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.