Pay-Per-Click (PPC) Ads
While it is generally believed that Pay-Per-Click Ads (“PPC Ads”) delivered on ad networks like Google, Bing, and elsewhere may be legally targeted to appear when consumers search for a competitor’s trademarked name, it is also acknowledged that one may not display a competitor’s mark in the text copy of the PPC advertisements or that likely crosses into infringement. Despite the search engines and major ad networks attempting to discourage trademark infringement, it still can occur in many situations.
Despite seach engines attempting to limit it, a competitor’s marks can sometimes still be displayed in PPC ad copy, and advertisers sometimes step too close to the edge when attempting to have ads appear when consumers are searching for their competitors.
Recent Cases We Have Worked Upon
- A billion-dollar B2B supply company targeted dozens of smaller competitors on Google, Bing, and Yahoo! with ads that used the competitors’ marks in the ads’ text for three years. Depending upon the damages model, the infringing company may be on the hook for $1 million plus!
- A cosmetics retailer sued a competitor for copyright infringement for running ads that used text statements similar to their own ads’ content, and the ads were appearing when the plaintiff’s brand name was included in consumers’ search queries on Google. (We showed that the ad text was composed of commonly-used slogans and short statements that the U.S. Copyright Office has declared to be not subject to copyright because they contain a de minimis amount of authorship. We further showed that the ads were NOT targeted to the plaintiff’s name but that the ads appeared due to Google Ads’ broad match setting.)
- A large company sued a smaller competitor due to claims the smaller competitor had broken the terms of a prior settlement where they had agreed not to target each other’s brand names in ads. (We showed that the smaller competitor’s ads were not targeting the larger company’s names but that the ads appeared due to broad match criteria. We further recommended that the prior settlement agreement be amended to specify they would each ad the other’s brand names to the negative keywords list in Google Ads, which would ensure the ads could not appear accidentally.)
- A supplements company sued another for having too similar of a name and obtained court approval to carry out an on-site inspection of the defendant’s Google Ads dashboard, as well as Amazon Merchant Center and Google Analytics dashboards. Chris Smith went on-site to conduct the inspection, directed the defendant’s employee in where to navigate within the dashboards, and elicited screengrabs and PDF documents of the evidence valuable to the case.
A few examples of how trademark infringement can occur in PPC ads:
In Displayed Ad Copy Text
While search engines and ad networks may have systems in place to keep this from happening, sometimes infringement eludes the barriers. In some cases, very skilled infringers may be able to ad zero-width characters to break up the letters of trademark words, making it so automatic detection fails to recognize them, while human users see the trademark clearly appearing in ad’s text copy. In yet other cases, closely-similar character sequences may resemble trademark words, or ad copy may imitate the trade dress of a competitor.
In Domain Names Appearing In PPC Ads
Consumers often gravitate towards clicking on ads and links for official websites of providers of goods and services, so crafty advertisers sometimes set up infringing domain names in order to appear official in pay-per-click advertising. Domains could be directly infringing, or they may be set up as various types of look-alike domains.
Trademark Keyword Targeting Might Yet Be Infringement!
While keyword targeting of a competitor’s trademark name or service mark may be allowable in general, if it is done in combination with other instances of trademark infringement, it could be deemed as a part of the overall infringing campaign efforts or, as a yet further indication of a motive to infringe and unfairly appear for searches for a tradmarked name.
PPC Ads May Appear OK, While Landing Pages Infringe
Perhaps the most subtle form of PPC advertisement infringement might be when ads targeted to appear for your name all look just fine at a glance, but when consumers click through, the landing pages themselves could display infringing marks, or they could closely imitate marketing text language, colors, and layouts from a company’s official website in order to trick consumers into believing that they are purchasing products from an official brand provider.
In such instances, it’s also possible for the advertiser to redirect the user upon click-through on the ad so that they land on a domain name that impersonates an official website.
Infringing PPC Ad Campaigns May Be Difficult To Detect
- Pay-Per-Click ads only appear intermittently, so it is possible for an extensive infringement campaign to be conducted under your very nose without you noticing.
- Crafty advertisers may set up an infringing PPC advertising campaign and geographically target the ads to appear everywhere except in the city or ZIP code area where your company headquarters is located in order to elude detection.
- Advertisers might redirect all consumers who click through on their ads, except for users with IP addresses near a company’s headquarters.
- When checking up on your competitors from your offices, you may be seeing something entirely different from what most consumers are seeing.
Qualified Internet Marketing Experience Makes A Difference In Court Cases
We provide qualified expert witness services in PPC trademark cases. Chris Smith has lengthy experience in programming online ad delivery technology, managing PPC ad campaigns, and thoroughly checking for possible fraudulent activities. Contact us today for more information.
