The Dangers of Dynamic Keyword Insertion

In past articles in this newsletter on trademark infringement related to pay-per-click (“PPC”) keyword triggers, I wrote about how advertisers may intentionally use trademarked keywords to trigger the display of PPC ads (and gave my opinion ' and that of at least some courts ' that such use is not a trademark infringement). (See, “Trademarked Keywords Become Legitimate PPC Targets,” March 2011, and “The PPC Trademark Battle Continues,” October 2009.)

However, there's another aspect of PPC advertising in which keywords play a part ' and where such keyword use is more likely to be considered trademark infringement: the use of keywords within the text of an ad itself. After all, if the word Nike appears in an ad leading to an online store that sells running shoe brands other than Nike, then Nike might be forgiven for considering such use trademark infringement.

Unfortunately, trademarked keywords sometimes appear in PPC ads automatically, without anyone intentionally selecting them. How is that possible? Through the use of a technique known as dynamic keyword insertion, combined with inexact keyword matching.

Broad Match

The major search engines ' Google, Bing and Yahoo ' include PPC ads in their search results. For instance, search for running shoes on Google and you'll see, along with the “organic,” or free, search results, a number of text ads in two shaded areas on the search-results page (one at the top and one on the right side), each block identified with the label Ads (until recently, Google labeled these blocks Sponsored Results). When I searched for this term a moment ago, I found ads from Zappos.com, FinishLine.com, HolabirdSports.com, and various other websites.

These ads can be “matched” with searches in a number of ways. On the Google Adwords system, there are essentially three ways to match ads to searches: broad match, phrase match and exact match. Let's consider broad match first. The
advertiser creates an ad, and then associates a keyword phrase with it. For instance, let's say the advertiser associates running shoes with the ad, and then tells Google to broad match the ad. This means that not only will the ad appear when someone searches for the phrase running shoes (or at least be eligible to appear ' other factors, such as bid price, determine whether it's actually placed onto the results page), it may also appear for many other phrases. The advertiser has, in effect, left it up to Google to determine when it makes sense to display the ad. So, for instance, the ad may appear when someone searches for buy running shoes, jogging shoes, black running shoes, running shoes nike, or even simply nike.

Phrase Match

Phrase match tells Google to display the ad when the associated keyword is used in combination with other terms. For instance, if the ad is phrase-matched to the keyword phrase running shoes, the ad can appear when someone searches for running shoes, buy running shoes, black running shoes, or running shoes nike. It would not appear, however, when someone searches for jogging shoes or nike, because the phrase does not appear in those search terms.

Exact Match

Finally, exact match. Not surprisingly, the ad will only be displayed when someone uses the exact term associated with the ad. In our example, the ad will only appear if someone searches for running shoes; it wouldn't appear for buy running shoes, black running shoes, or running shoes nike.

Advertisers use these match types for various purposes. It's well known among experienced PPC advertisers that using broad match can be dangerous. Ads can be matched with all sorts of search terms that the advertiser would not think appropriate if it knew the match would be made beforehand; but because all these matches are done on the fly, when the advertiser is not watching, it's hard to predict what sort of matches will be made. Still, advertisers often use broad match to maximize the number of clicks they get (even if the clicks are likely to be less effective than clicks generated by tighter targeting).

But phrase match can be unpredictable, too. For instance, an e-tailer bidding on running shoes that doesn't sell Nike brand shoes, probably wouldn't want its ad matched to someone searching for nike running shoes or running shoes nike, but that could happen if phrase match is selected. (The advertiser could combine phrase match with a negative match to tell Google not to display the ad if the search phrase includes the term nike, but it's often hard to cover all the bases and anticipate the phrases that should be negatively matched.)

There are two reasons why search marketers say that it's a good thing if the term typed into the search engine by the searcher appears in an ad. First, the major search engines bold the searched-for terms in the search results (search for running shoes, and whenever running shoes appears in the search results ' whether in the organic results or the PPC ads ' the search engine will boldface the text). Bolded text stands out on the page, making it more likely that the searcher will see that particular ad; as he or she scans down the page, he or she in effect “trips up” on the bolded text.

Second, if the keywords searched for appear in a search result, whether organic or paid, that result is more likely to be clicked. So the result is more likely to be seen, because it's bold, and more likely to be clicked, because it matches what the searcher is seeking. Thus, putting the keywords into the ad text is a good thing from the perspective of someone trying to get people to click on ads.

Consider, however, that it's impossible to predict every possible keyword combination. People search in many different ways, with many different combinations of words, for the same thing: buy running shoes, sell running shoes, run shoes, nike & asic running shoes, best running shoes, jogging shoes on sale ' and on and on, into the hundreds, nay, thousands of different phrases. That's why Google provides broad and phrase match, to help advertisers match thousands of keywords with a smaller number of ads: Google will display the ads without the advertiser having to anticipate thousands of possible keywords and create an ad for each one.

Dynamic Keyword Insertion

But if you want to use the searched-for text in your ad, and yet you don't want to create an ad for every possible keyword phrase, how do you do that? Google created something it calls keyword insertion (although most people in the industry know of it as dynamic keyword insertion, or “DKI”). It's a simple technique in which the advertiser places a little piece of code ' {keyword:default text} ' into the ad text, in effect telling Google to “grab the words that the person searches for, and place them into the ad here.” For instance, an advertiser might create an ad with this heading:

{keyword:running shoes}

This tells Google: “grab the words that the person searches for, and place them into the ad here, but if the words are longer than the maximum title length, use the default text of running shoes.”

Consider this scenario: An example advertiser, who doesn't sell Nike products, creates an ad using the above title, and broad matches his ad to the phrase running shoes. Someone comes to Google and searches for buy jogging shoes. Because Google believes the phrase is similar to running shoes, it displays the advertiser's ad in the search results page. And because the advertiser used the dynamic keyword insertion code, and the keywords that the searcher searched for are below the maximum title length, Google uses those words as the ad title: buy jogging shoes.

In another scenario, using the same ad, keyword and match type, someone comes to Google and searches for nike running shoes. Because Google believes the phrase is similar to running shoes, it displays the advertiser's ad in the search results page. As I discussed in the “Trademarked Keywords Become Legitimate PPC Targets” article, that's probably okay, because so far it seems that using a trademarked term to trigger an ad is probably not a trademark infringement (and Google's policy is to allow trademarked terms as keyword triggers). However, because the keywords that the searcher searched for are below the maximum title length, Google uses those words as the ad title: nike running shoes. The advertiser now has an ad displayed on Google search results that is using the term nike running shoes in the ad title, pointing to a site which does not sell Nike running shoes. Trademark infringement?

The advertiser did not choose to display his ad in response to someone searching for Nike shoes, and in fact would be better off not doing so, because it will lead to wasted advertising dollars (people who see the ad, click on the link, come to the site and realize that the site doesn't have what they are looking for, and thus leave). Furthermore, the advertiser did not choose to put the trademarked term, Nike, in the ad text; and yet, there it is. Trademark infringement on autopilot.

Conclusion

Such combinations of poor ad targeting and DKI usually lead to nothing more than amusement or embarrassment, such as the eBay ads touting Bear Parts or African Slaves, the Amazon.com ad offering Human Remains, and AuthenticTraders.com claiming to have a “huge selection” under the ad title Wife. (Search HuffingtonPost.com for Funniest and Weirdest Google Ads of All Time.) On the other hand, it seems that dynamic keyword insertion may have played a role in a number of trademark cases (including perhaps the recently filed Greenberg Smoked Turkeys, Inc. v. Valueclick, Inc., — 6:11-CV-00038). When trademarks are involved, the use of DKI can be anything but amusing.

In past articles in this newsletter on trademark infringement related to pay-per-click (“PPC”) keyword triggers, I wrote about how advertisers may intentionally use trademarked keywords to trigger the display of PPC ads (and gave my opinion ' and that of at least some courts ' that such use is not a trademark infringement). (See, “Trademarked Keywords Become Legitimate PPC Targets,” March 2011, and “The PPC Trademark Battle Continues,” October 2009.)

However, there's another aspect of PPC advertising in which keywords play a part ' and where such keyword use is more likely to be considered trademark infringement: the use of keywords within the text of an ad itself. After all, if the word Nike appears in an ad leading to an online store that sells running shoe brands other than Nike, then Nike might be forgiven for considering such use trademark infringement.

Unfortunately, trademarked keywords sometimes appear in PPC ads automatically, without anyone intentionally selecting them. How is that possible? Through the use of a technique known as dynamic keyword insertion, combined with inexact keyword matching.

Broad Match

The major search engines ' Google, Bing and Yahoo ' include PPC ads in their search results. For instance, search for running shoes on Google and you'll see, along with the “organic,” or free, search results, a number of text ads in two shaded areas on the search-results page (one at the top and one on the right side), each block identified with the label Ads (until recently, Google labeled these blocks Sponsored Results). When I searched for this term a moment ago, I found ads from Zappos.com, FinishLine.com, HolabirdSports.com, and various other websites.

These ads can be “matched” with searches in a number of ways. On the Google Adwords system, there are essentially three ways to match ads to searches: broad match, phrase match and exact match. Let's consider broad match first. The
advertiser creates an ad, and then associates a keyword phrase with it. For instance, let's say the advertiser associates running shoes with the ad, and then tells Google to broad match the ad. This means that not only will the ad appear when someone searches for the phrase running shoes (or at least be eligible to appear ' other factors, such as bid price, determine whether it's actually placed onto the results page), it may also appear for many other phrases. The advertiser has, in effect, left it up to Google to determine when it makes sense to display the ad. So, for instance, the ad may appear when someone searches for buy running shoes, jogging shoes, black running shoes, running shoes nike, or even simply nike.

Phrase Match

Phrase match tells Google to display the ad when the associated keyword is used in combination with other terms. For instance, if the ad is phrase-matched to the keyword phrase running shoes, the ad can appear when someone searches for running shoes, buy running shoes, black running shoes, or running shoes nike. It would not appear, however, when someone searches for jogging shoes or nike, because the phrase does not appear in those search terms.

Exact Match

Finally, exact match. Not surprisingly, the ad will only be displayed when someone uses the exact term associated with the ad. In our example, the ad will only appear if someone searches for running shoes; it wouldn't appear for buy running shoes, black running shoes, or running shoes nike.

Advertisers use these match types for various purposes. It's well known among experienced PPC advertisers that using broad match can be dangerous. Ads can be matched with all sorts of search terms that the advertiser would not think appropriate if it knew the match would be made beforehand; but because all these matches are done on the fly, when the advertiser is not watching, it's hard to predict what sort of matches will be made. Still, advertisers often use broad match to maximize the number of clicks they get (even if the clicks are likely to be less effective than clicks generated by tighter targeting).

But phrase match can be unpredictable, too. For instance, an e-tailer bidding on running shoes that doesn't sell Nike brand shoes, probably wouldn't want its ad matched to someone searching for nike running shoes or running shoes nike, but that could happen if phrase match is selected. (The advertiser could combine phrase match with a negative match to tell Google not to display the ad if the search phrase includes the term nike, but it's often hard to cover all the bases and anticipate the phrases that should be negatively matched.)

There are two reasons why search marketers say that it's a good thing if the term typed into the search engine by the searcher appears in an ad. First, the major search engines bold the searched-for terms in the search results (search for running shoes, and whenever running shoes appears in the search results ' whether in the organic results or the PPC ads ' the search engine will boldface the text). Bolded text stands out on the page, making it more likely that the searcher will see that particular ad; as he or she scans down the page, he or she in effect “trips up” on the bolded text.

Second, if the keywords searched for appear in a search result, whether organic or paid, that result is more likely to be clicked. So the result is more likely to be seen, because it's bold, and more likely to be clicked, because it matches what the searcher is seeking. Thus, putting the keywords into the ad text is a good thing from the perspective of someone trying to get people to click on ads.

Consider, however, that it's impossible to predict every possible keyword combination. People search in many different ways, with many different combinations of words, for the same thing: buy running shoes, sell running shoes, run shoes, nike & asic running shoes, best running shoes, jogging shoes on sale ' and on and on, into the hundreds, nay, thousands of different phrases. That's why Google provides broad and phrase match, to help advertisers match thousands of keywords with a smaller number of ads: Google will display the ads without the advertiser having to anticipate thousands of possible keywords and create an ad for each one.

Dynamic Keyword Insertion

But if you want to use the searched-for text in your ad, and yet you don't want to create an ad for every possible keyword phrase, how do you do that? Google created something it calls keyword insertion (although most people in the industry know of it as dynamic keyword insertion, or “DKI”). It's a simple technique in which the advertiser places a little piece of code ' {keyword:default text} ' into the ad text, in effect telling Google to “grab the words that the person searches for, and place them into the ad here.” For instance, an advertiser might create an ad with this heading:

{keyword:running shoes}

This tells Google: “grab the words that the person searches for, and place them into the ad here, but if the words are longer than the maximum title length, use the default text of running shoes.”

Consider this scenario: An example advertiser, who doesn't sell Nike products, creates an ad using the above title, and broad matches his ad to the phrase running shoes. Someone comes to Google and searches for buy jogging shoes. Because Google believes the phrase is similar to running shoes, it displays the advertiser's ad in the search results page. And because the advertiser used the dynamic keyword insertion code, and the keywords that the searcher searched for are below the maximum title length, Google uses those words as the ad title: buy jogging shoes.

In another scenario, using the same ad, keyword and match type, someone comes to Google and searches for nike running shoes. Because Google believes the phrase is similar to running shoes, it displays the advertiser's ad in the search results page. As I discussed in the “Trademarked Keywords Become Legitimate PPC Targets” article, that's probably okay, because so far it seems that using a trademarked term to trigger an ad is probably not a trademark infringement (and Google's policy is to allow trademarked terms as keyword triggers). However, because the keywords that the searcher searched for are below the maximum title length, Google uses those words as the ad title: nike running shoes. The advertiser now has an ad displayed on Google search results that is using the term nike running shoes in the ad title, pointing to a site which does not sell Nike running shoes. Trademark infringement?

The advertiser did not choose to display his ad in response to someone searching for Nike shoes, and in fact would be better off not doing so, because it will lead to wasted advertising dollars (people who see the ad, click on the link, come to the site and realize that the site doesn't have what they are looking for, and thus leave). Furthermore, the advertiser did not choose to put the trademarked term, Nike, in the ad text; and yet, there it is. Trademark infringement on autopilot.

Conclusion

Such combinations of poor ad targeting and DKI usually lead to nothing more than amusement or embarrassment, such as the eBay ads touting Bear Parts or African Slaves, the Amazon.com ad offering Human Remains, and AuthenticTraders.com claiming to have a “huge selection” under the ad title Wife. (Search HuffingtonPost.com for Funniest and Weirdest Google Ads of All Time.) On the other hand, it seems that dynamic keyword insertion may have played a role in a number of trademark cases (including perhaps the recently filed Greenberg Smoked Turkeys, Inc. v. Valueclick, Inc., — 6:11-CV-00038). When trademarks are involved, the use of DKI can be anything but amusing.