Results 1 to 22 of 22
  1. #1
    Newbie
    Join Date
    July 21st, 2011
    Posts
    8
    LinkShare Merchant Trademark Bidding Policy
    Hi everyone. We have been receiving complaints from our LinkShare rep that trademark owners have noticed that we were bidding on their keywords on Google and Bing and they would like this bidding to cease immediately. I took some time to do some investigation, and it doesn't appear that we are in violation of any trademark policies after all, but I wanted to get a second opinion on this matter.

    LinkShare's Intellectual Property Policy (seen here)? has no mention about bidding on keywords on search engines or using trademark terms in ad copy. The policy also states that if a trademark owner wants to file a complaint, they must do so by sending in either a physical or electronically signed notice to LinkShare in order for them to take any action.

    Additionally, the Google AdWords trademark policy explicitly states that resellers (e.g. affiliates) in the US and Canada are permitted to use trademark terms in ad text when the site sells or facilitates the sale of to a trademarked good (more information here.

    Also, as you may know, each merchant also has their own separate terms and conditions that publishers must adhere to in order to be a partner of theirs. A lot of the merchants that we've received complains from have either no mention of trademark bidding in these terms or they're very ambiguous/vague about bidding on certain keywords.

    An example is "Brand X" which has terms that state:

    "Affiliate also agrees not to bid on any keyword in Pay per Click Search Engines (PPCSEs) that is a Merchant Brand Term, (or a derivation of a trademark, or any other word or term that is likely to cause confusion regarding its affiliation with Merchant). Some examples of these keywords include, but are not limited to:

    'www.brandx.com
    brandx.com
    brand x online

    It also states that we may not use 'www.BrandX.com/ in our ad's display URL. My interpretation of this policy is that we may not "pose" as the owner of the trademark brand to confuse users into thinking they're visiting the trademark brand's website. There's nothing there that explicitly (or even implicitly) states that we cannot bid on the keyword "brand x" or
    brand x on sale" or show the trademark term in our ad copy.

    Sometimes we receive complaints from merchants who aren't even our partners but our LinkShare rep says that we must conform to their demands and stop bidding because we are apart of the LinKShare network and "violation" of any merchant's terms and conditions is subject to account suspension on the LinkShare network.

    Has anyone run into any similar situations like this and how did you resolve the matter? So far, the complaints we've received have been for minor brands that don't generate a lot of sales for us so we're okay with stopping bidding as a courtesy to the trademark owner, even when they are not our direct merchant. I'm just afraid that one day we may receive one of these complaints from a highly profitable brand of ours and be asked to cease bidding on their keywords, even when we aren't violating any LinkShare or AdWords trademark policy. Search engine advertising is an integral part of our business and we drive 90%+ of our traffic through SEM so I want to get the whole bidding policy stuff ironed out before we run into any major problems. Any help is appreciated and if any LinkShare reps would like to chime in here, please feel free to do so . Thank you.

  2. #2
    Affiliate Manager
    Join Date
    March 30th, 2011
    Posts
    46
    First off let me say that we do not have our program in the Link Share Network, but we do have a strict policy on Trademark PPC bidding. We have attempted to make our rules very clear to what affiliates can and can't bid on but we get questions all the time.

    My advice to you on this matter would be to reach out to the Affiliate Manager if you have any questions on their policies. Be clear and give very specific examples of terms that are in question. While I know that many say it is better to ask for forgiveness then for permission, I find that when an Affiliate comes to me with a question I am more receptive and willing to help them find a solution. My goal on these questions are always going to be how do we find ways for Affiliates to maximize traffic and drive sales. Now when they don't and violate our policies, I tend to be more skeptical of their actions and will enforce our policies.

    When it comes to SEM and Affiliate marketing, the goal is always to drive sales. It is in every ones best interest to communicate and respect the policies that are in place. When in doubt or have any questions or need help... the best thing to do is ask. That is what AM are here for.

    I wish you the best of luck with this. I know it can be a complicated topic and I respect you for asking the question.

  3. #3
    ABW Ambassador
    Join Date
    January 18th, 2005
    Location
    Nunya, Business
    Posts
    23,684
    Even if you think you're right, if you're getting warnings and multiple warnings at that, I would take heed. It's not something to risk your account over.

  4. #4
    Newbie
    Join Date
    July 21st, 2011
    Posts
    8
    Quote Originally Posted by Trust View Post
    Even if you think you're right, if you're getting warnings and multiple warnings at that, I would take heed. It's not something to risk your account over.
    No no, we're actually complying as soon as we receive these complaints. Our business is based on brand bidding to drive traffic to our site. We get very little SEO traffic and our brand recognition is close to non-existent.

    You're completely right in that it's not worth risking getting our account suspended. It's just that we receive these complaints a few times a month so I'm afraid that one day we'll run into a brand that is a big traffic driver for us and we can't afford to not bid on that term.

    Often times, the brand will directly complain to LinkShare. An example of this is if we were partners with Tiger Direct and sold Samsung TVs and Samsung contacted us directly and told us that we cannot bid on their brand but we do not have a direct affiliation with them. Moreover, if their terms and conditions do not state anything about search engine bidding and/or it is ambiguous, there's nothing in LinkShare's terms and conditions that has any mention of PPC bidding either right?

    SPnelson: completely understood. If the agreement in the first place was no bidding on brand terms, that makes 100% sense not to bid on them if we were a direct affiliate with that merchant. My question is directed at cases when either it is unclear in the merchants' terms and conditions or if we are simply not affiliated with them.

  5. #5
    OPM and Moderator Chuck Hamrick's Avatar
    Join Date
    April 5th, 2005
    Location
    Park City Utah
    Posts
    16,646
    Sometimes we receive complaints from merchants who aren't even our partners but our LinkShare rep says that we must conform to their demands and stop bidding because we are apart of the LinkShare network and "violation" of any merchant's terms and conditions is subject to account suspension on the LinkShare network.
    That's a tough one but as you stated its not worth getting booted from the network.

    If a merchant does not have a policy clearly defined they still can request that you stop. Its a different argument if they can reverse commissions. I have personally been called out when my policy was not clear. In defense of the affiliate they have their commissions paid for any sales before the policy change and a reasonable time to change their ads.

  6. #6
    Newbie
    Join Date
    July 21st, 2011
    Posts
    8
    Quote Originally Posted by Chuck Hamrick View Post
    If a merchant does not have a policy clearly defined they still can request that you stop. Its a different argument if they can reverse commissions. I have personally been called out when my policy was not clear. In defense of the affiliate they have their commissions paid for any sales before the policy change and a reasonable time to change their ads.
    In a hypothetical case where we're asked to stop bidding on a brand that brings in 10% of our revenue, I think it's worth fighting for, don't you agree? For brands that don't do much for us, we don't mind stopping bidding as a courtesy to the trademark owner.

    Reading between the lines, it appears that there isn't any clear cut policy that explicitly disallows trademark bidding unless we are affiliated with them and it clearly states so in their terms and conditions. In fact, roughly 2 years ago, Google changed their trademark bidding policy to allow resellers and/or those who facilitate the sale of the goods that you are bidding on.

    Is there a LinkShare rep that wants to chime in here?

  7. #7
    Outsourced Program Manager Chris -  AMWSO's Avatar
    Join Date
    January 18th, 2005
    Location
    Bangkok
    Posts
    11,273
    Hi Vince

    I see you reference the LinkShare's Intellectual Property Policy, but you do not appear to have checked the individual merchant terms and agreements, every offer in LinkShare can be set with custom terms. You need to check within the merchant offer their specific terms for TM bidding. It will not be covered in the generic LS policy.

    In terms of programs where you are bidding on a keywords where you are not in their program. That's a tough one, you'll need to clarify that with LS as I've not come across that before.

    Cheers

    Chris
    Affiliate Marketing by AMWSO. Skype - chrissanderson ::: TEL 1-720-336-1784 ::: www.amwso.net
    Join our affiliate programs :Vaper Empire, Iolo, Art of Tea, or See ALL our Programs here

  8. #8
    Moderator bibby's Avatar
    Join Date
    November 6th, 2007
    Location
    Minneapolis, MN
    Posts
    2,315
    Quote Originally Posted by Chris - AMWSO View Post
    Hi Vince

    I see you reference the LinkShare's Intellectual Property Policy, but you do not appear to have checked the individual merchant terms and agreements, every offer in LinkShare can be set with custom terms. You need to check within the merchant offer their specific terms for TM bidding. It will not be covered in the generic LS policy.

    In terms of programs where you are bidding on a keywords where you are not in their program. That's a tough one, you'll need to clarify that with LS as I've not come across that before.

    Cheers

    Chris
    He did state in his other post(s) that he's aware that merchants can/do have their own individual terms. He said that many times they're ambigous and don't clearly state when a vendor or competitor terms can't be bid on.

    He makes a very good point. Let's say companyX sells computer and electronics and clearly states that you can't bid on their brand but it doesn't state you can't bid on vendorY's brand. If companyX comes to you 6 months later and complains, that is confusing and wrong!

    I agree from an earlier post that you should reach out to the merchant reps. My experience has shown that many are recpetive to helping the affiliate find a solution.

  9. #9
    Outsourced Program Manager Chris -  AMWSO's Avatar
    Join Date
    January 18th, 2005
    Location
    Bangkok
    Posts
    11,273
    He makes a very good point. Let's say companyX sells computer and electronics and clearly states that you can't bid on their brand but it doesn't state you can't bid on vendorY's brand. If companyX comes to you 6 months later and complains, that is confusing and wrong!
    yea if a merchant is not going to allow bidding on competitor keywords / brands that does need to be clearly defined.

  10. #10
    Moderator bibby's Avatar
    Join Date
    November 6th, 2007
    Location
    Minneapolis, MN
    Posts
    2,315
    Quote Originally Posted by Chris - AMWSO View Post
    yea if a merchant is not going to allow bidding on competitor keywords / brands that does need to be clearly defined.
    I will add one other thing. Unlike CJ which I think is easy to follow a merchant's terms, LS is more confusing. You have to find the terms link after choosing your merchant and then read through a diatribe of 20 pages and text that doesn't fit nicely within the pop-up window.
    What makes it more confusing is that many merchant terms look like generic LS terms but if you read the whole document as the merchant intends, you will find specifics.

    I usually copy and paste the terms document into a word document, so I can change the font and size of the text.

  11. #11
    Newbie
    Join Date
    July 21st, 2011
    Posts
    8
    Thanks for the feedback guys.

    Exactly, if the merchant doesn't allow bidding, we wouldn't have signed up with them to begin with.

    LinkShare moderator, are you there?

  12. #12
    ABW Ambassador LinkShare Moderator's Avatar
    Join Date
    January 18th, 2005
    Posts
    1,316
    Hello vince!,

    Yes I am here and I understand your concerns. I will take them to our product team and hopefully they can enhance your experience through our Dashboards. We can work with our Advertisers to try to be as explicit as possible in the terms they offer to Publishers, however, as you stated in the example above, if Samsung contacts you because you bid on their brand then, they do have the right to do so.

    --Ranae

  13. #13
    ...and a Pirate's heart. Convergence's Avatar
    Join Date
    June 24th, 2005
    Posts
    6,918
    Quote Originally Posted by LinkShare Moderator View Post
    if Samsung contacts you because you bid on their brand then, they do have the right to do so.
    Yes, they do. Just because the Google's legal team has told them they can not be held responsible for other's use of TM bidding doesn't mean the TM holder can't pursue avenues to make you stop.

    Samsung may very well want to protect those that do have direct relationships with them as well as their own brand marketing efforts. I'm surprised they haven't contacted your merchant to change their TOS to prevent TM bidding.

    Question: Are affiliates of merchants who are resellers, considered resellers or informational sites, themselves?

    What is Google's trademark policy for resellers and informational sites? - AdWords Help
    Salty kisses, Sandy toes, and a Pirate's heart...

  14. #14
    ABW Ambassador LinkShare Moderator's Avatar
    Join Date
    January 18th, 2005
    Posts
    1,316
    Convergence,

    That is a good question. Merchant affiliates are considered re-sellers because you are facilitating the sale. Even though you are not the one shipping the product or technically reselling the product you are still facilitating the sale.

    --Ranae

  15. Thanks From:

  16. #15
    ...and a Pirate's heart. Convergence's Avatar
    Join Date
    June 24th, 2005
    Posts
    6,918
    Quote Originally Posted by LinkShare Moderator View Post
    Merchant affiliates are considered re-sellers because you are facilitating the sale. Even though you are not the one shipping the product or technically reselling the product you are still facilitating the sale.
    Then in regards to PPC on the Google, the manufacturer should contact the merchant and have them update their TOS - IMhO...
    Salty kisses, Sandy toes, and a Pirate's heart...

  17. #16
    Newbie
    Join Date
    July 21st, 2011
    Posts
    8
    Quote Originally Posted by LinkShare Moderator View Post
    ..if Samsung contacts you because you bid on their brand then, they do have the right to do so.

    --Ranae
    Most definitely. They have all the right to contact us but at the end of the day we're not violating any CJ or AdWords policies. In fact, I stumbled upon this article recently:

    Court: Bidding on Competitor's Name OK in AdWords, adCenter - Search Engine Watch (#SEW)

    To elaborate, that applies more for advertisers bidding on competitors' keywords. Since we're considered resellers, there shouldn't be anything wrong with us bidding on brand terms. It's like if Tiger Direct bids on Samsung..

  18. #17
    ...and a Pirate's heart. Convergence's Avatar
    Join Date
    June 24th, 2005
    Posts
    6,918
    vince!, any more complaints?
    Salty kisses, Sandy toes, and a Pirate's heart...

  19. #18
    OPM and Moderator Chuck Hamrick's Avatar
    Join Date
    April 5th, 2005
    Location
    Park City Utah
    Posts
    16,646
    Tiger Direct bidding on Samsung is a contracted relationship with a reseller. As an affiliate you are a contractor with the network and not the merchant. Both the merchant and the network can cut you off at will. They can withhold commissions if they feel you have violated their terms. It would take you suing then in their state to collect. Or you could vie for federal court (good luck with that).

  20. #19
    Newbie
    Join Date
    July 21st, 2011
    Posts
    8
    Quote Originally Posted by Convergence View Post
    vince!, any more complaints?
    Just a couple here and there. As usual, we have been fully compliant and stop bidding right away, even if their terms don't forbid us to do so.

    Quote Originally Posted by Chuck Hamrick View Post
    They can withhold commissions if they feel you have violated their terms. It would take you suing then in their state to collect. Or you could vie for federal court (good luck with that).
    Hi Chuck. Again, we are fully compliant with LinkShare's Intellectual Property Policy. We also ALWAYS comply with each and every merchant's individual terms and conditions. As I mentioned above, we are compliant when merchants complain about a "trademark violation" even if their terms do not forbid us to bid on their keywords. So when you say "if they feel you have violated their terms," do you mean that they can withhold commissions at their discretion, no matter what the reason?

    We definitely do not want to deal with the hassle of going to court to get a few bucks back here and there as that would obviously not be worth the trouble.

  21. #20
    OPM and Moderator Chuck Hamrick's Avatar
    Join Date
    April 5th, 2005
    Location
    Park City Utah
    Posts
    16,646
    Merchants have first right of refusal with the networks so if there is any gray area then error on the side of caution. Sounds like you are doing everything you can to be above board. If you find yourself in a pickle with a merchant get on the phone to them immediately as they want transparency.

  22. #21
    The Seal of Aproval rematt's Avatar
    Join Date
    November 19th, 2006
    Location
    The Windy City
    Posts
    4,140
    Quote Originally Posted by vince! View Post
    So when you say "if they feel you have violated their terms," do you mean that they can withhold commissions at their discretion, no matter what the reason?
    Legally...no. Morally...no. In actuality, it happens every day. Some merchants feel that since it's their program that they don't need to adhere to their own T's and C's. We've had examples of merchants that have withheld commissions because they "meant to" include terms, because they feel that they "shoulda" included terms and because they "thought" that they had included terms.

    I only bid on generic terms and categories (long tail), but if I were engaged in bidding on trademarked terms I WOULD ALWAYS GET EXPLICIT PERMISSION FROM THE MERCHANT IN WRITING before doing so.

    -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

  23. Thanks From:

  24. #22
    Moderator
    Join Date
    April 6th, 2006
    Posts
    2,689
    We've had examples of merchants that have withheld commissions because they "meant to" include terms, because they feel that they "shoulda" included terms and because they "thought" that they had included terms.
    I have to agree with Rematt here, and it's the part of Affiliate Marketing I find completely unacceptable.

    Networks will always side with merchants - your account can be credited without any proper explanation, and you have no recourse.

  25. Newsletter Signup

+ Reply to Thread

Similar Threads

  1. AvantLink Trademark Bidding Policy
    By GravityFed in forum AvantLink -AV
    Replies: 2
    Last Post: June 9th, 2009, 03:21 AM
  2. Linens-N-Things Policy on Competitors Trademark Bidding
    By Snib in forum Google Affiliate Network - GAN
    Replies: 15
    Last Post: December 9th, 2004, 08:28 AM

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •