Bidding on someone else's trademark, an ethical question Options

[jtaylor123]

okay, I know Google says in their policy that you shouldn't bid on someone else's trademark (right...?), but it does look like they're going to do much about it.

I have a potential client who wants to bid on a name brand that they don't currently sell. I don't really feel right about this. I know I have another client who is really pissed someone is bidding on their name, so I'm at both ends here.

Anyway, I guess I'm wondering what you all think about this. Do you do it?

[LeftoverJoe]

Generally I've found that just 'bidding' on a trademarked name is ok. It's when you start putting the term in the ad itself that gets Google upset, and your ad dropped faster than a hot potato.

If you look at the .jpg attachment you'll see what I mean. OneUpWeb is a registered trademark. When you do a search for their name in Google, you see them, and one of their primary competitors come up, 1 and 2. OneUpWeb isn't in the competitors ad, but you know that they bid on that as a keyword.

I also don't think that it's unethical, unless the keyword they want to bid on has no relevance to their product or service.

[Jbrookins]

I know how some people here feel about it, but so far the legal precedents say that it's ok as long as you are not creating confusion by representing yourself as that trademark. Google's policy is that you can't place the trademarked term in your ad copy, but bidding on the term is acceptable (read "between you and the trademark holder"). They have won repeatedly in court over this.

My personal thoughts on this is that Google should allow a single ad on the trademark to be placed by the owner of said trademark for the minimum bid (after all, the owner can elect NOT to have a paid placement) and competition should be focused on #2 and below. However, in every single other medium, it's ok to target brand names and trademarks specifically (no one gripes about the coupons given out in some stores targeted towards specific purchases), so I fail to see an ethical dilemma in targeting a trademark as long as you ensure that you set yourself as apart from the trademark (ie an alternative).

In my opinion, there is no ethical dilemma if you are not being deceptive or misleading in any way. Trademark law is to protect the owner from having their brand hijacked, and simply placing an ad where it will be viewed by searchers looking for a specific thing is not hijacking. That said, this doesn't mean (at least in the US) that the trademark owner can't sue you and suck the life out of you in legal fees, even if they ultimately lose.

I will now put on my flameproof suit and wait. hahahaha

[jehochman]

I've never seen a situation where bidding on somebody else's brand was cost effective. There are probably cases where that would work, but I think they are rare. If somebody is looking for Brand X, and you offer Brand Y, they are just going to swat you out of the way.

[jtaylor123]

Jonathan- Yeah, that crossed my mind as well.

Jeremy- I won't flame you, no worries!

[Betty]

We bid on brand names of competitors. Our product is unique in that we build furniture - but not in that you can buy furniture everywhere. However, many people will search for a specific brand name and because our furniture is comparable in price, quality and style (not the same - but similar) I'm okay with us bidding on that.

How does it do? I'm not telling. (IMG:http://www.highrankings.com/forum/style_emoticons/default/wink.gif)

[chrisbiber]

Bidding on competing brands can be very effective! If the offer is interesting, we certainly have found that many searchers are willing to click AND convert. Needless to say, it's definitely not the only thing to do, and it likely depends on the product category, brand loyalty etc.

Several of our clients are doing great with that tactic...

Just my $.02 (or whatever the minimum bid is these days (IMG:http://www.highrankings.com/forum/style_emoticons/default/whitehat.gif) )

Chris

[jehochman]

I'm mainly dealing with technology products, so that's probably why. If somebody types "Apple" you won't get much traction by offering "Dell."

[chrisbiber]

We're also mostly B2B & HighTech - works just fine; While the Apple/Dell thing wouldn't go so well, how about Toshiba Laptop bringing up an ad with special offers for Panasonic Laptops. Not the greatest example, I know, but I can't exactly use our clients' keywords to demonstrate more convincingly (IMG:http://www.highrankings.com/forum/style_emoticons/default/whistling.gif)

[jtaylor123]

yeah....We work with a manufacturer, who in turn wanted us to propose doing sites and marketing for each of their dealers.

I'm really hoping I don't run into the problem of bidding on the same keyword for multiple companies (which I would not do). Fortunately, these are spread across the US, and with targeting it should be fine.

anyway. Alright, so I'm thinking maybe this is not a bad thing.

[chrisbiber]

Jenny,

Perfect scenario for geotargetting, for sure...

Chris

[Alan Perkins]

I've sat on both sides of the fence on this one, with different clients.

Generally, I think it's OK to use a trademark as a trigger term, but not in the ad text itself. To continue the Dell/Apple theme, it's analogous to a magazine running an editorial piece on Dell with an Apple ad running alongside it (or vice versa), IMO.

In some specific examples, it's quite ridiculous - and even anti-competitive and therefore possibly illegal, IMO - to not allow trademark use in the ad text. For example, suppose a car manufacturer disallowed use of its trademark in ad text. This would mean that retailers could not advertise used or new models of that car. OTOH, the manufacturer itself could - and could therefore offer a portal that only promoted its approved franchise dealers, locking out the rest of the market. At the same time, the manufacturer could arbitrage clicks - buying them at a low rate from Google, because it is the only advertiser, and selling them at a high rate to its franchise dealers and cutting out independents entirely, because it has been granted a monopoly by Google. Does this sound contrived? It's not. It's happening right now!

[sweepthelegnate]

I've been involved on both sides of this one and agree with the technical aspects of not using the tradmark in ad copy. I also think bidding on these terms can be a valuable tactic for certain industries and situations. For higher end products and services (read extended research and buying process) bidding on your competitors name can get your name on "the list" if you weren't previously recommended or known to the potential buyer or client. I don't have much experience in this arena for smaller purchases where the buyer may already have their mind made up - so your mileage may vary depending on the situation.

[cline]

I've found competing-brand keyword targeting to be highly effective. It does create the occasional irate phone call from the competing brand. I got one of those calls this morning. The email I sent to the caller may be useful for you.

Google’s US/Canada Trademark Policy

When we receive a complaint from a trademark owner, we only investigate the use of the trademark in ad text. If the advertiser is using the trademark in ad text, we will require the advertiser to remove the trademark and prevent them from using it in ad text in the future. Please note that we will not disable keywords in response to a trademark complaint.

Google’s Keyword Matching Features

the Google AdWords system automatically runs your ads on highly relevant keywords, including synonyms, related phrases, and plurals, even if they aren't in your keyword lists.

Consequently, you should understand that even if the advertiser does not keyword target a particular term such as your brand name, Google may itself decide that the term is relevant and show the advertiser’s ad for that term.

Google feels comfortable operating this way because there have been several cases on this issue. A couple articles of interest on this point are:

Google wins in trademark suit with Geico

Google Wins U.S. Keyword Case

A much more in depth treatment of the legal issues may be found at

http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID758638_code332758.pdf?abstractid=635803&mirid=5

http://www.linksandlaw.com/adwords-google-...-usa-greico.htm

I believe that if you and/or your lawyer review the case law on this matter you will come to the conclusion that my client's and Google’s advertising practice is in conformance with U.S. trademark law.

BTW, note that I said US trademark law. Trademark law in other countries is often quite different, especially those with legal systems based on the Napoleonic Code.

[Hyperformance]

- That was awesome Cline! The timing of your information was good too.

Thank you.

- Scott