• International Monitoring: You can now monitor search ads in 6 more countries: Australia, Canada, France, Germany, Japan and the United Kingdom. All monitoring policies are currently set to monitor in the US only. To enable international monitoring on a policy-by-policy basis, go to http://www.brandverity.com/monitor/setup/. We will continue to add countries over time.
• Doubled Monitoring Frequency: We’ve increased our monitoring frequency to twice daily. There is nothing you need to do, this increased monitoring began today.
• Advertiser Overview Report: We’ve added a report that gives you a view of all advertiser activity over the last 7 days by policy and/or keyword. This new report can be found at: http://www.brandverity.com/reports/advertisers/.

As a result of these changes as well as continued improvements and bug reductions, we are increasing our Beta pricing to $245 per month at the end of this week. Current accounts in trial will still be able to subscribe at the earlier rate of $195 per month.

Our CEO, David Naffziger, will be speaking at Pubcon on the Domain Names and Trademarks - Legal Issues panel.  We’ll be sure to post slides from the presentation here afterwards.

Search Ads

In theory, Google has the least protective trademark policy in the US/CA/UK/IE. They are the only search engine of the big three to allow anyone to purchase ads on trademarked search terms.

Yahoo and Microsoft do not allow competitors to purchase ads on trademarked terms, and in fact have a pretty restrictive policy that should prevent nearly all advertisements for web stores:

As applied to nominative uses of another’s trademark, Yahoo! Search Marketing requires advertisers to meet one of the following two conditions:

1. Reseller: The advertiser’s site must sell (or clearly facilitate the sale of) the product or service bearing the trademark. The advertiser’s title and description must disclose that the consumer will be able to purchase the product or service. The advertiser’s title and description should not be written in a way that creates the impression that the advertiser is an authorized reseller unless the trademark owner has in fact designated the advertiser as an authorized reseller.

2. Information Site, Not Competitive: The primary purpose of the advertiser’s site is to provide substantial information (for example, detailed product reviews or comparisons provided by unbiased sources, commentary, or news information) about the trademark owner or products or services bearing the trademark, AND the advertiser’s site does not sell or promote, and is not an affiliate or partner of an entity that sells or promotes, a product or service that directly or indirectly competes with the trademark owner’s products or services. The advertiser’s title and description must disclose the nature of the qualifying substantial information that the consumer will find on the advertiser’s site.

However, the nature of these policies requires manual review and evaluation of every ad on a trademarked term. We’ve found that to enforce your rights with Yahoo and Microsoft you need to continually notify them of ads that you want investigated. Google’s approach allows for automation once protection has been established.

Despite Google’s less restrictive policy, in practice both Yahoo and Microsoft display more ads for trademarked search terms than Google. We looked at search terms for the top 50 online stores and found on average 1.5 ads per term on Google, 2.1 on Live and 4.2 on Yahoo. The likely cause for this divergence is Google’s higher relevancy benchmark - they simply will not show ads that they deem to be less relevant (as competitive ads typically are).

Receiving Trademark protection

One of the greatest misconceptions about both Google and Yahoo’s trademark policies is that companies need a nationally registered trademark in order to request trademark protection. In the US, companies only need to demonstrate use in commerce to receive protection. That typically means that companies can request protection as soon as they launch a website on a trademarkable term.

Microsoft does require national registration in order to enforce trademark rights.

Domain Park Programs

Both Google and Yahoo make substantial money from their domain park programs - the placement of search ads on inactive domains. These inactive domains may be misspellings or typos of existing websites or brands - this practice is known as ‘typosquatting’. When you find typosquatted domains, you can request that both Google and Yahoo remove these domains from their programs by following their respective complaint procedures.

• Trademarks can be protected in:
  • Search Ad Triggers: This refers to whether anyone can purchase an ad on the search results returned for a search on your trademark.
  • Display Text & Title: Whether the trademark can be used in the ad text or title.
  • Display URL: Whether the trademark can be used in the display URL. We frequently find display URLs that look like this: Macys.My-Coupon-Site.com.
• Requirements to prove trademark: All three require proof of trademark on a country-by-country basis. However, trademark rights are granted in different ways in different countries. Trademark law in some countries (the US included), grants trademark rights upon first use in commerce, while law in other countries require national registration. National Registration is the more restrictive requirement.
• Ads per store: We examined a basket of the store names from the top 100 e-commerce sites and averaged the number of ads found on each search engine.
• Actual complaint response time: The elapsed time between the moment a trademark complaint was submitted and the moment that the search engine responded. This data was from BrandVerity’s original TM notice to the three search engines.

1. A heavy hand at the beginning saves heartache down the road. Set your rules early on and make sure to enforce them.   If you are lax initially or don’t have rules in place your partners are going to build their businesses around expectations that you don’t necessarily share.
2. You can’t please all the people all the time - pick a strategy and stick with it. Create consistent policies and enforce them consistently.  Franchisees (and affiliates) have an innate sense of fairness and become upset when they perceive unfairness.
3. You have limited resources. Realize this and plan accordingly. Don’t create rules that are overbearing or difficult to enforce.

Overall, Tony’s post is great and we would highly recommend affiliate managers read it as well.  He strikes on an aspect of franchisee marketing and affiliate marketing that is typically an afterthought. His personal blog can be found here.

We use a combination of automated and manual techniques to determine if an advertiser is also an affiliate:

• Examine and follow links in Search Ads: Our monitoring agents follow the destination URLs to determine if there are affiliate links in the referral path.  We use simple pattern matching to determine if one of the redirect links is an affiliate link.  We examine both proper and improper redirects along the path to the destination website.
• Automated review of the advertiser’s website: Our monitoring agents also visit and crawl the advertiser’s website. We use a combination of heuristic algorithms and simple pattern matching to identify affiliate relationships.
• Manual review of advertiser’s websites: Based on several factors, we may identify certain websites for manual review.  When we identify a website for review, someone from our team will visit the website and determine whether it is an affiliate site or not.

We feel that not only is it important for us to tell our customers how we identify affiliate ads, we also feel it is important to tell our customers how our methods might fail.  Our most common failure mode is that we will identify an advertiser as an affiliate, but it is not actually one of our customer’s affiliates.  In this instance, the advertiser is typically promoting a competitor’s website.  The second failure mode is that we unable to identify a website as an affiliate website.  We don’t believe this happens frequently, but it does happen.  This is one of the reasons why we encourage our customers to look at the raw ad reports as well as emailed alerts.

Ultimately, the techniques we utilize aren’t as important as the data we provide.  We believe that these techniques provide a best-in-class technology for finding trademark poachers.  If you think we’re missing something please let us know.

• Improved reporting: Our reporting has long been neglected, but we’ve introduced the first of several new reporting features. You can easily filter the ads that we’ve retrieved by a number of variables including date, search engine, display URL, etc. You can view the new reporting options here: http://www.brandverity.com/reports/ads/overview/
• CSV Downloads: Admittedly, this is something that we should have included earlier, but you can now download many of your reports to csv files.
• Increased affiliate network detection: We continue to add detection for affiliate networks and their IDs. We recently added RegNow and Hydra. Please let us know if you are using an affiliate network we don’t detect - we will prioritize adding it.

We’ve also made a few tweaks to the interface and fixed a few bugs. These changes will continue to roll out.

As always, please drop us a note with any comments, feedback or issues - its your feedback that we use to improve the service!

The affiliate manager was trying to determine if the affiliate had violated the keyword policies of the merchant.  Obviously, there is a lot of sensitive data in there and affiliates should be extremely reluctant to provide this information (we would say never provide it).

We would also say that the merchant should be using PoachMark - it is a far more efficient and privacy compliant system to ensure affiliate compliance than logging into the AdWords’ accounts of all affiliates.

• Multiple monitoring policies: You can now manage multiple policies from within a single account. A policy could be a different set of alerting rules, or an entirely different set of keywords and brands. The emailed alert reports distinguish the alerts found for the different policies.
• Affiliate network alerting: You can further refine your alerts by selecting one or more affiliate networks. We will only notify you when we find ads from affiliates in these networks.
• Increased affiliate network detection: We’ve added detection for a broader range of affiliate networks including PepperJam, OneNetworkDirect & ClickBank. If you are using a program that we don’t detect, please let us know and we’ll work with you to add detection.

We still recognize that the interface isn’t the most intuitive and are planning to revise that in the near future. We also continue to fix bugs and issues that you’ve helped us identify.

As always, please drop us a note with any comments, feedback or issues - its your feedback that we use to improve the service!

Eric also points out that there has been split rulings on whether this constitutes a use in commerce:

The court is right about the majority vote, but it’s hardly a strong majority. According to my count [Eric's count], the vote was 7-to-6 before this ruling. However, all 6 no votes are in the 2d Circuit, so geographically there is a stronger basis to characterize the rule as the majority rule..

We’ve been of the opinion that Google’s position regarding keyword usage was relatively secure. However, if court decisions continue to rule this way, that position may erode over time.

Andy Rodriguez touched on setting and monitoring policies for keyword bidding in his Sunday session on ‘Affiliate Marketing Basics for Merchants’. He correctly identified these policies as frequently overlooked by new merchants.  In fact, we’ve seen evidence of PPC Policy abusers that target new merchants exclusively.

This morning, all of the speakers on the ‘State of the Ad Networks’ panel touched on the success of search marketing affiliates coupled with the challenges inherent in ensuring compliance of the affiliates.

I’m expecting similar points to be made in these sessions:

• Anatomy of a great affiliate program (Monday, 1:30): “Panel of affiliates discuss the good and bad aspects of affiliate programs and how to structure the most attractive affiliate program.”
• Compliance. Its more than a buzz word (Monday, 1:30): Although targeted more at state and federal laws, there are legal aspects to affiliate agreement compliance and those might be addressed here.
• PPC Search: Disclosure vs. Free-for-All (Monday, 4:30): Kevin Lee from Did-it usually does a great job highlighting the issues, but he continues to assert that he could hide a campaign from detection.
• Ethical Issues in Affiliate Marketing (Tuesday, 3:30): Trademark abuse is typically a contractual rather than legal issue, but I would expect the topic to come up at some point over the course of the discussion.

I’ll add content from these sessions as they progress.