• Brian WJ

    I’d be interested to hear your take on the integrity of bidding on other brand’s terms, Ted. There’s no question that, all legal and personal questions aside, it’s “smart” but when you bring those questions into the mix it clearly says something about YOUR brand to the rest of the industry if not the searcher. Most searchers probably wouldn’t think twice about it unless they work in search or the particular industry but for those that do notice like me, it’s a statement. Anyone agree? Disagree? This is something really interesting–thanks for the write-up, Ted.

  • http://Ecommerceattorney.com/ David Adler

    Ted, thanks for your article. I like the fact that you mention the Rosetta Stone case against Google becuase this could portend a sea change in how “keyword” advertising is conducted. I blogged about the case here: adlerlaw.wordpress.com/2012/04/16/search-keywords-trademark-rights-where-is-the-balance/. Also, I concur with your suggestion that marketers consult a trademark attorney. Unfortunately, I feel there is as much misinformation as there is good information in your article. As you state, you are not a lawyer. Do you really think you should be giving advice on trademark law, which is itself a highly-nuanced and complicated area of the law? I think not. Your readers should consult a qualified trademark lawyer before doing anything you suggest in your article.

  • Justin Sous

    Ted, very thorough analysis. It’s important to note that even if you trademarked your brand name or multiple versions of your brand name, in the US, it does NOT prevent people from advertising on your brand’s keywords… just from using the brand name in the ads themselves. For resellers who want to advertise a trademarked term in ads for a brand they sell, the company brand needs to submit online paperwork of the Client ID #s for the accounts that can use the trademarked terms in ads. I just wanted to make that clear. Great article, Ted. 

  • Glenn Younger

    Nice points covered in the article.  

    I believe the big issue is a sales issue for search ad word providers.  As Google, Bing or others can sell a trademarked name to anyone, what makes that different than a protection racket?  “Buy your name, and keep going higher with the price, or we’ll sell it to others”    At some point companies will start to say enough, and change the laws governing ad words, or be forceful in their trademark protection using civil lawsuits,  and include the search providers in court action.  Although Google has a huge legal dept, they will need an even larger one should this begin to happen.  

    The Google guidelines for trademarked use are good, but are still so wide open that bait and switch can and does happen every day.  
    If the search ad word providers are linked with the bait and switch, they will have a harder time selling those ad words to the trademarked owners. Then it becomes a sales issue.  
    Then something will change.  

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  • http://twitter.com/tedives Ted Ives

    A lot of good points in these comments, some thoughts on them here:

    - On the “integrity” question – excellent point.  I think the argument for presenting alternatives to searchers is similar to the argument often used to justify advertising in general – consumers benefit when they learn about their alternatives.  But if it’s ill-perceived, or if your preferred positioning versus your competitor is to act as if your brand is completely out of the competitor’s league and not worthy of being mentioned in the same breath – those are powerful arguments against this strategy.

    - Trademark law is indeed complex, and as mentioned in the article, you should get your own legal advice and research these issues to your own
    satisfaction before proceeding with any of the ideas in this article.  The article attempts to describe some facts and also some opinions; if anyone is aware of any particular incorrect facts, or ill-considered opinions, by all means comment here, I would be happy to research further and consider any clarifications or corrections.

    - It’s not really a competitor issue per se, but the point about resellers submitting paperwork to bid on trademarked terms of partners is related and I think was worth the mention.

    - And as far as it being like a protection racket…it does have that feel at times…somewhat like the domain industry, where you often have to shell out money to protect your brand.  Perhaps the real professionals in the “protection racket” business in Washington will eventually move in on the action, who knows?