Loaded down with free mints and landfill fodder disguised as desk toys, I’m back from New York ad:tech and ready to write about the session I just attended, “The Effective Use of Trademarks in SEM and Contextual Advertising”.
The hour-long panel took a look at the use of trademarked terms in search engine and contextual advertising from an ROI and legal standpoint.
Moderator Gary Kibel of Davis & Gilbert LLP led things off with a crash course in Trademarks 101. He defined a trademark as “any word, symbol or name used to identify a good or service”. Contrary to popular belief, Kibel said, the primary purpose of a trademark is to serve the consumer and protect them from confusion, not serve the interests of the company that owns it. Kibel went on outline the 5 Elements Required to Prove Trademark Infringement: 1)Ownership of the trademark, 2) Proof of use of the trademark, 3) Proof of commercial use of the trademark, 4) Proof that said use was non-consensual, 5) Evidence of confusion on behalf of the consumer.
Kevin Lee of Did-It was up next. He presented several cases studies that showed the benefits of buying trademarked and competitor terms, both from a performance and ROI standpoint. Lee went on to present the arguments for and against buying your own brand keywords and shared some thoughts on channel competition. He concluded by saying that marketers who don’t buy their brand names stand to miss out.
Taking the mike next was Andrew Goodman of Page Zero Media. In true SEM style, Goodman was able to wring a lot of impact from very little words with the title of his presentation – “Four Things I Shouldn’t Tell You”. So what are they? 1) Industry and competitor terms will usually outperform generics, 2) Big name clients buy these terms even though they complain when it’s done to them, 3) Google’s always gonna profit so it behooves you to compromise, 4) You should buy your brand terms – at least you know they’ll be used for good and not evil.
Mark Josephson of Kanoodle was up next. He gave a relatively short talk on how his firm handles the issue of trademarks and all the associated legal and financial wrangling. He said that they treat search and content differently when it comes to trademarks and review each ad for relevancy.
Last but not least was Mike Keriakos of Waterfront Media. Keriakos said that despite being hurt by the over $1 million dollars lost per year due to increased acquisition costs, his firm stays in the game by engaging in the same practice employed by its competitors – buying trademark terms. “We’ll wait and let the policy settle where it may” he said, sounding very much like someone whose agency markets primarily self-help related media. Keriakos said Waterfront keeps costs down by going after affiliates who bid on trademarked terms; bidding on competitor terms; and focusing on improving their sites placement in natural search listings.
The panel closed with a quick Q&A. The most notable question was, oddly enough, the first one asked:
“Can you give us a brief overview of the editorial policies of all four major engines?”
Understandably, the panelists were at a loss. Like most everything in life, editorial policies are subject to change.
