Protecting your trademarks in the paid search channel is critical to maximizing the value of your brand. Here is a complete guide, with links, submitting trademark paperwork to the major engines plus strategies for dealing with affiliates and trademark bidding.

Topics Covered in This Article:
- Why Protect Trademarks?
- Search Engine Policies on Trademarks
- What about Affiliates and My Trademarks?
- What to Do Next

Why Should I Protect My Trademark?
Your trademarked names or brand names are the most valuable keywords in your paid search arsenal. As you build your business, gain customers, send out press releases, buy media and acquire traffic - more and more people will enter your brand name or URL into search engines to find you. These terms almost always convert the best regardless of what your conversion metric is.

Because of this, your trademark can be under attack by competitors, uncontrolled affiliates and companies illegally using our products (more on this later). It is imperative that you understand your options, recognize the threats and have a course of action to protect your brand.

Search Engine Policies on Trademarks
From the search engine company standpoint, refereeing the use of trademarks is a difficult and thankless task. Everyone who has a trademark thinks that they are special, lawyers get involved and search engine employees spend hours working through the issues protecting the rights of their advertising clients from illegitimate and illegal use of the trademark.

Additional considerations from the engines include whether the trademark violation is in the organic or sponsored area. If someone is improperly using your trademark and they show up in the organic area of the search engine results page (SERP) then you are out of luck from any recourse from the search engine companies. If it shows up in the sponsored (paid) area of the SERP then you have some recourse.

There are also specific procedures for whether your trademark is secured in the US, Canada, North America or Other. Most engines have a different process for Trademarks in different countries making both the problem and the solution more complex.

Ideally for the Search Engines, they would remain neutral in the use of trademarks and simply collect the money when people buy a trademark and use a trademark. However, in order to appease advertisers (aka trademark holders), the different engines have implemented different levels of trademark protection.

Google Trademark Policy:
Google is the most lazes-faire of the engines with regards to trademarks. It used to be permissible to buy and use other people's trademarks in the sponsored link area. Today's rules help in terms of
protecting the trademark holder, but don't go as far as the other major search engines. Here are some of the rules:
-With the submission of the proper trademark paperwork (see link below), Google will block non-trademark owners from using the trademark in the copy of the advertisement.
-A non-trademark owner can BUY the trademarked keyword, but the editorial filtering will restrict the use of the trademark in the copy
- EXCEPT for the display URL.
-I personally find this last bit concerning as testing has proven that the display URL is an important part of the copy. I haven't gotten a good answer on why the display URLis not included in the trademark protection. More specific information and the complaint form is available at: http://www.google.com/tm_complaint_adwords.html

Yahoo! Search Trademark Policy
Yahoo! has taken a stronger stand on trademark protection than Google which has also evolved over the years. You used to be able to buy competitor terms as long as you sent the traffic to a comparison page of products or services. That allowance has been eliminated if you are a competing site. Here is what they do allow:
-If you are a retailer and are legitimately selling the trademarked good or service - you can buy the trademark keyword and use in your copy.
-If you are a non-competitive site that is providing comparison content, you are allowed to buy and use the trademarked item.

In addition to trademark protection, Yahoo! offers an additional level of complaints based on Copyrights Infringement and alse/Misleading Claims. We've had some success going after sites that are illegally using free software to acquire credit card numbers and email addresses using these complaints as the foundation. More specific information available here: http://searchmarketing.yahoo.com/legal/trademarks.php

MSN Trademark Protection Policy
The MSN policy is very similar to the Yahoo! policy. No buying of someone's trademark unless it is one of the following situations:

-You are a retailer

-You have a legitimate information site

-You are clearly using the trademark in an ordinary dictionary manner (Kleenex for example)

Both Yahoo! and MSN are more lenient towards advertisers with trademarks and don't require as rigorous paper trail as does Google.Here is the MSN policy link:http://advertising.microsoft.com/Home/Article.aspx?pageid=708&Adv_Articleid=3216

What Do I Do About My Affiliates?
The decision to allow or not allow affiliates to buy your trademarked keywords in paid search is a difficult one. Here are the pro's and con's to allowing this:
Pro's for letting affiliates buy trademarked/branded keywords:

-Increases the number of slots taken up by your brand on the brand search thus freezing out competitors (particularly important in Google because competitors can still buy the keyword without using it in their copy)

-If structured properly, these high value keywords can be used as a carrot to expand the non-branded keyword programs your affiliates are using to drive traffic/sales to your site

-If, for some reason, your SEO efforts aren't effective for your keywords then you have more options for end users to click on a placement that leads to your site.
Con's for letting affiliates buy trademarked/branded keywords:

-Affiliates care only about making money and will do, say just about anything to reduce costs and improve conversion - regardless of the reflection on your brand.

-Competitive affiliate bidding on branded keywords drives up the CPC of your branded terms increasing the cost per action of that keyword category.

-Branded keywords are "easy money" for affiliates and unless managed appropriately will only spend energy on these terms vs.expanding your overall program.There are three options for working with affiliates with regards to branded keywords:

-Do not pay for any sales, service or leads generated from your branded keyword list. The trend in the industry is to move more towards this position in order to reduce costs and have more control over the brand messaging.

-Give affiliates unfettered permission to use branded keywords in their paid search programs. This will result in the most sales and the happiest affiliates, but at higher costs and risks to the brand.

-Establish a set of messaging and bid-cap rules for affiliates with regard to using branded keywords including:

1.The maximum cost per click they are allowed to bid in the engines. This is a hard rule to monitor as none of the major engines give you exact data on what the affiliates max bid is. However, you can closely monitor your CPC for the category and ensure that you are in the #1 position. If your CPC for the #1 position goes over the max bid cap - you have reason to "talk" to the affiliates.

2.Stipulate a % of sales, leads, etc. that can come from branded keywords. Do this by using a unique linking URL for branded keywords by affiliate. This will let you see how much traffic/business is being generated by each affiliate.

3.Have a clear list of do's and don'ts with regards to the messaging and copy that can be used with the branded keywords. Make sure to give the affiliates lots of examples of what they CAN say in conjunction with very strict guidelines of loaded keywords, numbers,amounts, discounts, etc. that are off limits.

4.Set aside time on a regular basis to monitor the affiliates. Engage your top affiliates to help monitor the rules as well so that you have more eyes keeping the playing field level.

5.Have strict two strikes rules on your affiliates. You can give an affiliate (especially a new one) one strike with regards to these rules. Second strike should be an immediate restriction of those keywords and/or exclusion from the program. Do not waffle on this or your will get into issues of "fairness" with the broader affiliate group.
What to Do Next
1.Get the trademark documents from your (or your clients) legal department for as many countries as you have trademark rights for. These should be in a PDF form that you can submit with the paperwork to the engines.

2.Decide what you are going to do with affiliates. If you submit trademark paperwork to the engines and do not give them an exclusion list for the affiliates - you will shut out your affiliates from the branded keywords inadvertently.

3.Assemble a list of "approved" affiliates/vendors that can use your trademarks. Get URLs, official email addresses and account numbers for each engine for each approved affiliate/vendor to use your trademarks.

4.Alert your account managers for the various engines with regards to what you are doing so they can help. Many account managers can help smooth the flow of decision making to get these rules in place more quickly.

5.Visit the URLs listed above to submit trademark protection concerns. You can also see the URLs on the Brand Digital Resource page at http://www.branddigital.net/internet-marketing-resources.htm

6.Persevere. This is not an easy or smooth process for anyone. Lots of questions will arise, lots of people can get involved and there needs to be lots of communication to all parties to be effective.

7.Monitor, monitor, monitor. Just putting rules out there without a consistent vigilance to monitor is wasted energy. You have to set aside time and stay on top of your terms and who is saying what with regards to them in paid search (and online for that matter - a different article).

8.Send this email to someone you care about and want to help.

9.Send me feedback on what you liked/didn't understand about this issue. scott@branddigital.net.

Scott is the founder and Chief Digital Strategist of Brand Digital, Inc., a digital marketing agency focused on helping small and start up organizations make their business vision a reality online. With over 11 years experience working in the digital space from games to music to hardware and ecommerce, Scott has a wide range of expertise in what it takes to assemble a program and ensure it's success online.