Trademark Infringement Issues for Pay Per Click (PPC) Advertisers
Yahoo just announced that they will no longer allow PPC advertisers to advertise or offer trademarked terms.
Could this be a trend of things to come from the other major search players?
The new MSN adCenter (still in beta) states that you are not allowed to infringe trademarks within their editorial guidelines (see policy below).
However, Google is still taking a strong stance on allowing advertisers to bid on trademarked search terms, as long as the trademarked term is not used in the advertiser’s ad text.
Numbers to consider
Next to click fraud, trademark infringements are the second biggest concern for pay-per-click (PPC) advertising. Of the total number of online searches, 20% are brand searches. That is, company-owned trademarks such as “Pontiac” account for 20% of all search traffic. While 1 in 5 searches for trademarked terms may seem high, most conversions don’t originate from trademarked terms. A study by comScore and Yahoo Search Marketing (Overture) found that most shoppers don’t search by manufacturer or product name. Rather, buyers use broad search terms that do not include the manufacturer’s name. General search terms account for 70% of total searches and 60% of total conversions.
Search Engine Policy on PPC Trademark Bidding
Yahoo in Brands:
“On March 1, 2006, Yahoo! Search Marketing will change its editorial
guidelines on the use of keywords containing trademarks.
Previously, we enabled competitive advertising by allowing advertisers
bid on third-party trademarks if those advertisers offered
comparative information about the products of the owners of the trademarks or
services compared to competing products and services
that were offered or promoted on the advertisers site.
In order to more easily deliver quality user experiences when
users search for terms that are trademarked, Yahoo! search marketing
has determined that we will no longer allow bidding on keywords
containing competitive trademarks.
MSN AdCenter on Trademarks
“Microsoft requires all advertisers to agree that they will not bid on keywords or use in their ad text any keywords whose use infringes a third party’s trademark or is illegal or infringes the rights of any third party.” party”.
Google AdWords in Brands:
“Google takes reports of trademark infringement very seriously, and as a courtesy, we’re happy to investigate matters raised by trademark owners. Additionally, our Terms and Conditions with Advertisers prohibit intellectual property infringement by advertisers and make it clear that advertisers are responsible for the keywords they choose to serve ads and the text they choose to use in those ads.”
Solution or more problems
With all engines moving towards a TM standard, it would have many benefits for both advertisers and search engines. This standard would be good for marketers who would have to be more creative in creating copy, creating more demand for skilled marketers, which would translate to higher fees. The search engines hosting the ads would maintain revenue levels, but online PR firms stand to lose as they would not be required to police the search engines of their trademarked clients. Ultimately, the brand owner would still be protected and the user experience would not be affected.
I’m currently working with an AdWords client in a situation where their competitors are bidding on their trademarked search terms. In addition to constant monitoring and reporting of trademark infringements being used in the ads themselves, the ad spend to secure the top positions for your ads has skyrocketed from an initial $2.00 per click to $15.00 per click. click. Additionally, the monthly expense has increased from $1,200 to almost $30,000.
I have to go back to my client with an estimated budget of $500,000 for the rest of this year to control the space for their own trademarked term. I’m reluctant to do that, as it doesn’t make sense with Yahoo’s announcement of their new trademark policy. Given the level of aggression from competitors and the exorbitant cost my client now bears, there is only one solution and that is to stop all advertisers from bidding on the terms. In my opinion, it’s just not right that a business owner has to spend over $500,000 to buy their own brand term that has already cost them millions of dollars to build. This is more than $500,000 in revenue for Google that is being generated by a policy that goes beyond the elementary terms of trade. Yahoo and MSN have recognized the unfairness of this policy and have taken steps to change it.
If we are unable to address this policy on a case-by-case basis, then I have no choice but to inform my client that we are unable to assist him further and that his only option is to pursue legal action against Google.
Google also advises that you deal with individual advertisers, which in many cases is impossible with private registries and foreign companies. You could dramatically add to your high costs by having to send cease and desist to all violators. Many will ignore you.
The classic bait and switch doesn’t seem to apply to the internet. Many companies are okay with their terms being bought for price comparison and by resellers. The solution here is for those companies to give Google permission to allow their resellers to buy the name. With the strength and sophistication of Google’s technology, how difficult can this be? I doubt it’s more cumbersome than filtering search results for China.
Your defense against trademark violations
Website businesses where the majority of their income is generated through online sales rely heavily on search engines to drive traffic to their website. To defend against trademark infringements, you’ll need to conduct search audits at least once a month. You not only need to review organic search results, but also paid search results or PPC contextual ads. You need to look through the top 30 results of the search listings.
For organic search engine results, you should look at both the questionable result and the site shown in the result. When reviewing the site of the potential infringer, don’t just review the content visible on the site; Also review the code to discover hidden text, image alt tags, and keyword meta tags that may include your trademarked names.
Then document your findings. For search engine results and PPC results, please use a “screenshot” of the page showing the trademark infringement. For trademark violations that are visible on a website, save the full page code as a .txt file.
What if you see a violation in the organic search results, but when you click through to the page, there is no violation? They may be using a cloak page that includes your trademark. To verify this, you’ll need to view the search engine’s cached page in the file. Be sure to keep a copy of this code as well.
You will need to document your findings by properly dating the violation and full contact information for the site owner. Use http://www.dnsstuff.com to get the site’s whois information. Once you have all of this documented, you’ll need to submit your findings to the appropriate search engine.
You may also want to take the legal route, in which case you should keep a record of all your documentation to present to your legal counsel.
The best way to collect evidence is to hire a third party to collect evidence against the infringer of your trademark or copyrighted material. Recently, at Search Engine Strategies in New York City during February 2006, Deborah Wilcox, a partner at Baker & Hostetler LLP, who specializes in the areas of copyright and trademark law, said: “Use a third party to print and audit the search results. If the case goes to court, you’ll need hard evidence for the judge.”
Contact search engines
You can also contact search engines directly if you believe an advertiser is infringing on your trademark. The contact information of the respective search engine is below.
Attention: Google AdWords, Trademark Claims
2400 Bayshore Parkway
Mountain View, CA 94043
yahoo! search marketing
Formerly: Overture Services, Inc.
Attn: Business and Legal Affairs – Registered Trademarks
74 N. Pasadena Ave., 3rd Floor
Pasadena, California 91103
Fax: 626 685-5601
Attn: MSN Search Trademark Concerns
a way to microsoft
Redmond, WA 98052
Trademark Infringement Remedies
International Trademark Association
American Center for Patent and Trademark Law
Internet patents, copyrights, trademarks and legal issues
brands on the Internet