Results 1 to 14 of 14
  1. #1
    ABW Ambassador netnow22's Avatar
    Join Date
    January 18th, 2005
    Location
    Columbia, SC
    Posts
    748
    Bidding On Trademarks
    Why do most merchants forbid affiliates to bid on thier trademarks. It seems to me that it would be better to have affiliate links in the ppc engines than the merchants competitors.

    Can anyone explain this?

  2. #2
    Moderator MichaelColey's Avatar
    Join Date
    January 18th, 2005
    Location
    Mansfield, TX
    Posts
    16,232
    Two main reasons:

    1) They want to be first.
    2) If they don't protect their intellectual property (like trademarks), it becomes harder for them to win lawsuits when people violate their intellectual property rights.
    Michael Coley
    Amazing-Bargains.com
     Affiliate Tips | Merchant Best Practices | Affiliate Friendly? | Couponing | CPA Networks? | ABW Tips | Activating Affiliates
    "Education is the most powerful weapon which you can use to change the world." Nelson Mandela

  3. #3
    Affiliate Manager PetsWarehouse.com's Avatar
    Join Date
    January 17th, 2005
    Location
    Long Island, New York
    Posts
    1,616
    To maintain a mark you are required to police the mark, not to do so dilutes the mark.

    If many people are using and thereby diluting the mark it loses value possibly to the point that it no longer serves as a mark.

    You can legally use a mark if you sell that product, there is a recent case where a dealer was selling Beanie Babies, he was an authorized dealer but Tyco the manufacturer sued the dealer and lost.

    One place you may see a lot of use in the marks of others is in autodealers Ford, Dodge etc. they have a license to use it in all advertising.

    Bob
    Bob Pets Warehouse
    Worlds Largest Pet Supply DataBase
    Join our Share-A-Sale Program [since 2003] Twitter



  4. #4
    ABW Ambassador netnow22's Avatar
    Join Date
    January 18th, 2005
    Location
    Columbia, SC
    Posts
    748
    Can a merchant sue a competitor for using its trademark in google and overture?

  5. #5
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
    Join Date
    January 18th, 2005
    Location
    St Clair Shores MI.
    Posts
    17,328
    Quote Originally Posted by netnow22
    Can a merchant sue a competitor for using its trademark in google and overture?
    Absolutely...and many have done just that including Yahoo and Google in the suit.
    Webmaster's... Mike and Charlie

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

  6. #6
    ABW Ambassador darkstar7's Avatar
    Join Date
    January 18th, 2005
    Location
    Maryland
    Posts
    536
    Far better to create your own trademark and bring your traffic to your site. Otherwise you could be sending traffic to their site directly or your competition.
    Luke
    Have you promoted your brand name today?

  7. #7
    ABW Ambassador Paul_Ward's Avatar
    Join Date
    January 18th, 2005
    Location
    Cambridgeshire, England
    Posts
    1,573
    Quote Originally Posted by netnow22
    Can a merchant sue a competitor for using its trademark in google and overture?
    I think that would pretty comprehensively be considered going over to the dark side.

  8. #8
    Full Member
    Join Date
    January 18th, 2005
    Location
    Mebourne, Oz
    Posts
    257
    Why pay affiliates 5 or 20% commission from direct ppc links, when you can get the same sales yourself for 5 cents per click? Merchants would have to be mad to allow affiliates to bid on their behalf (unless the brand name converts incredibly poorly)

  9. #9
    ABW Ambassador
    Join Date
    January 18th, 2005
    Location
    Nunya, Business
    Posts
    23,684
    "Can a merchant sue a competitor for using its trademark in google and overture?"

    There's been a few threads on this is the past, don't think there is a definitive answer, depends on how you use the trademark, landing page etc. Coke uses Pepsi in their commercials, Prego uses Ragu, Drano use Liquid Plumber etc. At a grocery store when i buy a 12 pk of coke, the register spits out a coupon for $2 off my next Pepsi purchase. There are some ways merchants can use another merchants trademarks, some ways you can't. In Adwords there are some TM's you can't use like Amazon or Sony, then there are plenty you can. Maybe thats why some merchants allow you to bid on their TM, they would rather you bid on their TM and send them the traffic then to bid on it and send it somewhere else.

    Related thread
    http://forum.abestweb.com/showthread...art+trademarks
    Last edited by Trust; June 11th, 2005 at 11:01 AM.

  10. #10
    Affiliate Manager PetsWarehouse.com's Avatar
    Join Date
    January 17th, 2005
    Location
    Long Island, New York
    Posts
    1,616
    A competitor may use another’s Mark in comparison-shopping (Coke v Pepsi)

    In the Gieco case the court ruled that Google was not responsible for trademark infringement for selling the trademark as a keyword, therefore Gieco lost their claim in that reguard.

    More importantly the court did rule the buyer of a trademarked keyword did in fact infringe on the mark and the mark holder, in this case Gieco could seek damages against the party buying the keyword but not Google

    What this all means is you can not legally buy a keyword that is trademarked without causing infringement and consumer confusion which goes to the central focus of trademark law.

    After that ruling most plaintiff’s in other cases settled or withdrew their claims against Google and Overture, except…..

    one major case pending against Google by American Blind & Wallpaper which very recently declined to grant Google’s motion to dismiss and the case is advancing to discovery.

    So until that case reaches some decisive decision the question remains only 98% resolved.

    In the meantime unless you have express “written” permission don’t plan on buying trademarked keywords.
    Bob Pets Warehouse
    Worlds Largest Pet Supply DataBase
    Join our Share-A-Sale Program [since 2003] Twitter



  11. #11
    ABW Ambassador
    Join Date
    January 18th, 2005
    Location
    Nunya, Business
    Posts
    23,684
    So i can't buy Pets-Warehouse keyword and send it to a page comparing various pet merchants including Pets-Warehouse?

    http://www.google.com/search?hl=en&l...22&btnG=Search

    Like i mentioned before this happens offline too. I used to work at a grocery store and companies would pay to have their coupon printed out when their competitor's item was scanned thru. I buy Coke all the time and get coupons for future purchases of Pepsi.

    With the Geico case the people bidding on Geico were sending traffic to an insurance site not selling Geico insurance, which caused confusion. If they brought it to a page that was comparing different insurances or to a site selling it, that would be different.
    Last edited by Trust; June 11th, 2005 at 11:04 PM.

  12. #12
    Member
    Join Date
    January 18th, 2005
    Posts
    154
    Smile
    I think basically (there's always exceptions when talking about trademark law) it is okay to bid on a competitor's mark in PPC search engines, but it isn't cool if you are trying to pass yourself off as such. For instance, bidding on Geico and then making your ads appear as though you are Geico.

    I remember the Geico case very well. There was much heated discussion about it at WebmasterWorld at the time. From what I remember of the WebmasterWorld discussions, what some of the other posters there wanted was exclusivity. In their view the way it was supposed to work was, if you typed Geico in the search box for your search, the only thing that would come up is Geico - whether it was paid or organic listings. I think a move like that would seriously reduce affiliate income.

    Greg
    Last edited by gregdi; June 11th, 2005 at 11:35 PM.

  13. #13
    Affiliate Manager PetsWarehouse.com's Avatar
    Join Date
    January 17th, 2005
    Location
    Long Island, New York
    Posts
    1,616
    Trustno1, you can buy it I can’t hold Google responsible for it.

    Several of those sites have had C&D letters before and immediately stopped infringing, now they’re at it again.

    It takes regular policing to maintain a Registered Mark.

    All of those sites will be contacted tomorrow, it’s a pita.

    Overture, was scrubbed recently of bidders see

    Gredi, it’s not ok to make those bids, you may have read what ever on WebmasterWorld, I was in regular communication with the law firms from Gieco and American Blinds and exchanged documents with them (so I was very much aware of what was going on) your correct that Geico wanted exclusivity which would be nice for them but not the consumer.

    Where you’re wrong IMO is “trying to pass yourself off as such. For instance, bidding on Geico and then making your ads appear as though you are Geico” what you’re touching upon is the term “passing off” that is only one aspect of trademark law, there are many others that would run afoul of the law.

    Let’s wait and see what happens to American Blind they are actually fighting Google in two jurisdictions here in New York they are the plaintiff and in California as a defendant of a declaratory action.

    New York is the more favorable jurisdiction for trademark cases so the two Courts may differ, if so it can go ( because the pockets of both parties are deep) to the Supreme Court……who knows

    ----------------
    Bob
    PetsWarehouse.com 10%/90 days/Datafeed/Parasite free

  14. #14
    Member
    Join Date
    January 18th, 2005
    Posts
    128
    My only gripe is that the merchants stop allowing us to bid but then doing nothing to police the spammers that are collecting spamming information from the people that say do a search for:

    JCPenney.com or Target.com

    The results come up with all those spammers using a free gift card for filling out their forms so they can spam the hell out of you. I know they are not affiliates of any merchant program but don't you think some certain merchants should re-think the whole thing? Even allowing select established affiliates to do so. This way they are at least getting the business. I know it means that they would have to pay referral fees on people searching on their trademarks but even if we had to take much less of the standard commission rates we could still make a bit of money and these spammers wouldn't get their lists built for penneys since normal affiliates can't bid.

    Just my two cents..

  15. Newsletter Signup

+ Reply to Thread

Similar Threads

  1. Trademarks, Copyrights etc.
    By Trust in forum Domains & Hosting
    Replies: 3
    Last Post: March 5th, 2010, 04:12 PM
  2. Accused of bidding on company trademarks?
    By wentzco in forum Midnight Cafe'
    Replies: 4
    Last Post: August 14th, 2004, 09:06 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
  •