Will trademark bidding be policed?

Today, on Revenews, Angel Djambazov has posted an interview with Chris Henger, the Group Product Manager for the Google Affiliate Network (formerly the VP of Marketing & Product Development at Performics). It’s quite an interesting article, and I encourage everyone to check it out. Most of the focus of the interview centers on what changes and innovations are planned for now that, as of May 30th, Performics has been re branded as the Google Affiliate Network. The question, “will trademark bidding be policed?”, is asked and I think Chris’ answer is important to highlight:

“I think that trademark monitoring really comes down to an advertiser’s decision,” responded Chris. “There are many examples of business models where marketers will want or have to permit other parties to be able to participate in the search market related to or around a trademarked term.

I agree that, ultimately, the advertiser (or the rights-holder) should determine if their trademark can be used, as well as how and by whom. After all, it is their trademark. But the question about policing trademark bidding remains unanswered. Should an advertiser decide that trademark monitoring is something they want, will GAN do that? Or, will the policing be left to the advertisers, or specialists - such as Transparency Laboratories?

What I do not understand, is Chris’ statement that:

It is a very tricky one to have a blanket statement on it (monitoring and policing for trademark abuse) because what may be the right policy and decision for one advertiser is not right for another. So as a network we have always felt, regardless of being part of Google, that it is the advertiser’s decision.”

All of the major affiliate networks currently have ‘blanket statements’ in their service agreements prohibiting affiliates from using trademarks in promotions without the approval of the advertisers. In fact, Shareasale has recently received positive reaction to a more detailed version of what was - in general - already their policy. For example…

Google Affiliate Network (Performics) Affiliate Agreement & Terms - Section 8:

Performics specifically does not grant Affiliate any right to use any Marketer´s trade name without the express written consent of Performics…Affiliate shall not, without written permission from Marketer, (i) use any of Marketer´s brand names, keywords or derivations of either of the above for any purpose; or (ii) purchase any URL containing any of Marketer´s brand names, keywords or derivations of either of the above.

LinkShare Membership Agreement - Section 6.8:

No Infringing Uses. You may not use any name, trademark, service mark, domain name or other Intellectual Property Rights of any third party in connection with Your use of any qualifying links, any LinkShare Network or any other LinkShare Offerings, in any way or for any purpose that infringes or violates any Intellectual Property Rights or other rights of such third party, whether for the purpose of increasing the levels of tracked activities attributable to Your qualifying links or for any other purpose.

Commission Junction Publisher Service Agreement - Section 1.d.iii:

None of Your promotional activities may infringe an Advertiser’s proprietary rights (including but not limited to trademark rights), CJ’s proprietary rights, or a third party’s proprietary rights.

And Section 6.c.iv, your affiliation with an advertiser and/or your CJ Publisher account may be terminated if:

a third party (including a CJ Advertiser) disputes Your right to use any Link, domain name, trademark, service mark, trade dress, or right to offer any service or good offered on Your Web site, or through any of Your promotional means.

Shareasale Affiliate Service Agreement - “Accepted Use” section:

You with the express authority of the company You represent, does not infringe upon any other individual’s or organization’s rights (including, without limitation, intellectual property rights) and is not defamatory, libelous, unlawful or otherwise objectionable.

And the “Ownership and Licenses” section:

All intellectual property rights, including trademarks, copyrights, patent rights or applications, tradenames and service marks related to the foregoing shall remain the Merchant’s sole property, including rights in and to any derivatives thereof.

Without citing every networks service agreement, it seems clear to me that the industry is filled with blanket statements regarding trademark infringement… “Don’t use trademarks without permission”. With all due respect to Shareasale’s recent detailing of their policies surrounding trademarks, the issue isn’t policy, the issue is detection and enforcement.

Everyone has a policy that they will enforce, if notified about the infringement. But, outside of CJ’s Network and Program Compliance departments, some in-house programs, and third-parties - such as Transparency Labs - there isn’t much pro-active detection and enforcement going on. More policies, or even more detailed policies (although detail and clarity are never bad), is not what is needed. What is needed is policing for trademark infringement and abuse

So, will trademark bidding be policed? Yes it will, if not by the Google Affiliate Network (or AdWords, for that matter), then by us, as well as others.