Google, which recently liberalized the use of trademark terms as a trigger for showing ads, has again opened up its ad policies to allow trademark terms to be used within ad copy, in certain circumstances, within the United States.
Currently, registered trademark holders can request that Google prevent their trademarks from being used in ad copy. Trademarks can still be used by anyone to trigger ads, however. Beginning June 15th, this will change — as long as the advertiser is a reseller of a product or is providing information about it.
How It Works
Let’s use Apple as an example. Let’s assume that Apple asked Google to prevent the trademark “iPhone” from being used in ad copy under the current policy (this doesn’t appear to be the case, by the way). Let’s also assume there’s someone who sells iPhone cases. Currently, they could have an ad show up for “iphone,” but it couldn’t use the word. It might look like this:
Need A Case? We have a large selection of cases for your phone!
With the page, the ad can be more specific:
Need An iPhone Case? We have a large selection of cases for your iPhone!
Google says the change is designed to help relevancy, and that’s a valid explanation. Many studies have shown that searchers find listings more relevant when they contain the actual term they searched for.
Not everyone can get around the trademark ban, if a trademark holder has requested it, however. Exceptions are made for:
- Resellers of products
- Sales of components, parts, and “compatible products” (accessories)
- Informational reviews, as long as the reviews are non-competitive and the advertiser doesn’t sell or help sell goods and services of a competitor of the trademark holder
That last one is going to be fun to enforce. If you’re a review site with ads, and some of those ads are for competitor products, is that “facilitating the sale” of those products and thus violating the policy?
What’s also unclear is how this might impact advertisers who run protest sites against certain companies. For example, if someone wants to provide information about why you shouldn’t eat at McDonald’s, for some reason, can they write a review that will qualify to get around the ban on using “McDonald’s” in their ad text (if McDonald’s had requested such enforcement, of course).
Terri Chen, senior trademark counsel at Google, first said that Google’s “Anti Policy” would cover this, which states:
Ad text advocating against any organization, person, or group of people is not permitted.
Of course, what’s “advocating against” is a fine line, she acknowledged, when I asked why ads between John McCain and Barack Obama, during the US presidential election last year, wouldn’t be considered advocating against the opposing candidate.
She did say that negative reviews wouldn’t fall under the anti-ban. IE, if you write a negative product review, you could still by an ad using the product trademark, if you wanted.
The move is the latest in a series of liberalizing what’s allowed with trademarks in AdWords. Last year, Google lifted restrictions on using keywords as a trigger term for ads in the United Kingdom and later in Ireland. Then earlier this month, it dropped restrictions in 190 new countries. As Chen said, it’s now easier to list the place remaining where Google still has restrictions than not: chiefly EU countries other than the UK and Ireland and a handful of other places, she said.
Why’s the EU so special? Particularly in France, the courts haven’t been kind to Google. It’s lost a number of cases, with the Louis Vuitton one standing out. Chen said Google didn’t feel it was the right time to make a change in most of the EU, but in the UK and Ireland, it was felt that trademark laws were more similar to the US. That is, designed to protect against consumer confusion (and thus more permissive) than in France where they are seen as almost protecting property rights.
Currently, the European Union’s Court Of Justice is reviewing a case that Google argued last month involving trademark usage. If Google gets a favorable ruling, then the policy in the EU might change. Meanwhile in the US, things remain uncertain in trademark law. The highest ruling so far has been involving Rescuecom, where an appellate court refused to dismiss a case against Google. That means all rulings involving paid search and trademarks remain on the district court level — and in different district courts, so there’s no clear “law of the land” ruling that stands out.
“I definitely think it’s true that the law is unsettled, but we still believe our policies are correct,” Chen said. “We want to focus on what’s best for user.”
Again, I agree — the trademarks in ad text will be a better user experience. But why all of a sudden is Google opened things up broadly? From my call, I couldn’t get a crystal clear answer as to why other than after a regular review, it seemed the right time for a change.
Of course, the right time for such a change might also be because Google’s seeing its revenues slow. Letting more ads show for trademark terms — letting trademark terms appear in ad copy — both help the bottom line. Isn’t that is? No, Chen said.
You Can Buy Google
Chen added that its policies are in line with Microsoft and Yahoo. I haven’t gone back and checked on this. In fact, I’m overdue to have us churn out a good comparative look at how trademarks are treated on the three major players, as well as a review of various legal cases. We’ll get working on that.
In the meantime, a last point. Want “Google” to appear in your ad text? If you meet the new criteria, you can. “We’ll treat our brands the same way as others,” Chen said.
For more, see related discussion at Techmeme.