A San Antiono, Texas-based weight loss company is joining the chorus of voices criticizing paid search listings, filing suit against Overture, AltaVista, FindWhat.com and Kanoodle.
The diet firm, Mark Nutritionals, filed the suit in U.S. District Court in San Antonio, and seeks at least $10 million in compensatory damages and $100 million in punitive damages from each search engine, for what it termed a “willful attempt to mislead users” for their own financial gain.
Mark Nutritionals, which manufactures a line of diet products called Body Solutions, alleges in the suits that because competitors can bid for placement using the term “body solutions,” the search engines knowingly allow violation of Mark Nutritionals’ trademark of the phrase.
“When I type in the words ‘Body Solutions’ on these search engine sites, they direct me to sites where would-be imitators of our system sell their products,” said Body Solutions chief executive Harry Siskind. “These Internet companies are using our Body Solutions name, which took years to bring into the public consciousness, to misdirect people to companies that are violating our trademark rights.”
Siskind also said that because the rivals — which include Twin Lab Products and Calorad2002 — advertise their products using search engine results generated by the term “body solutions,” they are endangering consumers.
Indeed, search listings on Overture using the term produced four results above Body Solutions’ own link — including links to pages like “Thermo-Lift vs. Body Solutions” and “Original Calorad2000 vs BodySolutions.”
“When we found out what the search engines are doing, all of the members of the Body Solutions family were outraged,” Siskind said. “We felt that we had no choice but to turn to the courts.”
Spokespeople for the search engines didn’t see the issue that way, instead saying that Mark Nutritionals made no effort to discuss the matter before filing its suit.
“If they’d called us, we’d have been more than happy to talk it over with them,” said Phillip Thune, chief operating officer and chief financial officer for New York-based FindWhat.com. “I don’t think they’ve contacted anybody who’s been involved in the lawsuit, which makes me question their motives.”
Mark Nutritionals attorney J.D. Pauerstein confirmed that the company did not contact any of the defendants. He added that the company was also in litigation and “varying levels of interaction” with its rivals.
“These suits are a logical extension of an ongoing campaign to protect the Body Solutions trademark and reputation for quality,” Pauerstein said. “We won’t allow anyone, whether an Internet search engine or a competitor, to wrongly profit by misusing the Body Solutions name and misleading consumers in the process.”
Spokespeople for AltaVista and Kanoodle declined to comment on the suit. A spokesman for Overture said the company had not yet been served with the suit, and could not comment.
While such lawsuits are uncommon, criticism of the pay-for-placement search engines is not.
In early 1999, cosmetics giant Estee Lauder sued Excite.com for selling the search engine listings for two trademarked keywords –“Estee Lauder” and “Origins”– to a competitor, without consent. Excite ultimately agreed to settle the suit, with Estee Lauder retaining the right to have its own listings appear when the terms are entered.
In a similar matter, Consumer Alert, an advocacy group founded by Ralph Nader, last July filed a complaint with the FTC charging that major search engines didn’t clearly indicate that their listings were paid. The complaint named several search engines as well as several major distributors of their listings, including iWon.com, AOL Time Warner’s America Online, and Microsoft Corp.,
although it did not criticize Overture, which the group said sufficiently indicated that its listings are paid.
The news comes just a week after FindWhat.com filed its own lawsuit against Overture, alleging that the company’s patent was invalid and unenforceable. The suit charged that since the pay-for-placement model had been widely used before Overture (then GoTo.com) filed for a patent, it should be revoked.
