using your competition company names for Google Adwords

[huggytree]

I heard a new idea for Adwords which is atleast interesting to me.

Use your competition for your Adwords...

they spend all the money to advertise in magazines, radio, tv....you have your company ad next to theirs in the adwords column for .50 cents.

I have a green home builder who cant afford much in advertising right now who is using this technique against the large 'green' builders....he said it is working for them....its generating the most hits right now.

any thoughts? im considering it as a test for a month

[orion_joel]

I can see the benefit that such an idea may provide when you are doing your advertising.

I have really two thoughts on the idea though. At best it is helping to build the brand name for your competitors. If your business is called GreenBuild and your competitor is called EnviroBuild, you advertise with Envirobuild in your ad. When people get to your website they may have a look and then look for how to contact you. When they call and you answer with Greenbuild. It can be confusing, and create a misconception. Which leads to the second idea.

Worst case scenario you will be misleading people, infringing on trademarks. While it may work for you to some extent, sooner or later you will start to get Cease and Desist Letters from your competitors, and there is potential that you will end up annoying customers, who may have given you a fair go to start with, but may figure they have been tricked into your site rather then the company they were actually looking for.

What is comes down to is there is nothing worse than annoying customers for what you see as a easy way to capture your competitors market. Use the method if you wish, but be very aware that there could be consequences, and be prepared to accept those consequences, should anything go wrong.

[vangogh]

It's done all the time. Naturally companies complain about it all the time too, but at the moment Google still allows it and it's a tactic many employ.

One thing to consider though is that it's probably going to anger your competition and who knows how they'll react. I'm not saying you shouldn't bid on their names, but just keep in mind their reaction. Also while you can bid on their name, I'm don't believe you can use their name in their ad. You might be opening yourself up to legal issues if you do and Google probably won't approve the ad in the first place. If you use dynamic keyword insertion on ads this is one time you won't want to use it.

Bid on the their name, but keep all those brand related keywords in a separate ad group with an ad that makes it clear you aren't that other company.

[painperdu]

It is a good angle to use. Also use their phone number, physical address, URL, and just about anything else related. But like vangogh said, be sure you don't confuse the searcher into thinking you represent the other company.

[Business Attorney]

The advertising ploy is not new and it may not be safe. Until 2004, Google would not let advertisers buy keywords which were trademarks that the advertiser did not own. Google switched gears in 2004 and started allowing trademarks to be used as keywords by anyone.

Google was sued immediately. Although Google lost a few cases in Europe, it was initially successful in the United States. Huggy, of course, could care less about Italian or French law, so no problem.

Until this year. In Rescuecom Corp. v. Google, Inc., 562 F.3d 123 (2nd Cir. 2009) the United States Court of Appeals for the Second Circuit (covering NY, CT and VT) overruled the District Court's dismissal of Rescuecom's claims and held that Google's practice is an actionable claim under U.S. trademark law.

The jury is still out, so to speak, because the Second Circuit remanded the case back to the District Court to apply the law to the specific facts of that case. Also, the ruling of the Second Circuit is not binding on federal District Courts outside NY, VT and CT (though it is a highly respected court and its analysis carries much weight with other Federal court). Other courts may still reach a different conclusion.

Finally, the decision in Rescuecom Corp. v. Google, Inc. only applies to federally registered trademarks. Trademarks also have common law protection and there is no telling how state courts would rule in any particular state.

In the end, if Google is liable for selling the keywords to you, there is little reason to think that you are not also infringing the owner's trademark rights when you use the trademark to trigger your AdWords ads.

Stay tuned.

[vangogh]

Thanks for the info David. So far it seems like Google is within the law here in the States, but I know many companies don't like their policy on this and some are taking them to court over the matter.

From my own point of view I can see a big distinction between bidding on another companies name and using their name in your ad. I don't see where bidding on their name should be an issue. It's the misrepresenting yourself as your competitor that's an issue. Just my own feelings of course, and not anything legal.

[Business Attorney]

Thanks for the info David. So far it seems like Google is within the law here in the States ...

Not if you live in New York, Connecticut or Vermont, it seems.


From my own point of view I can see a big distinction between bidding on another companies name and using their name in your ad. I don't see where bidding on their name should be an issue. It's the misrepresenting yourself as your competitor that's an issue. Just my own feelings of course, and not anything legal.

That is Google's position and I tend to agree. However, the owners of the trademarks do make some good arguments as well.

[vangogh]

I didn't realize about those states. Everything I'd seen about this so far had indicated the Google policy was within the law. Do you know then if they don't allow you to bid on competitor brand names in those states?

It's easy to understand why trademark owners wouldn't like this and I'm sure they can make some good arguments. I've been trying to think of a non-AdWords analogy where something like this happens. This isn't quite the same, but you often see commercials on tv where one company does compare itself directly to another company's products. You see it all the time in commercials for cars. It's not quite the same thing, but I assume it's legal since you see it all the time.

With the bidding it seems fine to me as long as you are clear you aren't the same company. Imagine someone types Pepsi into a search engine and sees an ad for Coke. If the person specifically wanted a Pepsi they aren't clicking the Coke ad. If they just wanted a soda/pop/(fill in whatever you call it in your part of the world) that person will click the Coke ad. That doesn't come across to me as something that should violate any laws. Now if the Coke ad used the word Pepsi and gave the impression they were Pepsi even to a very small degree then I think that does cross a line.

Again just my opinion.

[Business Attorney]

I didn't realize about those states. Everything I'd seen about this so far had indicated the Google policy was within the law. Do you know then if they don't allow you to bid on competitor brand names in those states?

This is only one case (even if it is by a well respected federal Court of Appeals), and the case has been sent back to the District Court for more proceedings, so while Google has lost the battle, the war rages on.

I don't know whether Google has changed its policy in the three states in the Second Circuit, but I suspect that at this stage it has not. Just because the claims of Rescuecom survived dismissal does not mean that they will win the case based on their specific facts.

[vangogh]

They probably haven't changed any policies for now and will wait till they have to. I'm sure they make good money on brand name bids and would prefer to allow them as long as they can.

If you see anything more about the one case could you post something here. I know I'd be interested in the ruling. I imagine if Google changes their policy I'll see a mention of it in my feedreader and I'll post that as well.

[Steve B]

It's done extensively in my industry. It appears everyone bids on each other's names. The big shot in our industry must hate it because their name is often used generically for all similar products. They fight to keep their trademark (and rightfully so). One small slip will get a cease and desist from their attorneys. So far, Google keywords has remained fair game. However, Yahoo does not allow it.

[painperdu]

I would think it's in the best interest of consumers to allow trademarks to trigger competition. It's silly to think that anyone can truly own a term or name and not have it subject to scrutiny or competition. Isn't trademark law, after all, for the benefit of the consumer?

I think Rescuecom will lose their claim.

[KristineS]

I'm guessing the success of this tactic would depend more on brand loyalty than anything else. If you're bidding on something like the names of local plumbers, such a tactic may well work. In that case people are just looking for a plumber and not necessarily settled on a specific one.

In other cases, like Nike Shoes, or the Pepsi example given earlier in this thread, such a tactic may not work. Sometimes people are looking for a specific thing or brand, and aren't inclined to switch to another just because they see an ad. I would think you'd have to weigh the likelihood of people just looking for a particular business name or brand because they're looking for something like that vs. those who are looking for a particular business name or brand because they want that particular thing.

[Steve B]

"Isn't trademark law, after all, for the benefit of the consumer?"

Trademark law is to protect the company. It gives a company motivation to develop a product or service knowing that their hard work and financial investment will have the potential to pay off without their image being infringed by competitors. Ultimtately this indirectly helps consumers by creating an environment where businesses are motivated to be innovative in hopes of making a profit. But, I would consider the primary purpose to protect/benefit the company.

[vangogh]

Steve I had a feeling we'd see you join this thread. I agree with you about trademark being there mainly to protect the company.

Kristine how about the case where someone wants a tissue, but types kleenex. Sometimes people don't necessarily want the brand even if they use the name. However in those cases where someone does mean the brand then yeah. that's the one they'll likely click on, which is why I don't have a problem with bidding on brand names as long as you aren't using the brand name in your ad.

[huggytree]

my Adwords has only gotten me 2 clicks so far...looks like both were the same day,so its probably the same person...i may have gotten a call from it...no work..

my name is coming up, but no one is clicking

[vangogh]

If you're ads are showing, but no one is clicking, it's a good indication that either the ads need to be rewritten or that you're bidding on the wrong keywords.

[Steve B]

When did you start bidding on keywords? If it was only yesterday (or last week), and you are ony targeting one or two zip codes - two clicks might be good. If it was last year and you're targeting a fairly large area, then I would say something is terribly wrong.

I get several clicks a day from my keywords. I also target an area with over a million people. People probably use Google more for my kind of service than they would a plumber. But, I would think you should be getting several clicks a week.

[orion_joel]

The one thing that you need to keep in mind HT when you are using Adwords is that it takes ongoing targeting, you may get a week into your campaign and see that you have two clicks, and impressions on only half your keywords. This means the other half are not working, while you may not get rid of the ones that are not working it is worth looking at what is working and see if there is not more keywords that are similar to that which you may be able to use.

Another thing you may want to consider is how many ads you are running. If you have one ad with 50 keywords, this is not really ideal. You should look to have not more then 15-20 keywords per ad, and try to target an ad. The better the combination of keywords in the Ad headline and what the user searches for, plays a part in the position of your ad, along with your bid, and a number of other factors.

[LeadGenGuy]

I'm entering this discussion late, but hope to add some value. As a certified google adwords individual, I never advise clients to use trademarked keywords. It could work, and Google does allow some of them, but I've seen recent crackdown, where some of my campaigns (and I run piles of them) that used to work get disapproved because of using competitors trademarks.

They will notify you via email that your campaign or those keywords are not running. What they don't tell you is that they'll shut down your account after an unspecified number of attempts. At that point, it's like dealing with the IRS: one big fortress with no negotiation power, and inadequate feedback on how to get reinstated.

IMHO, if your business needs this type of advertising to survive (or even get started for that matter), then you're probably in the wrong business, or need a more solid online marketing plan.

Hope this helps.
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[vangogh]

IMHO, if your business needs this type of advertising to survive (or even get started for that matter), then you're probably in the wrong business, or need a more solid online marketing plan.

That makes a lot of sense. With my business I don't think I would bid on a competitor's trademark. Even if allowed it seems like you're asking for trouble. I can also see where at some point in the future it won't be allowed.

On the other hand if a trademark becomes the default way to refer to the product it's hard to argue against bidding on it. Take, for example, xerox. Today you could build a campaign around 'copier' and 'photocopier' and other similar words and phrases, but there was a time (pre AdWords) when the only term anyone would have used was xerox. You would have had a hard time competing trying to use another word.

[billbenson]

Ok, LeadGenGuy, say you sell some name brand cosmetic such a Clinique on your web site. You promote them via AdWords. An obvious keyword in your campaign would be Clinique. Certainly it would be part of a keyphrase that many of your customers would use to search. Are you recommending not using it in your search? It is a trademark. I also doubt the manufacturer would care and would actually prefer that you do use it. Probably won't get a letter from the manufacturer saying you can though.

This really is outside using a competitors trademark which was the original premise of this thread. I just thought it was worth clarification.

[orion_joel]

Actually Bill, i kind of beg to differ a little here on the example you have given. As i understand the mandate of someone registering a Trademark is to ensure that trademark is used only with their permission. As i understand it just selling the product is not by default permission to use it. However i imagine most are giving to a degree in that they understand to sell a product you need to use the trademark in the description on your own website. However many push very hard not to have the trademark make up any part of the domain name, site name or other such things. The same goes for many in regards to advertising, The companies that i have resold for that I have actually advertised have had quite lengthy advertising guides, spelling out in minute detail what you are and are not allowed to do. Some may let you use it in advertising, but as soon as they see it not benefiting them they are going to be moving to stop it.

Now the difference between using a trademark such as Clinique, which can describe the product, and using a trademark that is another businesses name. Can be a little different matter, however what it comes down to is if someone registers a trademark, and they are not enforcing the proper use, then they wasted the money they spent to register that trademark. While it is maybe not illegal to do what has been suggested in this thread it is definitely something that the legal owner of the trademark has legal recourse to stop.

In my opinion if you need to use this type of advertising, you are misleading customers, and really do not deserve the customers you do get from using it.

[billbenson]

I think many companies encourage you to use their trademark. They also have the legal stipulations there so if they don't like the way you use it, they can make you quit. Kind of like employee handbooks. They are often used to get rid of unwanted employees and ignored for good employees. I saw that working security for sears in 1980 where part of my job was "enforcing" it and in a sales job for a hi tech company in 2001 who used things like "random" drug testing to get rid of people they didn't want.

"HP Color Laserjet" has 4.5M results. How many of those abide by the rules? Does HP care? I think HP would only care if you were doing something to damage their tradmark.

If google is forced to be a trademark policeman, it will seriously impact the way online advertising and how businesses need to operate. I bet many businesses don't even think of the online implications of a trademark when the register it.

Google shut me down once for a word that was trademarked. Turned out it was a trademarked term in a completely different industry and a generic term in mine. Someone complained to Google so they shut me down. I sent them information to show that it was a generic term in my industry and they turned my ads back on again. What would happen if how these trademarks were handled changed? Everybody would have to go to court.

So I agree with you Joel, but there are practical limitations as well. Google does investigate every complaint today and has been for years. They just don't go looking for it.

[jonicode]

The advertising ploy is not new and it may not be safe. Until 2004, Google would not let advertisers buy keywords which were trademarks that the advertiser did not own. Google switched gears in 2004 and started allowing trademarks to be used as keywords by anyone.

Google was sued immediately. Although Google lost a few cases in Europe, it was initially successful in the United States. Huggy, of course, could care less about Italian or French law, so no problem.

Until this year. In Rescuecom Corp. v. Google, Inc., 562 F.3d 123 (2nd Cir. 2009) the United States Court of Appeals for the Second Circuit (covering NY, CT and VT) overruled the District Court's dismissal of Rescuecom's claims and held that Google's practice is an actionable claim under U.S. trademark law.

The jury is still out, so to speak, because the Second Circuit remanded the case back to the District Court to apply the law to the specific facts of that case. Also, the ruling of the Second Circuit is not binding on federal District Courts outside NY, VT and CT (though it is a highly respected court and its analysis carries much weight with other Federal court). Other courts may still reach a different conclusion.

Finally, the decision in Rescuecom Corp. v. Google, Inc. only applies to federally registered trademarks. Trademarks also have common law protection and there is no telling how state courts would rule in any particular state.

In the end, if Google is liable for selling the keywords to you, there is little reason to think that you are not also infringing the owner's trademark rights when you use the trademark to trigger your AdWords ads.

Stay tuned.

Thanks for pointing out the inconsistencies David. I was instantly captivated by this method's seemingly promising results, yet there's more behind it.