Your trademark policy is terrible, and you should really feel bad about it.
Let’s start at the beginning with the issue that got us on this rant to begin with. As long-time blog readers may know, we own a stake in some retail shops that we use as test labs for marketing initiatives. As small business marketers, it’s a great way for us to be able to play around with marketing mix and to test out new theories and approaches without impacting any of our clients (and if you’re a marketer that runs experiments on their clients, shame on you!). In our case, the “client” is Digital Remedy Repair – a small chain of phone and electronics repair shops (I’m not linking to it here since I don’t want to spam a business I have ownership of). Owning and operating these retail shops has given us some invaluable insight into techniques, tools, and approaches, and let us try some REALLY crazy things that we wouldn’t even dream of presenting to a real client.
So one of the services Digital Remedy offers is repairs on Macbooks and other Apple devices. It’s a common service offered by tons of independent repair shops across the country. One of the best sources of new customers for this service is AdWords. Even in markets where local and organic search places our shops at or near the top of search results, AdWords still accounts for almost half of all new revenue. This is not terribly uncommon – in speaking with our clients and other small business owners, we again and again note the disproportionate amount of business that is captured through Google’s advertising platform.
Our problem began when Google unceremoniously began disallowing ads that featured the terms “Macbook”, “Mac”, or other variations in the ad text for “Trademark policy violations”. No problem, right? We understand that trademarks are an important part of running a business, and are valuable assets that need to be defended. So naturally we went and took a look at various trademark policies to see how we could market our company in a way that was within US and international trademark laws. Our first stop was, naturally, Google’s own trademark policy page. Well look at that, there’s an explicit policy that trademarked text can be restricted in ad text. Simple enough, right?
Trademark terms used in ad text
Google will investigate and may restrict the use of a trademark within ad text. Ads using restricted trademarks in their ad text may not be allowed to run. This policy applies worldwide.
Wrong! Because right below that is a number of exceptions. In particular, there is a section on explicit exemptions, which reads:
When such ads can show in these regions:
- The ad’s landing page is primarily dedicated to selling (or clearly facilitating the sale of) the goods or services corresponding to a trademark term.
The ad’s landing page is primarily dedicated to selling (or clearly facilitating the sale of) the components, replacement parts, or compatible products relating to the goods or services of the trademark.
- The product or services must be the primary focus of the ad’s landing page. The landing page must clearly provide a way to purchase the product or services OR display commercial information about the product or services.
- The primary purpose of the ad’s landing page is to provide informative details about goods or services corresponding to the trademark term.
- The product or services must be the primary focus of the ad’s landing page.
Perfect! Digital Remedy is primarily dedicated to selling a service related to the trademarked product, and should thus be exempt from trademark restrictions! This is a policy that in US law is referred to as Nominative Fair Use, and was formalized when the United States Ninth Circuit Court ruled on the case of New Kids on the Block v Gannett Satellite Info Network. This was, in all likelihood, the last time anyone took the New Kids on The Block seriously, so it’s a standout case for that reason alone. The court ruled that in times when the trademark was the only way to succinctly refer to a product (such as a Macbook – I mean, what else are you going to call it?), using the trademarked term constitutes a non-infringing use. This was based on an earlier ruling, Volkswagenwerk Aktiengesellschaft v Church 411 F 2d 350 (9th Cir 1969), in which the Ninth Circuit court ruled that using the term “Volkswagen” in the name of a business that specializes in Volkswagen repair was a non-infringing use, since there was no other way to explicitly and easily refer to the brand being serviced.
Of course, as with any court opinions and fair use policies, there are some caveats. First, the product or service must not be easily identifiable without the use of the trademarked term. For companies that specialize in service, parts, or accessories for a specific brand, there is no option but to use the trademarked name of the brand in your advertising. In the example with our business, we could obviously go through some verbal gymnastics and claim that we specialize in service for a metallic, unibody laptop computing device manufactured by a brand whose logo is a commonly enjoyed fruit, but that get’s very ridiculous, very fast. Secondly, as small a part of the trademark as possible needs to be used. Finally, the user must not in any way, shape, or form imply that they are sponsored or endorsed by the trademark holder.
This is the settled case law, and it’s reflected very clearly in Google’s own stated policies. So what’s my issue with Google AdWords?
The fact that those policies are entirely discarded the minute it proves to be remotely inconvenient, and the fact that the policies are obviously not enforced equally or fairly. Being an authorized AdWords partner, S&G has access to AdWords account managers and reps that are specially trained by Google to deal with these issues. We, like most agencies, have a direct line to support that simply isn’t available to regular advertisers. And even with these resources, we have been utterly unable to get a clear answer on this issue. Some reps have said that the ad text was perfectly fine and should be able to go through. Some have said that it’s completely blocked and there is nothing we can do about it. Others have taken a grey-area approach and said “Keep trying to submit it periodically and see if maybe it’ll squeak by the filters.” There has been a complete lack of consistency, either with the official published policy, or within their internal training.
What’s more, it looks like the algorithm that actually keeps track of these things is not exactly fool-proof. There are clearly some ads out there running with the trademarked text. I’ve seen them when doing competitor research. And in talking to business owners in the industry, I know that most of them did not go through the laborious process of contacting apple to try to get explicit permission to use their trademark. Which is frustrating, because what it adds up to is that some advertisers get an unfair competitive advantage simply because somehow they managed to sneak past Google’s algorithm. An algorithm that, per the case law and Google’s own policies, should not automatically disable ads to begin with, but rather flag them for manual review.
So Google, if you’re listening, please get your trademark policy in order. I’m not mad at you for wanting to protect yourself. I know that Apple is incredibly litigious when it comes to trademark protection, so I’m not surprised that this is your answer. What I am mad about is that if you’re going to have a policy in place, you should follow it, and train all of your support staff to follow it. If you aren’t going to follow your trademark policy, you should rewrite it in such a way that it reflects our actual practices. And you should fix your algorithm so that it executes your policies fairly and consistently across brands and advertisers. Because the only thing worse than not having an explicit policy, is having an explicit policy that isn’t followed.