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Should you use your competitor’s name as a keyword? What about using their name in ad copy? Is there a difference in using it on search versus the content network? These questions boil down into a few sections that we will address:

  • Can you bid on their name via the search engine policies?
  • Can you use their name in ad copy?
  • What should the landing page look like?

Legal Note: We will walk through these questions as it regards to current search engine policy. That does not mean you still cannot  be sued by your competitor – it just means that these are the current guidelines. As always, consult your lawyer before trying this at home.

Can you bid on your competitor’s name via the search engine policies?

The first question you need to answer: Is your competitor’s name trademarked? If no, then you can bid on their name via policies in most countries. If yes, here’s the quick and dirty rules to trademark policy:

Google AdWords Trademark Policy

  • If the word is not trademarked, you can bid on it
  • If the word is trademarked, but the owner has not filed an exception request with Google, you can bid on it in most countries (US, UK, and Canada included) and use it in ad  copy (more on ad copy below)
  • If the word is trademarked, and the owner has filed an exception request then you can bid on it in most countries; however, you cannot use it in ad copy
  • In the US on Google.com only, if you sell a product, fix a product, sell parts for a product, or are an informational site, then you can bid on the keyword and use it in ad copy

Note about Trademarks: All three engines allow the ‘generic’ use of a word, sometimes called the ‘dictionary use’ where a word could be trademarked, but if you use it in the generic manner, then you can bid on it and use it in ad copy. For example, there are hundreds of companies who have incorporate the word Apple into their trademark (Apple records, Apple vacations, Apple computers, etc). If you are an orchard farmer and sell Apple the fruit, you can use the word Apple in both ad copy and as a keyword.

Learn more about the AdWords Trademark Policy:

The Bottom Line: Can you bid on an AdWords trademarked word?

On Google, if you are in the list of countries where Google does not investigate the use of trademarks as keywords, then you can bid on your competitor’s name. If you are not in that list of countries, and the competitor has trademarked their name, then you cannot bid on it.

AdWords Content Targeting Tip

If you have decided you want to bid on your competitor’s name, and that it’s a name that often ends up in the news or in other coverage; you might want to use it as a content targeting term so you can capitalize on press and other coverage of your competitor’s products.

As the content targeting uses all the keywords in an ad group to determine the ad group’s theme; and then show your ad – if you were to put all of your competitor’s into a single ad group – your targeting would probably be pretty poor as the article would have to cover most of your competitor’s for your ad to be shown. (More on content network targeting)

To create an ad group where your ad is only displayed when the page’s content is about your competitor’s and their products, then just include your competitor’s name as a keyword, and additionally use a few of their top products as additional keywords. If you have several competitors, create a separate ad group for each competitor for better targeting purposes. For instance, the keywords in your ad group might look like:

  • Competitor’s name
  • Competitor’s product
  • Common words associated with the product

If you use the content network strategy, employing image ads instead of text ads can be to your advantage.  Text ads have little recall value. However, images and video have much higher recall values. Therefore, utilize image ads so you can start to associate yourself as the top competitor and a company that someone should evaluate before engaging your competitor.

      Yahoo Search Marketing & adCenter Trademark Policies

      Yahoo and adCenter have very similar policies. If you are:

      • Reseller of a product
      • Informational, non-competitive site
      • Dictionary use

      You can both bid on the word and use it in ad copy. If you are not one of the above, then you cannot bid on the word and use it in ad copy.

      If you use adCenter broad match and Yahoo’s advanced match options for triggering keywords,then you might find some variations of words that trigger your ad to be shown for a competitor’s name. For instance, if you were Microsoft and sell the Zune; you might be able to broad match MP3 player, or similar words and end up showing on competitor searches  (such as iPod) without actually bidding on the term.

      • Yahoo Trademark Policy is now offline
      • adCenter Trademark Policy is now offline

      More Trademark Policy Resources

      Now that we have a starting place to examine the policies, lets examine the impact of using competitors’ name as keywords and in ad copy.

      Can you use your competitor’s name in ad copy?

      Fist, let us revisit the fair use of trademarks in the United States. A trademark does not give you absolute protection over a word; it gives you limited protection.

      In the US, you can use someone else’s trademark (Fair Use) if (this is US law, not search engine policy)

      • Identifying the owner
      • Describing own products

      Example: Comparisons

      • Mercedes could say they are rated higher than BMW (according to some study) because they are using the BMW trademark to identify the owner.

      Example: Newspaper Ad:

      • Best Buy show an image and use the word ‘Apple iPod’ in a newspaper ad because the trademark usage identifies the trademark owner.

      Example Describing Products:

      • Powered by Intel

      The second example, newspaper ad, is one of the reasons’ Google gave when announcing their change to US policy.

      In the US, the government recommends the ‘sniff test’ as the first line of determining infringement. The sniff test is:

      • Does the the use of the trademark confuse the customer?

       2009-08-24_085547

      In the above example, the use of ‘official apple store’ in an ad copy that goes to a non-apple owned website is definitely confusing. The ad makes a claim that is not true. This would fail the sniff test.

      In the Best Buy Example, the use of the trademark iPod Touch would be considered non-confusing as the word is identifying the trademark owner, which is a ‘fair use’ of a trademark.

      If you use your competitor’s name in ad copy and claim to be the competitor then you would be confusing the customer and should not use the word in ad copy. This is by far the most common question I’m asked. Someone is using our name in ad copy, our name is not trademarked, what should I do? Obviously, you should trademark your company name. However, this is where many companies decide to sue other companies outside of Google’s influence. Be careful of identifying your company as your competitor’s company with confusing ad copy.

      Using your competitor’s trademarked name in an ad copy as a comparison, “Mercedes is rated higher than BMW” is not allowed by the search engines even though it does fall under one of the fair uses of trademarks in the US. However, if your competitor’s name is not trademarked, then you could write an ad copy making that claim. Please note, if you make that claim you must have 3rd party verification on the landing page.

      Overall, using your competitor’s name in the ad copy is not a good idea at the moment. Personally, I’m waiting for Google to adopt the all of the ‘fair use’ for trademarks before going down this route. However, if you consult with your lawyer, and feel protected, then you could do it (if your competitor’s name is not trademarked). Just note, you could be sued, however, there’s a good ‘fair use’ defense available. And furthermore, this is my opinion – I’m not a lawyer, just trying to help out the marketers. Talk to the lawyer first.

      If you are using your competitor’s name as a keyword or in the ad copy, what should your landing page look like?

      If you make a flat out claim, such as ‘we are better than competitor 1’, then your landing page must have a 3rd party verification on the page (such as a JD Powers study that found your car is rated better than your competition or a Consumer Reports showing your car safety standards is better than your competition). However, if you are just using your competitor’s name as a keyword, then you do not need that information on the landing page.

      If you are able to use the trademark as a keyword because you are a reseller, fix a product, or an informational site; then your landing page must contain information related to that trademark. For instance, Best Buy must link the ads that say ‘iPod Nano’ to a page where they sell iPod nano’s.

      If you are just using your competitor’s name as a keyword and sending the user to a typical page on your site, you will commonly see two things:

      • High bounce rates
      • Low quality scores

      Why? Because the Psychology of Search tells us that we do a search to find a piece of information. Since your landing page does not contain that information, then the consumer is going to bounce off of your website.

      Secondly, the quality score factors include relevance of keyword to ad copy to landing page. In this case, neither your landing page nor ad copy is relevant. Therefore, your quality score should be low.

      How do you increase your quality scores when bidding on competitor’s name?

      This is simple, make your landing page related to your competitor. Landing page quality and relevance affects your quality score. If the page you are sending traffic to has nothing to do with your competitor, then the page will often be found non-relevant and negatively affect your quality score. Therefore, you need to make the landing page for your competitor’s name related to your competitor. This does not mean you need to give away your competitor’s contact details and send searchers that direction.

      To make your page relevant, create a comparison chart. Make column one the comparison features, column two you, column three your competitor. Very simple. If you make this chart and still see ‘landing page not relevant’ for your keywords, than add a paragraph or two about your competitor.

      Do not disparage your competitors. Avoid slander based lawsuits. Make your product look better by creating an honest comparison chart and showcasing why you are better than your competition. This is a good exercise even if you are not buying your competitor’s name. You should understand your product and your competitor’s so you can arm your sales force with the proper responses to potential-customer questions.

      Write a couple paragraphs about them so that the search engines can read that information to understand that your landing page is a comparison chart and the consumer can learn about your competitor on this page. This may make your page relevant, will then allow your keyword to have a decent quality score when advertising on a competitor’s trademark.

      How to check if a name is trademarked

      This might be the most aggravating part of the entire process. None of the search engines have a public list of trademarks. In their defense, this is why:

      • Trademarks are assigned by geography. A word might be trademarked in the US, not trademarked in UK, or only trademarked in Alabama, US and not the rest of the country.
      • Trademarks are assigned by industry (it’s a bit more complex, but this is the simple version)

      So, technically a search engine would have to have a list that is both industry and geographically relevant.

      When you submit an ad copy to Google that contains a potential trademark, you’ll be asked to file an exception request. If you use the word ‘apple’ and you sell apple the fruit, then you’ll submit a request such as ‘it’s the dictionary term, it’s not trademarked for fruit sellers’. If you were to submit an ad copy for ‘Home for Sale’; you would say that the word ‘home’ is not trademarked for the real estate industry.

      This area of research is murky at best. If you are the industrious type and wish to try and discern if your competitor’s name is trademarked, you can use the USPTO.gov (US Patent & Trademark Office) trademark search to try and find the trademark.

      Conclusion

      If you want to avoid controversy and lawsuits, just don’t bid on your competitor’s name or use their words in your ad copy.

      If you want to maximize your exposure, showcase your offers when someone is looking at your competitor, then in many countries, on Google, you can use their name as a keyword.

      Be very careful using your competitor’s name in ad copy as you can still be sued even if you abide by the search engine policies.

      To really protect yourself, draft a keyword use policy. Have your lawyer approve it. Then follow those policies.

      If you use an agency, make sure they have a copy of your keyword policy and are also following it. This can help keep you out of legal trouble you didn’t go looking for because some agency decided to be aggressive with their keyword research.

      How trademark law will be applied online is still being shaped. There have been many lawsuits and there will be many more. Just because you are following search engine policy does not mean you cannot be sued – it just means the search engine may approve your keywords or ads.

      Search engine trademark policies are still being created. As laws emerge and the courts rule, the engines will adjust their policies. Just because you follow all the rules does not mean your ads and keywords will be approved. It will give you a better chance of having the keywords and ads approved.

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