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  1. #1
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    Has anybody else considered that the affiliate programs probably have no legal intellectual property right to exclude us from bidding on their brand names or trademarks?

    It seems to me that as long as the ad directs to a page involving the affiliate program in a non-deceptive manner we should be allowed to bid on these. I don't currently do any PPC advertising but I'm considering it and it seems like this is something that needs to be addressed.

  2. #2
    ShareASale President/CEO and ABW Veteran Brian - ShareASale's Avatar
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    ifb,

    i think you are overlooking an important aspect...

    important to consider is the fact that a relationship with a merchant is supposed to be mutually beneficial... a business relationshp between 2 parties. if a merchant requests that you not use one of their trademarks in PPC bidding - you should honor that request.

    a merchant can just choose not to do business with a particular affiliate who is not adhering to the rules - and an affiliate can choose not to work with a merchant if they don't like a specific rule.
    Thanks,

    Brian Littleton
    President/CEO - ShareASale.com, Inc.

  3. #3
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    This has always been one of my favourite debates. The bottom line is maybe what Brian from Shareasale says 'it's their program, they can set whatever rules they like'. And that's true. However, I am perfectly entitled to bid on merchants' trademarks in Overture and AdWords and - staying within the laws of libel and free speech - trash that merchant on the landing page.

    Hence, merchants have a choice - do they want positive brand reinforcement or are they willing to run the risk of negative branding. Conversely, having built a brand and got a certain amount of brand name specific searches, why should they pay affiliates for delivering sales that would have been theirs anyway.

    I can put a strong case either way, but experience in the SEO field tells me it's better to bring in positive traffic than allow any margin of error. Generally, I'm in favour of allowing affiliates to bid on trademarked terms and I've defended this position many times here and elsewhere.

    Nevertheless, if a merchant states in their T & C that you can't bid on their trademarks, then you can't bid on their trademarks.

  4. #4
    More Cheesier Than Ever Cheesehead's Avatar
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    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>Originally posted by ifb:
    Has anybody else considered that the affiliate programs probably have no legal intellectual property right to exclude us from bidding on their brand names or trademarks?

    It seems to me that as long as the ad directs to a page involving the affiliate program in a non-deceptive manner we should be allowed to bid on these. I don't currently do any PPC advertising but I'm considering it and it seems like this is something that needs to be addressed. <HR></BLOCKQUOTE>

    Reality: The Merchant can demand anything they want up to asking you to stand on your head from 4:45PM til 5:02PM each day - I am afraid they make the rules!
    This World is Not My Home
    We're gonna go inside, we're gonna go outside, inside and outside. . . And then we're gonna go go go and we're not gonna stop til we get across that goalline! Quotes from the movie Rudy, 1993

  5. #5
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    I don't believe that the law is on their side and as affiliates we're already at quite a disadvantage as it is. We don't need the merchants beating us down with unreasonable terms.

    Addressing Brian's apparently myopic perspective: you've hit the nail directly on the head, but somehow still managed to miss the point. The affiliate/merchant relationship should be a mutually beneficial partnership, but currently affiliates are at the very short end of the stick. Merchants have very little risk while affilates risk time and/or money. Not to mention all our other concerns (parasites, honest tracking, etc.).

    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>Reality: The Merchant can demand anything they want up to asking you to stand on your head from 4:45PM til 5:02PM each day - I am afraid they make the rules! <HR></BLOCKQUOTE>
    Not true if you send a certain amount of volume. When I make the switch I'll be quite prepared to jump ship if they refuse to make this concession to me.

    Small affiliates don't have much choice other than to bend over and take it but there's no reason for people sending volume to do so.

  6. #6
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    ifb, you agree to the merchants terms when you join a program. You can maybe negotiate different terms, but they are the ones that either allow you to sell their stuff or not. period. Legal or not, that is the way it is. If you don't like the rules, work with the merchant to change them or don't work with the merchant. There are a few merchants whose rules I don't like and I don't belong to their programs.

    This is not an argument that you can win in a forum, this is a contract issue between you and the merchants you work with.
    Deborah Carney
    TeamLoxly.com BookGoodies.com ABCsPlus.com

  7. #7
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    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>This is not an argument that you can win in a forum, this is a contract issue between you and the merchants you work with. <HR></BLOCKQUOTE>
    Yeah that's what I was saying in my last post, but merchants are generally willing to make concessions to affiliates that are making them money (increased commissions, unique coupons). So small affiliates have to live with the terms but larger affiliates should be able to negotiate terms that are more fair.

    One other point that hasn't been covered, I believe that we're under no obligation to not bid on your merchant's competitor's keywords / trademarks. I haven't thoroughly researched this yet but from a general knowledge of trademark law it appears to be legal.

  8. #8
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    Cold day in Hell that any merchant paying out thousands to Patent and trademark their brands will allow any affiliate to pose as them in the SE's. That's where the violators offend merchants. Posing to shoppers as the owners of those trademarks to force set cookies from PPCSE keywords.

    Some traffic tricksters think they're above ethics and play this gaming on the merchant with some lame cop-out. Ending up on the actual trademark holders site, or fooling the trademark keyword searcher to a page to set multiple merchant competitors is getting to be a tired scam.

    Slap lawsuits on them merchants as they sure aren't going to police themselves if money is involved.
    Webmaster's... Mike and Charlie

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  9. #9
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    From what I understand, Google has a policy against using brandnames anywhere in the text of an adword ad so nobody should be posing as the brand owner.

    By the way, it only costs a little over $300 to get a trademark. It could cost more if you hire an attorney but getting a trademark isn't particularly complicated so an attorney isn't required.

  10. #10
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    I have multiple merchant clients with patents and registered trademarks and all applications have to be filed by the trademark/Patent owners attorney! Only 25% of trademark applications get approved/registered and ownership license # granted.
    Webmaster's... Mike and Charlie

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  11. #11
    More Cheesier Than Ever Cheesehead's Avatar
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    What I meant by my comment is that the merchant sets any and all of the terms. If they are unreasonable, they will probably lose out to a lot of potential earnings, but that's their choice. Not allowing certain use of their tradenames, especially in ppc bids that will end up costing the merchant more in their own advertising is not unreasonable.
    This World is Not My Home
    We're gonna go inside, we're gonna go outside, inside and outside. . . And then we're gonna go go go and we're not gonna stop til we get across that goalline! Quotes from the movie Rudy, 1993

  12. #12
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    Google and Overture were flooded with trademark and even spoofed merchant domains showing up the the sponsor Ads by the affiliate wanks. They had no choice but to bann violators or hire 1000 more attornies.
    Webmaster's... Mike and Charlie

    "What have you done today to put real value into a referral click...from a shoppers viewpoint!"

  13. #13
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    The most recent article I read said that Google's new policy is that they won't police trademark bidding at all (as long as you don't use the trademark in the actual text). This new policy was actually in response to increased litigation due to trademark bidding. They figured that it actually decreased their liability to not police at all rather than some limited policing.

    Ultimately, this will go through the courts and we'll have a clearer picture of where the law stands.

    Regarding trademarks and patents, I'll agree that a business should hire an attorney for patent prosecution because they are substantially more complicated than trademarks and there a lot of areas for the uninitiated to mess up. Trademarks are much easier and can be awarded without the assistance of an attorney. I'm not saying that somebody should just apply without doing any research, but the procedure is not very complicated.

    Also, I'm not sure where you got the 25% number but I'm doubtful that it's accurate. Nearly 80% of patent applications result in an actual patent and it would be surprising if there was that great of a disperaty between patents and trademarks.

  14. #14
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    I hope I can start some fresh debate on trademark use in search engines -

    I've noticed that as more merchants are eliminating their affiliates from using trademarks in search engine keywords, the top search engine results include mostly competitors or third party vendors.

    It looks like eBay (or affiliates) bid on every trademarked term out there and now reside at the top of many search results.

    As a store, I would rather see my sales force effectively promoting my products, rather than my competition.

    I'd really like to see some merchant side thoughts on this subjest.

  15. #15
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    Three of my merchant clients all push their Patented and registered trademark products online. Their merchant competitors do get whacked with registered Trademark and Patent violations on the SERPs and pages. The patent and trademark certification process is very lengthy, expensive and rightfully protected from infringement on viable products.
    Webmaster's... Mike and Charlie

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  16. #16
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    "Their merchant competitors do get whacked with registered Trademark and Patent violations on the SERPs and pages."

    I can understand the competing stores, but waht about places like eBay and Amazon, which carry the products? For example, search for "Eddie Bauer" and you'll find paid listings for Eddie Bauer products at Boscovs, Target, eToys and others. Eddie Bauer would rather have their internet exposure on other stores, rather than a profitable relationship with affiliates?

    Search for LL Bean and the second paid listing on Overture is for eBay. Seems that would dilute the LLBean brand more than more exposure for their online store.

  17. #17
    Member Clicks4Nut'n's Avatar
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    Good question Scrappy. It seems many merchants don't know what to do and just say no to anyone using their name thinking they're safe. Truth is, competitors will fill up the space left empty on results pages when affiliates are forced to stop using merchant names. So, instead of paying small commissions to affiliates filling these slots the merchants would rather lose the sale all together.

    Try writing a merchant that doesn't allow trademark bidding and asking them why they don't. I have, and rarely get an answer, or get one that makes sense anyways.

    Some good news, I recently saw Payless Shoes and I believe HSN allowing affiliates back into buying their names (not that this means they will convert however). Some see the light.
    "Merchant with no cookie get no clicky"

  18. #18
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    Scrappy you can answer your question on these, and other major brand merchants, by asking who runs and polices their programs. My bet is a 3rd party hired gun AM firm. Those clamping down on trademark SERP/PPCSE affiliate violators charge the merchants for side income SEO/SEM activities. My merchnat clients check the SERPs for their registered trademarks and patented products to make sure those hawking those are legit partners....not competitors.

    A real Patent is designed to eliminate any competitive advantage and boost sales of the Patent holder. Those resellers seeking in on this exclusivity are more then willing to abide by any restrictions.
    Webmaster's... Mike and Charlie

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  19. #19
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    Mike and Charlie;

    That's my point about thrid party resellers - Eliminate all affiliate ads and what's left is third party advertising. Whether it's legitimate or not (I am almost positive eBay is not a liscensed reseller...) now their brand exposure on the internet is directed to a few resellers hawking individual products.

    In this example, it seems to me I could do so much more for all of Eddie Bauers products in their online store, than Target or Boscovs could do with an online ad selling one Eddie Bauer stroller. (or any product).

    I really think the trademark laws (and views from so many trademark holders) apply more realistically to the offline world and not toi the online world.

  20. #20
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    There are a million products to sell. If they don't want you bidding on their trademark, either get some good free listings or sell another product. You don't have to sell Eddie Bauer stuff.

  21. #21
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    Folks like eBay hire third party insiders like CJ's SEO/SEM department as hired guns to spam the SERPs with trademark infringement Ads. It buffers them slightly from prosecution as they know which AM's turn a blind eye to Dupers doing der thang.
    Webmaster's... Mike and Charlie

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