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Trademarked terms in ads
are the small players getting screwed?
topper99




msg:1139239
 3:52 am on Feb 3, 2006 (gmt 0)

I recently had an ad disapproved because it had a term in it classified as a trademarked term. I applied for an exception and received the following response, summarized:

We are unable to grant the exception requests listed below...your ad or keyword is no longer active...I've included your original message to us directly below each policy violation.

Trademarked Term: widgets
Your explanation: Upon searching for "blue widgets", I find there are 6 other Adwords advertisers on page 1 all selling blue widgets using the word "widgets". I'm assuming this ad kicked out by mistake and that "widgets" is not really a trademarked term.

What am I missing here? Why is it OK for some but not all?

[edited by: mona at 11:24 pm (utc) on Mar. 7, 2006]
[edit reason] no emails excerpts, please -thx! [/edit]

 

venrooy




msg:1139240
 6:27 am on Feb 3, 2006 (gmt 0)

An adwords rep was kind enough to explain to me that some of the Trademarked keywords that I was trying to use - and kept getting denied - were only allowed to be used in certain countries.

So I created a new campaign aimed at only these countries that allowed the trademarked keywords, and requested an exception, explaining what the adwords rep told me. - And it was allowed.

Too bad some of this couldn't be put into their cut and paste automated responses - It may save some from being terminated.

You may want to email a rep, and ask if maybe the trademarked terms you are trying to use are allowed only in certain countries.

AdWordsAdvisor




msg:1139241
 5:51 pm on Feb 3, 2006 (gmt 0)

Why is it OK for some but not all?

Another important thing to remember: the trademark owner sets the limits pertaining to their trademark, which AdWords then adheres to. Some trademark owners allow no exceptions to their limits at all. Others allow exceptions for all affiliates, partners, etc. Still others make exceptions for a certain type of affiliate, but not for others.

Every case is different.

So, consider contacting the trademark owner directly, make your best case for why their limits should not apply to you, and ask if they'll make an exception for you. If they agree, the trademark owner would then need to notify the AdWords team in writing of the depth and breadth of the exception.

AWA

topper99




msg:1139242
 7:32 pm on Feb 3, 2006 (gmt 0)

consider contacting the trademark owner directly...

AWA, thanks for the input but this is not a term that is a product or a name of a company and I am somewhat surprised it is being treated as a trademaked name. I'm not even sure who I'd contact. Can I sticky you more details?

skel00




msg:1139243
 3:20 pm on Feb 4, 2006 (gmt 0)

always better to get a letter from the brand owner and forward to google, this way they will have a note on your account for future ref...

Jon_King




msg:1139244
 3:46 pm on Feb 4, 2006 (gmt 0)

I have supplied written permission with a managers email address and have been allowed to run some tradmarks. i.e. Show you have the owners permission in your exception application.

AdWordsAdvisor




msg:1139245
 6:32 pm on Feb 6, 2006 (gmt 0)

AWA, thanks for the input but this is not a term that is a product or a name of a company and I am somewhat surprised it is being treated as a trademaked name. I'm not even sure who I'd contact. Can I sticky you more details?

topper99, though I wish I had the bandwidth, I'm not able to research or follow up on individual issues.

If you feel that the disapproval is incorrect, then I'd advise replying to the email you've quoted in your first post and being very specific about what you wish to do, and why you feel that your case should be an exception. Also, ask for specific advice on what you'd need to in order to make it work.

AWA

jtara




msg:1139246
 8:41 pm on Feb 7, 2006 (gmt 0)

Unfortunately, Google goes way beyond the intent of the trademark laws, IMO. They essentially give the trademark owner total control over the use of their trademark, except in cases where it's use very obviously does not refer to the product.

But, at least in the U.S. the trademark law doesn't give trademark holders the degree of control over their trademark that Google gives them. They don't get to pick and choose, for example, which retailers can and cannot use their trademark to advertise their products.

The purpose of a trademark is to distinguish the source of goods or services.

If there is no confusion over the source of goods or services, then there is no violation of the trademark law.

Let's say you sell Gucci bags. There are only two possible points of confusion. Are what you sell, in fact, genuine Gucci bags? Or some cheap clone with a fake Gucci label pasted on? The latter is a violation. It misrepresents the source of goods. Have you made it clear that YOU are NOT Gucci? That is, you are just a store that sells Gucci bags? In that case, you are free to use the term "Gucci" to advertise genuine Gucci bags. Gucci can't restrict you from doing this, not in the U.S. anyway, not under trademark law. (However, they MIGHT have some seperate agreement with their authorized resellers, that they cannot sell to other resellers, can only advertise in certain ways, etc. However, if you somehow lawfully bought the Gucci bags, and signed no such agreement, YOU aren't in violation of this.)

Basically, you have to make this clear:

1. These are Gucci bags I am selling
2. Gucci is a trademark owned by THESE guys
3. I'm not Gucci. I'm not trying to lead you to believe that I am Gucci. I'm just Joe's Handbangs, selling Gucci bags.

I think there might be a small issue with registered trademarks, though. When you use a registered trademark, you have to indicate such, and name the owner of the trademark. Thus, you would have to put the registered symbol after the trademark, and indicate somewhere "Gucci is a registered trademark of..."

You can't fit this in an Adwords ad, and perhaps here is the rub. You CAN'T meet the disclosure requirement.

I am NOT an attorney, and base this only on my own understand of the U.S. trademark law as explained on the U.S. Patent Office's website. Some input from attornies would certainly be welcome, as well as any information on legal precedents. (For example, might it be sufficient to have the disclaimer on the website that the ad points to?)

weldonj




msg:1139247
 12:37 am on Feb 8, 2006 (gmt 0)

jtara hit it right on the head.

It is ridiculous companies selling trademarked goods can not advertise them on adwords. Use of a trademarks is only prevented under the Lanham Act where it "is likely to cause confusion, or to cause mistake, or to deceive."

Thus if I have received a trademarked good through the course of business and want to sell it, google says I can't advertise it. This is ridiculous. Under the same logic, ebay should be shut down. If someone is selling knockoffs or something, then the trademark owner can come after me for fraud.

The fact I advertise the trademarked good, its price, etc on google is not causing confusion. It is presenting a fact. The fact someone else has reviews of a trademarked products, etc is factual as well.

On the other side of the coin, if I want to create a site like "Dell Sucks" and advertise it on Google, google prevents me? This is ridiculous as well.

Google says it's motto is "do no evil" yet it seems to be protecting the big corporate players for no reason and preventing the freeflow of factual information. (The fact I have the goods for sale is legitimate) I thought google was all about the world sharing information. Apparently not in this case. The adwords people who write back on this issue just give some sort of generic response.

Overture lets people advertise the trademarked terms on their website, so I'd like to know if google just has clueless lawyers, or has some other reason for protecting the trademarks unnecessarily.

The only good news is eventually it will hurt their bottom line if every trademark owner tries to stifle information.

A trademark is not the right to a monopoly on a good.

cline




msg:1139248
 1:43 am on Feb 8, 2006 (gmt 0)

Don't blame Adwords. They didn't do this. Geico and American Blind did it. Their suits against Google got trademark law perverted for search engine advertising.

BTW, they are not trademark "owners"; they are trademark "holders". One does not own a trademark; one is granted rights to hold the trademark to defend marketplace fairness. Some jurisdictions feel that this is primarily to protect consumers from fraud; other jurisdictions feel it is primarily to protect companies from competition.

jtara




msg:1139249
 4:47 am on Feb 8, 2006 (gmt 0)

"A trademark is not a patent on a word."

If that hasn't been said before, I hereby lay claim to that quotation.

Just not as a trademark. :)

weldonj




msg:1139250
 4:55 pm on Feb 8, 2006 (gmt 0)

Google needs to realize like overture that people using a trademarked term in legitimate business is not a trademark violation and does not cause confusion.

If I sell Old Spice in my store and have a sign saying as much, Old Spice can not prevent me from saying as much. That is what the issue boils down too.

Now if pI took out an ad for "Old Spice" and use "Old spice" in my text like "buy old spice here" and then you went to a page and it was only a "Right guard" page then this would casue confusion. But google can easily prevent this. This is not what google does. It bars any mention of "Old Spice".

Clearly, google has some over anxious laywers.

I never thought I would say this, but thankfully their is competition and we can use overture and msn to counteract google short sightedness in this situation. But I wish AW advisor would comment on this.

If it's illegal how come overture does it?

If Google is really about "Doing no evil" it should stand up for fair use of terms like it is standing up to the government in the internet search subpoena.

cline




msg:1139251
 5:56 pm on Feb 8, 2006 (gmt 0)

It's not illegal. It's about civil law. Anybody can pretty much claim damages about anything and sue somebody.

topper99




msg:1139252
 10:02 pm on Mar 7, 2006 (gmt 0)

Just in case anyone was interested in the "trademarked" term, it was "Olympic(s)".

cline




msg:1139253
 10:28 pm on Mar 7, 2006 (gmt 0)

What really burns me up about it is that Adwords has compromised their keyword suggestion tool such that some trademarks cannot be researched. "Olympic/s" is one of them. "Ebay" is another. Try it for yourself: [adwords.google.com ].

There are many more trademarks like this. But this no-researchability does not directly correspond with the no-trademark-in-copy rule, as most trademarks that are prohibited in copy can be found in the keyword tool.

It's bad enough that trademark law has been perverted so as to prevent fair use (e.g., you are selling Brand X; you should be allowed to name the brand in your ad), but it's obscene that Google is being coerced into withholding information from its customers.

AdWordsAdvisor




msg:1139254
 1:09 am on Mar 8, 2006 (gmt 0)

I'll include your feedback in this week's Advertiser Feedback Report, cline. I've just pasted it in, as a matter of fact.

AWA

cline




msg:1139255
 2:36 pm on Mar 8, 2006 (gmt 0)

AWA, would it be reasonable to infer from your reply that the missing trademarks may be a technical problem rather than a legal problem?

BTW, I reported this problem to my Adwords rep weeks ago.

ryanfromaustin




msg:1139256
 8:11 pm on Mar 8, 2006 (gmt 0)

I have no problems using the keyword tool for suggestions on trademarked terms, including "ebay" and other terms I know to be aggressively protected by their holders. Perhaps this is just a bug...

Leva




msg:1139257
 12:58 am on Mar 9, 2006 (gmt 0)

I have a domain that has a trademarked term in it. I've owned it since before the trademark holder existed, and my site has nothing to do with their product, so there's no conflict. I get flagged on every ad I post for the site ... *shrug* I just cut and paste a standard reply stating why there's not a trademark infringement.

Google generally approves the ad by early the following morning. Not a biggy. *shrug*

Leva

buckworks




msg:1139258
 1:41 am on Mar 9, 2006 (gmt 0)

A few days ago one of my AdWords clients had some ads disapproved for using a trademarked term.

The client is not a reseller of the product being advertised, they manufacture it!

I contacted Adwords via the live chat and was told that before the ad could be reinstated they had to receive a letter of permission on company letterhead faxed to such-and-such a number ... for the client to advertise the product which his own company makes!

venrooy




msg:1139259
 3:43 am on Mar 9, 2006 (gmt 0)

"I contacted Adwords via the live chat and was told that before the ad could be reinstated they had to receive a letter of permission on company letterhead faxed to such-and-such a number ... for the client to advertise the product which his own company makes! "

Herein lies the problem with Google's - and other big web sites' handling of copyright and trademark rules. They make it very easy for a competitor to take you down if they so desire. You don't have to have any type of real proof for Google to take a site down. All you need to do is fax in a swarn statement claiming that you have the trademark or copyright. To most kids coming out of - or still in College - a swarn statement means nothing.

Ebay handles it the same way. I've had a large business destroyed by fake faxes sent into ebay claiming infringement. You can send in a counter claim. But the rule is to take you down every time there is a faxed in claim of infringement - even if it's the same person you just filed a counter notice on.

I hope Google gets a better handle on these rules for all of our sakes.

cline




msg:1139260
 1:24 pm on Mar 9, 2006 (gmt 0)

venrooy, sounds like you've got grounds for a lawsuit. Did you pursue it? You have a case against the fraudulent faxer.

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