Yahoo No Longer Allow Bidding On Trademarked Terms

[Black_Knight]

That's the pre-change position. For there to be a change, (which is, after all the purpose of this thread, unless this is a non-existant change to garner some attention for Yahoo! when people mainly discuss rival AdWords), then the old position must have been replaced by a new position.

However, if this thread is merely a non-event illussory change just to get Yahoo some mindshare back, I'll be most happy to continue with current stated practices.

Seems to me so far that there is no real change, just yet another statement that Yahoo will apply more editorial control, a thing Overture has promised all along, and repeatedly failed to deliver.

A statement that they'll employ a lot more editors (like triple or more the current amount) would do a lot more good.

[akagorilla]

If only Google would follow this trend, our trademarks would be safe. I love this news.
Read more about my trademark fight.

[dannysullivan]

I think it's really important to understand that this isn't being prompted by a legal issue, as much as I can see.

Yahoo is doing a significant amount of work directly with big brands to convince them to send people to search at Yahoo, from TV ads, traditional ads, whatever. The big awards they handed out yesterday are another sign of this.

But after those brands have spent tons, it's gotta be hard when they ask why Yahoo's allowing other brands to tap into thier campaigns. This to me is about Yahoo protecting the big brand money flow, not about legal stuff.

That why it's super important to keep hammering that this is aimed at "comparison ads." Those aren't illegal in the US. Yahoo just doesn't want them, because they'll upset the money flow above.

Now what will be interesting to see is whether some advertiser who wants to run comparison ads is willing to stump up as much as if not more than the brands doing original campaigns. If that becomes more common place, perhaps the policy might change.

I'm mixed on it. I can totally understand someone finding it unfair -- not illegal -- just unfair -- that a competitor might tap into their branding campaign. Then again, if Pepsi were to start running a "Take The Challenge" campaign and name Coke, I'd be hopping mad if I were coke but couldn't buy ads for the terms Pepsi is running, if only to defend myself. And wait until the tricky case comes up where some protest site decides they don't like Car Maker X and wants to run ads counter to their campaign. Will they be considered a competitor?

Hey everyone,

Hope all is well.

Wanted to get some clarification here. Understood based on Sara's comments that as long as the commerce is happening on the site (i.e.: Resellers) that there shouldn't be any issues.

Now what about affiliates that bid on Merchant TM terms, send users to a landing page, which ultimately has a link to Merchant.com? Correct me if I am wrong, but from the letter and current feedback - it looks as if affiliates will NOT be able to bid on TM terms?

Sara, can you shed some insight into verifying the above statements?

Regards,
Petah

[vayapues]

I think it is a bad move. I understand the arguments on the other side, and there are some very good ones. But... trademark is meant to protect others from using your name, not to keep them from competing against you.

If I buy the keyword 'Geico', and put up a site that looks like geico, I am in violation, however, if I buy the word 'Geico', and put up a site that is clearly not Geico, I don't see how it is any different than Albertsons brand cold medicine printing 'Like Nyquil' on the back of all their medicines.

The test should be, does the user know who they are buying from. If they do, than no copyright violation has taken place.

[cline]

Originally Posted by Chris_D

Cline, Blackknight, Venks - doesn't this address your issues?

http://searchmarketing.yahoo.com/legal/trademarks.php

In practice, no, because I'm getting editorial rejections on trademark keyword targeting on products the trademark holder does not offer.

[cline]

YahooSarah,

Is it the correct interpretation of this new rule that site that sells both Brand A and directly competing Brand B may not advertise on the trademarks associated with either Brand A or Brand B?

[YahooSarah]

All,
Rather than try to address every possible scenario (which I think can lead to confusion and more questions), I’d like to go back to the basics of our guidelines in hopes of answering the overarching questions:

-The advertiser's site must sell (or clearly facilitate the sale of) the product or service bearing the trademark. [This refers to BOTH resellers AND affiliates]

-The advertiser's title and description must disclose that the consumer will be able to purchase the product or service.

-The advertiser's title and description should not be written in a way that creates the impression that the advertiser is an authorized reseller unless the trademark owner has in fact designated the advertiser as an authorized reseller.

-The primary purpose of the advertiser's site is to provide substantial information (for example, product reviews or comparisons, commentary, or news information) about the trademark owner or products or services bearing the trademark, AND the advertiser's site does not sell or promote a product or service that competes with the trademark owner's products or services.

-The advertiser's title and description must disclose the nature of the qualifying substantial information that the consumer will find on the advertiser's site.

If you are a current advertiser and if you are affected by this change, you will be contacted by Yahoo about the removal of your listings. Again, you can find our guidelines here and this page will change on March 1 with the removal of #3:

http://searchmarketing.yahoo.com/legal/trademarks.php.

Thanks
YahooSarah

[mcanerin]

I don't accept the premise that puts trademark holders on some kind of pedestal -- something that you "apply for, pay for, and work towards."

I suppose you could argue that Knighthood is like that, too. Or a Ph.D. Or having a peerage, like Lord Black of Crossharbour.

I think "copyright holder" or "patent holder" is a better analogy for this issue than "knighthood holder". There are both semantic and real differences in legal statuses, and muddying the waters by bringing in things like "citizenship" really doesn't have much to do with this, IMO. "Convicted Criminal" is a legal status, too, as is "Corporation", "Citizen", and even "Married". But these are not apples to apples comparisons, nor are they mutually exclusive.

Different areas of law only deal with the legal statuses relevant to that area of law. Criminal law only deals with those involved with crimes, and cares very little about your status as a citizen - only where you were whn you committed the crime. Likewise, Marriage law does not care about ones legal status as a PhD. Intellectual property law does not usually care about ones knighthood status. But it does care about ones status as a trademark holder.

So yes, I do believe that if you hold a patent, copyright or trademark, that it should actually mean something, and not be disregarded by the first person who decides it would be more profitable to sell other peoples work and reputation without permission than trying to come up with their own branding, invention or artistic expression.

After all, why have the concept of intellectual property in the first place if it means nothing?

If you have permission, you can use someone else's trademark, copyright or patent. Without permission, you should only be able to use it in accordance with principles of fair use, which it appears Yahoo is doing:

In cases in which an advertiser has bid on a term that may be the trademark of another, Yahoo! Search Marketing allows the bids only if the advertiser presents content on its Web site that (a) refers to the trademark or its owner or related product in a permissible nominative manner without creating a likelihood of consumer confusion (for example, comparative advertising, sale of a product bearing the trademark, or commentary, criticism or other permissible information about the trademark owner or its product) or (b) uses the term in a generic or merely descriptive manner. In addition, the advertiser's listing should disclose the nature of the relevant content.

Source: http://searchmarketing.yahoo.com/legal/trademarks.php - Bolding mine

Ian

[Black_Knight]

2. Information Site, Not Competitive: The primary purpose of the advertiser's site is to provide substantial information (for example, product reviews or comparisons, commentary, or news information) about the trademark owner or products or services bearing the trademark, AND the advertiser's site does not sell or promote a product or service that competes with the trademark owner's products or services. The advertiser's title and description must disclose the nature of the qualifying substantial information that the consumer will find on the advertiser's site.

What classes as "promote" in this context? Carries a link? Carries an ad (even if automated an controlled by a third party like AdSense)? Has a reviewer state "I prefer model X" where X is a competitor's product?

Rule 3 (the one about to be removed) used to make this very clear. Time-consuming to police, perhaps, but clear and fair.

Just removing Rule 3 is simply going to cause a lot of uncertainty over what precisely does or does not count as 'promoting'. The way the rule stands, anything that can be called promotional is in question, or forbidden. Even something as fair and innocuous as providing a link to the sites of all products reviewed could be construed as promoting a rival product.

I shall look forward to some clarification. I shall also look forward to Christmas, which I feel is more certain to be forthcoming in a reasonable time-frame.

[cline]

Originally Posted by mcanerin

If you have permission, you can use someone else's trademark, copyright or patent. Without permission, you should only be able to use it in accordance with principles of fair use, which it appears Yahoo is doing

No, that does not seem to be the case. Yahoo is going to prohibit the fair use of trademarks. It will be like going into a restaraunt and asking for a Coke and prohibiting the waiter from saying that they serve Pepsi.

Trademarks aren't like intellectual property. They are not granted to protect inventors and creators; they are granted to protect the public.

[mcanerin]

No, that does not seem to be the case. Yahoo is going to prohibit the fair use of trademarks. It will be like going into a restaurant and asking for a Coke and prohibiting the waiter from saying that they serve Pepsi.

Huh?

Read This:

Competitive Comparison Site: The advertiser's site offers detailed comparative information about the trademark owner's products or services in comparison to the competitive products and services offered or promoted on the advertiser's site, it clearly identifies on the landing page the competitive products offered on the site, AND ALL of the following are true:

The comparative information is detailed, spanning multiple dimensions (for example, price, features, ingredients, third-party rankings, ratings or awards, etc.) and clearly helps consumers to make an informed decision about the product or service, AND
The listing title includes the word "Compare" and makes clear to the consumer that the listing comes from the advertiser, not the trademark owner, for example, by saying "Compare Us to [Trademark Term]" or "Compare Our Prices To [Trademark Owner]'s", AND
The advertiser's listing title and description identify the advertiser and disclose the nature of the qualifying comparative content the consumer will find on the advertiser's site.

This basically lets you bid on someone else's trademark as long as you are actually using it as a comparison and that it's obvious it's for comparison purposes.

To use your analogy, it's like them preventing a restaurant from bringing you a Pepsi when you ask for a Coke without telling you why (or even telling you it's actually Pepsi) in the hope that you'll like Pepsi better.

I know that, for example, if I type in "Ford" and a see an ad that says "Looking for a Ford?" and click on it, but end up on Nissan - I'm going to be pissed off - at Yahoo. This is not allowed anymore.

But if I type in Ford, and an Ad says "compare Ford to Nissan", then I will not feel tricked when I end up on Nissan. This is specifically allowed.

You are allowed to compare your product with a competitor, but you can't trick someone looking for product X into landing on your site for Product Y. They actually need to know why the ad is relevant. Just because a merchant thinks their product is "relevant" doesn't mean the visitor does.

It's not "fair use" to trick people or waste their time, IMO.

Trademarks aren't like intellectual property. They are not granted to protect inventors and creators; they are granted to protect the public.

Partially correct. I'll use US law here because Yahoo is a US company. Technically, trademark law falls under Unfair Business Practices law, but is administered by (in the US) the US Patent and Trademark Office due to it's overlap with intellectual property. A lot of business and trade laws overlap with human rights, criminal law, contract law, etc.

I'll grant that violating a trademark is legally closer (though not identical) to fraud or counterfeiting than it is to copyright infringement, though even copyright can cross over into fraud and counterfeiting. It's not a nice neat classification.

That doesn't mean I support fraud, or other unfair business practices, either

Yes, they exist to protect the public from confusion between brands. They ALSO exist to prevent brand dilution and confusion for the TM holders - if it was only created to protect the public, then TM owners would not be able to sue for damages, since the only harmed party would be the public, legally. But that is not the case.

Many laws only protect the public, or the victim, but lots of laws are in place to protect both the public AND the victims.

An example of a law that only exists to protect the public would be speeding laws - where you can't sue someone for passing you (even if it's an inconvenience) but the speeder can get ticketed or jailed.

An example of a law that only protects the victims is breach of contract - if you breach a contract, the police don't arrest you, but the person you breached the contract with can sue you, and the courts support it.

An example of a law that protects both would be patent law, where a violation can result in the ability to sue the offender (administered by the victim) AND the a jail term (administered by the state).

An example of overlap would be assault and battery or murder. This is illegal, and you can go to jail even if the victim doesn't press charges (or cant because they are in a hospital, etc). But once the criminal case is finished, the victim (or victims family) is allowed to sue for hospital bills, pain and suffering, etc.

A famous example of this was when the family of Nicole Brown Simpson sued OJ Simpson, and had to start, for technical reasons, by outlining that the dress she had worn was damaged by all the knife wounds, and therefore there was a physical loss, to which pain, suffering, etc were able to be added onto. These are actually 2 totally separate legal systems at work (criminal and civil) and each has different rules, but they overlap on the facts.

Trademark does protect the public from confusion (and thus the police can seize goods and enforce jail terms), but mostly allows the victim the ability to attempt to recover damages - this is not so much of an overlap, as the same law protecting both the public and the victim at the same time.

This pretty clearly indicates protection for the TM holders is one of the main the goals - always follow the money.

A good reference:
http://www.law.cornell.edu/uscode/ht..._15_10_22.html

Ian

[mcanerin]

By the way there isn't even a universal right to do product comparisions - China comes immediately to mind (it's flatly illegal there), and I believe there are several other jurisdictions that feel that your products should stand on their own merits, and thus ban comparision advertising.

Naturally, in those jurisdictions, you can't do this - which presumably applies to anyone choosing "All Countries" as their PPC target.

<offtopic>
Speaking of advertising in China, and related to a previously mentioned comparision between Coke and Pepsi, I thought I'd share this, which I came across today:

When Pepsi started marketing its products in China a few years back, they translated their slogan, "Pepsi Brings You Back to Life" pretty literally. The slogan in Chinese really meant, "Pepsi Brings Your Ancestors Back from the Grave."

When Coca-Cola first shipped to China, they named the product something that when pronounced sounded like "Coca-Cola." The only problem was that the characters used meant "Bite the wax tadpole." They later changed to a set of characters that mean "Happiness in the mouth."

</offtopic>

Ian

[Chris Boggs]

I think we have firmly established the change in this rule. (Black Knight - I feel that a simple removal of content from the current guidelines qualifies as a change in this case, regarding your thought above)

Thanks YSarah for the clarification.

It seems that unless the brand is major enough for the system or ad editors to catch, it will still have to be reported in order for the rule to be applied. Thousands of lesser-known brands are still subject to being encroached on by competitors, and will be unless they go through the reporting process outlined in the policy.

Another thought re:

Originally Posted by Ian

By the way there isn't even a universal right to do product comparisons - China comes immediately to mind (it's flatly illegal there), and I believe there are several other jurisdictions that feel that your products should stand on their own merits, and thus ban comparison advertising.

could two or more major brands agree to allow each other to bid on the other brand(s) using their own agreed-on versions of the soon-to-be outdated "Comparison Guidelines?" This would have to be rather progressive behavior -especially for a large brand that is used to fighting for its trademark - but it is possible, since it is an equal exchange of exposure within the SERPs. I would think that the engines themselves may try to push for this type of behavior, since it would create more listings. Of course the brand-owner would have to reserve the right to keep the top position, and any others in the agreement would have to fight for second place. I guess the more I think about it the more absurd the idea sounds.

But does anyone feel that Yahoo or the others allow pre-arranged agreements between brand competitors in this manner?

[Black_Knight]

Er, Ian, you just quoted the part that is being removed as the change.

Originally Posted by YahooSarah

Again, you can find our guidelines here and this page will change on March 1 with the removal of #3:

http://searchmarketing.yahoo.com/legal/trademarks.php

Bolding added by me.

You therefore seem to be arguing our point. What was written there (which you quoted) as #3 was rather good, and was correctly in line with 'Fair Use'. As of March 1st, it is being removed so that if you sell or 'promote' (whatever that may be defined as) any rival product, you may not bid for the trademark term, no matter how good, fair and unbiased your comparison or review is.

I believe that all of the major consumer review sites are funded primarily by advertising, and are therefore likely to carry promotions for rival products (usually in addition to promoting the trademarked ones) in every category of reviews, and thus cannot now bid under the new Yahoo! rules.

Once again, the provision for "Competitive Comparison Site" is the part being removed entirely. After March 1st, only sites that qualify as "Information Site, Not Competitive" will be allowed to bid for the trademark (major keyword) that is the entire focus of their content. The most important line in defining a "Information Site, Not Competitive" there is this:

the advertiser's site does not sell or promote a product or service that competes with the trademark owner's products or services.

What particularly worries me that this is very ill-conceived is that the word "site" rather than "page" is used. Tough enough to ensure you never have any form of promotion of a competing product advertising on the specific page where it rivals a trademarked one, but not to carry ads for more than one brand/trademark product anywhere on the whole site? Ridiculous.

[mcanerin]

You therefore seem to be arguing our point. What was written there (which you quoted) as #3 was rather good, and was correctly in line with 'Fair Use'. As of March 1st, it is being removed so that if you sell or 'promote' (whatever that may be defined as) any rival product, you may not bid for the trademark term, no matter how good, fair and unbiased your comparison or review is.

Well, stuff my head in the sand. Thank you for pointing that out, Ammon. I promise to stop speed reading.

Yahoo is essentially removing the US "fair use" criteria regarding comparisions and choosing to enforce a much more strict version - one so strict it appears to fall directly in line with Chinese advertising law, as well as any others that may be similar (France, I think?).

You can still apply fair use for things like news, information, etc, but comparision is no longer one of the declared options. They are, of course, entitled to do this, but it does beg the question of "why the change"?

It rather puts that China comment I made afterward in perspective. I don't know if China had anything to do with it (I'm leaning more towards France and the American Blind case) but I'd be willing to take a bet that this move was at least partially in response to international pressure, rather than US pressure (not that US trademark owners like American Blind are likely to be complaining right now).

I suppose the question that remains is: is this a sign that Yahoo is "growing up", or "caving in"?

Ian

[mcanerin]

What particularly worries me that this is very ill-conceived is that the word "site" rather than "page" is used. Tough enough to ensure you never have any form of promotion of a competing product advertising on the specific page where it rivals a trademarked one, but not to carry ads for more than one brand/trademark product anywhere on the whole site? Ridiculous.

Agreed. What about a site that is informational, but offers AdWords or other forms of contextual advertising? You may not even know that the ads served are competitive at any one time.

I have no problem with the apparent goal of attempting to prevent "knockoff" sites and sites that trick visitors, but the wording at this point requires further review, IMO.

The problem with these kind of rules is that they are not a contract, and letting a contract lawyer tell you that it's ok to just "delete those clauses" is like taking brain surgury advice from a proctologist.

These types of documents are closer to "regulation" than "contract" for purposes of interpretation and enforcment, and thus they have to be looked at as a whole, not as a bunch of independent clauses. The clauses interact with and affect one another, if only by offering a context for interpretation.

Ian

[Black_Knight]

Originally Posted by mcanerin

I have no problem with the apparent goal of attempting to prevent "knockoff" sites and sites that trick visitors, but the wording at this point requires further review, IMO.

And so say all of us!

The wording is vague even by the standards of 'guidelines'. While the kind of epic vaguary that is the "Webmaster Guidelines" of major search engines may suffice in the case of the organic search for what webmasters need to do (or not do) to stand a chance of placing highly in a third-party listing they don't pay for, they are not even remotely suitable for a situation where money changes hands.

I don't want vague guidelines. I need to know, with absolute clarity, before I put one cent into an account, whether or not I can bid on the keywords in my list for any project.

At the moment, those rules do not even come close to cutting it.

From those rules, any independant comparison site cannot bid for the names of the products it independantly reviews.

Why?

Because another page on that site may positively review (and thus promote) a rival product.

Because an independant review site is independant. It can make its money from advertising which will cause further problems with promotion of rival products, since every product you can advertise is someone's rival. It can make its money from referrals without bias (i.e. referrals for any product chosen, thus not biasing the reviews towards the one product that pays) which will again fall afoul of the promotion of rival products.

Frankly, this idea is half-baked. A lot more thought is required. This is not a beta - this is our account, and your business, Yahoo!, and deserves better.

In the meantime, thank goodness that our clients who deal in these kinds of real reviews, unbiased and independant reviews, can concentrate their budget to other PPC systems without such a ill-conceived and poorly executed rule. The second and third tier PPC providers will be singing Yahoo's praises for months laughing all the way to the bank.

[cline]

Originally Posted by YahooSarah

Rather than try to address every possible scenario (which I think can lead to confusion and more questions), I’d like to go back to the basics of our guidelines in hopes of answering the overarching questions

Sorry, but it's clear that several of us are finding these guidelines confusing. It would help if you would address some common scenarios to describe how the guidelines will be implemented.

[YahooSarah]

All-
After discussing with our internal teams here, we came up with a few scenarios to illustrate our new trademark guidelines. These will answer some of the questions this thread has brought up about resellers and informational sites:

Advertiser A provides a comparison of Brand X and Brand Y. Advertiser A appears to facilitate the sale of Brand X but not Brand Y. Advertiser A would be allowed to bid on Brand X but not Brand Y (because the Advertiser, through its relationship with Brand X is considered a competitor of brand Y).

Advertiser B provides a comparison of Brand X and Brand Y. Advertiser B appears to facilitate the sale of Brand X and Brand Y. Advertiser B would be allowed to bid on Brand X and Y (because they facilitate the sale of both products).

Advertiser C provides information regarding Brand X and Brand Y which compares the Brands or allows consumers to compare the Brands. Advertiser C does not appear to facilitate the sale of either Brand X or Brand Y. Advertiser C would be allowed to bid on both Brand X and Y (because they provide information and are not considered competitor - b/c they have no affiliation with either brand).

I think this should address the concerns I’ve heard, others of you seem like you understand the change we’ve announced. Thanks for your help through this transition. I appreciate all the information exchanged here. Be sure to check back to review the new guidelines when they are posted on March 1. Thanks
YahooSarah