Catherine "Cat" Seda

Friday, March 02, 2007

Trademark Infringement and Trademark Marketing on PPC

Are you a manufacturer, reseller or affiliate of a big brand? Want to be? If so, then pay close attention to this:

Bidding on trademarks through pay-per-click is amazingly profitable. That’s because if people like a brand, they buy it. You don’t have to convince them that the product (or service) is good—they know it is. Simply show up in a top search engine position for your trademark terms and customers will come.

But are your competitors bidding on your trademarks? They could try to steal your customers by leeching off your brand recognition. Even if they’re not bidding on your trademarks today, they could tomorrow. So keep this month’s Q&A close by.

QUESTION:

I understand that if you type “Ford car” you’ll see pay-per-click ads for Ford. But can Joe’s Auto Sales bid on “Ford car” then do a bait-and-switch, redirecting people who click on the ad to a web page about Honda instead? And what if a Honda dealer’s ad appears when you type in “Ford car?” Is that legal?

What if an advertiser doesn’t even sell the keywords he’s bidding on? When I complained to an advertiser who was doing this, he removed his ad. But others are mostly fly-by-night scams. Does it do any good to complain? And who do you complain to?

~ Dr. Murray Grossan, http://www.DrGrossan.com


CAT’S ANSWER:

Ah…I get asked this question a lot. The search engines have changed their trademark marketing policy since my first book “Search Engine Advertising” was published. To keep things simple, I’ll focus on their current policies.

A “bait-and-switch” is not allowed. Someone can’t bid on his competitor’s trademarks then redirect people to his site to instead. This creates “consumer confusion” which can constitute trademark infringement.

Yes, you can fight back. Here’s what you can do:

Hire an attorney to write a “cease and desist” letter for you to send to competitors. A scary letter from a lawyer can immediately stop this pesky problem.

Complain to the search engines. Unfortunately, like you said, some competitors hide their contact info so you can’t reach them. And some will ignore your legal letter anyway. Do what you can to contact your competitors though because the search engines want you to resolve this on your own. (Including the status of your communication with competitors in your trademark complaint can also help persuade the search engines to help you.) Follow the search engines’ trademark complaint guidelines, which I’ve included here:

Google’s Trademark Policy
https://adwords.google.com/support/bin/answer.py?answer=6118

Yahoo!’s Trademark Policy
http://searchmarketing.yahoo.com/legal/trademarks.php

Microsoft’s Trademark Policy
http://advertising.microsoft.com/Home/Article.aspx?pageid=708&Adv_Articleid=3216

BONUS TIP: In your trademark infringement complaint letter, argue that your competitor is creating “consumer confusion.” I know this works because I’ve used it for clients.

In a nutshell, here are the trademark marketing policies of the big dogs:

Google (for AdWords) will allow a competitor to bid on trademark terms not owned by him. However, if the trademark owner files a complaint, the competitor will be forced to remove these trademark terms from his ad text.

Yahoo! (for Sponsored Search) will allow an authorized reseller or information site publisher to bid on trademark terms, but not a direct competitor unless he fits in either one of these categories.

Microsoft (for MSN Live Search) will allow an authorized reseller or information site publisher to bid on trademark terms, but not a direct competitor unless he fits in either one of these categories.

You don’t need a government-registered trademark to file a trademark infringement complaint, although that can help. If you’re doing business in the U.S., you may find the U.S. Patent and Trademark Office web site helpful: http://www.uspto.gov

In closing, I am not a lawyer. For legal advice, get thee to an attorney. J

Got an Internet marketing question for me? Once a month, I answer a subscriber’s question and feature the company’s URL in my newsletter. You may be next! Send your question, and URL, to my assistant at info[@]CatherineSeda.com

5 Comments:

  • I like Google's policy... Unless the sites discourage it, it can be beneficial to companies if others are actively promoting their products, especially if that company doesn't sell directly online. For large companies, they usually also have the domain name and top spot in the natural listings, and if their distributors are doing well, that should reflect back on them with increased sales.

    By Anonymous Brian Laks, at 5:56 PM  

  • Thanks for your comment, Brian.

    To an affiliate or reseller of a big brand I'd say, "DO bid on the merchant's trademark terms. You'll make a lot of money on these keywords."

    To a big brand I'd say "DON'T let your affiliates or resellers bid on your trademark terms. You'll kill your profits on these keywords."

    I can see your point though. Yes, it would be better for the big brand to have its affiliates/resellers in the organic and paid listings, rather than its competitors. However, since the exact positions of SEO and PPC can't be controlled, it's very possible that the big brand won't maintain the #1 spot and can lose sales to its resellers/affiliates.

    Of course, resellers/affiliates take the risk doing SEO and PPC. They must invest their time and money, without knowing if they'll get the sale. So, a big brand could consider their resellers/affiliates their performance-based search engine marketing consultants. That's not so bad, either.

    What do you think a big brand should do? And which side of the equation do you represent: the big brand or the big brand's reseller/affiliate/marketing agency/etc.?

    By Blogger Cat Seda, at 2:27 PM  

  • I find it serious because my Trademark (Registered) is Hydro Pulse and Google allows Colloidal Silver to show up in the paid section. I happen to strongly advise against this product because it produces harmful side effects called Argyrosis for which there is no cure. Another harmful one is Hydro Pulse Free. This is strictly a bait and switch deal but we did have success following your recommendations. Thanks.
    Dr. Grossan.

    By Anonymous Anonymous, at 3:39 PM  

  • I'm glad my recommendations helped, Dr. Grossan. That sounds like a dangerous situation.

    By Blogger Cat Seda, at 3:42 PM  

  • Bait and switch and customer confusion is now dead with the last court holdings. Take another look and the courts no longer care about the initial interest confusion.

    By Anonymous Michael, at 1:49 PM  

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