Brand Bidding

[km8]

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But what are their legal rights and where do you draw the line?

Hi Jess1,

I think you may be confusing criminal law with civil law.

As contracting parties in civil law, a merchant and an affiliate are free to agree any terms they like, however ludicrous. The courts will adjudicate any dispute based on the agreement the parties made.

Having done that, each party's

legal rights

are to have that agreement enforced by the courts, provided our agreement doesn't require contravention of criminal law.

So if I engage your services as a hitman and you don't perform the service agreed, I'd be unlikely to be awarded damages because my civil contract with you required you to contravene criminal law.

Of course, I should add that I'm not a lawyer, nor am I in the market for wetwork.

[drivetowin]

If you agree to a contract then you agree to the terms and conditions of that contract (unless as km8 points out any clause of that contract is illegal under criminal law or there is specific statute (for example gambling debts are not legally enforceable in the UK))

That said, an individual clause in a contract can be declared null and void if that clause can be demonstrated to be unfair to one of the parties to the contract - but it is of course largely legal opinion whether a clause is unfair. Incidentally it is for this reason that many contracts include a clause which states that should any one clause be found to be unfair or unlawful, the rest of the contract still stands.

So any merchant can set any terms re use of their brand name (or any other word / logo come to that) that they wish - just as in the bricks and mortar world a distributor can choose which shops they wish to sell their goods to the general public, and which they do not.

[woutermols]

That said, an individual clause in a contract can be declared null and void if that clause can be demonstrated to be unfair to one of the parties to the contract - but it is of course largely legal opinion whether a clause is unfair. Incidentally it is for this reason that many contracts include a clause which states that should any one clause be found to be unfair or unlawful, the rest of the contract still stands.

Hmmm... would it legally be fair to allow a select group of affiliates to bid on the "brand" whilst excluding others. Certainly could be seen as a cartel and that's often seen as an unfair.

Anyway, whether the "contract" might be legally binding or not, fact remains that they can hardly enforce this on others not associated with them. And therefore I think where we are not talking about a trademarked brand it would still be in the merchants interest to allow PPC on their brand by their affiliates.

[Gavinio]

Aside from the legals (and I think KB's post above seems right to me)...

1) Don't get hung up on the "Agency Vs Affiliate" argument - we're not all bad guys! I know we strongly fight the affiliates' corner for merchants in many occasions. In almost all occasions its in any agencies interests to develop a long-term sustainable programme for a merchant - not just milk as much off the top as they can.

2) Like it or not, brand bidding is gradually going to be sidelined for affiliates - I know this might not be in the best interests of everyone, but it's the way it's going. If you're not adding value, why should the merchant allow it? If you are adding value, then fair enough. If you're making all your money off brand bidding (as an affiliate) then you really do need to look what you're going to be doing in a years time.

[Qui Gon Jinn]

Hi Gavino,

What's your perspective on the following?

1) Restrictions on Hybrid Phrases (brand+generic) & Mis-spellings.

*If you have any of these restrictions for any of your programs you represent, do you know / how confident are you whether you have all bases covered for Hybrid Phrases (brand+generic) & Mis-spellings? And do the clients you represent hold the trademarks to these?

2) Restrictions on Product related & Generic terms.

**If you have any of these restrictions for any of your programs you represent, what is your reasoning behind this decision?

3) URL Restrictions.

***If you have any of these restrictions for any of your programs you represent, again, what is your reasoning behind this? Does this only apply to Google? or other pay per click search engines too? Noting this question can be split into three parts.

a) URL retsirctions on Hybrid Phrases (brand+generic) & Mis-spellings
b) URL retsirctions on Product related & Generic terms
c) URL retsirctions on Brand related terms

[Gavinio]

Hi Gavino,

What's your perspective on the following?

1) Restrictions on Hybrid Phrases (brand+generic) & Mis-spellings.

2) Restrictions on Product related & Generic terms.

3) URL Restrictions.

a) URL retsirctions on Hybrid Phrases (brand+generic) & Mis-spellings
b) URL retsirctions on Product related & Generic terms
c) URL retsirctions on Brand related terms

Hey QGJ,

Well, sorry to be so wishy washy, but it really does vary from client to client.

Essentially, where the affiliate activity negatively impacts on the merchant's overall marketing mix, then we can't allow it. The most obvious example is bidding above them (using client's display URL) on the merchant's own brand. With other merchants we allow brand-bidding, but not the display URL on that.

Why do we make a rule? Always to add value to the long-term of a campaign for both the affiliates, and the merchant. Where we allow brand bidding, we'll often have fair restrictions in place. It very much depends on the PPC environment in which the client is operating - are they doing their own search? Are there competitors in the space?

If you want to bid on brand, everyone will be much happier if you can demonstratably add value, and incremental sales to a merchant, rather than just redirecting what they already have through affiliate links.

Overall, it really does change from merchant to merchant (quite rightly).

[betterHalf]

Is it legal? Of course it is.

The merchant has the right to accept or decline anyone into their program. They also have the right to set the conditions under which their affiliates compete. For example. They can ban affiliates who spam millions of people they don't know, as it give the program a bad name.

And they can ban affiliates who use their name, or a variation too close.

This may not be welcome news to affiliates, but it's totally legal. You have no right to 'demand' they let you in their program.

[pistol101]

Don't forget that brand name bidders will be overwriting cookies of content based and other PPC affiliates.

[woutermols]

Now I am getting a bit confused. If I bid on a brand name with the link pointing to a page on my own site where I have content about the brand and links to the merchant... Am I a brand name bidder or not?

[Qui Gon Jinn]

Type "Oddbins" and you will see the Likes of "Majestic Wines" & "Virgin Wines" both bidding on competitor brands.

Both TD merchants, we mentioned this to TD to inform respective merchants many moons ago .. as if they would reprimand their own merchants.

Majestic Wines have been doing this for at least two years, one of the Majestic Ads is a TD affiliate with incorrect dispay URL, but TD turn the blind eye. You also see Tesco a TD affiliate where Tesco display URL is prohibited.

Occasionally appearing too is Laithwaites, another TD merchant

Isn't Oddbins on TD too .. hmm perhaps I should give them a call ... has anyone got their affiliate managers telephone number? Not the network but the Merchant. Just to illustrate how the network really looks after the merchant.

hupokrīnesthai

[Qui Gon Jinn]

We recently conducted this lengthy & tedious task on all networks and noticed a lack of continuity & ambiguity. Where it is ambiguous, we refrain from brand named bidding.

Several points we would like to note & NETWORK XYZ should observe were brought to attention at the meetings or discussions with ourselves, is that there are several possible points of reference for a keyword policy, in places these are in confliction with each other. It is the sole responsibility of NETWORK XYZ and/or the account managers to ensure that there is ONLY a SINGLE POINT OF REFERENCE for keyword policy for any given merchant. If any changes are made, they MUST all update simultaneously, any changes made, no matter how minute, should automatically send an email to affiliates, notifying them that changes have been made, with the keyword policy contained both within the email and to refer to admin interface. Not all affiliates I am sure refer to the several points to source keyword policy, maybe only one.

What is incredibly infuriating are when changes are made by account managers whereby affiliates are not suitably notified, this indiscretion is commonplace amongst all networks and happens all too frequently. Even a full stop"." or a space" " on restricted or negative keywords can make a significant difference to a campaign. Even more so when blame is deflected to affiliate, when the fault lies with the network just to look favourable in the clients eyes. Now, genuine errors can be made by any party, as much as anyone being fallible without intent to circa navigate policies, so there needs to be tolerance & understanding from all those involved. It should never be a "put up & shut up" scenario.

In addition, we know of restricted keyword policies that have not been updated on system, again commonplace across networks.

One of the weakest links, is when there is meant to be restricted keyword policy or it's inaccurate or incomplete, but more problematic is that the NETWORK XYZ system says refer to merchants FAQ, however a majority of the time this is blank with no details on merchants page to refer to. With regard some of the points required for a clear & concise keyword policy I will come onto next, but NETWORK XYZ also have to take take responsibility too, which we hope will be the outcome of this & the meetings, leaving little room for confusion and harmonious & responsible working relationships.

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Amalgamation of Suggestions
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Here is a brief summary of what we expect to see as part of concise keyword policies, in conjunction with above

a) Can an affiliate send traffic directly to the merchants website from ppc search - Using their url as the display url?

b) Can an affiliate bid on the merchants brand name? e.g. Dell

c) Can an affiliate bid on Hybrid Phrase = merchant brand name + generic term (e.g. Dell Computer, etc.)?

Please note: that other competitor ads will probably appear for those bidding on the generic term aspect of the hybrid phrase in a broadmatch. Does the merchant want to lose out on this potential ad coverage to MULTIPLE competitors, who affiliates can advertise on behalf of too?

d) If the merchant has restrictions - what EXACT TERMS CAN AN AFFILIATE NOT BID ON - if they don't include this, the affiliate might induce they have a free reign. Blanket terms of misspellings & variations etc., is NOT ACCEPTABLE! With regard to these terms which the merchant should hold trademarks too, if negative keywords are requested, are they exact match, broadmatch or phrase match. This is important. Also full stops & spaces can make a difference. Is there a maximum bid imposed?

Please note: Has the merchant registered these phrases (trademarks) they "actually" own the marks to with Google. Also the merchant should provide the trademark numbers as proof to affiliates. Does the merchant also own the marks to the hybrid phrases (brand + generic).

e) Can the affiliate bid on brand terms to send traffic through to their own website or a specific landing page designed by the affiliate & approved by the network and/or merchant? If a check is required?

f) Can an affiliate bid on misspellings & variations? However does the merchant actually own marks to these?

g) Can an affiliate bid on generic & targeted product related terms & send directly to the merchants website using their display url?

h) Does the merchant conduct their own in house ppc campaign or is it run by a ppc agency?

i) Who is currently giving the merchant the advice about PPC policy? Has the merchant actually consulted affiliates for a balanced presentation? Or have they simply said what some agency ill advised them to do or maybe a network too polite & meek to mention (A yellow bellied nodding dog in the case of one or two OTHER networks)? Some agencies may impressively provide the bells & whistles with corporate speak, bumpf & power point presentations with colloquial vocabulary, but realistically an affiliate could demonstrate the nuts & bolts of it all in more laymans terms.

j) Does the program have a closed group policy for certain affiliates? Did the network or account manager pick via teachers pet or was this presented / tendered to a number of affiliates whom may be suitable candidates but were overlooked? If there is a closed group this too should be mentioned, and may prevent some affiliates making assumptions.

k) Continuing with whether the merchant actually owns the marks to these misspellings or variations? Have they tried registering these with Google (though they never used to accept these they may now well consider misspellings in certain cases)? This may prevent some problems.

l) Also, to all the above questions, if there is an objection by the merchant or their representative, we would need to know their full reasoning pertaining to that decision so that the merchant can be correctly guided or communicated with directly with "certain other parties" not involved on a case by case basis, however there would be considerable overlap. Formulating a "book of rebuttal" or polite "white paper" to educate merchants about search engine marketing, focusing on how some imposed restrictions could stunt the growth of their program & consequently any positive brand awareness or ROI.

m) Where to every question put forward a merchant we have to ask "IF NOT WHY NOT" to ascertain if their reasoning is well thought out or were incorrectly influenced or simply knee jerk reactions through ignorance.

n) Perhaps there should be further discussions to the advantages & disadvantages (pros & cons) to each point.

p) Can I use the brand name in the sub domain or directory url of my own domain name, though the merchant has no right to prohibit me?

q) Can the affiliate use the brand name in the title of an ad, or advert copy?

r) Keyword policies & NETWORK XYZ intended contract needs to be fair and balanced without being too inhibitive to affiliates, which I am sure is NETWORK XYZ intention - not a "put up & shut up" and consequently being left in the cold.

s) But firstly let's set out the minimal information & guidelines or rules we require in order to adhere to and ensure from NETWORK XYZ there is 100% communication from them, on both existing policies & future changes, no matter how minute.

RELATED POSTS

Networks Changing PPC Policy Without Due Notification

http://www.a4uforum.co.uk/showthread.php?t=42750

PPC : Closed Groups for Bidding on Brand

http://www.a4uforum.co.uk/showthread.php?t=40705

Networks Advising Incorrectly on Display URL's

http://www.a4uforum.co.uk/showthread.php?t=42734
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