Outside these areas they check both the keyword that triggered the ad and the ad copy.
[google.com...]
Huzzah!
Hoover may not want that, but..that's business...
p.s. it already happens anyway. My company bids on some of its competitors trademarks and some of them on ours....some of the highest ROI's.
They're losing revenue on online gambling ads, but they can make that up in TM'ed terms...
Dave
I dont mean that question to appear insolent but it does strike me that just because something is technically feasible does not make it correct in law or ethically the right thing to do.
So anyhow the reason I wonder if you and others have been responsible for a brand is because I wonder if you or others can see how the issues may appear to those that are?
I expect that in the US and Canada Google must have taken extensive legal advice before making this change to their TOS on their own policy with respect to trademarks within adwords and as such I expect that in those countries there must be at least a significant argument to support their new view.
Whether that view will prevail and how the wider media, advertising and branding community will respond will be very interesting to watch.
I recall we have been partly down this road before with competitors seeding meta tags on their websites with competitor brand names and trademarks .. I dont know what the legal community response was in the US but in the UK there was I think I recall correctly case law which established some valuable precedent.
I do recall using this in a number of cases in clients interests while starting to escalate various actions against competitors using such tactics here. And in each case we prevailed.
So what google may in fact be saying is not that it is right or wrong if I use your trademark to trigger my ads, (in the USA or Canada) but that you may have to take it up with me directly or via the courts if you think it is not right for me to do this .. as they Google will not be making judgements themselves anymore.
That message from Google is *not* a clear statement that it is now OK in law in the US and Canada for me to target your trademarks ..
It is only a statement that they google wish to absolve themselves of policeman duty in the dispute and hope to absolve themselves of responsibility also.
It also does not absolve me of any responsibility if I do target your trademark and you take action against me which you win.
So folks I suggest perhaps you better
"beware after all" :-)
That message from Google is *not* a clear statement that it is now OK in law in the US and Canada for me to target your trademarks ..It is only a statement that they google wish to absolve themselves of policeman duty in the dispute and hope to absolve themselves of responsibility also.
It also does not absolve me of any responsibility if I do target your trademark and you take action against me which you win.
This is an excellent point that I think the lawyers need to look at.
It is a smart move by G if they say its an open system, bid on them, we're not responsible for your actions, but you could be liable - probably a lot less drain on their legal resources.
However, I would expect within a short time to see the first lawsuit filed from one company against another about their advertising practices - with the outcome affecting many people.
If you use a PPC manager, or use a 3rd party, might want to take a look at the contracts to see who's liable in these instances, or if there are even provisions made for this instance.
Recently (last year and a half), when we ourselves waded into the AdWords pool, we found several competitors bidding on our TM and immediately moved to protect it. Since then, it has been a constant game of report the abusers.
Google even compounds the problem by offering our TM as suggestions in their Sandbox when you type many terms related to our business. (Along the lines of Google suggesting you bid on Kleenex when you type in "tissue")
Regardless, we have always contacted the offender (or rather our lawyers have) in addition to registering a complaint with Google. In fact, several of the companies have responded with, "well, we hired some shady people to manage this for us and this is just one more thing we didn't know they were doing, sorry".
In any event, I'm sure we will continue to take any steps available to us to protect the value of the investment we have made in our TM. Regardless of Google's or other SERP's polices. Whether that includes attempted action against Google is an issue for the lawyers.
I just wanted to post our experiences and also share my viewpoint.
I've read (briefly) all current issues related to this topic and I think the Playboy vs. Netscape/Excite case in January (that AOL settled) is how the courts are likely to see this issue (although either Google's lawyers don't think so or their bean counters have told them the revenue will make it irrelevant).
The Burger King billboard on the road next to the McDonald's billboard falling under fair use initially made me think, "yea, what's the difference in little tiny billboards on a search site". But the fact is, the driver didn't start driving down a McDonald's road (sorry, best analogy I could devise). The key here, is that in the AdWord scenario, the user is telling Google, tell me about "McDonald's" and Google is helping Burger King (and making profit from it) to dilute McDonalds trademark and more importantly "pose" as a "McDonald's" ad.
I think eWhisper had an interesting point too about PPC Managers. I can tell you this for sure, if ABC Company started infringing (in our opinion) on our trademark on Google AdWords, we would sick the lawyers on Google and ABC Company. If ABC Company then told us they didn't know about, XYZ PPC Manager placed the ad, we would immediately sick the lawyers on XYZ PPC Manager (and I doubt some excuse like "we made them sign responsibility for that" from XYZ would mean diddly to our lawyers).
I have expanded on these issues in this post
[webmasterworld.com...]
That's what has been happening. Every month yet another company sends me an email telling me I can't bid on their trademarked terms or any variation of them via adwords - even when I am selling THEIR services.
With one program, it took a ton of my keywords and killed the steady sales I had from the campaign. Now the company sits there smugly on the term (and about 50 variations of it) with no competition. Google lost a lot (high competition area) from that advertiser alone. It seems that as advertisers realized they could eliminate the competition with that rule, they did.
However, now that the merchant has a "taste" of ripping us off, I'm sure they have no plans to change their rules for us, even if Google does.
You see use of TM's in keywords as trademark abuse, I see it as being just the same as manufacturers paying grocery stores fees to place their products right next to their competitors (as is common practice).
Owning a trademark should not protect you from fair competition but rather from misidentification or deception.
I would suggest that any business afraid of comparison with their competition has much bigger problem than just the competition.
The FTC has issued guidelines which says advertising can mention the names and even display the trademarks of others for the purpose of comparison as long as it is fair and not defamatory. If that is okay, why is displaying an ad to invite the consumer to make their own comparison any different?
Hopefully the courts will see it that way. I am sure there will be lawsuits. But in the mean time, on a smaller scale this is a good thing because businesses would rather not spend a lot of resources suing all the time, so G's decision is likely to rightly encourage use of trademarks.
Competition, comparison and a well informed consumer are good for everyone involved in the market place.
The internet in general and adwords specifically have had a democratizing effect on a national (international) market place.
Joe Blow and his newly invented vacuum cleaner can now put his product in the same market place and reach the same consumers as Hoover.
THAT is a fantastic thing! Joe Blow had better have a good vacuum but Hoover had better as well.
nyet I have to ask have you ever been responsible for a trademark or a brand that spends significant amounts on promoting and protecting its name?
I am responsible for branding, advertising and increasing the profile of our trademark. BUT rather than spend 'significant amounts of time protecting our name' we feel it is better to spend that time improving our service. Our notion is that if the product is good, really good, then our trademark will earn a high regard in the marketplace. And if our service remains better than the competition, then it can withstand comparrison. We relish comparision with other services. We are pleased that counsumers see our competition in adwords when our name is searched. A fully informed consumer is a more loyal customer.
However, now that the merchant has a "taste" of ripping us off, I'm sure they have no plans to change their rules for us, even if Google does.
Yes, but now Google won't do their dirty-work for them. They will have to sue you.
Example: If "widgets" is trademarked, and I'm selling a competing product "wodgets" I can say "compare to Widgets" or "better than widgets" or "four out of 5 dentists prefer wodgets over widgets" whatever. Likewise I should be able to advertise online using keywords belonging to widgets so people can see those same advertisements and comparisons when they conduct a search.
It WOULD be illegal if I put the Widgets logo ON THE PRODUCT - but not in an advertisement.
Besides, there is something else no one here mentioned - if we WEREN'T allowed to bid on trademarked words, would we be able to use "COMPARE +trademarkedword+" as a keyword? If not, then this whole thing is seriously screwed up and will be abused by the trademark holders big time to crush the competition. As I was explaining before, Cisco hates us ... not "us" as an individual company, but all of us who are in the used network hardware business. Cisco themselves is also in the used hardware business - they buy their own equipment on ebay all the time, and travel around the country to auctions so they can buy their own stuff back and sell it as refurbished. We, and other network equipment dealers, cut into their profits big time.
What would stop Cisco from using "trademark infringement" as a way of shutting down those of us in this business? NOTHING - if enough people give them the idea that keywords containing trademarks are illegal, they'll act on it and control the online market just because of their brand. You know, we all make comparisons to what would be acceptable/unacceptable in the real world, but the point is that often times existing laws just don't APPLY to the Internet because this whole platform of communication and marketing didn't exist when the laws were made and certainly was never anticipated.
I believe that if the Internet had existed back when Trademarks were first invented, THIS conversation would never have taken place. It would be made crystal clear in the beginning that your trademarked name or words *CAN* be used in someone else's advertising as long as they are not misrepresenting their product to BE yours. That's really what it comes down to.
Actually, not for affiliates. They'll just put it in their terms and drop you from the program and keep any outstanding money they owe you as a way of saying thanks. Unfortunately, google gave them an idea that companies utilizing affiliates can continue to abuse them with. Of course, their loss, cause now they'll have competitor ads running under their TM terms instead of ads for their own service.
The courts ruled that the Playboy vs. Netscape/AOL (which I see as the same exact thing as Google AdWords) had enough merit to go to trial and AOL liked their chances better with settling.
Those of you arguing that Google putting ads for my competitors up when users enter my Trademark is NOT a violation of fair use must know more about Trademark law than the judges that presided over this case.
Most judges are former lawyers ... they know the game. The game is that if one person sues another, sure the lawyers are going to bill their clients an hourly rate but their REAL profit comes from settlements and judgements. Lawyers typically take 30% - 33% of any judgement awarded to their client. Judges know this.
If a case is dropped the lawyers only make their hourly rate, which could be as little as $2,500 to $10,000 depending on how much time they actually invested. But if a judgement of say $1 Million is awarded to either party, then the winner's lawyer just pocketed about $333,000 for himself just for showing up in court. Plus the company who has to pay that money gets to write it off anyway.
And all of you tiny-brained people get to gloat about it and say "Yeah, they're a big company, make them pay!"
Seriously ... what other explanation is there for all of the B.S. lawsuits running rampant? Human stupidity? No - human greed. Plain and simple. Just because a judge rules one way or another doesn't mean it was the intent of the law, nor does it mean it was the right way to handle the case. Just the most profitable.
Those of you arguing that Google putting ads for my competitors up when users enter my Trademark is NOT a violation of fair use must know more about Trademark law than the judges that presided over this case.
I see....well, insult received.....
The fact that it is a technical matter may confuse a lot of judges, sufficiently to let cases without merit proceed.
If direct comparisons are allowed on TV, it is mighty strange that I can't bid on a keyword.
True, the net is not a real broadcast medium. However on the narrowcast extreme, if I set foot in a shop and ask to see their Hoovers, can a sales rep suggest I also consider some other brand?
Smaller publications can also publish comparisons. So why should a search engine be treated any differenty?
Only adds that consumer wish to see will have high enough CTRs. How is it ethical to deny consumers a choice they want?
I'll be bidding on TM keywords to my heart's content as soon as I can. I just hope I'm not the person that has to defend this in court because I can't afford it :)
digitalv: I didn't mean to say that a judge making a ruling means something is right (however, I'm not going to buy into your complete judicial corruption view either).
What I meant to say was that it seemed some people here were arguing as if AdWords was a clear cut case of being fair use. I wasn't trying to argue a clear cut case of it violating fair use.
I was simply trying to point out that the people we trust to know and interpret these things seemed to thing it needed to go to trial (meaning they thought it wasn't clear cut). Also, the people that had to pony up some money (AOL) must have thought it wasn't clear cut on the side of fair use.
Again, my apologies if I offended anyone, I have a lot of respect for the people on these boards.
(hard to discern tone sometimes)
The arguments of fair use and fair comparison are certainly of interest as to defining what may be legitimate use of trademarks by other than the owners and there are certainly lots of precedents in practice to look at.
And I think passing off, misleading and threatenning to mislead by offering the use for sale (for example as is being used in domain disputes) may be of interest in defining what is not legitimate use (or is abuse) by parties other than the trademark owners.
I am still uneasy that potential TM abuse may be invisible for policing purposes being served behind private gmail interfaces.
In fact from the policy doc its a
"Trademark Complaint Procedure"
Affiliate sites and competitors will probably get away with a lot, but keep pushing the envelope until they start getting C&D letters by the bushel..
"if I open the newspaper looking for a cupon for 75 cents off a six pack of coke and right next to it I find a 85 cents off coupon for "Loser Cola" and that dilutes Coke's brand name, isn't that just 'tough nouggies' for Coke?
Sounds like free enterprise to me.
I placed my coupon right next to coke's precisely because I wanted people looking for coke to find me instead."
Exactly. It's tough noogies for Coke. Why? Because Coke doesn't own the newspaper. The publisher has a right to serve ads on their own pages. Finally we are seeing a search engine take a stand on this issue. Thankfully.
While this is a step in the right direction, we still need a big test case (or a few of them) in the courts to lay the issue to rest.
I am glad that G is stepping away, however, it was none of their business in the first place (IMO).
The real upshot is that the big brands in the world will still probably sue (or threaten to) if they feel threatened. The real benefit (IMO) is that small to medium 'sized' brands will do nothing (other than threaten) because they will lack the resources to sue.
This should 'loosen' things up a bit and hopefully by the time a big case hits it will be so common place, that the courts will rule for free enterprise.
The most interesting aspect to me is that intellectual property and advertising issues have gone so far (pushed by the internet as a medium) that the 'ownership' of the literal words typed by a consumer into an online form (e.g. google) are being claimed by corporations.
what is next?
"We do not believe that Internet users are likely to be confused by the clearly labeled text ads that appear on Google. If any confusion is possible, we believe it is caused by the ad text, which is why our policy focuses on use of trademarks in ad text,"
[news.com.com...]
I sincerely hope not :-)
Various lawyers must be rubbing their hands with glee at all the cases they may be able to take in the coming months :-)
Firstly almost no search engines use meta keywords anymore (so the point is nearly moot).
And secondly putting the trademarks in your meta keywords is a clear cut attempt at decpetion. trying to appear as something you are not.
typing in 'prudential car insurance' and getting a google ad which says 'geico car insurance' would only confuse and deceive the stupidest of consumers.
If some ads do not reflect the intent of purchasers, no doubt they will not get good click-through-rates.
Google will however dilute the value of Adwords for trademark owners on their trademarked words. As far as I can tell, they are the only losers here, so the dilution doesn't seem that bad. But like I said, I'm a winner in this deal :)
Google will dilute the value of adwords if they do not protect the trademark trigger terms. Eventually, all of the keywords will become meaningless as advertisers just use them as ad space versus a relationship to the buyers interest and intent.
I think yours is a hard argument to make. Trademarks or no, you still have to have relevant ads or you lose the words.
We have been using trademarks as keywords for about a year and a half. They are among the highest CTR, highest cost AND highest ROI.
