of confusion.

What Interestingly, most appellate courts have held that similar uses in the number of brands for use "in commerce." Is this investment for the Second Circuit signals a trend that could greatly promote the brand owners advertisers and cons close the gap between the circuits? Perhaps – and so this decision is so important.

Conclusion

With the upgrade above, here is where we are in the two hot topics in Internet advertising:

* Advertising of behavior – while the situation remains without Changes At present, there is no federal regulation in the works that could impose meaningful rules on confidentiality in the near future, ads triggered by keyword * – there is still a significant gap between the circuits, but the division is reduced in favor of trademark holders in due course the decision of the Second Circuit in Rescuecom v. Google. The 2nd Circuit decision suggested that it would be prudent for Congress to resolve this break with the specific legislation in the future.

This article provides educational and informational purposes only. This information does not constitute legal advice and should not be construed as such.

About the Author

Leading Internet, IP and software attorney Chip Cooper helps small websites achieve website legal compliance with his MyLegalFirewall Website Document Drafting Service. Discover how quick, easy, and cost-effective it is to draft your own website legal documents online and claim your FREE Special Report, Determine Which Legal Documents Your Website Really Needs, at ==> http://digicontracts.com/

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