Trademarks are Fair Game – As They Should Be
A district court just came down with a decision that makes sense…and simply put… I love it. As it related to PPC and meta tagging, trademarks are fair game…and why the hell not?
When you walk through a shopping mall on your way to footlocker to buy a new pair of Pumas, should Payless be banned from exposing their corporate logo or special offers to you simply because your initial intention was to buy from Footlocker? As a consumer, don’t you have the right to change your mind and go with Payless even if you are a few steps, or in our case a ”click” away from Footlocker?
How are search engine results any different than your local mall? When I type a merchant’s trademark into the search box aren’t I taking that first metaphorical step in the mall towards that merchants store in search of my Pumas? The SERP’s are merely the halls of your local mall and the keyword trigger is merely your inetention. That intention is not a binding contract to shop at the initialy expressed trademark store. It is only an intention, and intentions can change on a whim.
Let me the consumer see the deals on similiar products or services that Google, Yahoo and MSN permit in 25 characters or less available on a PPC ad, even if I have expressed interest to shop elsewhere with my search query.
Way to go U.S. District Court! You finally got one right.
This story seems to be gaining some traction on Revenews and on Digg.
January 9th, 2007 at 4:38 pm
Bones – interesting. What effect do you think the holding will have on merchant’s policy for / against trademark bidding?
January 9th, 2007 at 5:09 pm
As always Kris, a merchant can control trademark bidding by affiliates via the affiliate contract/agreement.
Merchants are waking up to the fact that the SERP’s represent the most valuable and cost-effecient real estate in the world. Its crazy to let a competitor take a SERP position when an affiliate can send you that traffic for a modest cut of the sale.
This will probably further push the industry trend toward using affiliates as a sophisticated SEM strategy versus creating an “US vs Them” enviroment
January 9th, 2007 at 6:31 pm
Mike – playing devil’s advocate – I’m not sure there is a one size fits all affiliate TM policy. Wouldn’t it make more sense to open up TM bidding to affiliates ONLY IF your competitors are already bidding on the marks. For instance, can’t allowing affiliates to purchase the TM’s incite competitors to start bidding? Also, you mention that merchants should use the “affiliate contract” to control TM bidding (i.e., maximum bids, allowing certain affiliates in and disallowing others, etc.), but is it even possible to enforce these kind of affiliate policies?
I’m not trying to be contentious – I just think this is an issue worth exploring a bit more.
January 9th, 2007 at 11:30 pm
[...] Of course, Molander’s podcast with Mrs. X on affiliate and CPA networks is at the top. I’m trying to convince Jeff to do another podcast on trademarks and affilaite marketing, so help me convince him. [...]
January 10th, 2007 at 12:25 pm
Kris,
Solid points but in my mind not correct ones. Like I said, the SERP’s offer the most valuable real estate in any company’s particular industry so the less you have the more you lose. Irrefutable research shows that clicks are disbursed across all the listings, both organic and PPC, so the basic law of numbers tells you that you will capture more of that valuable traffic by having more ads that link to your products.
A smart affiliate manager or affiliate management company can absolutley police trademark bidding policies, and a sophisticated merchant should only allow such bidding by trusted affiliate partners anyway.
As for inciting competitors to bid on trademarks, the courts have said that’s fair game so disallowing affiliates to bid for that reason would be like playing the Super Bowl not to lose instead of using the weapons in your arsenal to do whatever it takes to win.
As a coach of a Super Bowl team i would certianly take the second approach as it usually comes with the Lomabrdi Trophy.
January 10th, 2007 at 2:30 pm
Mike – maintaining my devil’s advocate position, many merchants are very concerned with brand protection. Just think of companies like Target and Amazon who disallow trademark bidding – why don’t they allow affiliates to bid on their trademarks? Do they know something we don’t? Are they missing the boat or is a brand like Target that spends hundreds of millions per year on branding an exception to the rule? If so (they are an exception), then why?
Non Devil’s Advocate: It seems to me that the SERPS trademark “real-estate…market share” argument, which we’ve been talking about for years at Pepperjam, is solid. However, I’m interested in exploring where the argument is weak. Your thoughts? Anyone else? I’m interested in thoughts from others in the industry here, as well as Mike.