Trademark issues in PPC search marketing in the UK

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My presentation for Search Engine Strategies, 17 Feb 2009, London.

This is a short guide to the current state of play around trademark protection and search marketing in the UK, including a brief summary of some current legal cases in the UK and Europe.

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Trademark issues in PPC search marketing in the UK

  1. 1. IAB Search Council Trademark Use in PPC Search Mike Teasdale | Planning Director | Harvest Digital
  2. 2. Paid search is a £2 billion industry in the UK
  3. 3. More than half of all PPC spending goes on branded search terms Ford Ford Escort Ford Ka www ford com Ford website Source: www.atlassolutions.com
  4. 4. So trademark protection is a big deal
  5. 5. IAB site has a detailed section on trademarks and search http://www.iabuk.net/en/1/searchmarketingtrademarks.html
  6. 6. In a nutshell <ul><li>Google, Microsoft and Yahoo all require advertisers to comply with trademark law when using their services. </li></ul>
  7. 7. In a nutshell <ul><li>Their policies and terms and conditions state that the use and monitoring of trademarks is currently the responsibility of  you, the advertiser </li></ul>
  8. 8. Trademark infringements are not Google’s problem <ul><li>Our  AdWords Terms and Conditions  with advertisers prohibit intellectual property infringement by advertisers. They make it clear that advertisers are responsible for the keywords they choose to generate advertisements and the text that they choose to use in those advertisements. </li></ul>
  9. 9. Trademark infringements are not Google’s problem <ul><li>Because Google is not a third-party arbiter, we encourage trademark owners to resolve their disputes directly with the advertisers , particularly because the advertisers may have similar ads running via other advertising programs. </li></ul>
  10. 10. From 5 May 2008 <ul><li>Google will no longer enforce trademark restrictions on keywords </li></ul><ul><li>Google is dedicated to providing relevant advertising to our users, advertisers, and publishers. Accordingly, our trademark policy aims to provide users with choices relevant to their keywords. </li></ul><ul><li>But they will investigate trademark violations in ad text </li></ul><ul><li>At the same time, we investigate trademark violations in ad text both as a courtesy to the trademark owner and to ensure that ads are clear to users. </li></ul>
  11. 11. Return to the wild west?
  12. 12. But a search for “HSBC” shows no PPC ads
  13. 13. A search for “Tesco” shows no PPC ads
  14. 14. Impact of 5/5 <ul><li>Some UK sectors are highly competitive (finance & travel) </li></ul><ul><li>Aggregator brands and affiliates are most frequently involved in competitive bidding </li></ul><ul><li>However, many big brands show NO ppc activity on their brands – i.e. Tesco and HSBC. </li></ul><ul><li>42 out of 100 brands are NOT bidding on their own brand terms </li></ul><ul><li>http://www.harvestdigital.com/insight </li></ul>
  15. 15. Impact of 5/5 <ul><li>IPA research suggests that brands are “paying more and getting less” </li></ul><ul><li>Average cost of brand traffic has increased from 16p to 26p </li></ul><ul><li>Average CTR has gone down from 28.9% to 20.9% </li></ul>http://www.ipa.co.uk/Content/Brands-pay-Google-more-for-less
  16. 16. The legal position in the UK <ul><li>March 2008 – Wilson (Mr Spicy) versus Yahoo! </li></ul><ul><li>Mr Spicy loses, but case not conclusive as Yahoo! had accepted ads triggered by “spicy”, not “Mr Spicy” </li></ul><ul><li>December 2008 – Interflora versus Marks and Spencer / Flowers Direct </li></ul><ul><li>Case is brought under sections 10(1) and 10(3) of the Trade Marks Act 1994 </li></ul><ul><li>The use of its marks enables M&S and Flowers Direct &quot;to free-ride upon the fame of the Trade Marks, thus conferring upon themselves and/or their goods or services an unfair advantage over the Claimants and/or other traders, and/or members of the public.&quot; </li></ul>
  17. 17. The legal position in Europe <ul><li>In Germany </li></ul><ul><li>In January 2009, the German Federal Supreme Court (BGH) referred the following question to the ECJ: </li></ul><ul><li>“ Does the use of a third party’s trade mark as a keyword/adword on identical goods/services constitute trade mark infringement under the [Trade Marks] Directive?” </li></ul><ul><li>The German court’s question arose from the Bananabay case, in which the claimant took action for trade mark infringement against its competitor’s use of its mark as a keyword. The BGH will not be able to rule on this case until it has received the ECJ’s guidance. </li></ul><ul><li>In France </li></ul><ul><li>In May 2008, the French courts referred several questions to the ECJ from a case where Louis Vuitton accused Google of infringing its trade marks. The lower French courts had found Google liable for this, but Google appealed. The highest national court decided to ask the ECJ whether Google could be liable for allowing advertisers to register another company’s trade mark as a keyword. </li></ul>
  18. 18. Meanwhile in the real world
  19. 19. Working within current guidelines <ul><li>Be Wiser bids on “Sheila’s Wheels” </li></ul><ul><li>2. Trademark not mentioned in ad text (directly) but is in display URL (which is not policed by Google) </li></ul>
  20. 21. Working within current guidelines <ul><li>3. Quality score still applies – brand term is used in title tag, headline and body copy of the landing page </li></ul>
  21. 22. To conclude <ul><li>All the search engines place responsibility for trademark violations on the advertiser. </li></ul><ul><li>The courts may not agree! </li></ul><ul><li>Keep a close eye on the Interflora case </li></ul>
  22. 23. Photo Credits <ul><li>http://flickr.com/photos/superrabbit/319538244/ </li></ul><ul><li>http://flickr.com/photos/stabilo-boss/93136022/ </li></ul><ul><li>http://flickr.com/photos/28556257@N00/362568969/ </li></ul><ul><li>http://flickr.com/photos/44124324682@N01/274957/ </li></ul>Contact details [email_address] Blog: www.indolent.com

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