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  1. #1
    ABW Ambassador
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    Trademark Infringement
    Could you please take a look at http://forum.abestweb.com/showthread.php?t=104662, specifically Joshua's comments about the Commission Junction Publisher Service Agreement as it applies to bidding on Advertiser trademarks?

    I disagree with Joshua's comments as I do feel that bidding on an Advertiser's trademark would be a violation of the CJ Publisher Service Agreement per the clause I quoted there.

  2. #2
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    Snowman -

    I am not "internetattorney" - but I am an attorney who has litigated virtually every Internet-related issue during the last 10 years. I'll request to remain anonymous given the way this board is already structured.

    Sorry, but I agree with Joshua.

    Also, with regard to trademark infringement, advertisers and affiliate managers can be very ignorant on the topic. Quite often, a claim of trademark infringement will be cried - but there is no trademark registration and no attempt to claim a trademark on the advertiser's website.

    Trademark infringement is governed by federal law - we're only talking US law here. There are certain requirements that must be met to claim and protect a trademark, and even then what rights are protected are limited, unless the mark is "famous".

    Moreover, in my view an affiliate bidding or otherwise using an advertiser's name that they are promoting is - generally speaking - not trademark infringement.

    Imagine what would happen if retail stores could not make use of merchant trademarks in their advertising!

    As was mentioned in the earlier thread, the real issue is consumer confusion - is an affiliate bidding on the name of company 1 not to help company 1, but to promote their economic relationship with company 2?

    The issue in your question is often not trademark infringement, but breach of contract. Frankly, if I was a merchant, given the manner in which CJ is structured, unless you have special terms that are expressly being agreed to with a click, it isn't a good issue worth and not worth a lot of time.

    On top of that, given the increasingly "broad" matching in ppc by Google and Yahoo, in particular, unless the affiliate is negative keyword matching a certain name, the affiliate's ad will likely be shown at least some of the time, even if they are not bidding on that name.

    That is why bids for "x" can trigger ads for "y" - even if the program prohibits affiliates from bidding on "x". It then appears someone is bidding on a prohibited term when in fact they are not.

    The broad matching problem is just one reason why an affiliate manager would have to be brain-dead to publicly out an affiliate claiming they were unethical. (Make one misstatement, even out of ignorance or mistake, and the advertiser - the one with the deep pockets - has a huge problem and the affiliate manager will certainly get fired.)

    If you don't like the promotion work with the affiliate, or quietly end the relationship.

    To conclude, in my opinion it makes no sense for an advertiser or affiliate manager to limit "trademark" terms an affiliate can bid on if they cannot also prohibit competitors from bidding on those terms.

  3. #3
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    THAT may very well be a candidate for BEST POST of 2008

  4. #4
    Analytics Dude Kevin's Avatar
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    Also, with regard to trademark infringement, advertisers and affiliate managers can be very ignorant on the topic. Quite often, a claim of trademark infringement will be cried - but there is no trademark registration and no attempt to claim a trademark on the advertiser's website.
    Excellent, excellent, excellent point. As are the comments on broad matching.

    So then, what of PPC bidding rules? Is broad matching really extending that far? Or are we specifically pointing out merchants such as "everythingwidgetsdotcom", where the URL is really just keyword soaking?
    Kevin Webster
    twitter: levelanalytics

    Kayak Fishing
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  5. #5
    ABW Veteran Mr. Sal's Avatar
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    Quote Originally Posted by Merchant Consultant Team
    THAT may very well be a candidate for BEST POST of 2008
    MCT,

    I don't know how can an Unregistered Guest can make a post on ABW, but I have to agree with you, I think that post do makes a lot of sense.

  6. #6
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    Couldn't agree more.

    -IA

    Quote Originally Posted by Unregistered
    Snowman -

    I am not "internetattorney" - but I am an attorney who has litigated virtually every Internet-related issue during the last 10 years. I'll request to remain anonymous given the way this board is already structured.

    Sorry, but I agree with Joshua.

    Also, with regard to trademark infringement, advertisers and affiliate managers can be very ignorant on the topic. Quite often, a claim of trademark infringement will be cried - but there is no trademark registration and no attempt to claim a trademark on the advertiser's website.

    Trademark infringement is governed by federal law - we're only talking US law here. There are certain requirements that must be met to claim and protect a trademark, and even then what rights are protected are limited, unless the mark is "famous".

    Moreover, in my view an affiliate bidding or otherwise using an advertiser's name that they are promoting is - generally speaking - not trademark infringement.

    Imagine what would happen if retail stores could not make use of merchant trademarks in their advertising!

    As was mentioned in the earlier thread, the real issue is consumer confusion - is an affiliate bidding on the name of company 1 not to help company 1, but to promote their economic relationship with company 2?

    The issue in your question is often not trademark infringement, but breach of contract. Frankly, if I was a merchant, given the manner in which CJ is structured, unless you have special terms that are expressly being agreed to with a click, it isn't a good issue worth and not worth a lot of time.

    On top of that, given the increasingly "broad" matching in ppc by Google and Yahoo, in particular, unless the affiliate is negative keyword matching a certain name, the affiliate's ad will likely be shown at least some of the time, even if they are not bidding on that name.

    That is why bids for "x" can trigger ads for "y" - even if the program prohibits affiliates from bidding on "x". It then appears someone is bidding on a prohibited term when in fact they are not.

    The broad matching problem is just one reason why an affiliate manager would have to be brain-dead to publicly out an affiliate claiming they were unethical. (Make one misstatement, even out of ignorance or mistake, and the advertiser - the one with the deep pockets - has a huge problem and the affiliate manager will certainly get fired.)

    If you don't like the promotion work with the affiliate, or quietly end the relationship.

    To conclude, in my opinion it makes no sense for an advertiser or affiliate manager to limit "trademark" terms an affiliate can bid on if they cannot also prohibit competitors from bidding on those terms.

  7. #7
    Member niche's Avatar
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    Just to highlight that the advice given is just advice. You need to do your own research on this issue
    [URL="http://www.affiliatemarketingintro.com"]Affiliate Marketing Basics[/URL]

  8. #8
    http and a telephoto
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    Mr Sal, Haiko stated that unregistered guests would be allowed to post in just this forum.
    Deborah Carney
    TeamLoxly.com BookGoodies.com ABCsPlus.com

  9. #9
    ABW Ambassador IOWNIE's Avatar
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    I agree with misses unregistered ( i assuming it is a women cause men aint that smart ) and I agree with Haiko for allowing to have misses unregistered because it is his forum and he can do whatevber he damn well pleases. I also hope this whole misses unregistered thing pisses alot of people off and one day BIG BROTHER will indeed make you think....

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