The U.S. mar­ket for on­line travel book­ings is about $80 bil­lion an­nu­ally and grow­ing, ac­cord­ing to For­rester Re­search. To get and keep their piece of this ex­pand­ing pie, on­line travel com­pa­nies (OTCs) ex­ert great ef­forts, and spend sig­nif­i­cant sums, in the on­go­ing race to rank high­est in search en­gine re­sults pages. These ef­forts, re­ferred to as search en­gine op­ti­miza­tion (SEO), use both or­ganic op­ti­miza­tion and paid search to drive traf­fic to the OTCs’ branded sites for con­sumers to di­rectly book rooms.

With paid search, the OTCs bid on key­words they be­lieve to be of in­ter­est to those look­ing to make an on­line travel book­ing. The more rel­e­vant the key­words, the more likely an OTC’s mes­sage will ap­pear in the search en­gine re­sults pages. All the ma­jor search en­gines of­fer ad­ver­tis­ing space, and paid search re­sults gen­er­ally ap­pear at the top or along the side of the or­ganic search re­sults.

But what if those key­words also hap­pen to be ho­tel and re­sort brand names?

While the le­gal­ity of key­word bid­ding on trade­mark terms may not have been fully set­tled in the courts, the search en­gines ap­pear con­fi­dent that the prac­tice does not run afoul of trade­mark laws. Google's pol­icy has for some time per­mit­ted any­one to pur­chase a key­word that may be a brand name of some­one else. And Mi­crosoft has an­nounced that it will, as of March 1, cease ed­i­to­r­ial in­ves­ti­ga­tions into com­plaints about trade­marks used as key­words to trig­ger ads on Bing and Ya­hoo! search in the United States and Canada. Mi­crosoft's prior pol­icy did not al­low bid­ding on a key­word, or us­ing in the con­tent of the ad, any term whose use would in­fringe the trade­mark of any third party or oth­er­wise be un­law­ful or in vi­o­la­tion of the rights of any third party. The new pol­icy has no re­stric­tions on who may bid on a key­word that is also a trade­mark. Thus, any com­pany could bid on a key­word, whether or not it is a trade­mark be­long­ing to some­one else, even a com­peti­tor.

For a ho­tel or re­sort, this means that an OTC is not vi­o­lat­ing any search en­gine pol­icy by trig­ger­ing ads off of the ho­tel’s or re­sort’s brand name. As a con­se­quence, the ho­tel or re­sort could find it­self in a paid search bid­ding war with one or more OTCs for its own brand name. If this poses an is­sue for the ho­tel or re­sort, then it should con­sider whether it is pos­si­ble to con­trac­tu­ally re­strict the OTC from key­word bid­ding on the ho­tel/re­sort brand name in one or more of the three ba­sic “match types” (ex­act, phrase and broad). For ad­di­tional pro­tec­tion, the ho­tel or re­sort may also at­tempt to ne­go­ti­ate hav­ing its brand name added to the OTC’s “neg­a­tive key­words” so that the OTC ads do not show in search en­gine re­sult pages when users type the brand name into the search en­gine tool.