This is the last in our four-part series on protecting your trademark in paid search. The earlier pieces included a deep dive on Google Ads trademark rules, a step-by-step guide to submitting trademark infringements to Google, and a set of commonly asked questions regarding trademark policies. While this series focuses on Google, the techniques and considerations are similar across all search engines.
Throughout the series we have stressed the need to monitor your paid search campaigns, but we haven’t explained how to monitor and what should be included in a monitoring program – until now.
Here is a checklist you can use to make sure you have all your bases covered.
- Write clear policies
- Determine penalties for non-compliance
- Automate your paid search monitoring
- Determine responsibility
- Review and take action
While you can write agreements to set parameters for how your partners use your brand in paid search, there are other actors whose behavior you can’t control. How much control you have depends on the advertiser type–partner, affiliate, lead generator, third party or competitor.
Clearly writing down policies that spell out what you won’t allow and what actions you will take when you can’t directly take down ads, will help you be consistent. It’s worth noting that if one of your partners is using your trademark incorrectly, you need to contact them directly. Search engines will not mediate or resolve trademark disputes between brand owners and their partners.
Below are some of the restrictions you can stipulate and things to consider based on each type of advertiser.
Channel/Marketing Partners sell products and services on behalf of brands. While they can vary widely, some examples include resellers, wholesalers, authorized dealers, and online travel agencies (OTAs). For partners, a well-defined legal agreement explains the rules of engagement. Your agreement serves as a legal document detailing the ways and means of marketing that you consider legitimate for your company and brand. The language of the agreement should be in plain English and describe exactly what techniques are allowed. The more specific this document is, the less opportunity there is for any future misunderstandings.
Consider including the following in your partner agreements:
- Allowed and prohibited keywords. With some partners you may want to restrict the use of brand and brand plus keywords. With other partners you may allow it under certain conditions. For example, maybe your top three performing affiliates are allowed to bid on a brand plus keyword combination.
- Allowed and prohibited ad copy. Make sure your policies have clear rules around offering discounts, using competitors’ names in ad copy, and the use of specific phrases such as “best price” and “official.”
- Ad rank. If you are bidding alongside partners, you will need to define ad position rules. Examples include: never above you, or your brand is always first on certain specific keywords.
- Think through the tiers of your channel partners. You may want to use different rules for different levels or tiers of partners. For example, if you are Nike, the policies you write for Foot Locker, Amazon.com, and a local mom-and-pop discount shoe store will differ significantly.
- Clarify what is allowed in each market. In some cases your policies may differ by geography. For example, in the U.S. Nike shoes are sold online through Nike.com, through resellers like Amazon.com, in Nike brick-and-mortar stores, and in other sports stores like Footlocker. In Europe or Asia, however, those channels may be different and therefore require policies tailored to those geographies.
Affiliates and Lead Generators
Affiliate websites can vary tremendously in content, complexity, and tone. Common affiliate sites include coupon sites, review sites, cash-back sites, and blogs. And lead generators collect information from prospective customers and sell that information to any brand who is willing to pay for them. Typically, lead generators incentivize visitors to fill out forms by offering free quotes, comparisons, or offers on anything from insurance policies to online education programs to pest inspections.
In 2016, Google updated their trademark guidelines to restrict the use of trademarks by lead generators. If you work with lead generation partners, they are no longer allowed to use your trademarks in paid search. For more information, read our blog post on this policy change.
While affiliates differ in the ways in which they interact with brands, you as the brand owner can exert control over how these advertisers use your brand name. Your terms of service agreement or contract needs to describe exactly what techniques are and are not allowed in your program and the consequences for violating the agreed-upon policies.
There are several components of affiliate agreements that we deem essential:
- Require the use of negative keywords in PPC Campaigns. If you do not allow brand-bidding in paid search, also require that your affiliates include your brand terms as negative keywords in their campaigns. This will prevent the search engines from broad matching their ads to searches containing your brand and provide clear accountability should you find affiliate ads on your brand terms.
- Prevent use of TM terms in domain names, subdomains, usernames, etc. Allowing an affiliate to use your trademarks in any sort of internet naming system may forfeit your rights to that name.
- Directly address incentive marketing programs. Consider the different forms of incentive marketing and clearly state which forms are and are not allowed.
- Require disclosure. Affiliates, particularly affiliates that are writing reviews of your product or service absolutely must disclose, in a conspicuous manner, their relationship with you.
- Prohibited website content. If there are types of content that you don’t want your brand promoted alongside (adult content, hate-speech, etc.) identify those in your agreement.
- Require CAN-SPAM compliant email. If you allow your affiliates to include your affiliate links in emails they send, require that every email be CAN-SPAM compliant.
- Ability to delay and withhold payment. Your agreement should also grant yourself the right to delay payments to affiliates. Fraud is often detectable through data monitoring but verification of fraud can take several weeks to produce. By delaying payments, you give yourself the time to investigate potential fraud, collect the necessary data, and then deny or reverse payments.
- Include ‘detrimental to brand’ language. A generic statement that can be applied to future abusive techniques provides you with protection from the ever-evolving state of affiliate poaching. A common approach to this statement would be a clause that prohibits campaigns deemed detrimental to the merchant’s brand.
For partners, affiliates and lead generators, or any other type of advertiser with whom you have a written contract or legal agreement with, you should spell out the penalties for noncompliance. For example, if an affiliate is caught brand bidding, will they be removed from the program? Or if an affiliate doesn’t follow the rules, will their commissions be zeroed out? If a lead generator sends you leads acquired through brand bidding (and that you could have acquired yourself), will they be paid for those leads? All of these scenarios need to be considered and included in the agreement.
Any written agreement should also clearly state that you are monitoring your paid search. The agreement should say that it will be enforced through an automated monitoring tool so that all parties are aware that active monitoring will be in place.
You have much less control or leverage over your competitors and third-parties. In an earlier blog post, we walk through what you can do to take action if you find them infringing upon your brand. Read the post here.
Manual monitoring is the first step to figuring out if you have a trademark bidding problem, but by its very nature, cannot be as comprehensive as an automated monitoring solution. Due to the many evasive techniques that trademark bidders use, such as geo-targeting and day-parting, no matter how carefully you monitor, you will lose valuable traffic. Detecting and crawling thousands of ads is best left to technology and not humans.
An automated paid search monitoring solution is far more thorough by actively monitoring to see who is bidding on your brand and how often they are advertising. You see the complete picture including headlines, ad copy, and the URLs they use.
Remediation of the infringement depends on the identity of the infringer. If a partner or third-party is infringing on your trademark, you need to contact the offending party directly, and ask them to take the ad down. In these cases, it is helpful to be able to cite your carefully crafted partner agreement! If a competitor, search arbitrager, or comparison shopping engine is abusing your trademark, the final step in removing the non-compliant ad is to notify the search engine. They will review the request and determine whether the ad complies with their trademark rules. If the search engine deems the ad is an infringement, they will take the ad down.
Without automated monitoring in place, you will spend a lot of time looking for a needle in a haystack and will continue to lose money from impossible-to-find infringers. Using an automated tool makes it simple to surface violators and send them notices with just a few clicks.
When you add monitoring to your workflow you should make some decisions up front about who is responsible for what and when. Most importantly, dedicate at least one team to check the automated monitoring results. That team then becomes very familiar with the tool and can more easily discern trends and know when to submit takedown requests or contact partners. A paid search monitoring tool will surface a lot of details from different stages of the consumer journey including the infringing ad, ad copy, destination url, landing page etc. The whole process runs more smoothly and efficiently if a team of people know what the policies are and know what to look for.
Here are some other questions to answer before formalizing a process:
- What keywords and negative keywords do you want to monitor? Remember to include different types of keywords like trademark +, and coupon + brand terms.
- How frequently will you check and review the data? Some of our customers like to dedicate a block of time once a week to review potential violations. Others just make sure they consistently review and submit. Consistency is the key to stopping trademark abuse.
- How many violations need to occur before you take action? For an affiliate violation, an email should immediately be sent asking the affiliate to remove the ad. If the affiliate continues to infringe on the brand’s trademark, the brand should have a policy for escalation in place, up to and including removal from the program.
- How are the violation thresholds different for each group you are monitoring (e.g. affiliates, competitors, third-parties, partners etc.)?
- How do you identify and handle accidental violations vs. a more systemic or sinister strategy?
Our customers tell us it’s best when these processes and internal policies are clear from the beginning. You can change them over time and tweak as necessary, but a best practice is to finalize a set of processes at the start of your monitoring program.
Once you have carefully crafted your policies, you need to enforce them. An automated paid search monitoring tool streamlines enforcement since the tool flags all the violations. But when the tool uncovers trademark abuse, you need to take the next step; whether it is contacting your partner or affiliate directly and asking them to adhere to your agreement, or submitting a violation to the search engine in cases where the advertiser is a competitor, search arbitrager, or comparison shopping engine.
If you don’t have an automated tool, you can use some manual techniques such as searching a list of your priority keywords across several search engines once a week, and then contacting the trademark abusers directly or submitting take down requests manually when you find abuse. Our blog post on how to submit trademark infringements to Google explains the steps required to manually submit an ad for review by Google.
If you consistently submit takedown requests to the search engines, trademark bidding will go down. For example, our customer, Getty Images, saw the number of trademark infringing ads decrease by more than 60% after only five months of using our automated tool.
For a monitoring program to be successful in the long run, consistency is key. About six months after launching a monitoring program, you’ll notice a decrease in violations. This, however, doesn’t mean you should stop monitoring. Ongoing maintenance is necessary to keep tenacious trademark bidders at bay.
Learn why companies like Costco, Booking.com, and Getty Images monitor their paid search with BrandVerity. See for yourself how easy it is to protect your brand using our tool.