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  1. #1
    Analytics Dude Kevin's Avatar
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    Trademark Bidding Warnings
    A quick question to those of you that do substantial amounts of DTM PPC...

    As an affiliate manager, I monitor very closely the TM terms of the merchants I represent. It's pretty easy, since I choose to only manage programs that allow pretty broad DTM, and we only protect really specific TMs.

    That being said, I still find the occassional poacher... let's pretend they somehow missed our ever present restricted keywords on SAS.... and I contact them immediately to C&D. In fact, I have one as of this morning

    What's a reasonable turn around time for me to expect them to comply?

    Since it was clearly forbidden when they joined the program, is 1 day too short? 7 days? These aren't changes, this was business as usual since program launch....

    Secondly, what if we were to add a trademark to the list that wasn't included previously. Is 30 days reasonable? Is it fair to do less?
    Kevin Webster
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  2. #2
    http and a telephoto
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    I have had most remove the listings within a day. After all they don't want to spend money on bids that aren't going to pay. Telling them they will forfeit commissions usually motivates them to stop. More of a problem are the folks that are NOT affiliates bidding on merchant trademarks. That is a problem that the merchant needs to deal with directly.

    As long as you notify your affiliates of the change in the TOS, I think 2 weeks is reasonable. But again, most ppc bidders will stop campaigns when notified so that they don't forget and again end up spending money that they won't earn commissions on.

    For one of my merchants that doesn't allow TM bidding, the problem is that as soon as I get 2 to stop 3 more start. I added the restriction to the welcome letter, since it seems people are not seeing it in the Sharasale backend.
    Deborah Carney
    TeamLoxly.com BookGoodies.com ABCsPlus.com

  3. #3
    http and a telephoto
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    To clarify, the only exception to the one day rule is weekends, so one business day.
    Deborah Carney
    TeamLoxly.com BookGoodies.com ABCsPlus.com

  4. #4
    Merchant & ABW Ambassador
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    1 working day.
    1st warning - C&D + inform them of second and third offense actions.
    2nd warning - C&D + withold commission for one month.
    3rd warning - termination + no commission paid.

  5. #5
    Affiliate Manager PetsWarehouse.com's Avatar
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    Quote Originally Posted by Noth

    What's a reasonable turn around time for me to expect them to comply?
    One biz day

    Since it was clearly forbidden when they joined the program, is 1 day too short? 7 days? These aren't changes, this was business as usual since program launch....
    One biz dat again

    Secondly, what if we were to add a trademark to the list that wasn't included previously. Is 30 days reasonable? Is it fair to do less?
    30 Days is too long, I would do this in 5 biz days.

    You can always go after an indivdual by phone or email if it's a real pia.

    The thing here is IMO the ctr on TM are 60-80% there is no need to utilize an affiliate program when the customers are going to find you in the first place.

    .
    Bob Pets Warehouse
    Worlds Largest Pet Supply DataBase
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  6. #6
    The Seal of Aproval rematt's Avatar
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    Quote Originally Posted by Noth
    Secondly, what if we were to add a trademark to the list that wasn't included previously. Is 30 days reasonable? Is it fair to do less?
    Quote Originally Posted by PetsWarehouse.com
    30 Days is too long, I would do this in 5 biz days
    Guys, when are you gonna get it. A TOS is a legally binding contract and as such a change to the TOS must follow legal guidelines. Any change in TOS requires notification and a specific time frame to accept or reject the change. The time frame varies from state to state but I don't believe any states require more than 30 days, so Noth 30 days would seem to be the appropriate time frame.

    -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

  7. #7
    Internet Cowboy
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    Make sure you are policing the right ones. Those using a redirect and pretending to be the merchant are the ones you want to remove immediately.
    Affiliates using PPC to promote your coupons are no different and have the same value as those affiliates who show up in the SERPS promoting your coupons. To allow those in the SERPS to show up in a "merchantname.com coupons" search and to not allow PPC affiliates the same opportunity only makes your program unfair to one sector of affiliates and opens you up for your competitors to poach you on the coupon searches.


  8. #8
    Affiliate Manager PetsWarehouse.com's Avatar
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    didn't know that!

    here's more fuel for the fire


    "Talk America argued that the updated terms of service was freely accessible via the company's website and that Douglas could have checked it at any time. The District Court handling in the case ruled in favor of Talk America, but Douglas appealed the decision. The Ninth Circuit disagreed heavily with the original ruling, saying that it was not reasonable to expect Douglas to check the company's web site every day just to see if the terms of service had changed. "Parties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side," wrote the judges. "Indeed, a party can't unilaterally change the terms of a contract; it must obtain the other party's consent before doing so... This is because a revised contract is merely an offer and does not bind the parties until accepted."
    Bob Pets Warehouse
    Worlds Largest Pet Supply DataBase
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  9. #9
    The Seal of Aproval rematt's Avatar
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    Here's the complete ruling:

    http://pub.bna.com/eclr/0675424_071807.pdf

    -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

  10. #10
    Analytics Dude Kevin's Avatar
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    A ha. I suspected 30 days would be the answer.

    Further...

    Upon reading that ruling, is it reasonable to suggest that a program wide email must go out if the PPC (in this case) terms are changed (and moreover, any TOS change), with 30 days to act/agree/comply.

    But we can't really call it "comply" in this case, since you can't make someone sign a contract; they have to do it willingly.

    This might be fodder for a different thread, but do we have the mechanics available to us to follow this law at SAS? Certainly they're available at CJ...
    Kevin Webster
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  11. #11
    The Seal of Aproval rematt's Avatar
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    Quote Originally Posted by Noth
    Upon reading that ruling, is it reasonable to suggest that a program wide email must go out if the PPC (in this case) terms are changed (and moreover, any TOS change), with 30 days to act/agree/comply.
    Correct, notification MUST be given.
    But we can't really call it "comply" in this case, since you can't make someone sign a contract; they have to do it willingly.
    Passive acceptance is legal (but not necessarily desirable) as long as reasonable notice is given.
    This might be fodder for a different thread, but do we have the mechanics available to us to follow this law at SAS? Certainly they're available at CJ...
    This was touched on in a recent thread: http://forum.abestweb.com/showthread.php?t=92314 .
    However while the law seems pretty clear (at least to me), I'm not sure the networks have anything in place to ensure that it's enforced.

    -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

  12. #12
    Analytics Dude Kevin's Avatar
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    Ah. Thanks rematt. I had read the first part of that thread as it was starting, but hadn't read the second page.

    I'll have to look into this a little further.
    Kevin Webster
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  13. #13
    The Seal of Aproval rematt's Avatar
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    No problem. I love it when AM's and OPM's ask our opinions. It lets us know that everything doesn't happen in a vacuum.

    -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

  14. #14
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    When deciding the time period, keep in mind that many affiliates, even those doing PPC, are doing it solo & part-time. Which means they might not check their email more than once a day, that they might not check it at all over weekends, and that they might even be away on vacation. I think 3-7 days is reasonable - but let them know that although you will honor exisiting commissions, all ongoing commissions will be reversed - so it is in their interests to pull the ads ASAP.

  15. #15
    Outsourced Program Manager Chris -  AMWSO's Avatar
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    What's a reasonable turn around time for me to expect them to comply?
    Aren't we discussing two different issues here

    1. Where the T&C already state what is and is not allowed, and the time frame to expect compliance to be done
    2. Where the T&C is changed and and the time frame to expect acceptance to be done.

    The former, is quite clear, one party has broken the T&C, immediate compliance should be required, 24 hours being generous. As for all the revenue earnt during the period of violation, that's a whole different kettle of fish.

    For the later, I defer to Rematt

    Cheers

    Chris
    Affiliate Marketing by AMWSO. Skype - chrissanderson ::: TEL 1-720-336-1784 ::: www.amwso.net
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  16. #16
    The Seal of Aproval rematt's Avatar
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    Quote Originally Posted by Chris - AMWSO
    Aren't we discussing two different issues here

    1. Where the T&C already state what is and is not allowed, and the time frame to expect compliance to be done
    2. Where the T&C is changed and and the time frame to expect acceptance to be done.

    The former, is quite clear, one party has broken the T&C, immediate compliance should be required, 24 hours being generous. As for all the revenue earned during the period of violation, that's a whole different kettle of fish.

    For the later, I defer to Rematt

    Cheers

    Chris
    You're right Chris, these are 2 different issues and I focused on the later because it questioned how a change in TOS should be handled and after reading the recent court rulings that one seemed pretty clear.

    As far as an affiliate violating terms that are already in place, the merchant has no obligation to honor sales that violate their TOS. That being said the merchant does have an obligation to pay for sales made up and until the point where the affiliate was notified of the violation unless the merchant has clearly defined the consequences in their TOS. In other words merchants should have a provision in their TOS that clearly states that commissions will not be paid for sales generated by means that violate the TOS. They can't just say "you can't do that" they must say "if you do that the penalty is...". The merchant must also notify the affiliate within a "reasonable time" once they are aware of the violation. In other words if a merchant was aware of the violation for 3 months they can't decide at some point that they are going to withhold or reverse 90 days of commission.

    I guess the point I've been trying to make in this and several other recent posts is that a TOS is a legal and binding contract between the merchant and it's affiliates. That being said it is the obligation of BOTH parties to understand and adhere to that contract and the underlying law.

    I think Loxly had the definitive answer for the situation once the violator has been notified:

    I have had most remove the listings within a day. After all they don't want to spend money on bids that aren't going to pay. Telling them they will forfeit commissions usually motivates them to stop.
    Once this notification is made the merchant is no longer under any obligation to pay commissions on sales generated by the affiliate that violate the terms. If the affiliate continues after notification the merchant can drop the affiliate or just enjoy the free advertising. However the "free advertising" does hurt other affiliates in the program (see UncleScooter's article on how TradeMark Poaching affects the affiliate)

    Please take everything I say here with a grain of salt. I'm not a lawyer and my interpretation of the law is based on 20 years of negotiating contracts not law school. For the definitive answer to some of these questions a lawyer should be consulted.

    My 13 1/2 cents worth .

    -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

  17. #17
    Kung Fu Master Eathan's Avatar
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    Quote Originally Posted by rematt
    Once this notification is made the merchant is no longer under any obligation to pay commissions on sales generated by the affiliate that violate the terms.
    I may be off here, but if the TOS clearly state the affiliate will not be paid for sales generated through means that violate their TOS, wasn't notification given the day the affiliate joined? Again, we're talking about violations of existing terms. I can't believe the law would require notification of a violation before commissions could be withheld, and then only on further violations...

    I find threads like this really frustrating. The affiliate relationship is a business partnership, but the divide between the parties seems to get wider and wider every year, and it's always a case of the few spoiling it for the many.

    A few bad merchants with leaky sites, a few bad affiliates poaching sales and we all need to revisit our affiliate agreements and hire more lawyers. It sorta' sucks. We all end up sitting on either side of a line scratched in the sand.
    Eathan Mertz

    Black Cat Mining - Gold Prospecting & Rockhounding Equipment

  18. #18
    Analytics Dude Kevin's Avatar
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    It's the nature of any sales relationship really. I sat through plenty of meetings working for 2 Fortune 100s, listening to the divide widen between the sales teams and the finance teams. While the relationships are in no way similar, the debates are.

    Sales teams are often beseeched to do more with less and for less. In some ways, restrictive keyword bidding works in the same vein. It's a lot easier for affiliates to up and walk away though
    Kevin Webster
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  19. #19
    Affiliate Manager PetsWarehouse.com's Avatar
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    One other quick point here is that if a merchant changes their TOS, the affiliate that misses an e-mail notification won't know it!

    I also doubt many (if any) affiliates download the TOS's of each program they join for reference.
    Bob Pets Warehouse
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  20. #20
    Analytics Dude Kevin's Avatar
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    Bob: CJ (man do I hate saying that out loud) provides a mechanism where if a merchant changes their TOS (including but not limited to commission levels and forbidden keywords), the affiliate actively has to approve the new program terms, or be removed.

    Shareasale, to date, doesn't have that kind of platform. I'm sure Brian and company are working towards something similar, since it makes sense. Without it, I see where there could be the potential for legal issues.

    So, in keeping with the spirit of this thread that I started:

    Right now, if I change program TOS's regarding PPC Bidding Guidelines in my SAS merchants, I need to send a "newsletter" to all of my affiliates, and give them 30 days to comply. They may never see it. If they don't, and there are good affiliates affected, I have to pick up the phone, hit them up on IM, or whatever, and make a reasonable attempt to inform them they're in violation, considering I will definitely still want them in the program.
    Kevin Webster
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  21. #21
    Kung Fu Master Eathan's Avatar
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    Quote Originally Posted by Noth
    Right now, if I change program TOS's regarding PPC Bidding Guidelines in my SAS merchants, I need to send a "newsletter" to all of my affiliates, and give them 30 days to comply.
    Probably also want to be sure to archive the newsletter for your affiliates, so there is a public record for those who miss the email.
    Eathan Mertz

    Black Cat Mining - Gold Prospecting & Rockhounding Equipment

  22. #22
    The Seal of Aproval rematt's Avatar
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    Quote Originally Posted by Eathan
    I may be off here, but if the TOS clearly state the affiliate will not be paid for sales generated through means that violate their TOS, wasn't notification given the day the affiliate joined? Again, we're talking about violations of existing terms. I can't believe the law would require notification of a violation before commissions could be withheld, and then only on further violations...

    I find threads like this really frustrating. The affiliate relationship is a business partnership, but the divide between the parties seems to get wider and wider every year, and it's always a case of the few spoiling it for the many.

    A few bad merchants with leaky sites, a few bad affiliates poaching sales and we all need to revisit our affiliate agreements and hire more lawyers. It sorta' sucks. We all end up sitting on either side of a line scratched in the sand.
    Ethan, you missed the key to this phrase "unless the merchant has clearly defined the consequences in their TOS" and it was italicized for a reason.

    What frustrates me are the number of merchants that feel that the TOS is theirs to do with as they please. While they can put any terms in their TOS that they want, once those terms are accepted by both parties the TOS becomes a legal binding contract and MUST be treated as such. If a penalty is not defined in the TOS a merchant can't make one up after the fact, if that were the case they could require that I forfeit my first born. Without that definition they can only LEGALLY drop the affiliate from their program.

    I agree that it sucks, but too many merchants are in violation of the law today in the way that they try to enforce their TOS. I'm no fan of lawyers either but the law is the only thing that protects me when I'm up against a merchant with much greater resources. If I play by the rules I expect them to also and that doesn't mean making the rules up as they go along.

    Put your TOS in clear unambiguous terms and make it fair and I don't have a problem with it. Change your TOS however you want but give me a fair chance to review it and decide if I want to work with your program based on what's in the TOS, not what you meant to say.

    -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. #23
    The Seal of Aproval rematt's Avatar
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    Quote Originally Posted by Noth
    Bob: CJ (man do I hate saying that out loud) provides a mechanism where if a merchant changes their TOS (including but not limited to commission levels and forbidden keywords), the affiliate actively has to approve the new program terms, or be removed.
    Linkshare has something similar where you can either except or decline a change in TOS. The major difference is that in every case where a merchant I've been working with has made a change I've been given X number of days to except the changes. If I do nothing the changes are automatically accepted. There may be other ways for merchants in Linkshare's network to handle a non-response.

    -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

  24. #24
    The Seal of Aproval rematt's Avatar
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    Quote Originally Posted by Eathan
    I find threads like this really frustrating. The affiliate relationship is a business partnership, but the divide between the parties seems to get wider and wider every year, and it's always a case of the few spoiling it for the many. We all end up sitting on either side of a line scratched in the sand.
    (continuation of my previous rant post#22)

    Again Ethan you are right on. It is a business partnership, however one of the partners holds all of the cards. I have yet to have an opportunity to negotiate a TOS with a merchant and I would venture a guess that most of the affiliates here haven't had an opportunity either. That being said most of the terms that I've seen are a little one sided. I have yet to see a merchant define my recourse if they're tracking is off for a couple of days, or if they're payments are late for a couple of months. My only recourse currently is to drop the merchant, but that still doesn't recover my lost earnings.

    Contracts are a royal pain in the butt. But remember the old saying: "Good fences make good neighbors".

    (OK, rant over)

    -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

  25. #25
    The slot machine that IS paid! Billy Kay's Avatar
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    rematt...

    Just wanted to state publically that your posts are always professional, knowledgable, helpful and fair.

    You've joined the list of affiliates (like Scooter, Donuts, Kellie, etc) where I look forward to hearing what you have to say... because it will in some way benefit me.

    No cash prize - LOL - just a humble thanks from a peer

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