October 5, 2011
I was talking to a small business owner the other day, who was complaining to me about how difficult it is to run Pay Per Click ad campaigns on Google when you are faced with conflicting information all the time. I asked him to elaborate and he said:
“I talked to my Google AdWords rep recently and he said that using company names in an ad violates Google’s terms. Also, in some of your blog posts, you seem to suggest bidding on common brand names is also a violation. But I was under the assumption that this was common practice. Is it not? I’m sure our competitors are doing that and I’m wondering if I could report that to Google?”
It did seem like a confusing issue, so I decided to research it a little more.
Use of Your Company Name or Trademark in AdWords
Putting your own company name or trademark in your ad is certainly not a violation, it’s encouraged, particularly if yours is a well known brand/name. In the section of AdWords Help called Use of Trademarks in AdWords, there is an authorization form you can submit to be able to use your brand / trademark throughout your account.
Use of Your Company Name or Trademark by Competitors
The use of your trademark by competitors is where things get complicated. It differs between region and differs again between ad text versus keyword bids. Google actually opened up trademark keyword bidding two years ago, however AdWord’s trademark policy is now dependent on the region your trademark is registered in and the region/s your billing account is located in.
This is a crucial change and one that has likely gone unnoticed by many advertisers. So here are the main regional trademark policies:
AdWords Regional Trademark Policies
1. In certain regions, Google allow some ads to show with a trademark in ad text if the ad is from a reseller or from an informational site. There is covered by a separate trademark policy for resellers and informational sites.
2. For regions that are NOT included in Google’s trademark policy for resellers and informational sites, if their investigation finds that the advertiser is using the trademark in ad text, Google will require the advertiser to remove the trademark and prevent them from using it in ad text in the future.
3. In most regions covered by the Trademark policy (250+ countries including UK, USA and Canada), Google will investigate ad text only. They will not disable keywords in response to a trademark complaint in these regions. Furthermore, their investigation will only affect ads served on or by Google rather than those served on partner sites.
4. In EU and EFTA regions, Google does not prevent the selection of trademarks as keywords. However, in response to a complaint, they will do a limited investigation as to whether a keyword (in combination with particular ad text) is confusing as to the origin of the advertised goods and services.
5. In some limited regions, Google may investigate the use of trademarks in ad text, in keywords, or in both ad text and keywords. These regions include:
• Hong Kong
• New Zealand
• North Korea
• South Korea
Because Australia and New Zealand are included in the above list (and these are the countries in which I operate), I have witnessed a few keyword trademark infringements and represented some clients who lodged complaints procedures based on this policy. I have also been following closely a landmark case playing out in Australia about this very issue:
Landmark Test Case
In 2005, Australian telecommunications company Telstra found themselves in legal hot water when an online publication owned by one of their subsidiaries purchased Google AdWords blatantly using the names of competitors in their ads.
As a result, the Australian Competition and Consumer Commission (ACCC) launched legal proceedings against the Trading Post Australia and Google Inc. in 2007.
In their Federal Court case hearing earlier this month, the ACCC challenged the use by Trading Post of the keyword phrase “Kloster Ford”, which was the name of a car dealership in Newcastle, as misleading conduct in breach of the then Trade Practices Act. When “Kloster Ford” was searched for using the Google search engine, this advertisement appeared:
www.tradingpost.com.au New/Used Fords – Search 90,000 + auto ads online.
Great finds daily!
The ACCC argued that Trading Post’s use of “Kloster Ford” in its sponsored link was misleading and deceptive as it represented that there was an association or affiliation between Trading Post and Kloster Ford and the ad suggested that information regarding Kloster Ford or Kloster Ford car sales could be found on the Trading Post website, when it could not.
The ACCC also alleged that, by publishing the results pages with these AdWords, Google had itself engaged in misleading and deceptive conduct. In response, Google raised a defense that it was engaged in the business of advertising and did not know that AdWords purchased by Trading Post amounted to an infringement of consumer legislation.
On 22 September 2011, the Australian Federal Court held that the Trading Post had engaged in misleading and deceptive conduct under the Trade Practices Act 1974. However, they dismissed the claim against Google, stating that while Google provided the technical facilities that permitted the relevant advertisement to be seen, it did not follow that they had endorsed the information conveyed. Consumers would understand that the message being conveyed to them was an advertisement from the advertiser, they stated, rather than the publisher. A settlement between ACCC and Trading Post has since followed.
This case is significant for all Australian businesses that place advertisements through Google AdWords and other pay per click models, because it means that use of competitor trademarks, business names, brand names and URLs could potentially breach Australian consumer protection laws.
Navigate With Care
So the upshot of all this is that unless they have your explicit permission, your competitors generally aren’t allowed to use your brand/name in their own ads, but if you’re located in the US or other areas outside the limited regions mentioned above, they ARE allowed to bid on your brand/name as a keyword.
But it’s not all bad news – it means that you are allowed to bid on their brand/name as well.
However, as with any legal issue, tread carefully when using trademarks in your ads. Accidental or not, a violation of AdWords policy can result in the closure of your account by Google and possibly even land you with a lawsuit.
Article by Kalena Jordan, one of the first search engine optimization experts in Australia, who is well known and respected in the industry, particularly in the U.S. As well as running a daily Search Engine Advice Column, Kalena manages Search Engine College – an online training institution offering instructor-led short courses and downloadable self-study courses in Search Engine Optimization and other Search Engine Marketing subjects.