With a tough economy, and many companies struggling to keep, or gain market share, there seems to be an increase in lawsuits surrounding online advertising, and the strategy some companies use to bid on their competitor’s name. We recently had an opportunity to be involved in a court case, and give expert testimony on the inner-workings of Google AdWords, and other PPC platforms, and how trademark rules are handled.
However, this is nothing new. Back in 2004, the insurance giant Geico, sued Google for allowing their competitors to bid on their name and “create confusion with consumers,” a clear violation of the Lanham Act. So, what was happening is a Geico competitor would bid on the word “geico”, or maybe even “gieco”, and hope to outbid the actual company in the hopes of attracting potential leads. Geico claims that not only was the competitor bidding on their name, but also using it in the ad itself.
Back in 2004, Overture had seemingly stricter rules, whereas Google took more of a “hands-off” approach, allowing trademarked terms and reviewing few complaints. Now in 2009, things are more competitive, and compaines are doing whatever it takes to get leads and sales on one of the most cost-effective channels: the Internet. So not only are some companies going to be tempted to bid on competitors trademarked names, but the owners of those trademarks are also going to be on the lookout more. Here is what we know:
Google Trademark Policy
“With Google AdWords, advertisers may select trademarked terms as keywords or use them in the content of the ad. As a provider of space for advertisements, Google is not in a position to arbitrate trademark disputes between advertisers and trademark owners. As stated in our Terms and Conditions, advertisers are responsible for the keywords and ad text that they choose to use. Accordingly, Google encourages trademark owners to resolve their disputes directly with the advertiser, particularly because the advertiser may have similar ads on other sites. However, as a courtesy to trademark owners, Google is willing to perform a limited investigation of reasonable complaints.
Google’s trademark policy does not apply to search results, only to sponsored links. For trademark concerns about websites that appear in Google search results, the trademark owner should contact the site owner directly.
Learn more about Google’s trademark policy and copyright policy.”
Source: Google AdWords Learning Center
Yahoo! Trademark Policy
“Advertisers sometimes bid on search terms that are the trademarks of others. For bids on search terms in Yahoo! Search Marketing’s Sponsored Search service, Yahoo! Search Marketing (formerly Overture Services, Inc.) requires advertisers to agree that their search terms, their listing titles and descriptions, and the content of their Web sites do not violate the trademark rights of others. In cases in which an advertiser has bid on a term that may be the trademark of another, Yahoo! Search Marketing allows the bids only if the advertiser presents content on its Web site that (a) refers to the trademark or its owner or related product in a permissible nominative manner without creating a likelihood of consumer confusion (for example, sale of a product bearing the trademark, or commentary, criticism or other permissible information about the trademark owner or its product) or (b) uses the term in a generic or merely descriptive manner. In addition, the advertiser’s listing should disclose the nature of the relevant content.”
So, in the end, both ad platforms tend to put most of the responsibility on the advertiser, but clearly are willing to investigate any disputes that may arise. Both have ways to detect trademarked names, but only if they have been entered into their systems by the owner of the trademark.
Recently I saw in Google AdWords one of our ads in a campaign was automatically disapproved because we had a trademarked name in one of the ads – which we HAD permission to use.
Have you experienced any trademark no-no’s in any PPC platforms? Describe your experience…