legistationDid you know that you could even use key words in your Google AdWords campaigns that are actually trademarked by your competitors? In the following article we explain how to do it and what to specifically look out for.

B2B decision makers and marketing directors want to achieve the highest possible reach with their online offerings, and with Google AdWords and using the right keywords, this is a particularly effective way to achieve this.

Many key words – most often the most well known and therefore most attractive ones– are brands of your competitors. It is therefore of no surprise that companies want to specifically use these proprietary words as key words (as hidden as possible), which in turn are most often branded and protected. Most of us guess, that this should not be so easily possible, but only a very few actually know what exactly to look out for when doing this.

The legal background: The key problem is legislation in many countries, which prohibits using competitors’ brands and brand names for your own advertising purposes. This makes sense, as the brand protection’s key purpose is to protect the owner of the brand, so that it is safely associated with the original products.

Many legal disputes have taken place all the way to the highest courts to fight this out and the courts of some countries have worked out guidelines under which the use of others brand names are legal for own advertising purposes. In this case, we will look specifically at the German court ruling, which is one of the strictest.

General principles in detail:

  • The protected brand cannot appear in the slogan or advertising text, nor in the link or linked domain name.
  • The advertised products must clearly identifiably not come from the brand owner or associated companies. The advertising therefore cannot contain a direct reference to the brand owner.
  • The ad must clearly appear separately from the organic search list, in a separate advertising block.
  • The protected brand should in no way be watered down or in any way be negatively referred to by the ad. If in the extreme case, for example, the ad ridicules the brand through this search, it is considered highly dangerous and should be checked first for its legality or best avoided.

The other way around, by using the protected brand in the search word, you should only be offering the interested buyer with a purchasing alternative of a similar product. It should be clear though that the Google ad has in no way anything directly to do with the protected brand.

This means that you, as the decision maker, have to ask yourself the following questions:

  1. Is the advertising block clearly not part of the organic search results? This is normally the case with Google AdWords.
  2. Is the ad block free of showing or mentioning the protected brand? It must be clear to the common user that this ad is in no way related to the protected brand.
  3. Is it clear that the ad does not come from the brand owner?
  4. Is it safe to say that the protected brand is in no way negatively mentioned or referred to in the ad?

If you answered all these questions with yes, then generally you can use the brand name as a key word in Google AdWords.

Caution: The use of your competitors protected brands as metatags is not covered and in fact is not recommended for two reasons: First, it has already been ruled in court before that metatags are not to contain the competitors’ protected brands for your own ads. Secondly, the effectiveness of metatags in search has gone down over time, as the search engines have become more and more intelligent in their content search criteria, and therefore put less value to “pro-forma” metatag statements.

So, if your brand wants to be safely put in context with a well-known brand, you now know what you can and cannot do.

By Roger Stadler