Protecting Trademarks Online
This article on Trademark Infringement and Pay-Per-Click advertising was originally posted here at Google's knol website. Rather than reinvent the wheel, since this article is very well written, it is being repeated here with full credit given to the author, as follows:
Downhill, Fionn. Protecting Your Trademark Online:Trademark infringement and paid search [Internet]. Version 4. Knol. 2008 Jul 24. Available from: http://knol.google.com/k/fionn-downhill/protecting-your-trademark-online/8ff4qknad5fz/2.
Trademark Infringement and Pay-per-Click (PPC) Advertisers
Online brand names and trademarks are not fully protected by law. Competitors often use underhand tactics to infringe on brand or trademarks.
Trademarks distinguish your brands from your competitor’s brands. They reflect on your reputation and your identity. Successful brands and trademarks are the results of serious investment of time and capital. The goal is to give you an advantage over your competitors.
Trademark infringement issues are of great concern to online Pay-per-Click (PPC) advertisers. It is estimated that twenty percent (20%) of all searches online are trademark searches. Businesses around the world are losing millions of dollars because of trademark infringements. It also drives the price of PPC ads upwards.
While 1 in 5 searches for trademark terms may seem high, most conversions do not originate from trademarked terms. A study by comScore and Yahoo Search Marketing (Overture) found most buyers do not search by manufacturer or product name. Rather, buyers use broad search terms that do not include a manufacturer’s name. Broad search terms account for 70% of total searches and 60% of total conversions.
Companies often bid on the brand names of their competitors. This means that when a searcher types in your brand name the ads for your competitors appear. They click on your competitor’s site thinking it is related to your site. This is basically a form of bait and switch fraud, which offers your customers an alternative brand to your product. Currently it is possible to stop all advertisers from bidding on the terms within Yahoo and MSN. Google is the only one of the top three search engines that still maintains a strong stance in allowing advertisers to bid on trademarked search terms -as long as the trademarked term is not used within the advertiser’s ad-copy.
Defending Your Brand Against Trademark Violations
To defend against trademark violations it is advisable to conduct search audits at least once every month. The search audits should include:
- Organic Search Results
- Paid Search Results
- PPC Contextual Ads
If there are sites listed that use your trademark look at both the questionable result that is listed and also the site displayed in the result. When looking over the possible violator’s site, don’t just look over the visible content on the site; look over the code as well to uncover hidden text, image alt tags, and keyword meta tags that may include your trademarked names. There is also the possibility that they may be using a cloaked page, which includes your trademark. To check this out, you will need to view the search engine’s cached page on file.
If there is evidence of a trademark violation document all of your findings by dating the violation as well as the site owner’s complete contact information. Obtain Whois information for the site. For both organic and paid results, use a “screen capture” of the page displaying the mark infringement. For mark infringements that are visible on a website, save the entire page’s code as an .htm file. Once you have all of this information documented, you should send your findings to the appropriate search engine. You also have the option to take legal action. In this case you should present your complete set of records to your legal counsel. You may want to gather evidence by hiring a third party to collect evidence against the infringer of your trademark or copyrighted material.
Individual Search Engine’s Policy on Trademarks
Yahoo on Trademarks:
"On March 1, 2006, Yahoo! Search Marketing will modify its editorial guidelines regarding the use of keywords containing trademarks. Previously, we allowed competitive advertising by allowing advertisers to bid on third-party trademarks if those advertisers offered detailed comparative information about the trademark owner's products or services in comparison to the competitive products and services that were offered or promoted on the advertiser's site.
In order to more easily deliver quality user experiences when users search on terms that are trademarks, Yahoo! Search Marketing has determined that we will no longer allow bidding on keywords containing competitor trademarks."
MSN AdCenter on Trademarks
“Microsoft requires all advertisers to agree that they will not bid on keywords, or use in the text of their advertisements, any word whose use would infringe the trademark of any third party or would otherwise be unlawful or in violation of the rights of any third party”.
Google Adwords on Trademarks:
“Google takes allegations of trademark infringement very seriously and, as a courtesy, we're happy to investigate matters raised by trademark owners. Also, 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 generate advertisements and the text that they choose to use in those advertisements.”
Solution or More Problems
Trademark Case Study
A Google Adwords client, who is a leader in the very competitive Network Marketing field, recently noticed a surge of infringements against their trademark which was being used in competitor ad copy on the Google Network. Competition within the Network Marketing industry is extremely competitive and aggressive. The client became aware that their competitors were bidding on their trademarked search terms. This caused the cost to secure top positions for their ads to skyrocket from an initial $2.00 per click to $15.00 per click. Monthly expenditures increased from $1,200 to nearly $30,000. The estimated budget increased to $500,000+ for the year. Control of the top ad space in Google was their primary objective in order to dominate the ad-space for their branded trademarked term.
One part of Google’s guidelines is that it advises that trademark holders to take the matter up with individual advertisers. In many cases this is impossible because of private registrations and foreign-based companies. The additional costs in time, material and money are again absorbed by the trademark owner, if trademark owners have to send cease and desist orders to all infringers. Which begs the question, “what number of trademark infringers would respond to such an order?”
How to Contact the Search Engines:
You can also contact the search engines directly if you believe an advertiser is infringing on your trademark. The respective search engine contact information is below.
Attn: Google AdWords, Trademark Complaints
2400 Bayshore Parkway
Mountain View, CA 94043
Yahoo! Search Marketing
Formerly: Overture Services, Inc.
Attn: Business & Legal Affairs - Trademarks
74 N. Pasadena Ave., 3rd Floor
Pasadena, California 91103
Fax: 626 685-5601
Online Trademark Concern form
Attn: MSN Search Trademark Concerns
One Microsoft Way
Redmond, WA 98052