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Can advertiser use 'alternative' in headline to circumvent trademark?

[ Edited ]
Visitor ✭ ✭ ✭
# 1
Visitor ✭ ✭ ✭

One of our competitors is using the name of our company in the headline of google ads with the word "alternative"

 

This is a fictitious example from another industry.

 

Our company is called "Hampton and Johnson Flower Pots" and we manufacture flower pots. We are located in LA.

 

The competitor's AdWords headline reads "Hampton & Johnson Alternative Flower Pot Manufacturing"

 

When you click on the link, it goes to the homepage of the Flower Pot Manufacturing Company. They are our competitor here in LA and never mention our company on the landing page or on their website.

 

It's obvious that they think using the word "alternative" in the headline is a clever end-run around trademark infringement. In fact, in doing some searching, we've discovered at least 5 other flower pot manufacturing companies to which they have done the same thing:

 

Moonstone Flower Pots Alternative Flower Pot Manufacturing

Regal Pots Alternative Flower Pot Manufactureing

Urban Landscape Pottery Alternative Flower Pot Manufacturing

 

PLEASE note that for the purposes of this example, Hampton and Johnson Flower Pots, Flower Pot Manufacturing, Moonstone Flower Pots, Regal Pots, and Urban Landscape Pottery are all local Los Angeles businesses that manufacture custom flower pots.

 

 

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Marked as Best Answer.
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Accepted by MosheTLV (Top Contributor)
September 2015

Re: Can advertiser use 'alternative' in headline to circumvent tradema

Top Contributor
# 2
Top Contributor
Hi Boris.
If you are the owner of a trademark and your competitors are using your trademark in their text ads, you can file a complaint for Google to review.

Here's Google's policy: https://support.google.com/adwordspolicy/answer/answer.py?answer=6118#adtext

Here's the details on submitting the complaint, what you can expect to happen and what Google's responsibility is: https://support.google.com/adwordspolicy/answer/2562124?hl=en

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Marked as Best Answer.
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Accepted by Dave_Davis (Top Contributor)
September 2015

Re: Can advertiser use 'alternative' in headline to circumvent tradema

[ Edited ]
Visitor ✭ ✭ ✭
# 9
Visitor ✭ ✭ ✭

Now, you're claiming I'm angry. No.

By the way, Google will take action on un-registered or "common-law" trademarks. It says so right here:

https://support.google.com/adwordspolicy/answer/2562124

 

"Unregistered trademarks: You'll need to demonstrate that you have valid trademark rights to the term in every region mentioned in your complaint. The process to become a trademark owner, either through registration or use rights, varies from region to region. Google cannot register trademarks for you. For additional information, please contact your legal counsel. "

The only issue is whether the word "Alternative" in the headline is sufficient by-pass the trademark rights.

Trying to help by providing incorrect information is not helping, it's just cluttering up the thread so no one else will bother to wade through it all and respond.

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Marked as Best Answer.
Solution
Accepted by MosheTLV (Top Contributor)
September 2015

Re: Can advertiser use 'alternative' in headline to circumvent tradema

Top Contributor
# 2
Top Contributor
Hi Boris.
If you are the owner of a trademark and your competitors are using your trademark in their text ads, you can file a complaint for Google to review.

Here's Google's policy: https://support.google.com/adwordspolicy/answer/answer.py?answer=6118#adtext

Here's the details on submitting the complaint, what you can expect to happen and what Google's responsibility is: https://support.google.com/adwordspolicy/answer/2562124?hl=en

Re: Can advertiser use 'alternative' in headline to circumvent tradema

Visitor ✭ ✭ ✭
# 3
Visitor ✭ ✭ ✭
I've looked at all of that.

I plan to approach my competitors who are also victims of this guy's tactics. I know most of them and I'm hoping we can take action together to amplify the seriousness of the situation - whether it's filing complaints with google or filing a lawsuit against this guy.

I don't want to file a complaint with google until I've talked with the other "victims".

This guy never mentions the name of our company on his site, so he's not doing a comparison and he's not selling our products. The problem is that the google policies are not completely clear about this.

BUT, The questions is whether the word "alternative" makes it clear that he's advertising an alternative to us and not trying to create marketplace confusion.

Re: Can advertiser use 'alternative' in headline to circumvent tradema

Top Contributor
# 4
Top Contributor
Hi Boris,
In fairness, Google go to a great deal of effort to be clear about their trademark policy. If you do indeed hold a trademark, file the report with Google.

Otherwise, there's no problem using the word "alternative" in ads. Competitors can bid on your brand name if it's not a trademark. They're not pretending to you, putting in the effort to clearly differentiate themselves in their ad with the word "alternative". I know what it's like seeing competitors using your brand term, but they're not doing anything wrong... unless you have a trademark.

I can't and won't comment on you taking matters into your hands legally.

I know it's not the answer you were looking for but it might be some consolation to you that it's likely your competitor will suffer a lower quality score and higher click prices because their ad may not be as relevant to their landing page as yours. I'd use this as an opportunity to work on creating better ads and improving your service.

But if you have a trademark as you say in your original post, simply file the report with Google and they'll stop your competitor from using the term in their ads.

Re: Can advertiser use 'alternative' in headline to circumvent tradema

Visitor ✭ ✭ ✭
# 5
Visitor ✭ ✭ ✭
Actually, trademarks are created at first use. No registration is needed. In fact, you don't even need to use ™, ℠, or © - or any other identifier. It just has to meet the requirements for protection and you have to have actually used it prior to the use by the other party.

Also, competitors can bid on a trademarked term, but there are limits to using the trademarked term in advertising copy.

Can you cite a legal or google precedent that the word "alternative" in the ad headline "Hampton & Johnson Alternative Flower Pot Manufacturing" is, in fact, sufficient to trump the copyright owner's rights? - Especially when the actual content is not comparative or fair-use information?

I haven't been able to find one.

If it turns out that use of the word "Alternative" is sufficient, I'm sure that my competitors and I can come up with a plan that will make this guy regret his dirty tactics.

Re: Can advertiser use 'alternative' in headline to circumvent tradema

[ Edited ]
Top Contributor
# 6
Top Contributor

Boris, you are mistaken. Registered trademarks are not issued at first use. You're thinking of copyright. There's a VERY big difference. Unless it's a common law trademark which you may be referring to. For Google to be able to action a trademark complaint, it will need to be registered.

Not trying to be smart but I'd have a look at this: http://en.wikipedia.org/wiki/Trademark
I believe your understanding of what a registered trademark actually is is wrong and it would be very beneficial for you to correct that understanding.

There's no legal or Google precedent needed to be quoted. As annoying as it it (I agree with you), your competitor is doing nothing wrong. If Google published a list of acceptable words to use in ad text, they'd have a very, very long list. It's the same reason there's no mention of the limitations of using the word "boris" in ad text.

I know you're frustrated and that you believe an injustice has been done, but the simple matter is that if you don't have a trademark registered (and judging by your admitted understanding of what a registered trademark is, I take it you don't) your competitor is not doing anything wrong.

I'm not against you here (again, I agree that it's super annoying when competitors do it because they do it to my company too), I'm just clarifying. 

I'd recommend you contact your competitor directly or else register your trademark (it will have benefits outside the Google world). Sorry I can't be of more assistance here.

Re: Can advertiser use 'alternative' in headline to circumvent tradema

[ Edited ]
Visitor ✭ ✭ ✭
# 7
Visitor ✭ ✭ ✭

I'm only frustrated with your claim that I don't know what I'm talking about.

https://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm#4

 

And, with your claim to have a definitive answer with no supporting documentation or credentials.

Re: Can advertiser use 'alternative' in headline to circumvent tradema

Top Contributor
# 8
Top Contributor
Look Boris,
I'm only trying to help you here. I know you're angry, but it shouldn't be at me.

If you think Google will arbitrate on the first use of a common law trademark, go right ahead. You're not going to get a different answer. I'm done trying to help.

Good luck with your trademark dispute.
Marked as Best Answer.
Solution
Accepted by Dave_Davis (Top Contributor)
September 2015

Re: Can advertiser use 'alternative' in headline to circumvent tradema

[ Edited ]
Visitor ✭ ✭ ✭
# 9
Visitor ✭ ✭ ✭

Now, you're claiming I'm angry. No.

By the way, Google will take action on un-registered or "common-law" trademarks. It says so right here:

https://support.google.com/adwordspolicy/answer/2562124

 

"Unregistered trademarks: You'll need to demonstrate that you have valid trademark rights to the term in every region mentioned in your complaint. The process to become a trademark owner, either through registration or use rights, varies from region to region. Google cannot register trademarks for you. For additional information, please contact your legal counsel. "

The only issue is whether the word "Alternative" in the headline is sufficient by-pass the trademark rights.

Trying to help by providing incorrect information is not helping, it's just cluttering up the thread so no one else will bother to wade through it all and respond.

Re: Can advertiser use 'alternative' in headline to circumvent tradema

Top Contributor
# 10
Top Contributor

I agree with Dave. I also checked the US  trademark office database  and did not find a registered trademark  for "Hampton and Johnson".

Regardless the "full"  trade-name you "hold". Unless you file a complaint, and the trade-name is registered - Google will not take any action.

Moshe, AdWords Top Contributor , Twitter | Linkedin | Community Profile | Ad-Globe
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