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  1. #1
    Affiliate Manager adambha's Avatar
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    Trademark Domains
    I recently came across a site that happens to be an affiliate in my program.

    They registered a domain with my trademarked name, copied my title tags, placed the text from the title tags in H1 tags, and they even copied all of my keyword/description meta tags. In short, they're playing a copycat SEO game, hoping to 'capture' visitors searching on 'Adambha Jewelry' And it's a datafeed site, so of course my full inventory and all images are shown...sort of. For now, I've blocked hotlinks to my images from that domain, so their site is now a bunch of broken image links.

    Now, don't get me wrong, you'll see tons of other affiliate sites when you do a search on our name and I love it. If you build a truly value-adding affiliate site and you happen to rank well for our name, good for you.

    My only concern is that this is clearly an attempt capitalize on my brand. The site is nothing but a listing of my products and AdSense ads.

    The other thing I've discovered is that this is happening for many other trademark names, with the exact same template. The interesting thing is that it's not the same affiliate id in every case.

    So my question is, does anyone else think this is unethical? Does anyone think it is okay? As a merchant, what would you recommend I do or undo (as in blocking images)?

    I'd love to hear your thoughts on this...

  2. #2
    ABW Ambassador Doug247's Avatar
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    As a merchant I would modify the Terms of Service or the Affiliate Agreement to reflect what you would rather not have affiliates do.

    I believe you also may have the legal right to a domain if it is trademarked.
    For example If I buy 'disneymickeymouse dot com' Disney Corp. could probably take me to court because disney and or mickey mouse are copyrighted and or trademarks.
    Thanks,
    Doug

  3. #3
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    Quote Originally Posted by itsupportnotes
    As a merchant I would modify the Terms of Service or the Affiliate Agreement to reflect what you would rather not have affiliates do.
    I definitely agree... update your TOC's.

    You can't consider this affiliate unethical if you didn't clearly state that they are not allowed to use your trademark terms in their domain or as a subdomain.

  4. #4
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    I think it is unethical of a merchant to block an affiliate's images. If this affiliate is doing something you don't like, he should not be your affiliate. It is very common to restrict a merchant's name as any part of the affiliate's URL. That should be added to your TOC today with a notification to all of your affiliates as to an update to your TOC and state the change.

  5. #5
    Moderator MichaelColey's Avatar
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    Definitely add it to your TOC, but it's still not right or ethical for them to infringe on your trademark.
    Michael Coley
    Amazing-Bargains.com
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  6. #6
    Affiliate Manager adambha's Avatar
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    Quote Originally Posted by Renee - Celebrate Express
    You can't consider this affiliate unethical if you didn't clearly state that they are not allowed to use your trademark terms in their domain or as a subdomain.
    I definitely do not agree with this. Just because something is 'legal' (or not explicitly restricted) doesn't mean that it's 'ethical' Of course, I should have this in my TOC already, so I accept responsibility for this oversight.

    Quote Originally Posted by Snowman
    I think it is unethical of a merchant to block an affiliate's images.
    Yeah, I'm not real keen on 'restrictive' behavior on my part, or any merchant for that matter. One thing I forgot to mention is that I did contact the affiliate via email, without any response, so I didn't just do this 'out of the blue'

    Quote Originally Posted by MichaelColey
    Definitely add it to your TOC, but it's still not right or ethical for them to infringe on your trademark.
    I have already begun drafting my updated TOC which will include this issue and more.

    So, it sounds like Michael may be the only one (so far) who thinks this is 'unbecoming' of an affiliate.

  7. #7
    ABW Adviser Panel Dynamoo's Avatar
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    Ah, there's a reason why merchants start off with "nice" terms and get gradually more restrictive.. and this is it!
    Innovative advertising with Slimeware Corporation and Telephore. Mail-order fuel with Petrol Direct.

  8. #8
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    Adam, I have to say that I agree with Renee. While you are saying that you're accepting responsibility for not including this behavior in your T&C, you're not accepting the ramifications of the lack of full disclosure. Further, the fact that you didn't mention in your first post that you had previously contacted the affiliate without a response is a key oversight on your part. Frankly, I don't think this should be a big issue because this affiliate should have already been terminated. Your action of blocking his images amounts to 2 wrongs don't make a right. I can't help but wonder if you'd reverse his commissions. I don't think you've acted professionally.

  9. #9
    Outsourced Program Manager
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    Quote Originally Posted by adambha
    I definitely do not agree with this. Just because something is 'legal' (or not explicitly restricted) doesn't mean that it's 'ethical' Of course, I should have this in my TOC already, so I accept responsibility for this oversight.
    Hi Adam,

    I agree with you 100%, just because it isn't restricted in your terms doesn't make it "legal".

    I definitely don't agree with what your affiliate is doing and I wouldn't allow it in my program either. My point was though that it's important to have the restriction clearly in place before you take any action such as removing image links.

  10. #10
    http and a telephoto
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    As with trademark bigging, trademarks in urls need to be covered in the TOS and I admit to have been lax in that area for some of my merchants. It is one of those areas that some merchants are ok with and other not, so if not, you need to spell it out.

    Some merchants are overly restrictive in the use of their company name in urls (not domains) and in marketing materials online. Affiliates can't sell your product if they can't mention your product name, but by the same token they shouldn't be taking your meta tags "as is". Smart affiliates know that they need to improve on what a merchant has to offer, not just copy it.
    Deborah Carney
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  11. #11
    Affiliate Manager adambha's Avatar
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    Quote Originally Posted by Snowman
    Adam, I have to say that I agree with Renee. While you are saying that you're accepting responsibility for not including this behavior in your T&C, you're not accepting the ramifications of the lack of full disclosure. Further, the fact that you didn't mention in your first post that you had previously contacted the affiliate without a response is a key oversight on your part. Frankly, I don't think this should be a big issue because this affiliate should have already been terminated. Your action of blocking his images amounts to 2 wrongs don't make a right. I can't help but wonder if you'd reverse his commissions. I don't think you've acted professionally.
    You bring up a lot of good points. In short:

    - I don't think terminating the aff is appropriate. Call it a paradox, but that's part of 'accepting responsibility' for the oversight in the TOC, or lack thereof. Frankly, I just want the aff to contact me.

    - Re: blocking images, I also agree that two wrongs don't make a right, which is why the images are not being blocked anymore.

    - In short, I wouldn't reverse the commissions, again out of assuming responsibility.

    - Regarding professionalism, or your perceived lack thereof on my part, this is the basis for this post in the first place. To solicit feedback from knowledgeable industry partners.

    Just to be totally clear, are you saying that, "If the merchant doesn't explicitly say this cannot be done, I think it's okay?" I was really hoping to hear more of, "This is not true affiliate marketing, we (the industry) are above this kind of behavior, I'm against these practices, etc..."

    Quote Originally Posted by Renee - Celebrate Express
    I definitely don't agree with what your affiliate is doing and I wouldn't allow it in my program either. My point was though that it's important to have the restriction clearly in place before you take any action such as removing image links.
    Okay, this is what I was hoping to hear. My lack of explicit clarity aside, I'm more interested in the discussion of, "Is this acceptable behavior"

    Quote Originally Posted by loxly
    Some merchants are overly restrictive in the use of their company name in urls (not domains) and in marketing materials online. Affiliates can't sell your product if they can't mention your product name, but by the same token they shouldn't be taking your meta tags "as is". Smart affiliates know that they need to improve on what a merchant has to offer, not just copy it.
    More excellent points. I could care less if you use my trademark in your URL, but creating a domain that literally copies my site, right down to the meta tags, just crosses the line. IMHO, at least.

  12. #12
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    "They registered a domain with my trademarked name, copied my title tags, placed the text from the title tags in H1 tags, and they even copied all of my keyword/description meta tags."

    To me that crosses the line. If you don't like it, give them notice to make changes or risk termination.

  13. #13
    ABW Ambassador Greg Rice's Avatar
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    Quote Originally Posted by adambha

    Okay, this is what I was hoping to hear. My lack of explicit clarity aside, I'm more interested in the discussion of, "Is this acceptable behavior"
    Whether or not this is acceptable depends more on the merchant than what we as a community think. As a manager, I would not like this. If my TOS didn't forbid this, I would revise the TOS and contact this affiliate.

    I don't think the affiliate should be doing this and they should know better. But, I would prefer to err on the side of caution and assume it's just a mistake unless proven otherwise.
    Greg Rice Affiliate Program Management
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  14. #14
    http and a telephoto
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    Many affiliates have registered domains through the years with trademarked terms in the domain. It is not a prohibited or black hat practice, unless it breaks the TOS of the merchant.

    I haven't, I don't condone it, I am just pointing out that it is not inherently unethical to do so. If the trademark holder didn't register the domain, and doesn't prohibit it in the TOS than it is open season. What if a competitor registered it? Then you have no recourse through the affiliate program, but only through legal channels to get it away from them.

    So basically, unethical? no (unless it is in the TOS). Bad practice? yes. Done often? yes.
    Deborah Carney
    TeamLoxly.com BookGoodies.com ABCsPlus.com

  15. #15
    Affiliate Manager adambha's Avatar
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    Quote Originally Posted by loxly
    So basically, unethical? no (unless it is in the TOS). Bad practice? yes. Done often? yes.
    This is a perfect summary, thanks!

  16. #16
    OPM and Moderator Chuck Hamrick's Avatar
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    Affiliates have an at-will relationship and the merchant can terminate without notice. If the affiliate has value then work the relationship but if they are a site scrapper terminate and report to the network. I feel that most of us AM's and OPM's do not submit cases like this to the networks often enough. We need to take a stand and when several dozen of us complain the network will take notice. If an affiliate is driven off the top networks they will have a hard time making it.

    If you are an AM or OPM use this forum to disclose questionable affiliates. Big 4 network affiliate managers only If you can not gain access send Haiko an email request through the domain for the affiliate program (as mentioned at the summit panel discussion). This forum allows us to privately discuss questionable affiliates before escalating. In some cases there may be a mistake and other managers will support the affiliate. If we work together to police this channel we can avoid the government stepping in!

    adambha follow your instinct.

  17. #17
    AM Navigator Geno Prussakov's Avatar
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    In this game (isn't it the same in any type of business?), whatever is not prohibited in the Terms & Conditions is okay. Whatever you do not want them to do, you want to mention it explicitly in your Ts & Cs.

    G.

  18. #18
    ABW Adviser Panel Dynamoo's Avatar
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    Quote Originally Posted by Geno Prussakov
    In this game (isn't it the same in any type of business?), whatever is not prohibited in the Terms & Conditions is okay. Whatever you do not want them to do, you want to mention it explicitly in your Ts & Cs.

    G.
    Exactly. The "no trademark" in the domain and/or subdomain is essential for many smaller merchants. You have to set the rules that the affiliate can play by.

    Having superior SEO skills is not wrong - and certain affiliates will always push up against the limits of what is acceptable because that's what they do.

    My suggestion is that you need to explicitly forbid affiliate links on your trademark, plus any common mis-spellings of it. Give your affiliates some warning that you are going to make the change, preferably 28 days but at least 14. Hopefully, that should sort the issue out.
    Innovative advertising with Slimeware Corporation and Telephore. Mail-order fuel with Petrol Direct.

  19. #19
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    I think in a case like this the merchant would be not only within his rights to suspend the affiliate but also to take legal action against him.

    If you look up the definition of Unfair competion at answer.com
    3. Representations or conduct that deceive the public into believing that the business name, reputation, or goodwill of one person is that of another.
    . The affiliate is clearly trying to deceive the public.

    Also if the affiliate has google ads or links to other jewelry merchants he would be guilty of
    1. Unfair, untrue, or misleading advertising likely to lead the public to believe that certain goods are associated with another manufacturer.
    causing the public to be believe that the other merchants are in some way associated with Adambha Jewelry.

    Of course there is also the problem of cybersquatting (Wikipedia) as itsupportnotes has said if someone did this to the Disney trademark they would soon find themselves in the courts.

  20. #20
    Lite On The Do, Heavy On The Nuts Donuts's Avatar
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    Quote Originally Posted by Trust
    "They registered a domain with my trademarked name, copied my title tags, placed the text from the title tags in H1 tags, and they even copied all of my keyword/description meta tags."

    To me that crosses the line. If you don't like it, give them notice to make changes or risk termination.
    Exactly.

  21. #21
    Moderator MichaelColey's Avatar
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    Quote Originally Posted by Chuck Hamrick
    I feel that most of us AM's and OPM's do not submit cases like this to the networks often enough. We need to take a stand and when several dozen of us complain the network will take notice. If an affiliate is driven off the top networks they will have a hard time making it.
    BRAVO! I totally agree. That's the only way the unethical affiliates will be stopped.

    Quote Originally Posted by Geno Prussakov
    whatever is not prohibited in the Terms & Conditions is okay.
    I totally disagree. I think it's good for merchants to include prohibitions in their T&C's, but just because something unethical isn't explicitly listed in the T&C's doesn't make it okay. There's no way you can cover every single unethical thing that people may do.

    At some point, merchants have to ask, "Is this the type of partner I want to have?" and just get rid of the scum who are continually looking for ways to get around requirements, stretch the rules, cheat, deceive and lie.
    Michael Coley
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  22. #22
    AM Navigator Geno Prussakov's Avatar
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    Quote Originally Posted by MichaelColey
    ...just because something unethical isn't explicitly listed in the T&C's doesn't make it okay.
    No, it doesn't, but one could at least use some general wording (stating that the merchant polices and bans "affiliates engaged in unethical practices including, but not limited to abc, xyz, etc, etc") to show that you're serious about this.

    They registered a domain with my trademarked name, copied my title tags, placed the text from the title tags in H1 tags, and they even copied all of my keyword/description meta tags. In short, they're playing a copycat SEO game, hoping to 'capture' visitors searching on 'Adambha Jewelry' And it's a datafeed site...
    The intentions of this particular affiliate are clear from the start, and there is no disagreement between us on it, Michael. Your "Is this the type of partner I want to have?" question is the key to any such situation.

    What I was saying referred to a more general problem (and not this specific incident) of merchants allowing affiliates room for such behavior. The clearer wording should've been "whatever is not prohibited in the Terms & Conditions is perceived as okay."

    G.

  23. #23
    Affiliate Manager adambha's Avatar
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    Quote Originally Posted by Chuck Hamrick
    We need to take a stand and when several dozen of us complain the network will take notice. If an affiliate is driven off the top networks they will have a hard time making it.
    Chuck, I love the suggestion of collaboration among AM's and OPM's regarding 'questionable practices' of affiliates! Working together will ensure the best environment for success for everyone, especially for affiliates who are above board.

    Which brings up a good point. A visitor to "ethical affiliate's" site is pre-sold and clicks through to my site, writing a cookie. They browse and decide to come back later, but forget to bookmark the site. A couple days later, they're ready to buy, so they search Google for 'my site name' and see this other domain, clicking through. The original cookie is over-written and 'ethical affiliate' gets no commission. Same scenario, but they simply click on the organic listing to my site, the original 'ethical affiliate' would get the commission.

    This, above all else, is my primary concern. I know many affiliates (especially here at ABW) are full-time and depend on this income and this sort of situation only steals from these affiliates. And this is all in a general sense, not just about my program. I'd hope that all merchants are thinking like this.

    Quote Originally Posted by MichaelColey
    There's no way you can cover every single unethical thing that people may do.
    You're right on point here, thanks again!

    Quote Originally Posted by Geno Prussakov
    The clearer wording should've been "whatever is not prohibited in the Terms & Conditions is perceived as okay."
    I disagree with your original wording and again I disagree with this clarification.

    Plain and simple, this is illegal under federal law and various state laws. Even ICANN provides remedies under the UDRP. So, if it's already illegal and regulated by a multitude of other jurisdictional authorities, should anyone perceive this behavior as okay just because I didn't explicitly say so.

    It would be like saying, "Sure, there's a federal law and a state law prohibiting {some activity}, but since the local city council hasn't passed an ordinance prohibiting this, I should feel free to do this, at least in this town."

    Sure, I need to add this to my TOC, and I will. Again, I assume full responsibility and would like this discussion to be about the issue and not about me. I'm just surprised that so many people are basically saying, "This is okay."

    Actually, I'm happy that everyone has been free and open with their comments and feedback. That's all I really ever wanted, just to hear what everyone thinks.

  24. #24
    The Seal of Aproval rematt's Avatar
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    Quote Originally Posted by adambha
    I'm just surprised that so many people are basically saying, "This is okay."
    This is absolutely NOT OK. This affiliate is adding no value at all, in fact they are feeding off of your name and any good will and loyalty that you have created with your customer base. If this or any other practice is illegal it is also safe to assume that it doesn't need to be outlined or even hinted at in your TOS.

    As Chuck mentioned earlier, this is an at will relationship. You can terminate it at any time for any or no reason at all. We have to assume that merchants are being fair when they terminate an affiliate, and merchants that terminate without just cause will pay for it eventually when word gets out. But in this case you have an affiliate that you don't feel is adding value and is in fact breaking the law (I'm assuming that you are correct on this). That's more than enough reason to end the relationship.

    I also agree that you can't take half measures. The affiliate is either an affiliate in good standing and has access to all facilities that are generally given to your affiliates (such as images) or they are terminated from your program. How you go about terminating the affiliate is really up to you. If you want to ensure that there is no question of fairness, then you should contact the affiliate first and allow them an opportunity to remedy the situation. But this step is not a requirement, you can simply terminate the affiliate without any warning or prior communication.

    -rematt
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  25. #25
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    Let's just be careful we don't end up giving TM owners more rights than they deserve here!

    It sounds like you all think TM's within domain names are a black and white sort of deal, but they're really greyscale.

    I have an ex-affiliate-program gunning for one of my domain names right now, threatening ACPA on me, and they were perfectly happy with me owning the domain when they were running a merchant program and I was sending them customers.

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