An Understanding of Keyword Advertising and Trademarks is Critical to Internet Marketing Success (Part IV)
Part IV, the final excerpt in the series from the upcoming Inside Trademarks™ Keyword Advertising Guide (2010)
Steps Your Business Can Take To Protect Its Brand Now
Many business and marketing executives regard unauthorized use of their company's brands and trademarks as keywords as a source of lost revenue. As a company becomes more successful in its industry, its brand names and trademarks become more valuable as PPC search terms.
That increase in value is not lost on competitors, and in many cases, they will bid on keywords related to another company's trademarks so that they can interact with customers who originally intended to purchase from the other company. This results in a situation where the company that owns a popular or emerging brand can lose business when Internet consumers go to a competitor's website due to the competitor's keyword ad instead of going the brand-owning company's website.
So, short of filing a lawsuit, there are some cost-effective steps that your business can take now to protect its brands on the Internet.
1. Use distinctive trademarks. Apply for and register brand names that are distinctive, strong and not merely descriptive. The more distinctive the mark, the more likely your company is to prevail against an infringer. If a mark is a generic description of the product, it can be difficult for your company to take any enforcement action.
2. Contact competitors running PPC ads with your trademark-protected terms. This can be one of the more efficient ways to ensure that your trademarks are removed from all competitive advertising campaigns instead of just one of your competitor's PPC accounts. Threatening your competitor with legal action if they do not respond to your initial contact is heavy-handed. Inform them, however, that if they do not remove the infringing terms at issue from their PPC campaigns, you will file a trademark complaint against them with the relevant search engine(s) - this can potentially have a negative affect on their accounts.
An Understanding of Keyword Advertising and Trademarks is Critical to Internet Marketing Success (Part III)
Part III in a series of excerpts from the upcoming Inside Trademarks™ Advertising Guide (2010).
Trademark Law and Keyword Advertising
A number of trademark infringement cases involving keyword advertising have gone to court over the past decade, however, the courts are still playing catch up when it comes to applying trademark law to keyword advertising.
The courts lag in addressing this issue is not entirely their fault. The majority of keyword advertising cases brought in the U.S. are settled out of court and do not proceed to trial - leaving courts unable to make legal decisions on issues brought in these cases. This has left many unanswered questions on the issue of whether the sale or purchase and use of a trademark as a keyword to trigger Internet advertisements is trademark infringement.
To successfully bring a keyword-based trademark infringement suit, a business has to prove: (1) the infringing use of the trademark as a keyword is a "use in commerce", meaning that the good or service at issue is being sold; (2) the use of the trademark as a keyword has or is likely to confuse typical consumers; and (3) the use of the trademark as a keyword is not protected by any defenses, including license (e.g. permission from the brand owner), nominative fair use (e.g. product comparison), descriptive or generic use, or resale.
So far, courts trend towards ruling that: (1) use of a trademark as a keyword is a "use in commerce", but that use alone is not enough to show likelihood of consumer confusion; and (2) use of a trademark in ad copy is a "use in commerce", but courts must conduct case-by-case analysis in the context of how the advertiser uses the trademark in order to determine whether the use is proper and legitimate, or improper and confusing to consumers.
Court decisions to date also indicate that brand-owning businesses will need detailed evidence, e.g. surveys based on observation and sampling of how Internet consumers perceive and interact with keyword campaigns based on their trademarks, to show consumer confusion.
Pre-Order the Inside Trademarks™ Advertising Guide (2010) for more insight into how to use developing trends in trademark law to your advantage in keyword advertising campaigns. See our earlier posts from this series (Part I and Part II).
An Understanding of Keyword Advertising and Trademarks is Critical to Internet Marketing Success (Part II)
Part II in a series of excerpts from the upcoming Inside Trademarks™ Advertising Guide (2010).
How the Keyword Ad Process Works
Advertisers purchase or bid on keywords to direct their ads to consumers interested in their products. This targeting of consumers increases the effectiveness of Internet advertising. An advertiser may choose to purchase its competitor's trademark or brand name as a keyword to target consumers seeking the competitor's website or product, and to increase the probability that the advertiser's keyword ad displays in the search results page along with the competitor's web address and link. The diagram below shows an overview of the keyword ad process.
This process, which now occurs billions of times per day, generates substantial revenue for search engines. Google, in recent litigation with Rescuecom Corp., claimed that about 97% of its revenue comes from services sold through its Adwords program.
Trademarks are often popular and valuable keywords. Advertisers bid their price up and consumers often enter trademarks in their search queries to find products or services. Naturally, search engines are incentivized to allow bidding on more popular keywords, such as trademarks, in PPC advertising because it drives more revenue for them. Although the major search engines do provide procedures for brand owners to address infringement of their brands in keyword advertising, brand owners must rely on their own online branding strategy and trademark law to truly protect their brands on the Internet.
For more information on how to better combine brand and trademark strategy to improve ROI on your keyword ad campaigns, pre-order the Inside Trademarks™ Advertising Guide (2010). See our earlier post from this series (Part I).
An Understanding of Keyword Advertising and Trademarks is Critical to Internet Marketing Success
Part I in a series of excerpts from the upcoming Inside Trademarks™ Keyword Advertising Guide (2010)
Internet advertising is a global multi-billion dollar industry. Many forecast that Internet advertising will soon overtake television advertising as the most popular advertising medium. Reports indicate this has already happened in the United Kingdom and Denmark by the first half of 2009.
Search engine marketing is the most popular form of Internet advertising, followed by display, classified and video advertising. Annual spending on search engine marketing in North America alone could reach $26.1 billion by 2013 according to the Search Engine Marketing Professionals Organization's (SEMPO) projections.
The aim of search engine marketing is to promote an advertiser's website by increasing its visibility in search engine results pages (SERPs) through use of a number of techniques including search engine optimization, and others that frequently revolve around the purchase and use of keywords or pay-per-click (PPC) advertising.
As more and more consumers routinely use search engines to find, research and purchase products, it is critical for business and marketing executives to better understand keyword advertising, trademarks and the trademark policies of the major search engines in order to (1) maximize return on investment (ROI) on keyword advertising spend and (2) minimize any improper use by competitors of their company brands and trademarks as keywords.
Pre-order the Inside Trademarks™ Keyword Advertising Guide (2010) for more detail and insights on how businesses implement trademark strategies to maximize ROI on keyword ad spend and minimize the impact of their competitor's use of their trademark-protected keywords.
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