No matter if you are using a “professional SEM agency” or you’re a “PPC Do It Yourself-er “, a brand has a lot of value, so remember that its critical to be aware of the do’s and don’ts of SEM Trademark best practices.
This article reviews the state of the law, search engine company policies, as well as, legal methods to protect your trademark or use another trademark to enhance your visibility on the web. Trademark infringement is a popular topic for any business that develops a brand. There are the 3 basic elements of a claim:
1. Ownership of valid trademark,
2. Priority – earliest use,
3. Use in commerce in connection with the sale of goods services. (If the advertiser buys the trademark as a keyword but doesn’t use the keyword in the ad copy, there’s a huge split in opinion on whether or not this infringes on a trademark.)
There are some basic search engine trademark policies. Google allows bidding on trademarked keywords, but does not allow reference of the trademark in the ad copy. This approach may be more helpful. Google trademark complaint procedures for US, UK, Ireland and Canada, won’t investigate keywords, only ad text. Outside the US, UK, Ireland and Canada, they will investigate usage in both keywords and ad text. Yahoo trademark approach has the opposite procedure; they don’t allow users to bid on trademarked keywords. Ebay has a complaint procedure, it’s called the VeRO program (Verified rights owner) and they can and will kick people out. You just fill out a form, it’s easy, and you don’t need an attorney.
How to use your mark so you don’t abandon or misuse: First always use proprietary notices: “this TM is registered”. Distinguish your mark in print perhaps. Use it in all caps, or use it with the first letter as the capital (though don’t use it is a proper noun because then it becomes generic. For example, Escalator lost trademark rights because they used it as a noun, and now an escalator is the generic word for “moving stairs”). Also don’t use it as a verb, like “TiVo your favorite TV show”, you should use it as an adjective, like I’ll use my TiVo DVR. Never change your mark. So if you update or modernize your mark, be cautious of the trademark implications.
How to legally use another company’s trademark: There are limits on how company A can use company B’s trademark. Trademark use is prohibited if it causes confusion. But there are ways you can use it. The issue of what is and isn’t likely can cause confusion – just ask yourself the question, why am I using someone else’s’ trademark? To identify a genuine product or service… To let users know you are offering a product or service… To make a comparison between your product and another, for example, you are marketing a generic version of a product. There is no other readily identifiable way of identifying the trademarked products or services.
Infringement is created when a company is trying: 1.To get a search engine listing when your website has nothing to do with the trademarked product, 2.To get a more prominent organic listing when your website has nothing to do with the trademarked product, 3.To get more traffic to your site, 4.To divert a competitor’s traffic to your site.
So if you have the right answer to “why I am using this trademark?” here are some permitted uses: 1.When your website sells the genuine trademarked product, 2.In a meta tag when the website sells the genuine product, 3. In a meta tag when the website sells the generic version of the trademarked product.=
Limits on use: You can say, “We have the best prices on Sony TVs”, or “Our TV is better than Sonys”, or “We sell the generic version of Lipitor”. You can’t use the trademark more than necessary (Google,Google,Google), or in a more prominent form than necessary. You can not overly exclaim a trademark (We are not Google). You can’t use a trademarked logo instead of the word and you can’t falsely claim sponsorship. A new use is when a marketer writes about a product or service, and this comes up in the search listings results, when it has nothing to do with the site. The articles are usually written to drive traffic to the site. Presently there has not yet been any US case law, but if abused this will be addressed.
Your brand has a lot of value, so remember that its critical to be vigilant to the do’s and do not’s of SEM Trademarks. Now that more and more marketing is not on paper you need to protect your brand using contemporary methods. You may find that you could increase your results just by following these SEM trademark best practices.