**by Lori Weiman**
As you may know, Google recently loosened its policy in the USA
related to the use of trademarks in ad copy text, which went into
effect on June 15, 2009. The big question is: has this change resulted
in an increase in trademark use? The answer is yes.
The Search Monitor tracks and monitors trademark sponsorship and use
in ad copy across all of the major search engines for brand holders.
We recently conducted a study to determine the impact of these recent
trademark policy changes. The results indicate that there has been an
increase in trademark use across all of the major search engines.
The study discussed below is a look across several verticals at the
change in the number of advertisers who sponsored or used trademarks
in ad copy text before the Google June 15th policy change, and after
the June 15th policy change.
The early results below show an increase in each category, across all
search engines. Here is a preview of the current findings by vertical:
<http://www.flickr.com/photos/23148333@N06/3741904447/>
A small number of brands were reviewed for the above analysis
consisting of brand holders which we suspected are not currently using
a trademark monitoring tool and therefore may not be proactively
monitoring and pruning abuses.
The above study is just the beginning of ongoing analysis needed to
measure the impact on trademark use by unauthorized advertisers,
including changes in the number of competitors engaged in the
practice, the impact on impressions and/or click share, the impact of
affiliate marketers engaged in the practice, and the impact on cost
per click.
Does the new policy allow advertisers to engage in unauthorized use?
The short answer is no.
First, Google AdWords, Yahoo Search Marketing, and Microsoft
Advertising each have slightly different policies which you can find
in their help documentation, and are further explained online by
various white papers, bloggers, and columnists. You may be able to
sponsor terms freely on one search provider, and not be allowed on
another, so check their policies.
Second, the study above shows a big jump in keyword sponsorship of
branded terms. This result is interesting because Google did not
change its policy with regard to keyword sponsorship. Google has
allowed keyword sponsorship for quite some time now. However, the
recent policy change which specifically impacted use in ad copy, seems
to have encouraged a surge in advertisers sponsoring brands as
keywords. Yahoo and Microsoft Advertising did not issue a change, and
yet seem to be impacted as well.
Third, just because a search engine allows the practice, does not
mean that the law agrees with them. It seems that advertisers think
there is an opportunity to use trademarks more freely, which may not
be the case from a legal standpoint. The test from a legal standpoint
in the USA and abroad is two-fold: (1) is the use considered use in
commerce? To this question, it seems that the concensus legal view is
that sponsorship of brand terms or use in ad copy text is a use in
commerce; and (2) is the use likely to confuse a reasonable consumer
as to the origin of the good or service? To this question, the answer
depends on the facts surrounding the use.
For example, if the ad copy or ad leads to a website that looks quite
like the brand-holders site or has replicated elements such as color,
stylization, or logos, then it is more likely to be deemed to be
confusing versus a website that has a unique brand and is espousing a
competitive comparison.
The key is not to rely on the policy of the search engine but instead
to rely on the law of the land in which you engage in business.
Opinions expressed in the article are those of the author, and not
necessarily Search Engine Land.
Lori Weiman <http://searchengineland.com/author/lori-weiman/>
is head of product management and marketing for The Search Monitor
<http://thesearchmonitor.com>
. The Search Monitor monitors search results and social media web
sites to provide insight to SEM, SEO, and Affiliate agencies regarding
competitors, keywords, ad copy, market share, trademark abuse, brand
buzz, and affiliate compliance.
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