Peculiar Characteristics and Uses. Search ads are generated in response to a user query. U.S. Plaintiffs assert that such queries are a well-defined and contemporaneous expression of a user’s intent that is unmatched at driving conversions. That is the defining feature of the proffered market. Google disputes the notion that search ads uniquely capture and convert user intent. That construct is outdated, it says. Social media and display ads can be extremely effective in discerning a user’s unexpressed, or latent, intent and driving conversions. Thus, according to Google, what U.S. Plaintiffs say is unique about search ads is readily achievable through other ad channels. The court thinks U.S. Plaintiffs have the better of this argument.
Search ads are a direct expression of a user’s specific motivation or interest at the time it is entered. FOF ¶¶ 167, 169–170. For example, a search ads platform understands the query “Taylor Swift Eras Tour tickets” to mean “I’d like to purchase tickets to see Taylor Swift in concert right now” (or at least “I’m thinking about doing so right now”). That provides ticketing vendors a unique opportunity to connect with a Swiftie who is seeking tickets for a show.
On the other hand, social media, display, and retargeted ads rely on indirect signals to decipher a user’s latent intent and thus are less valuable to advertisers. Such signals include present and past interactions with a webpage, accounts the user follows, videos or photographs the user views, and how the user engages with a post. FOF ¶¶ 201–202, 208–209; e.g., Tr. at 1418:4-8 (Dischler) (“The users’[] interest can be signaled in any number of ways, whether it’s visiting a website, whether it’s subscribing to a TikTok channel of a golf influencer[.]”). Consider a TikTok user who regularly watches videos of the Eras Tour. That user is not necessarily conveying an immediate desire to purchase concert tickets, and a ticket vendor who targets that user with a social media ad is less likely to achieve a conversion than if the user had searched for tour tickets on a GSE. Search ads are thus unique in their capacity to connect the consumer and vendor at the very
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