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May 13th, 2009, 03:40 PM #1
Bidding on Branded Terms - Advantage or Disadvantage
- Join Date
- February 13th, 2009
As a merchant, is it beneficial or detrimental to the affiliate program to allow your affiliates to bid on branded terms? If the PPC terms do not allow for it then this is trademark infringement?
May 13th, 2009, 03:49 PM #2
The short quick answer ...
Google is going to let your competitors bid on your TM, so unless your going to have your legal team get G to stop it, then open up your TM policy to your partners to control / protect / lock up your PPC listings. Let the PPC experts do their work, and you work on making the site convert, everyone will be richer and happier in the end.
Disclaimer: This is only my personal opinion not of any company nor group ... it is however, based on seeing bad decisions made by many ill advised merchants.Continued Success,
The secret of success is constancy of purpose ~ Disraeli
May 13th, 2009, 03:50 PM #3
Most programs don't allow. Logical reason - it is a diversion of merchants own organic traffic
May 13th, 2009, 03:58 PM #4
May 13th, 2009, 04:06 PM #5Originally Posted by Haiko de Poel, Jr.
"This June, Google will expand advertiser’s ability to bid on trademarked keywords worldwide in over 200 countries despite a class action lawsuit filed in Texas. The plan to do so illustrates Google’s confidence that trademark bidding is not a violation of trademark laws—apparently anywhere.
Despite search rivals Yahoo and MSN banning the practice, Google continued to allow advertisers to bid on rival trademark keywords in the US and Canada so long as the rival trademark didn’t appear in the search ad itself. Google extended the policy to the United Kingdom and Ireland last year...."
May 13th, 2009, 04:20 PM #6
I think that excludes the US, I would need to read it again to be sure.
As it stands now if someone is using the mark in the ad G will take it down.
Google's world just got shaken with the 2nd Circuits ruling against them by Rescuecom last month.
That is looking like a case that may set bar.
May 13th, 2009, 04:26 PM #7
You can bid on the keyword BUT "so long as the rival trademark didn’t appear in the search ad itself" as I read it.
So Petco can bid on "PetsWarehouse" keyword - just not mention PetsWarehouse in ad. That way their ad shows up whenever anyone searches for PetsWarehouse
May 13th, 2009, 04:45 PM #8
Yes, that's correct, however in that case petco would be directly infringing which they would be liable and subject to litigation by us.
It has nothing to do with Google, unless Recuecom sets a new precedent at trial. Time will tell..........
May 13th, 2009, 04:56 PM #9
Was GM able to sue Mazda when they did this? Don't think so.
Also see http://blog.ericgoldman.org/archives..._metatag_1.htm
Courts say keyword bidding is NOT infringement
May 13th, 2009, 05:08 PM #10
May 13th, 2009, 05:23 PM #11
Blue Nile "infringed by displaying trademarked text in the Blue Nile advertisement attached to the sponsored link" - I think THIS is the issue more than anything else. You can only use other people's trademarks in very defined areas like Mazda used the Pontiac trademark when comparing Mazda to Pontiac.
If for example Petco does not mention "PetsWarehouse" in ad - but just has a Petco ad appear when someone searches for "PetsWarehouse" - you can sue (in this country you can sue anybody for anything) but you'll most likely loose. Same if they did a comparison site of Petco vs PetsWarehouse - as long as facts are true - no trademark infringement.
For a trademark infringement case to succeed - confusion to the public must be proven.
May 13th, 2009, 05:39 PM #12
May 13th, 2009, 06:46 PM #13
I don't think Blue Nile disputes buying the keyword - in fact :
"According to court documents, Blue Nile was not asking the court to dismiss the allegation that the exact trademark "hearts on fire" appeared alongside Blue Nile's sponsored link.
"Blue Nile agrees that this allegation, if true, amounts to infringement," court papers state."
What I think is of issue - is whether Blue Nile's actions were "likely to cause confusion, or to cause mistake or to deceive" - that is what the court hearing will rule on.