February 18, 2011
People are often confused about trademarks in general, but even more so when it comes to trademarks and PPC. Just the word brings about a sigh, as most foks equate trademarks with legal matters, which automatically sound confusing. In order to simplify things a little, I am would like to try and boil down the main rules into digestible bites. I have also pulled together a few options in case you do find that a company is in violation of your trademarked terms.
Let’s break down the basic rules for the United States & Canada. There are a few differences for international PPC, which vary by country, so you will want to do additional research to understand the differences depending on which country you are advertising in. Keep in mind that these are two very general rules, and there are plenty of exceptions, so it is important to read through the detailed policies to make sure you are in compliance. As of March 3rd, these basic principles will apply to Google, Yahoo and MSN. MSN recently announced updates to their Intellectual Property Guidelines in order to better align with the search industry.
- Although there are some exceptions, for the most part you can bid on a competitor’s name, even if it is a trademarked term. Some big brands have tough restrictions, but for the most part you can bid on terms that you don’t necessarily own. Keep in mind though; that your quality scores for these terms will likely be very low which means your bids will be higher than normal. I recommend creating a “Competitors” campaign and putting all of your competitors terms here, so the poor quality scores stay with one campaign rather than sprinkled throughout your entire account.
- For the most part, you cannot use a trademarked term in your ads unless it is your trademark. Let’s say that I own the trademark on the term “Brainy Bananas” and I am competing against the company “Abby Apple”. Although Abby Apple can buy Brainy Bananas as one of her keyword terms, the headline of her ad can’t say “Bad Brainy Bananas” as that would violate my trademarked term.
There are some exceptions to these rules, and the fine print varies a little between search engines, so be sure you understand all the details if you plan to use trademarked terms in your ads.
A few general notes:
- If you have a trademarked name, make sure your trademark is registered with the search engines. There is no way for them to know that a trademark even exists if you don’t give them the information.
- It is your job to obtain permission to use trademarks in your ads. This becomes tricky when you have for instance software developed for the iPhone or something similar. Most likely your ads will be flagged if you use the term iPhone in your ad, because of trademark infringement. You may need to go through a process to get clearance and prove you have permission to use the trademarked term. Google will only accept authorization requests directly from the trademark owner and they must be non-conditional (meaning there can not be conditions such as time period or type of ad content when the user can or can’t use the trademark.). If order to be authorized, you must file a trademark authorization request with Google.
- There are a few instances where you can use a competitor’s trademark in your ads. If your ad is comparing your own product to a competitor’s and the landing page has documented, third-party research, then it may be okay. You must however, feature the research clearly on the landing page. Review the rules for both Google and MSN before you go this route to make sure you are in compliance. Each search engine has slightly different rules so it is important to read both.
Aren’t sure if your client’s name or product has been trademarked? You can do a quick search with the United States Patent and Trademark database search. Once on the home page, click on “Search Marks” to begin a new query. Keep in mind that the results will automatically show both live and dead trademarks, so either filter your results or be sure to read through carefully. Prior to filing a complaint with Google or MSN, you will want to get all of the legal details from your client’s lawyer, but this will allow you to do a quick search to at least see if they do in fact own a trademark. You might be surprised how many company names are not actually legally trademarked.
What to do if a competitor is unlawfully using your trademarked term in their ad? Although both Google and MSN encourage trademark owners to resolve their disputes directly with the advertiser using the term, there are some steps you can take
- File a Google AdWords complaint. For this, Google will investigate a trademark term in specific ads only. You must provide all of the details and prove you (or your client) owns the trademark and submit URLs for the companies in offense. This is where you will need all of the legal trademark information from your client’s lawyer in order to fill out the form.
- Contact MSN by completing the Online Trademark Concern form. Again, you will need to provide details about the trademark ownership itself as well as where you found the ad that is in violation.
Be warned that both of these complaints can take a while to be processed and resolved. While you will get confirmation that the complaint has been registered, you may not hear resolution on it for up to 6-8 weeks, depending on how many complaints the companies are currently working on.
As I mentioned before, it is your job to understand all of the rules and regulations tied to trademarks before you begin. Be sure to check out both Google’s Trademark policy as well as MSN’s to get all of the details. As a trademark owner (or representative if working on behalf of your client) it is your job to monitor competitors and make sure the trademarked name is not being used improperly.