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Google Adwords is a cornerstone of most online advertising campaigns, delivering $42.5 billion worth of online advertising in 2012. The platform’s popularity is due, at least in part, to the ability it gives advertisers to target customers based on the actual terms that they search for.
There are countless ways to use that pinpoint targeting to reach potential customers, the most obvious being to put an advert in front of a customer searching for the product the advertiser sells.
There are also numerous more creative ways to use Adwords to reach potential customers. One strategy that often causes surprise is when you suddenly find a competitor is bidding on your brand name.
Competitors names as keywords
Whether you are comfortable with the idea or not, targeting competitor’s brand names can be a profitable strategy. These terms present a very targeted audience and are often not as hotly contested in the “keyword auction” that determines bid price on Google Adwords. Compared with product names, as an example, they can sometimes seem to be a bit of a bargain.
In some cases competitor’s names cannot only be targeted, but even used in the text of the advert itself.
What about Trademark terms?
Registered trademarks do offer some protection against competitors using your name, but not as much as many business owners expect. Until 2008 Google UK would block allow trademark owners to block adverts that targeted or used their registered marks. In May of 2008 Google changed their handling of trademarks in Adwords to bring it in line with how they were then handling marks in the US. In short, competitors could now bid on registered trademarks, but not use them in the text of Ads. (Registered trademarks can still be used in the text of ads in some specific circumstances, but these are not likely to cover competitor adverts).
Confused?
To summarise the current situation:
If your brand name is a registered trademark : Competitors can show their advert when users search for your name, but (usually) can’t use it in the text of an advert
If your brand name is not a registered trademark it will have no special protection in Adwords.
These are just the rules that Google imposes, not the law. The usual rules of business (including passing off) still apply. In May 2013 online and high-street retailer Marks & Spencer got a harsh reminder of this.
Marks & Spencer v Interflora
In December 2008 the global florist network, Interflora, filed a lawsuit against rival flower sellers Marks and Spencer and Flowers Direct as a result of them bidding on the term “Interflora”. In essence their complaint was that the rivals were taking unfair advantage of their trademark.
The ads that sparked the lawsuit
Whilst at first glance this might seem like a cut and dry case (one way or another – depending on which way you initially glance!), it is a battle that was waged courts for 4½ years before a decision was made.
The decision has finally come down in favour of Interflora and the courts will soon be deciding what damages Marks & Spencer will be paying (subject to the inevitable appeal). Unfortunately the case hasn’t given the clear-cut answers that many wanted. In fact businesses are continuing to bid on competitor’s trademarks, with some seeming the use the judgement as the catalyst for more widespread trademark bidding.
Trademark bidding is dead. Long live trademark bidding
So why hasn’t this judgement ended trademark bidding?
Whilst the judgement has come down in favour of Interflora, this was partly due to the nature of Interflora’s business. There is a huge network of partner firms making up the Interflora network. It was the view of the judge that a “reasonably well-informed and reasonably attentive internet user” seeing those adverts might believe that Marks & Spencer were part of that network
Crucially then this judgement doesn’t stop the practice of trademark bidding in itself. Marks & Spencer were judged to have been infringing on the Interflora trademark because users believed that the M&S service was part of the Interflora network, not simply because the name was being targeted.
It is also worth noting that this is a UK judgement and that such cases will likely get different interpretations in the courts of other countries.
One big unanswered question
If that ruling already comes across as “woolly” then also consider the implications of what Google calls broad matching. Broad matching, which is the default setting when creating Adwords campaigns, allows Google to apply their judgement to match related and similar terms. When a brand becomes big in their niche then can find that their brand term gets mapped to less protected terms. The result of this is that ads will appear against trademarked terms when those keywords have not been specifically targeted.
I can’t see that this judgement deals with this issue.
So, what can you do about it?
1 – Trademark your brand terms
If you want to protect your brand terms then get them registered as Trademarks. Adwords might not treat them as untouchable, but you are definitely in a better position with a registered trademark (both within Adwords and a wider legal context).
2 – Know how your trademarks are being bid on
Monitoring advertising on your brand terms is the only way you will know who is bidding on those terms and what text they are using in their adverts. In its simplest form this could mean performing regular searches on your term and just taking screen shots of the results. Unfortunately this isn’t overly reliable as the nature of adwords targeting means that you might not see all adverts. In fact you might not even see all advertisers.
This is particularly problematic if you do business internationally. Targeting Adwords campaigns by country is incredibly common and you will not see ads that have been targeted at users in different regions.
Much better is to get a specialist to do the monitoring for you. They can monitor which ads appear in multiple regions and automatically archive all variants for future reference & flag up any ad versions that might cross the line of what is acceptable.
3 – Bid on our own brand terms
It might seem counter intuitive to bid on your own terms, particularly if you already rank well organically for them. However, bidding on your own terms provides an important level of protection against competitors bidding on them.
The adwords “keyword auction” isn’t simply a case of highest bidder wins. There are a number of quality factors that affect the price paid and these are generally stacked in favour of brands. In short brands who bid on their own terms will generally pay less than competitors bidding on those same terms. This not only gets your ad seen, but drives the price up for your competitors too.
Is it worth it?
If your brand has value and drives search traffic, then it probably warrants protecting it against rival bids. None of the steps above are time consuming to put in place. The cost of bidding on your own brand terms will be governed by how much traffic that drives, but overall the costs per click can be quite affordable over time.
One of the great advantages of Adwords is the forecasting it provides. If you are considering a brand protection campaign your Adwords specialist can give you a good indication of what the costs are likely to be.
