Google Revises Trademark Trigger Policy

[loquax]

https://adwords.google.com/support/b...92877&hl=en_GB

Will this see a change in brand bidding?

As I read this, every trademark is now a free for all provided the ad text doesn't mention the keyword?

Jason

[figleaf]

That is exactly what is happening with very big implications for everyone.

Oh, and congratulations on your 'four little ducks' post

[curious george]

Got this info through aswell today.

Based on this there will be loads of advertisers / affiliates bidding on competitor brands etc.

Could mean that we will see a larger requirement for brand groups with the objective of managing out other advertisers from the page.

BIG CHANGES!:scared

[Graham@Buyagift]

I'm no legal eagle, but I suspect you could still be done for passing off (legally).

Graham

[hpops]

Good god!
Massive massive news and a whole sea of headaches for everyone

[tbp]

I'm no legal eagle, but I suspect you could still be done for passing off (legally).

I don't think that would be the case. You are only triggering an ad to display on a competitors keyword, the ad text can't contain the trademark.

As a result, you wouldn't be passing yourself off as them as it would be obvious that you aren't that particular merchant.

[perpetual]

there was a court case in the US a couple of years ago relating to this, and with the big G losing, this terms was deemed to be unenforcable - however this was in the US, and whilst it's taken its time, it's good to see them loosening up things here....it'll be interesting to see how this changes anything with affiliates though, any protected ppc on brand is for members of said program - so I am an aff of merchant A, who does allow PPC, but not brand. I am also a member of merchant B, who is a competitor, who also allows PPC, but not brand.

As merchant A, my terms would dictate that I do not pay commission on ppc conversions through this channel, however I then start to see my brand on merchant B searches, and would pay. Where do merchants draw the line on this? Would you bid on your main competitors brand, or see this as ungentlemanly, and unethical??

[Graham@Buyagift]

I don't think that would be the case. You are only triggering an ad to display on a competitors keyword, the ad text can't contain the trademark.

Hmm interesting, be interesting to hear a legal view on this.

Surely if brand A deliberately bids on brand B (although without mention of Brand B) this is still passing off?

Graham

[mattb811]

Reading this, only trademark holders are able to use the trademarked term in their adtext. Will this be extended to anyone who has previously had brand permissions, so will affiliates be able to use the brand name in adtext if the trademark owner allows?

[figleaf]

Hi Graham

I think your are right to exercise caution but I don't think G would have done this without thinking of those implications. Would a brand have to take action against EVERY company that bid on its term and would there be the will to do so? This has been opened up in the US which is a more litigous country than ours and is still in force.

I think they key is that the trademark is not allowed in the text, that is how G avoid the 'passing off' issue.

Simon

[Shane]

bah beat me to it duckman !.. foiled with a scoop yet again lol

was just doing a blog post about it.. this is huge news and as Ducan points out it's going to cause some brands major hassle.. although on the plus side we can all now bid on ASOS and send them to "grubby" comparison pages featuring everyone except them lol..

dodgy affiliates will be already preparing their trademark abuse campaigns

some merchants will be jumping up and down, some with glee, most probably not.. and many with mixed emotions, being caught in the middle of having a strong brand but being able to now advertise against other competitors. but at the same time having them advertise against them.. what they may gain in one hand they'll be paying out in the other..

yet again only google get's richer.. cept some affiliates

[Qui Gon Jinn]

If it is considered passing off, then technically so is any listing in organic results for the brand.

[tbp]

Surely if brand A deliberately bids on brand B (although without mention of Brand B) this is still passing off?

I suppose if you didn't put any mention in the ad about which site the ad was promoting then it might be dodgy, although it would be clear from the display url (now that it has to match the actual url) that it isn't the company whose brand was bidded on.

I would think that this would be enough to stop the brand claiming someone else is passing themselves off as them.

[loquax]

I think the law on triggers/passing off is so grey that it will take a few expensive court cases to sort it - if that.

My initial reaction is that Google wouldn't have done this unless they felt legally secure about it.. and it's more a case of "hey this isn't something we have to worry about it".

As a trademark holder you can permit people to use/not use your trademark... therefore could you simply say "you are not permitted to use my trademark as a trigger" to anyone who does so? Would that be a legal situation?

Passing off - natural search you can argue is not as deliberate as paid search. With paid search a company is deliberately using the brand and reputation of another to gain business.... and that if I understand it correctly could be deemed passing off.... whether that can be argued legally, and without bankrupting anyone, who knows?

A move that will make Google cash and a few lawyers a few quid too.

Jason

[nim-b]

Aaaaagh! This is going to cause me absolutely massive issues. Don't care about being able to advertise on competitor's terms: we don't do this anyway! Really concerned that as a brand which has a simple straightforward trademark synonymous with much more expensive keywords (gadgets being one that springs to mind), we're going to end up with a free for all.

Legally, I believe that in order to be 'passing off' you have to prove that a customer could actually mistake your brand for another. ie you are deliberately misleading customers. So we would only be allowed to sue if someone bid on Firebox, used Firebox in the advert, and then passed traffic to a competitor.

However, there may be a different law that enables some protection against competitors using a trademarks reputation to gain sales. Unfortunately, it will require a test case to enforce it properly.

Whatever happens, its going to be a fulltime job monitoring it all now. In doing this, Google is essentially passing the responsibility of enforcement onto trademark owners.