Less than two years ago, Google modified its AdWords trademark policy for international standards and opened up bidding on trademarked keywords to AdWords advertisers worldwide. The so-called brandbidding explicitly allows bidding on other brand terms in search advertising and stirred up controversy. With the opening up of bidding on trademarked keywords, not only the brand owner, but also advertisers such as retailers or informative websites, can now book their own text ads on other brands through Google AdWords. The result is a larger bidding competition, since now several advertisers are aiming for the coveted first place in the AdWords ads. Google allows advertisers in over 200 countries to bid on rival trademark keywords, as long as they don’t appear in the search ad itself: this means that Coco Cola could for instance bid on the keyword ‘Pepsi’ and have their ads shown for searches related to that query.

What’s legal or illegal in search engine advertising seems to blurr, with trademarked keywords of competitors now being used by companies to trigger search advertisements.

Illegal brandbidding takes place mainly at night and on weekends. Especially at these times merchants and affiliates are up to mischief with foreign brands and the new regulation seems to support that such abuses remain undetected and causes a financial loss for the brand. Because the burden of proving that a violation occurred, must now been adduced solely by the brand owners. Thus, companies need to take more care of their brand on the web and be a whole lot more protective.

Here are some tips for a successful trademark protection:

1. Monitor and check your ads and brand keywords regularly, so that you can, if the trademark has been infringed, respond quickly and avoid that your brand loses visibility, or even online sales;

2. Black sheep are up to no good especially at night, on weekends, and regionally targeted in very short intervals. Make sure that your keywords are tested extensively enough;

3. Adjust your contracts with your channel partners and affiliates. Explicitly prohibit the booking and delivery on your brand terms - if necessary, on pain of sensitive penalties;

4. If the trademark rights are violated, it is important to warn the abuser immediately and to give a written warning. If you wait too long, lawyers can interpret such a behavior as tacit acquiescence;

5. In a warning letter, it is important to provide as much evidence as possible. It is recommended to extensively collect and document the abuser’s objectionable ads, log files, IP addresses and similar information;

6. Whether a text display violates the trademark law is not always clear. If competing companies bid on direct competitors with comparable products, each case must be checked in individually – even if there are doubts legally;

7. Furthermore, you can complain to Google as a brand owner, if you believe another company is confusing users with a display. This is true when an ad leads to a Website that gives the impression of belonging to the proprietor or to sell proprietary brands. In such a case, Google removes the corresponding ad;

8. Budget increasing prices for your own branded keywords carefully and bid higher on them to displace your competitors, if possible.

While competing companies can bid for the same keywords as long as there is no likelihood of confusion, it is, however, still not allowed to assign literal foreign trademarks in ad texts.

Google is extremely confident that their practice is not infringing on trademark laws. At least, Google has forbidden placing trademarked terms in advertising copies unless companies own the trademark or have the trademark owners' explicit permission. In any case, increasing the number of search terms competitors can bid on will lead to an increase of advertising revenue for Google.

By Daniela La Marca