Google AdWords trademark policies can be hard to grasp and ever changing, and when you put that in the mix with little or no prior experience with intellectual property or trademark law, it can make a very shot day, into a long one.
We have been helping big brands, agencies, and networks protect their trademarked terms in paid search for the last 12 years. Within that time, we have been posed with plenty of questions about Ad trademark policies and brand bidding.
In fact, as recently as May 2021 our customer success team met with google yet again, they have had made another change on how to process queries, and many of the brands we worked with were met with responses from google which led to a new raft of questions. With that in mind, what common questions are we met with?
The assumption is that the brand owner is the only one that can bid on their branded keywords and trademarked terms. In fact, anyone can bid on your trademark terms, from your closest competitor to your most fruitful partner.
Google does not spend time in mediating partner agreements, Google wants a natural flow of information and e-commerce via their search engine. Google has a huge onus on good user experience, but they also want advertisers to compete. The more competition, the more bids which means an increase of CPCs, thus giving google more ad revenue.
There are restrictions attached to using trademarks in ad title and copy, paid search managers generally have the know-how of these rules and usually follow them. But if they see a competitor has not bid on their own trademark terms, they may jump on the opportunity to claim the top paid spot-on Google, while still complying with Google’s rules.
In short there are three cases when somebody can include trademarked keywords in the ad title or copy: if it is your trademark, if you are an official reseller, or if you are an informational site.
However, it is a little more difficult due to are regional variations. For ads targeting the United States, Canada, United Kingdom, Ireland, Australia, and New Zealand, the following are allowed:
Resellers can use trademark in the ad copy if the ad’s landing page is primarily dedicated to selling products or services corresponding to the trademark. The page must clearly facilitate the sale of the product and provide information such as price or rate for the product or service.
Informational sites can use trademarks in the ad copy if the primary purpose of the ad’s landing page is to provide informative details about products or services corresponding to the trademark.
The following is not allowed under Google’s advertising policies
Ads referring to the trademark for competitive purposes.
Ads with landing pages that require users to provide extensive information before displaying commercial information.
Ads that are unclear as to whether the advertiser is a reseller or informational site.
Google also allows advertising partners, channel partners, and affiliates to use trademarks in the ad copy. If you do have agreements in place with partners or affiliates that only allow your trademark to be used under certain conditions for instance, the responsibility is on you, not Google, to monitor and contact the respective partner directly if they are not adhering to those agreements.
For ads targeting the EU and European Free Trade Association regions, the rules are more prohibitive, the focus is on ensuring consumer clarity on the origin of the advertised goods and services. Google says it will investigate and disapprove ads where the combination of keyword and ad featuring a trademark is potentially confusing.
The types of ads below targeting the EU and EFTA regions may use the trademark as a keyword, provided that the combination of the keyword and ad is not confusing. Google notes on their Advertising Policies Help page that this list is meant to be illustrative, not exhaustive.
Ads using a term descriptively or generically rather than in reference to the trademark.
Ads for competing products or services.
Ads for the sale of products or services, replacement parts, or compatible products or services corresponding to the trademark.
Ads for sites that provide informative details about products or services corresponding to the trademark.
For certain ad extensions and formats only: Ads referring to the trademark to provide additional information about the advertised products or services.
The answer is yes, by submitting a 3rd-Party Authorization Request form. You can state to Google that you allow certain partners to use your trademark. Google only accepts non-conditional authorization requests. What that means is you cannot include things like a certain time-period or certain ad content or offers. Google only prohibits or allows all use of a particular term by an advertiser. Trademark owners can remove the authorization at any time.
Great, so you have restrictions in place, well, not exactly. You would think that Google uses the information you provided to block or allow certain ads from appearing. The thing is Google does not interfere when the trademark infringing ad is being shown by an unauthorized partner.
Again It is worth noting that in certain regions (United States, Canada, United Kingdom, Ireland, Australia, and New Zealand) if the landing page of an ad includes content categorized under the reseller and informational site policy, Google will allow the use of your trademark regardless of whether they have been approved via the 3rd-Party Authorization form.
As you can see Google will not fully police or enforce partner agreements, it is solely down to the brand owner to monitor the activity of your partners. You can either manually monitor your partners by doing manual searches which you can facilitate through ad preview tool or automate the process by using a brand protection monitoring solution like the AdPolice tool to ensure compliance from partners and to make sure they are sticking to your agreements.
AdPolice Paid Search Monitoring tool can help you safeguard your brand from non-compliant partners and help re-enforce your agreements by identifying when partners run paid ads on searches of your brand keywords. The tool captures violations and categorizes all finds into separate tabs, so whether its affiliates, resellers, or other types of partners you can easily navigate through the interface. The data captured is everything from search engine, screenshot to full link analysis. And to speed up your process even more you can mail these partners directly from the tool with one click of a button.
Since branded keywords are the most valuable and highest-converting search traffic, they are tempting targets for partners, competitors, and third parties to run ads on. A branded search indicates a high level of purchase intent. For example, someone who searches for “Nike Pegasus” is interested in that brand and model of shoe and will likely buy in the short-term. In contrast, someone doing a non-branded search for “best running shoes in 2018” is still in the information gathering and research phase.
Lastly, if you are not bidding on your own brand terms, others might. Savvy competitors may not always bid on competitor terms, but if you don’t bid on your own trademarked terms, then they see an opportunity.
According to Google’s rules, competitors may use your brand name in the display URL. However, competitor ads using branded or trademarked terms in the ad text or ad title are not allowed.
We see cases where competitors use brand names in ad copy in competitive and non-competitive ways. For example, an ad may say “Brand X – the better alternative to Brand Y.” This type of ad is a clear candidate for submission to Google for takedown. In other cases, the language is more neutral such as “Compare Brand X to Brand Y.” While this type of ad is less egregious, it is also eligible for takedown. For both ad types, the responsibility lies with the trademark owner to alert Google when a competitor uses their trademark in the ad copy.
There are seven dominant trademark infringers, with search arbitrage the most common but ad-hijacking the most costly and harder to identify.
Search arbitrage is an ad that primarily leads to additional ads. Essentially, an advertiser will place a search ad that leads to a landing page featuring other ads. The assumption that Search Arbitragers make is that the ad clicks on their landing page will create enough revenue to outweigh the cost of placing the original ad.
Many Search Arbitragers are search engines themselves, such as Ask.com and xxxxx. Others are Comparison Shopping Engines (CSEs) who target brands that they do not actually work with (sometimes by accident, sometimes intentionally). Yet another group runs ads on parked domains and places ads on keywords related to common customer activities such as logins or account statements.
Ad-Hijacking is part of what we call affiliate fraud, this is when an affiliate impersonates the brand by running ads that look identical to its own. Using similar headlines, adtext, and the same display URL. The thing is to spot this with the naked eye is impossible, brands tend to look at data to spot this type of fraud and look at metrics such as high commissions or increased traffic. However affiliates are not stupid, and tend to use evasive tactics and low visibility to remain hidden, considering brands last year lost $1.4bn due to affiliate fraud you can see why we have made it is a major problem to tackle.
LIST OTHER TM ISSUES
Google currently allows responds to trademark complaints in the order they are received. Normally, a response will take 6-8 weeks, although we have seen responses in as little as one day or as much as 3-4 months.
When submitting a trademark complaint, when using the AdPolice tool you can track the activity of the ads including when the go from active to inactive via the success reporting.
If Google decides not to take down an ad that you submitted, they will notify you and explain why the ad complies with their rules.
When you submit a trademark complaint to Google you have two options. You can submit a complaint against specific advertisers at issue or against all advertisers.
If you submit a complaint against the specific advertiser, Google will review all advertisements included in each submission and will remove the advertisers who are violating the AdWords Trademark Policy. Only the specific ads that you are referencing will be taken down. You, as the trademark owner, need to submit each individual complaint for take down.
If you submit a complaint against all advertisers, Google will attempt to limit non-authorized use of trademark in a manner that violates AdWords Trademark Policy. The limitation applies to non-authorized advertisers in the same country and industry in which the trademark is registered.
While submitting against all advertisers may prevent certain use of the trademark by non-authorized advertisers, it does not guarantee that your trademark will not be infringed. Failure to submit a complete list of authorized advertisers, including AdWords customer IDs, may result in the removal of advertisements using your trademarks by valued partners. Moreover, some non-compliant use of trademark by non-authorized advertisers will likely slip through the cracks. We generally advise our customers to submit their complaints against specific advertisers to mitigate against those risks.
After Google takes down an ad you submitted, that specific ad, in that same format, will not come back. However, other advertisers can launch new ads that include unauthorized use of your trademark. Therefore, continued vigilance is key to protecting your trademark over the long-term.
These are some of the most common questions we’ve heard relating to Adwords trademark policies. The next pieces in this blog series will go into more depth on AdWords rules, what you can do to combat trademark infringements, and how to set up a paid search monitoring program.