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  1. #1
    Super Cool Affiliate Manager IanBookMan's Avatar
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    CJ pubs can bid on trademarks or not?
    I just noticed something (that I'm a complete idiot for not catching earlier) but about 10 or more publishers in our CJ account are bidding on our exact company keyword name in yahoo and google.
    I asked CJ about this and they said that I should have specified to publishers not to bid on our company name.
    But they also said Publishers are not allowed to bid on Trademark terms or misspelling and derivations thereof. Doing so is a breach of the Publisher Service Agreement.

    I don't even have a list of approved keywords, infact my keyword link is blank.
    We have no keywords allowed or not allowed.

    My questions to all, do publishers see this as an open door to promote a trademark?
    and not doing anything wrong because I didn't list "do's and dont's"?
    and is this acceptable practice on their part?

    Or is what they are doing against the rules?
    Should I report them to CJ? (I'm not going to report anyone, I'll handle it without CJ if I can)


    Ian

  2. #2
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    "My questions to all, do publishers see this as an open door to promote a trademark?"

    Some do, it's always best to have your PPC terms spelled out/keyword link filled out.

    "But they also said Publishers are not allowed to bid on Trademark terms or misspelling and derivations thereof. Doing so is a breach of the Publisher Service Agreement."

    They're allowed if the merchant allows it.

  3. #3
    Super Cool Affiliate Manager IanBookMan's Avatar
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    thanks trust,

    i think what im seeing here, is since i didnt not allow it, i'm allowing it.....

  4. #4
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    Yeah, myself I would ask first but since your keyword link is blank, some will look at it as wide open. But what you can do is fill that information out, update the terms and send out an email if you don't want that happening and want affiliates to stop bidding on your TM.

  5. #5
    Moderator MichaelColey's Avatar
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    You should spell it out, but even if you do, some affiliates will bid on it (looking for an easy buck). It's up to you to enforce it, and I would recommend that you enforce it strictly. Don't just rely on doing a search. Some will day-part or geotarget so that you won't see it.
    Michael Coley
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  6. #6
    ABW Ambassador Joshua's Avatar
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    Quote Originally Posted by IanBookMan
    But they also said Publishers are not allowed to bid on Trademark terms or misspelling and derivations thereof. Doing so is a breach of the Publisher Service Agreement.

    I don't even have a list of approved keywords, infact my keyword link is blank.
    We have no keywords allowed or not allowed.

    My questions to all, do publishers see this as an open door to promote a trademark?
    and not doing anything wrong because I didn't list "do's and dont's"?
    and is this acceptable practice on their part?
    Whoever told you the first remark from CJ is wrong. There is nothing in the PSA dealing with trademark bidding. The PSA doesn't mention the word "bid", and only mentions "search" or "pay per click" in an unrelated section that prohibits popups and forced clicks. I believe Performics has a regulation that prohibits TM bidding unless the merchant allows it, but CJ does not.

    If you don't have a keyword link stating that affiliates are not allowed to bid on certain terms, they are allowed to bid on anything. Publishers are not doing anything wrong, as you have not set any rules.

    Keep in mind that properly controlling trademark bidding can help your brand. For instance, when you search for "shoes.com" on Google, there are ads for competing sites Onlineshoes.com, Zappos.com, Shoebuy.com, Amazon.com/Shoes, and Shoeseoutlet.com that show up. If Shoes.com allowed trademark bidding, most likely none of Shoes.com's competitors would show up. What's the bigger issue here - Paying commission to affiliates who are bidding on your brand, or losing sales to competitors? This is especially important in niches where price is the determining factor, and the retailer does not matter so much (such as shoes, books, electronics, or technology) as long as the same inventory is available.

    If your company name isn't actually trademarked (or is a dead trademark - check at uspto.gov), you can't prevent competitors from using your company name in their ad, either.
    Last edited by Joshua; April 29th, 2008 at 04:23 PM.

  7. #7
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    Quote Originally Posted by Joshua
    Whoever told you the first remark from CJ is wrong. There is nothing in the PSA dealing with trademark bidding.
    Not so sure about that, Joshua.

    1. (d) Prohibited Uses of Links.
    (iii) Infringement. None of Your promotional activities may infringe an Advertiser's proprietary rights (including but not limited to trademark rights), CJ's proprietary rights, or a third party's proprietary rights.

    http://www.cj.com/psa.html

  8. #8
    ABW Ambassador Joshua's Avatar
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    Quote Originally Posted by Snowman
    Not so sure about that, Joshua.

    1. (d) Prohibited Uses of Links.
    (iii) Infringement. None of Your promotional activities may infringe an Advertiser's proprietary rights (including but not limited to trademark rights), CJ's proprietary rights, or a third party's proprietary rights.

    http://www.cj.com/psa.html
    Bidding on a trademark does not constitute "infringing" a trademark. Infringing on a trademark generally refers to misappropriating the use of a third party's trademark to promote an unaffiliated product, or to imply an endorsement or affiliation where none exists. Using a trademark to promote the good implied by the trademark is not clear infringement.

    Keep in mind that Ian's company name may not even be trademarked, and isn't if I'm thinking correctly about what program Ian runs.

    Also, CJ's PSA says "For each Advertiser's Program that You have been accepted to, the Advertiser is granting to You the right to display and Link to the Advertiser's Web site or Web site content in accordance with the Advertiser's Program terms for the limited purposes of Promoting the Advertiser's Program". If no specific term has been set out regarding bidding on a brand name, that prior term has not been broken.

    I'll also add in that having affiliates bid on a brand name is extremely valuable when your brand name is also a generic phrase.

  9. #9
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    It's not infringement if you have permission from the merchant. So this part:

    "But they also said Publishers are not allowed to bid on Trademark terms or misspelling and derivations thereof. Doing so is a breach of the Publisher Service Agreement."

    Is wrong. They either told him wrong or it was heard wrong. There are merchants who allow it and it doesn't violate any rules/CJ PSA. Merchants can make up any rules they want as far as that.

  10. #10
    ABW Ambassador
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    Quote Originally Posted by Joshua
    Bidding on a trademark does not constitute "infringing" a trademark.
    I feel that it does violate that clause in the PSA.
    Keep in mind that Ian's company name may not even be trademarked, and isn't if I'm thinking correctly about what program Ian runs.
    Yes, I'm fully aware of that so I'm only questioning the PSA itself since your previous comment was disputing what CJ told Ian; i.e., I'm not disputing what CJ told Ian.

    I've asked that "internetattorney" take a look and let us know his take on this.

    http://forum.abestweb.com/showthread.php?t=104678

  11. #11
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    Ah, you're talking about if they're bidding on the TM when there are no merchant rules in place, right?

  12. #12
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    Quote Originally Posted by Trust
    Ah, you're talking about if they're bidding on the TM when there are no merchant rules in place, right?
    I'm specifically referring to Joshua's interpretation of the CJ PSA. I don't agree with his interpretation.

    As to enforcement, I agree that pretty much whatever a merchant says is what ultimately counts, regardless of what the PSA says.

    It's highly unlikely that CJ would completely terminate an affiliate if their advertisers are fine with the affiliate's behavior unless it's a serious infraction of the PSA (i.e., fraud against CJ).

  13. #13
    ABW Ambassador Joshua's Avatar
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    Quote Originally Posted by Snowman
    I'm specifically referring to Joshua's interpretation of the CJ PSA. I don't agree with his interpretation.

    As to enforcement, I agree that pretty much whatever a merchant says is what ultimately counts, regardless of what the PSA says.

    It's highly unlikely that CJ would completely terminate an affiliate if their advertisers are fine with the affiliate's behavior unless it's a serious infraction of the PSA (i.e., fraud against CJ).
    I'm more referring to the common sentiment from publishers that if bidding on a trademark is not disallowed in the keyword link, then it's allowed. Nowhere does CJ explicitly say that TM bidding is disallowed, and on the merchant end, I have been told to make sure I have my PPC terms listed in the keyword link to make sure that publishers know the rules.

    If a merchant tried to reverse commission from someone bidding on their trademark when no specific term was set out in the keyword link that disallowed it, I have a hard time believing that CJ would side with the merchant.

    Have you ever heard of an authorized retailer of a product being sued for trademark infringement by the company who authorized them to sell and use their brand name? By having affiliates, you're essentially authorizing a third party to use your brand name in conjunction with promoting your product.

    Also, http://www.cybertriallawyer.com/trademark-lawyer is a good read. They make a point that "The key to pursuing trademark infringement is often the existence of "consumer confusion". ".

  14. #14
    ABW Ambassador Joshua's Avatar
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    Ian - I'd suggest you watch the video "Session 1c: Affiliate PPC: Brand Enhancement or Bid Escalation" at AffiliateSummit.com (from ASW 2008). It's one of the best discussions on whether to allow (and if so, how to manage) affiliates bidding on your brand name. You need to signup for their newsletter to get access to the videos - I'd just PM you a username and password to login to that, but users need 250 posts here just to read them...

  15. #15
    http and a telephoto
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    Quote Originally Posted by Trust
    Yeah, myself I would ask first but since your keyword link is blank, some will look at it as wide open. But what you can do is fill that information out, update the terms and send out an email if you don't want that happening and want affiliates to stop bidding on your TM.
    Changing Terms isn't that easy at CJ, I am dealing with that issue at the moment. However creating the Keyword link IS a simple process, and then sending out an email to your publishers letting them know the changes.

    But when you create a keyword link, nothing is making the publishers look at it and acknowledge they have seen and accept the changes. Which is why one of my clients is changing their terms, publishers will have to accept the terms to remain affiliates.

    Policing trademark bidding is an increasing part of a manager/OPMs job...
    Deborah Carney
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  16. #16
    Super Cool Affiliate Manager IanBookMan's Avatar
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    im letting publishers know that I've updated the keyword terms and sending out a mass email through CJ.
    Whats the respectable amount of time publishers to give them to take it down?

    I was thinking 2 weeks, i don't want them bidding on us, but I also realize that I had left it open by not defining terms.

  17. #17
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    7 days. That would be consistent with CJ allowing 7 days to accept new program terms.

  18. #18
    Analytics Dude Kevin's Avatar
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    Based on this post, and the post in the Legal forum, perhaps we need to change the language a little bit.

    There's Trademark Bidding, and Restricted Keyword bidding. And only so often the twain shall meet.

    While Ian's company may not be trademarked, he should still have the right to create a list of words that can't be bid on by the affiliate, correct? (In this case, no such list exists, but let's assume "Ian's Program Name" was on that list.)

    Albeit not affiliate friendly, a publisher should have the right to expire an affiliate that breaks any of their specific programs terms, including policing a poorly thought out restricted keyword list. And affiliates can decide whether or not to promote a program based on those terms.

    That said, in this thread
    http://forum.abestweb.com/showthread.php?t=104678
    the question of broad matching comes in, which makes the line even grayer.

    (I debated which of the threads to post this in. Decided to post it here because I referenced Ian specifically).
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  19. #19
    ABW Ambassador Joshua's Avatar
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    Quote Originally Posted by Noth
    Albeit not affiliate friendly, a publisher should have the right to expire an affiliate that breaks any of their specific programs terms, including policing a poorly thought out restricted keyword list. And affiliates can decide whether or not to promote a program based on those terms.
    Noth - In this case, no program rules were broken, as no keyword policy was in place. I was referencing that the PSA alone does not (explicitly/really) prohibit branded bidding,

    AMs definitely have the right to kick out publishers that break rules, but it's not right to kick them out without notice when a rule has just been implemented. Send out a newsletter announcing the change, and then personally contact each of the offending publishers (through email, not through CJ if possible) asking them to take down their ads. Give it a week, and then take action if their ads aren't down.

    You could even expire the publishers at the time, and rescind the expiration if the issue is taken care of in the week - Otherwise, you can just let them expire once the 7 days hits.

  20. #20
    Analytics Dude Kevin's Avatar
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    Right Joshua. My post was confusing because I weaved in and out of Ian's specific example and a generality, which in the long run, isn't very helpful.
    Kevin Webster
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  21. #21
    Super Cool Affiliate Manager IanBookMan's Avatar
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    so it seems without a trademark in place, it's pretty much open game then.
    I can set up my CJ account (which I did) to state not allowed to bid on our brand name, but I guess there's nothing else stopping people outside CJ from bidding on us.

  22. #22
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    I gave examples of this over the years and what the anonymous lawyer touched on in the other thread but I have never understood why people thought that others can't bid on your TM or use it in some way and the example I gave outside this affiliate marketing business, you can see in commercials everyday. Drano saying they're better than Liquid Plumber, Coke saying they're better than Pepsi, Ragu saying they're better than Prego and they use their TM/product in the commericial themselves and it's fine. And another form of targetting where I used to work and you might have seen yourself. With some grocery stores if they scan a certain product, the register might print out a coupon for a competing product. Whenever I bought Coca Cola, the cashier would hand be a coupon for money off a Pepsi purchase. That's because Pepsi was targetting Coke. So that's all legal and fine.

  23. #23
    The Seal of Aproval rematt's Avatar
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    That's correct IanBookMan and it seems to create an interesting dilemma for some publishers. On one hand if you allow YOUR affiliates to bid on your domain/trade name then you could be paying commissions on traffic that was yours to begin with. However if you prohibit your affiliates from bidding on your domain/trade name it's quite possible that all of the top positions could be occupied by your competitors. So I guess the question for some merchants is, do you pay for traffic that they might have had anyway or lose that traffic all together to a competitor?

    -rematt
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  24. #24
    Super Cool Affiliate Manager IanBookMan's Avatar
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    Good points rematt,

    i'm starting to think if publishers can make a go of it bidding on us then maybe let them have at it.
    Better to know who's there than not.

    It's going to our site and sales are coming from it.

    We did have one that was bidding on our name and going to another store, that one I'm speaking with personally nicely.

  25. #25
    The Seal of Aproval rematt's Avatar
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    IanBookMan, I've been hesitant to post in this thread since this has been such a touchy subject with so many merchants recently. What I don't understand is why merchants would rather have their competitors take the top PPC positions when they're own affiliates could capture those. At least with your own affiliates you have some amount of control. You can set the terms, special commission rates, etc. and decide which affiliate are allowed to bid on your domain name. With competitors you have zero control. I suppose you could ask them nicely not to bid on your domain name and I would really love to see the responses to that.

    Now, I need to duck before the merchants and AMs see this.

    -rematt
    "I know that you believe you understand what you think I said, but I'm not sure you realize that what you heard is not what I meant." - Richard Nixon

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