“Bait-and-switch” Search Engine Optimization Technique and Fair Trade Act Issues - Lexology

In Internet marketing, search engine optimization (SEO) is often used to enhance search engine exposure and increase visit traffic of web-pages or websites. Frequently used SEO techniques include content optimization and keyword optimization, as well as increasing page load speed. SEO differs from keyword advertising. Although keyword advertising is also aimed at increasing visit traffic, it is basically a service offered by search engines themselves. In contrast, in the case of SEO, search engines are oftentimes a tool: SEO experts analyze their algorisms, especially those pertaining to natural search rankings, thereby making the marketed content more possible to be accessed by search engine users.

Under Article 25 of Taiwan’s Fair Trade Act (“FTA”), “no enterprise shall … have any deceptive or obviously unfair conduct that is able to affect trading order.” The Fair Trade Commission (“FTC”), the agency responsible for protecting fair trade, has held in several decisions that a buyer of keyword advertising would violate Article 25 if the keyword exploited is the buyer’s competitor’s business name, because the ads that pop up upon the keyword searches “are taking a free ride on the competitor’s business efforts, thus impairing market transaction order whose cornerstone is competition on price, quality, and other efficacies.” (e.g., FTC Decision No. 109056 & FTC Decision No. 110075).

When SEO marketing comes across FTA more complicated legal issues arise, because SEO...

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