The Nuances of Search Engine PPC Trademark Policies

Updated May 5:Google has made several changes in its trademark policies. Please visit our summary of Search Engine Trademark Policies for the current policies of the search engines.

We work with several of our clients to enforce their trademark rights on Yahoo, Google and Live and felt a summary of our experiences would be useful to the community. Here is a fairly nuanced summary of the policies between the three search engines. There are actually some pretty major differences between their policies (highlighted in red):

Search Ads

In theory, Google has the least protective trademark policy in the US/CA/UK/IE. They are the only search engine of the big three to allow anyone to purchase ads on trademarked search terms.

Yahoo and Microsoft do not allow competitors to purchase ads on trademarked terms, and in fact have a pretty restrictive policy that should prevent nearly all advertisements for web stores:

As applied to nominative uses of another's trademark, Yahoo! Search Marketing requires advertisers to meet one of the following two conditions:

1. Reseller: The advertiser's site must sell (or clearly facilitate the sale of) the product or service bearing the trademark. The advertiser's title and description must disclose that the consumer will be able to purchase the product or service. The advertiser's title and description should not be written in a way that creates the impression that the advertiser is an authorized reseller unless the trademark owner has in fact designated the advertiser as an authorized reseller.

2. Information Site, Not Competitive: The primary purpose of the advertiser's site is to provide substantial information (for example, detailed product reviews or comparisons provided by unbiased sources, commentary, or news information) about the trademark owner or products or services bearing the trademark, AND the advertiser's site does not sell or promote, and is not an affiliate or partner of an entity that sells or promotes, a product or service that directly or indirectly competes with the trademark owner's products or services. The advertiser's title and description must disclose the nature of the qualifying substantial information that the consumer will find on the advertiser's site.

However, the nature of these policies requires manual review and evaluation of every ad on a trademarked term. We've found that to enforce your rights with Yahoo and Microsoft you need to continually notify them of ads that you want investigated. Google's approach allows for automation once protection has been established.

Despite Google's less restrictive policy, in practice both Yahoo and Microsoft display more ads for trademarked search terms than Google. We looked at search terms for the top 50 online stores and found on average 1.5 ads per term on Google, 2.1 on Live and 4.2 on Yahoo. The likely cause for this divergence is Google's higher relevancy benchmark - they simply will not show ads that they deem to be less relevant (as competitive ads typically are).

Receiving Trademark protection

One of the greatest misconceptions about both Google and Yahoo's trademark policies is that companies need a nationally registered trademark in order to request trademark protection. In the US, companies only need to demonstrate use in commerce to receive protection. That typically means that companies can request protection as soon as they launch a website on a trademarkable term.

Microsoft does require national registration in order to enforce trademark rights.

Domain Park Programs

Both Google and Yahoo make substantial money from their domain park programs - the placement of search ads on inactive domains. These inactive domains may be misspellings or typos of existing websites or brands - this practice is known as 'typosquatting'. When you find typosquatted domains, you can request that both Google and Yahoo remove these domains from their programs by following their respective complaint procedures.

Metric Detail

• Trademarks can be protected in:
  • Search Ad Triggers: This refers to whether anyone can purchase an ad on the search results returned for a search on your trademark.
  • Display Text & Title: Whether the trademark can be used in the ad text or title.
  • Display URL: Whether the trademark can be used in the display URL. We frequently find display URLs that look like this: Macys.My-Coupon-Site.com.
• Requirements to prove trademark: All three require proof of trademark on a country-by-country basis. However, trademark rights are granted in different ways in different countries. Trademark law in some countries (the US included), grants trademark rights upon first use in commerce, while law in other countries require national registration. National Registration is the more restrictive requirement.
• Ads per store: We examined a basket of the store names from the top 100 e-commerce sites and averaged the number of ads found on each search engine.
• Actual complaint response time: The elapsed time between the moment a trademark complaint was submitted and the moment that the search engine responded. This data was from BrandVerity's original TM notice to the three search engines.