Attack of the Trademark Lawyers on Brand Name PPC Terms

How much do they tend to crack down on mis-spellings?

[skibum]

Got an email from cj about one merchant who finally woke up and amended their TOS so affiliates could no longer buy the brand name.

Something to the effect of:

you will no longer be able to bid on XXX brand names from any search engines including "XXX", "xxx.com", as well as any misspellings and derivatives of the XXX name.

The [Google] page was loaded with sponsorships and AdWords and was somewhat profitable. Now they are gone. Is there any chance of getting more than a slap on the wrist if some far out mis-spellings are left up there, as those were not taken down...and they are getting 30% CTRs?

At what point is a mangled mis-spelling a derivative of the brand and covered under trademark law and not a meaningless bunch of characters that doesn't mean anything and can't be considered under the trademark umbrella?

Presumably they'd have some tracking in place and be able to pick up the search terms for which the cj affliate links send traffic so creative affiliates could still get nailed if cj picks up the referral keywords are tracked and they actually look at them. Anyone have any experience in this arena?

[Mike_Mackin]

skibum:
I think that it will depend on the company.
We are involved with a company that is willing to crucify anyone who comes near their TM.

[nativenewyorker]

skibum said:

At what point is a mangled mis-spelling a derivative of the brand and covered under trademark law and not a meaningless bunch of characters that doesn't mean anything and can't be considered under the trademark umbrella?

If you are trying to capitalize on misspelled trademarks by sending traffic to the merchant, you will have a difficult, if not impossible time proving that it was unintentional and that you are innocent.

From what I understand, the new Google policy allows trademarked names to be used in keyword advertising provided the merchant explicitly allows it and the ad copy states that they are an affiliate.

Ted

[hannamyluv]

I have some experience here but not from an affiliate perspective. We resell a few name brand items and have recently come across this same problem in that the manufactuer of the item does not want us to use PPC ads to sell their products.

It seems that some lawyer in CA is contacting alot of these companies wholesale and telling them that they can do this.

Some just called G and OV and had the keywords shut down (which is the correct way to do it).

Some paid the lawyer big bucks to send us cease and disist letters (the jerk way to do it). BTW we never signed them and we havn't had a trouble yet.

Some were very polite and worked out a deal with us. (which was the nice way to do it.

The deals that we have worked out normally either are that a) we agree that we won't bid higher than them so as to allow them the top spot or b) we agree that we will not bid on any variation of the trademarked term as long as they have already bid on it. This way actually works out really well b/c they can see (or you can explain) that you are sending business from a source they had not thought of.

Try talking to the company and see if they will work something out with you. It can't hurt.