Microsoft released an announcement today that as of March 3rd, 2011, they will no longer be making editorial investigations into “complaints about trademarks used as keywords to trigger ads on Bing & Yahoo! Search in the United States and Canada.” What this basically means is they are allowing anyone to bid on a trademarked term for PPC (Pay Per Click) advertising, even if someone else owns the trademark on that term. They still, however, will investigate text within the ads (note their new “Investigations” policy).
This basically follows suit with what Google has already been doing – allowing the competitive purchasing of trademarked terms in the United States as PPC keywords, while not allowing the use of trademark terms within text ads (when deemed inappropriate). The U.S. is one of many regions where Google will not investigate keyword trademarked infringements, but ad text only (see full list here).
According to Microsoft’s new statement, they are only ceasing investigations to the U.S. and Canada on PPC trademark buying, but obviously they could expand their list of regions in the future also.
So what does Microsoft suggest you do if someone is buying your trademarked term, misrepresenting your brand, and stealing your customers? According to their new Intellectual Property Guidelines, “If there is concern that an advertiser may be using a trademark keyword inappropriately, the trademark owner should contact the advertiser directly.” So now the onus is on trademark owners to spend the time, effort, money and litigation to exert the government-granted right they paid for to protect a trademark. This is basically the same stance Google has been taking for a while now.
Of course, one can readily see why both Microsoft and Google don’t want to be the gatekeepers on PPC trademark rights – they want more advertising money. By opening the flood gates to allow illegal trademark purchasing, they can get a lot more competitors buying click terms. Pepsi can buy Coca Cola, and Ford can buy Nissan. It’s up to the trademark owners to battle it out in court.
If you’re a trademark attorney representing a major brand, you will now have to be ever more vigilant in policing the web for cases of trademark infringement. And if you’re an SMB out there trying to create a brand and protect a trademark on the search engines? It’s the wild west out there now, and anything goes unless you have the money to take every competitive PPC buyer to court.