Should Affiliate Merchants Be Allowed to Enforce Negative Keyword Matching?
Mar 19th, 2009 by msdanielle
I received an email from someone at Commission Junction (CJ dot com) yesterday informing me that my Google PPC ads were appearing for trademarked keyword phrases that I’m not bidding on, and that their merchant’s keyword policy is to enforce negative keyword matching for their trademarks. More specifically, the brand is Banana Republic and basically they’re asking me to negative match all of their trademarked terms in my campaigns, even though I am not bidding on any of their terms, using any of their terms in my ad copy, nor driving users to the Banana Republic store page in my site. Here is the ad that appeared (and that they sent me a screen shot of) when the CJ rep or someone at BR did a search for “banana republic promo code,” which leads to the page here:
And here are their keyword terms:
Banana Republic reserves exclusive rights as to the advertising of our trademarked company name within all pay-for-placement and all other search engines. These names include: Gap, gap.com, Old Navy, oldnavy.com, Banana Republic, bananarepublic.com, Piperlime, piperlime.com and any variation/misspelling of our trademarked names. Additionally, you may not claim to be Gap, Old Navy, Banana Republic, or Piperlime in any pay-for-placement or other search engines.
* No bidding on the brand terms (eg: “Banana Republic,” “bananarepublic.com,” etc.), misspellings and / or derivatives of the brand terms. These names include: Gap, Old Navy, Banana Republic, Piperlime, gap.com, oldnavy.com, bananarepublic.com, piperlime.com, etc. and any variation/misspelling of our trademarked names.
* Brand terms, misspellings and / or derivative of brand terms must be set to negative match in keyword bids for all Search campaigns (exact and broad match on the brand terms are not allowed on trademarked terms such as “Banana Republic”, nor on misspellings and /or derivatives of the brand terms)
* Use of the brand terms, misspellings and / or derivatives is not allowed in ad title and ad copy of any Search campaigns
* Direct linking to the gap.com, oldnavy.com, bananarepublic.com, or piperlime.com domain is not allowed
* Cyber squatting through the misspelling or use of the brand terms, misspellings and / or derivatives within URL strings and domain names is not allowed
* Violations will be cause for affiliate’s immediate termination and any unpaid commissions will be unearned, disallowed and/or charged back.
So why does this annoy me so much? Well, what if I wasn’t their affiliate, and I had no BR/Gap/Piperlime deals on my site? Then they couldn’t enforce this rule; and my ads would be no different. However, since I coincidentally have their deals on my site and am signed up for their program, I am now required to negative match all of my existing campaigns for them? Also, their terms aren’t very clearly stated. Yes it says “Brand terms, misspellings and / or derivative of brand terms must be set to negative match in keyword bids for all Search campaigns,” but there is a qualifier immediately after that states “(exact and broad match on the brand terms are not allowed on trademarked terms such as “Banana Republic”, nor on misspellings and /or derivatives of the brand terms).” So what the hell are they saying?
I’m no lawyer, and I don’t want to get into some stupid trademark fight with Banana Republic so I’ll go ahead and do what they want, but what do you guys think? Honestly, this is jacked up in my opinion. BR just leaves a bad taste in my mouth now. I could understand if I was bidding on their trademarks or using them in my ads, but I’m not. I’ve never violated any trademark terms with any merchant and I take trademark policy very seriously, which is why I take such offense. Even Google recognizes the delicacy of these types of situations and has stated in their trademark policy that:
Advertisers may be restricted from using certain trademarks as ad text per the request of the trademark owner. In cases where the trademark owner claims rights to a term in countries outside the US, Canada,UK or Ireland, advertisers might not be allowed to use certain trademarks as keywords or as ad text per the request of the trademark owner.
In some instances, Google may not remove the ad or ads as requested. For example, with Google’s broad match keyword option, an ad can show on variations of a keyword term. As a result, an ad may show for a term that is a variation of an advertiser’s keyword. Even if the search query that shows the ad contains a trademarked term, Google will not remove an ad if the advertiser isn’t using a trademarked term as a keyword.
When Google receives a complaint from a trademark owner claiming rights in the US, Canada, UK and/or Ireland, Google will only investigate whether the advertisements at issue are using the trademarked term in the ad text. Google will not disable keywords in response to a trademark complaint.
I’d be interested to hear what you guys think. Do you think it’s OK for affiliate merchants (or merchants in general if we’re looking at the bigger picture) to be allowed to enforce negative keyword matching for ads that happen to appear when a user does a search that includes their brand names? Am I now to also negative match every “misspelling” I can think of in order to save my own ass? Are there a lot of merchants doing this? (This is the first time I’ve been requested to do so.) And does this set a precedence for other affiliate merchants and merchant sites to be able to tell any advertisers they want to actively omit any keywords relating to their trademarks? At what point can advertisers not be sued or attacked during non-active participation? Your feedback is welcome and greatly appreciated.
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I think that’s pretty dumb. I don’t see any way in which you were breaking any rules and see no reason for you to change the way your add was running. It sounds to me like they are trying to have complete control over what shows for their name in Google.
that’s the thing, i don’t think i am violating their terms. from what it sounds like, it seems like they could be interpreted as an if/then statement. IF i’m an affiliate of theirs AND i’m trying to drive users to their deals on my site, THEN i have to negative match their trademarks. the reason i think this is because i was contacted from a CJ rep, not directly through BR. If BR had contacted me, then that might indicate that they were targeting ALL advertisers that showed up in the results, not just CJ affiliates. but honestly, if i removed myself from their programs, then it wouldn’t matter and through Google’s own trademark policy i would not be required to negative match any keywords since they don’t exist in my campaigns. still, the campaigns would be no different. i think they’re being overly aggressive and i don’t like it one bit.
Google encourages trademark owners to resolve their dispute directly with advertisers. So they’re basically passing the buck and not taking responsibility for any issues whilst charging clients for advertising under trademark terms.
yea google is sort of being passive about it. but what do you think of merchants going the route of affiliate networks and having their rep’s contact affiliates for negative matching? i only use google as an example because it gets sticky when businesses start trying to tell independent advertisers that they have to actively remove untargeted traffic. does that make sense? like, imagine someone advertising in a newspaper and Macy’s comes and says, “We don’t want any of our shoppers to see your ad.” i don’t know if they’re contacting everyone that came up on that list, but if you do the search now there is only one non-BR advertiser, which may have somehow slipped through the cracks because they have the trademark in the ad copy.
It sounds like they have some automated process that does this and they are just saber rattling. If there is no risk or cost to them in scaring affiliates, then why not do it? (not saying it is right, just from a business standpoint they may feel it helps them).
Also, this happens alot of the time with automated domain name monitoring systems which incorrectly identify trademarked domains and fire off nasty automated “legal” notices.
I hope sometime soon there is some real legal precedent or official guidelines that advertisers need to abide by, but it seems completely up in the air at the moment.
hi john, thanks for the feedback. i agree with what you’re saying. i think it’s part of a bigger picture like you’re saying, there is little legal precedence for affiliate standards. if a company decides to bully advertisers, which is what they are doing in my case, then they will do it if they can get away with it.