Has Google’s New Trademark Policy Caused A Spike In Use?

As you may know, Google recently loosened its policy in the USA related to the use of trademarks in ad copy text, which went into effect on June 15, 2009. The big question is: has this change resulted in an increase in trademark use? The answer is yes.

The Search Monitor tracks and monitors trademark sponsorship and use in ad copy across all of the major search engines for brand holders. We recently conducted a study to determine the impact of these recent trademark policy changes. The results indicate that there has been an increase in trademark use across all of the major search engines.

The study discussed below is a look across several verticals at the change in the number of advertisers who sponsored or used trademarks in ad copy text before the Google June 15^th policy change, and after the June 15^th policy change.

The early results below show an increase in each category, across all search engines. Here is a preview of the current findings by vertical:

A small number of brands were reviewed for the above analysis consisting of brand holders which we suspected are not currently using a trademark monitoring tool and therefore may not be proactively monitoring and pruning abuses.

The above study is just the beginning of ongoing analysis needed to measure the impact on trademark use by unauthorized advertisers, including changes in the number of competitors engaged in the practice, the impact on impressions and/or click share, the impact of affiliate marketers engaged in the practice, and the impact on cost per click.

Does the new policy allow advertisers to engage in unauthorized use?

The short answer is no.

First, Google AdWords, Yahoo Search Marketing, and Microsoft Advertising each have slightly different policies which you can find in their help documentation, and are further explained online by various white papers, bloggers, and columnists. You may be able to sponsor terms freely on one search provider, and not be allowed on another, so check their policies.

Second, the study above shows a big jump in keyword sponsorship of branded terms. This result is interesting because Google did not change its policy with regard to keyword sponsorship. Google has allowed keyword sponsorship for quite some time now. However, the recent policy change which specifically impacted use in ad copy, seems to have encouraged a surge in advertisers sponsoring brands as keywords. Yahoo and Microsoft Advertising did not issue a change, and yet seem to be impacted as well.

Third, just because a search engine allows the practice, does not mean that the law agrees with them. It seems that advertisers think there is an opportunity to use trademarks more freely, which may not be the case from a legal standpoint. The test from a legal standpoint in the USA and abroad is two-fold: (1) is the use considered ‘use in commerce’? To this question, it seems that the concensus legal view is that sponsorship of brand terms or use in ad copy text is a use in commerce; and (2) is the use likely to confuse a reasonable consumer as to the origin of the good or service? To this question, the answer depends on the facts surrounding the use.

For example, if the ad copy or ad leads to a website that looks quite like the brand-holder’s site or has replicated elements such as color, stylization, or logos, then it is more likely to be deemed to be confusing versus a website that has a unique brand and is espousing a competitive comparison.

The key is not to rely on the policy of the search engine but instead to rely on the law of the land in which you engage in business.