Trademarks and Keyword Bidding
Can you use trademarks in keyword bidding?
Because a registered trademark gives a trademark owner exclusive rights to use that trademark, the average business owner might assume that this will prevent their competitors from using that trademark for keyword bidding for digital advertising services.
It seems not. You can use trademarks, even ones you don’t own, in your keyword bidding strategy for Google Ads and other search engine advertising services.
Should you?
The digital marketing pundits say you should!
What are the implications for you if you own a registered trademark?
Initially, this may seem to be a dodgy, underhanded practice. You might feel that you are pushing the boundaries of integrity and being a bit sneaky by using this strategy to win new customers. But before you jump to conclusions, let’s look at how it works.
A keyword bid signifies the amount of money an advertiser is willing to spend for a single click on a given keyword in Google Ads or any other digital advertising service.
Advertisers pay the search engine to deliver their adverts when someone searches for any of their pre-selected keywords, such as their specific brand name or a related term. For example, maybe you found this website by searching for “trademarks online”. Many businesses routinely use their competitors’ trademarks in their online advertising campaigns. The goal is, of course, to try to allure prospective customers to their own products or services.
Is this legal? What can you do if your competitors are using your trademark in their digital advertising campaigns?
In the majority of cases that have been heard in courts around the world, the general conclusion has been that bidding on a trademarked keyword is unlikely to cause confusion among consumers. Most courts have ruled that it does not amount to trademark infringement as consumers actually expect to see an assortment of different offerings in their internet search results. At first glance, you might think that this could potentially harm your business. However, you might find that in actual fact, this could benefit your business as it means that you can bid on your competitors’ brand names and trademarked words.
A word of warning is required, however. Trademark professionals foresee that the number of trademark infringement cases for bidding on trademarked keywords will increase as the use of mobile devices escalates. The reason is that the smaller screens of phones make it increasingly difficult for consumers to tell the difference between organic versus paid search results. If a trademark owner can demonstrate convincingly that consumers are confused about the origin of the goods and services that appear in advertisements, then a case for trademark infringement could be established.
Can anybody bid on trademark keywords?
Search engines allow anyone to bid on keywords, even trademarked words. For example, Google’s Ad’s policy allows the use of trademarks in keyword bidding. They state that they “don’t restrict or investigate the use of trademarks as keywords.”
The goal of the search engine is to deliver information that corresponds to the searcher’s intent. They also want advertisers to bid against each other in a competitive auction, to drive up the cost per click (CPC) of the adverts that they deliver in the search results.
Can you use trademarks in the wording of the advert itself?
Google allows third parties to use trademarks in the wording of adverts, provided that they are used in a lawful manner. There are some variations in the level of restrictions in certain geographical areas, but generally trademarks can be correctly used in these ways:
Resellers may use a trademark or brand name in their advertising copy if they are selling that branded product or service on the landing page for that advert. As an example, if you are a second-hand car dealer and you sell Holden® utes, you could use the word HOLDEN in your the wording of your advert, as long as you really do stock them.
Affiliates and partners can also use trademarks in their ad copy. A trademark owner may give permission to licensees to use their registered trademark. The owner can submit a form to Google that gives consent for authorised partners to use their trademarks online. The trademark owner can also notify Google if they revoke the license. However, if the partner agreement restricts the use of trademarks, then it is the responsibility of the trademark owner to enforce this restriction. Google does not get involved in cases of trademark infringement between other entities.
For example, Tupperware® has partners who are allowed to advertise and sell their products online and use the TUPPERWARE brand name in their online marketing.
Informational sites can lawfully use a trademark or brand name when they publish a review or provide product information about the specific trademark goods or services. For example, you could use the brand name BILLABONG in an advert to draw consumers to a page where you have reviews of one or more Billabong® surfsuits.
If anybody uses a trademark in any other way, which you believe infringes your rights as a registered trademark owner, then you can lay a complaint and request that Google removes the advert. This process generally takes about 6-8 weeks. You may also want to contact your lawyer for advice about what further steps you could take to protect your brand.
At the end of the day, you as the trademark owner are responsible for guarding your trademark and you should be vigilant about checking that it is not misused by competitors in keyword bidding or online advertising campaigns.
