Piggybacking on our media spend. That is how one entrepreneur describes the right of his competitors to bid to use his brand as a search term for their online promotions.
Another argues that it is an obvious case of confusion and an abuse of her trademark. Why should customers type in her brand into the address bar, then be directed towards a link to a competitor? Even worse, why she should then have to pay more to use her own brand as a search term?
There are no conventional answers. This is the web. Yes, it is an extraordinarily powerful promotional tool, but the rules are still evolving and apply differently in practice.
Of course, anyone can bid for a generic term to trigger a link to their online promotion when someone makes a search. Fast-growth businesses in areas like travel, finance, betting and fashion have clustered round this service.
The controversy surrounds bids to use brand names and trademarks. Search engines like Google argue that they are a passive referencing service, giving people access to information. They are in no position to screen the IP in each link in their list of results.
In a recent case, the European Court of Justice essentially accepted this position, but at the same time laid down some guidelines on the use of adwords. If they remain invisible, no one is being misled. But a brand’s intellectual property will be compromised if any confusion occurs in the minds of consumers about where the product is coming from.
So if you want to bid on someone else’s brand as a search term, it must remain unseen. Never refer to your competitor. Be clear it is your ad. Display your own trademark. Be careful even about your choice of colours and words.
On the flip side, if you are the owner of an up-and-coming brand worried about who might be following in your wake, watch for any signs that bids are starting to be made to use your trademark as an advertising key word. Has traffic to your site taken a sudden fall? Is the cost of your name as an ad word rising? Whose ads pop up when you search your own name? Is there any feedback from any of your regular online users?
If you spot any misleading references to your trademark, notify the search engine. They all have a complaint form and will remove any offending material within a couple of weeks. If no action is taken, they run the risk of becoming liable themselves.
Ultimately, you will resort to sending a warning letter to whoever is trying it on and then go through the courts. You might choose to sue whoever is making the bid on your brand or the search engine itself.
Each case will be different, depending on the degree to which confusion is being caused. The more active you are in establishing your rights and defending your trademark, the more chance you will have in ultimately directing traffic your way.
You are unlikely to persuade the search engine to stop selling your trademark as an advertising key word. It is a major part of their revenue stream, after all. But you will put them on notice.
Following the recent ruling from the European Court of Justice, the advice from at least one new media lawyer in London is to steer clear of bidding on third party trademarks, unless you are sure that no objections can be raised by the owner.