John Battelle reports on a rumor out of a WebmasterWorld.com thread that Google might ban affiliates from
purchasing ads linked to trademarked terms. But that’s not the same thing as banning ALL ads linked to trademarks, as the headline of his blog post suggests:
Will Google Ban Trade In Trademarks?
There is a real usability issue in having ads from affiliates showing up. They can confuse searchers who want "official" information from a particular company. Banning
affiliates from bidding would help on the ad side, though confusion would still continue to reign in editorial listings.
There’s also some legal/hassle advantages to implementing a ban. Big companies who can’t or don’t control their affiliates could be more easily placated.
But banning affiliates from linking ads to trademarks, if it were to happen, would be a far less drastic move than banning ads linked to trademarks period. For example, a
search on Google for samsung i600 brings up these ads among several others:
Shop Online & Save. Treat Yourself
to Great Savings at Target.
Order a Free Samsung Cell Phone
Free Color Flip Phone Special Offer
Samsung i600 Smartphone
(Verizon) + Extra Accessories
Consumer Electronics at eBay
None of these companies are "affiliates" of Samsung. But all of them supposedly sell the Samsung i600. If they can’t purchase that term or mention it in their ads, how are
they supposed to advertise their wares? And given that ANY word in the US possibly might be an unregistered trademark from the local level up, how are Google and other search
engines supposed to "ban" all of these? What about situations when multiple companies have a trademark claim on a term?
Let’s also go back to the particular ads listed above. Interestingly, the page the Target ad leads to shows Samsung products but not the Samsung i600. Bad relevancy on
Google’s part — if the product isn’t actually being sold, the guidelines about accurate ad text are supposed
to prevent it from running.
Let’s assuming they DID sell the phones. In that case, it’s difficult to see the harm to Samsung by letting what you’d presume to be an authorized reseller say this.
The situation is similar with Cingular. As with Target, the page that comes up doesn’t show the Samsung i600! But again assuming it did, it’s hard to see the problem with
an authorized reseller making mention of the product.
eBay is more tricky (and ironic given eBay trying to get Google to police its own
trademarks in the past). Here we have people selling used Samsung i600s or perhaps phones obtained indirectly on eBay. Ban eBay from saying this? Well, if you want to sell
your used phone, are you going to be forbidden from actually saying the model of it in an ad? Then how on earth can you describe it?
These are just some of the many complicated issues about linking terms which in some circumstances are also trademarks to ads. Note that bolded "in some
circumstances" part. That’s because a word is a trademark only in certain particular instances.
Apple. Did I just write a trademark of the Apple computer company, the Apple music company started by the Beatles, the name of Gwyneth Paltrow’s daughter or the fruit you
can eat? It depends on the context, the look-and-feel of the word and other factors. And when I enter the word into a search engine, is that a trademark action?
I’d be very, very surprised if Google’s about to ban the use of any word that might also be a trademark. The company
opened up its policy on this front back in
April, only reviewing trademark complaints on request over usage within the content of an ad for ads in the US and Canada.
No matter what Google does, court cases will ultimate rule the legality. After all, should Google only let trademark holders link ads to trademarks, you might find people
like Playboy’s 1981 Playmate Of Year Terri Welles suing for the right to use a trademark to describe her products and services.
A court has already ruled that while Playboy does have a trademark on the term "Playmate," as a
Playmate herself, Welles has the right to use the term to describe herself.
FYI, while we wait for the courts, a moot court dealt with the issue during Search Engine Strategies in August. More details in
Trademark vs. Search: Do you Soo…gle? from SearchDay and
Moot Court: Trademark Protection on Trial from Search Engine Roundtable. And for some other reading on this
interesting but complicated topic:
- Search Engine Marketing and Branding
- Search Engines and Trademark Issues
- Affiliate Programs: Moneymakers or Brandbusters?
- Search Engines Turning Trademark Law Upside Down
Postscript: Our forum thread Google & Affiliates – Rumor? has some additional information on
the topic, supporting the idea this is a move made to reduce the impact of affiliates, rather than being trademark triggered.
Also, Google’s AdWordsAdvisor forum participant in this WebmasterWorld thread stated Google has no current
plans to change its affiliate policy.