How Will Google’s Recent Trademark Changes Affect You?
Google has recently made two big changes regarding trademark usage within AdWords. One is a shift in the number of countries where trademarked words are allowed as keywords. The other is how trademarked words are allowed in ad copy within the US.
Google’s trademark policy has been rehashed in several large media outlets. Unfortunately, most of them got it wrong. So to clarify, here is a rough overview of the current AdWords trademark policy for the US, UK, Ireland, and Canada:
- Any trademarked term can be used as a keyword
- Any trademarked term can be used in ad copy
- If the trademark holder asks Google to not allow others to use a trademarked term, then it will be disapproved from ad copy, but can still be used as a keyword
- A trademark holder can allow only certain companies to use their trademark in ads (but this is all or nothing, with no conditional usage)
Google’s policy is the offspring of many lawsuits, the most talked about one being the 2004 decision of Geico vs Google. Google was only on strong legal footing in North America, and had a completely different policy for the rest of the world. Last year, Google extended its policy to include UK and Ireland.
Earlier this year, Google extended the US policy to another 190 countries. There are some European countries not yet included. A full list of countries where you can use any trademark as a keyword can be found here.
If you offer goods or services with trademarked words in any of these countries, you might want to start adding those services and products as keywords to find new search inventory.
US trademark changes
Google recently announced changes to its US trademark policy. Those changes can be summed up quite easily:
- If a trademarked term is generic or descriptive and does not reference the holder, or the term is not trademarked for your industry, you can use a trademarked term in the ad copy (for instance, an orchard farmer can advertise that they sell apples)
- If you sell a trademarked product, resell the product or sell replacement parts for the product, you can use the trademarked term in your ad copy
- If you are an informational site that is non-biased, and does not sell or facilitate the sale or a product, you can use a trademark when sending traffic to a review or comparison of the product
Who does this change benefit the most?
If you sell trademarked products or offer trademarked services, this is a fantastic change for you. In the past, if you sold iPods, you were never able to advertise them by name. That’s changed now. Ecommerce sites should start re-writing ad copy today to take advantage of this change.
This change will also make life easier for franchises. At present, most franchise trademarks are held by the corporate office. If an individual franchise tries to use their own business names in ads, those are are usually rejected as the account does not have permission to use their own trademarked business name in the ad copy. Under this new rule, they will be allowed to use their business name without having to get the corporate office to fax paperwork to Google.
At points in time, keywords such as Botox or Invisalign have been difficult products to offer as you couldn’t use them in ad copy. It was very difficult for consumers to determine which dentists offered Invisalign without clicking on every ad to see if it was in the dentists included products list. For keywords such as these, Google would argue that the consumer benefits. However, those providing these services benefit even more as now they can call out those exact services in ad copy.
The way that Google interprets their own policy will determine what informational sites actually benefit from this change. This looks like a perfect change for a site like CNET.com. However, CNET does track all their offers, and may even get paid when they send converting traffic to another site (I don’t know). However, many merchants track the quality of traffic sent to them, and if none of the traffic converts they stop buying ads on those sites. On paper, this change looks good for review sites, newspapers who offer reviews, and so forth. However, there is still interpretation left to decide how well this will work in practice.
How will this change affect affiliates?
There are two types of affiliates who buy PPC:
- Those sending traffic to the merchant site
- Those sending traffic to their own site
Affiliates who direct link to a merchant’s site can gain tremendously by this change. Those affiliates can now go and buy a significant amount of trademarked keywords as their accounts should be treated just like the merchant buying traffic directly to their site.
Affiliates who send traffic to their own sites, however, may find the new rule change makes things more difficult. For example, say you are an affiliate who offers free insurance quotes and has a consumer fill out forms to receive the quote on your website. However, before the actual sale of the policy, you pass the consumer to the insurance company’s website. In this case, can you use trademarked insurance names in ad copy? Or more importantly, will the Google reps understand you business well enough to know if you should or should not be able to use these trademarked words? It’s not clear.
Many affiliate sites look just like a merchant site, and it is not until the actual purchase is about to occur that the searcher goes to the actual merchant. This is another one of those very ambiguous cases that could be decided either way.
Pre-sell affiliates, those with one page wonder sites where the only purpose of the page is to go to the merchant or buy a ClickBank product should not see any benefit from this change as they do not actually sell the product. However, if these sites get classified as informational, then they might be able to use trademarked keywords in ad copy.
Affiliates who use comparison pages could be the biggest winners. The question will be how Google interprets the phrase “facilitate the sale of a service or product.” If facilitate the sale only pertains to selling the product on a site you own, then comparison affiliates will be the largest affiliate winners. However, if Google determines that affiliates are offering biased reviews to get people to buy their products, then these affiliates will not make any gains. If some of these sites are disapproved for being biased, and others approved for being non-biased, this could into a customer service nightmare.
How suppliers and merchants might change agreements
Many merchants currently put restrictions into their affiliate agreements or terms of service that affiliates cannot use certain keywords. Amazon recently announced that they would no longer pay affiliates who send PPC traffic to Amazon’s site. Expect more merchants to add excluded keywords to their affiliate deals.
Another ripple effect will be from suppliers making changes to contracts that would disallow merchants from using certain words, or their product names in PPC ads or keywords. While Google won’t police these activities, do not be surprised if a few suppliers that also sell direct to consumers online add new clauses to their contracts.
Trademarked business names
If your business name is not a product name, then your competitors have no way of placing your actual business name into the ad copy yet.
When business names are placed into ad copy, that could be considered the start of customer confusion. This can happen when a customer explicitly looks for one business, but is fooled into viewing another business due to how ad copy is written.
While your competitors do not have an easy way to put your trademarked business name into ad copy, business review sites, such as Yelp, can do this. If business comparison and informational sites start writing ads that contain business names, a whole new wave of lawsuits will follow.
If these sites are sending traffic directly to a review page for just that site, then you might not pay much attention. If they are sending traffic to a review page that also contains other information, such as related companies, then you might consider buying ads on those sites, or seeing if there are ways to put your business information there so you can be shown alongside your competitor’s information.
Will trademarks be better enforced?
Ad copy is suppose to be spelled properly. Trademarks are supposed to be kept out of ad copy. Therefore, trademark misspellings should not occur. However, iPod has been one of the most creatively worked around words I’ve ever seen.
Here are common spellings for iPod in search ads:
- lpod (l instead of i)
- iP0d (zero instead of 0)
- iPodVideo (running words together to form new words)
- lP0D (an l and zero, and all upper case when shouldn’t be spelled that way).
At present, while Google does a decent job of automatically blocking the exact use of a trademark, creative uses of words need to be policed by the trademark holder. With the loosening of restrictions, hopefully the allowed trademarks will be better enforced and not lead to a new wave of poor ad experiences.
What’s the end result?
Ecommerce sites selling products with trademarked names and businesses offering trademarked services are by far and away the clear winners with these changes.
Informational sites, once it is determined what is a non-biased, non-commercial, informational site will be the second largest winner.
If the above were the only companies affected, then I would argue that consumers are getting a better experience in searching for information and products on the web.
However, these new policies changes will affect more than those few groups of companies. It’s how these other trademarks are enforced, or allowed to be used in ad copy, that will ultimately decide if these changes enhance the consumer experience or just lead to more lawsuits and more confusion among searchers.
Companies can still sue advertisers regardless of whether they follow Google’s policies. Suppliers and merchants can put restrictions into their contracts to restrict keyword buying. Just because you are following Google’s policies does not mean that you cannot be sued by another advertiser. As always, first check with your lawyer before going down the path of using trademarked terms in ad copy or as keywords.
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