Bidding on your competitor’s name as a keyword can be a great way to attract new customers, but it’s hardly worth it if you find yourself in a legal battle as a result. There are some important things should know before you creep on rival territory. Thankfully, a lot of this kind of behavior has become common practice in the online PPC industry, but it’s always best to take precaution.
First of all, you may wonder if it’s legal to bid on a competitors’ keyword via today’s current search engine policies. If their name is not trademarked, it’s totally within the boundaries of current policies to bid on that keyword in most countries. However, if their name is in fact trademarked, this is where you can run into roadblocks. If the word is trademarked, but your competitor has not filed an exception request with Google, then it’s fair game to bid on it in most countries. If they have filed the exception request, then it’s okay to bid in most countries but you will not be able to use their name in your ad copy.
Another rule that applies in the US (on google.com only) is you can use a competitors name as a keyword and in the copy if you are a site that sells a product or parts for a product, offers repair services for said product or owns an informational, non-competitive site. If this is the case, you can use that name as a keyword and in ad copy. So can you bid on a competitor’s trademarked name? Essentially, if you are listed in a country where Google doesn’t investigate trademarks associated with keywords, then it is within policy to bid on the keyword. If you are not on the list of countries, and your competitor has registered a trademark than you cannot bid on the keyword. You can take a look at the list of countries where it’s within guidelines to bid on a keyword by clicking here: https://support.google.com/adwordspolicy/answer/6118?rd=2. Just because they are not officially doesn’t mean they can’t take legal action against you, so be aware of this when crafting your ad copy.
There is a “sniff test” that is utilized in the US as a way of doing an initial sweep for copyright infringement. Ads that may be misleading or confuse customers can fail this “sniff test” and will not be able to run. For example if you claim to be your competitor and then direct potential customers to your own website, this would not be considered within Fair Use. If you reference being better than a competitor by stating the comparison in your ad copy, please note that you will need to have 3rd party verification of this statement on your landing page. Overall, it’s not often recommended to use a competitor’s name in your ad copy. This opens doors for competitors to take legal action, something you should avoid if at all possible.
Speaking of landing pages, there are some key things to know when choosing where to direct your potential customers. If you make a blanket statement, “5-Hour Energy contains as much caffeine as a tall Starbucks Coffee”, you will need to have 3rd party verification available on your landing page to back that up.
Unfortunately, there’s no easy way to see if your competitor’s name is trademarked, because a master list doesn’t exist with AdWords. When you submit your ad copy to Google, you will be asked to file exception requests to accompany terms. You can choose dictionary terms (i.e. you’re selling “Smartphones”) meaning that this is a term not trademarked for phone retailers, and rather a word that exists to describe that product. Trademarks are assigned by geography and industry so it’s hard to tell where these terms may fall, however if you’re up for the challenge you can visit the USPTO.org website (US Patent and Trademark Office) to research the trademark status of your competitor’s name. In the end, you will have to decide whether it’s worth the risk and cost-effective to bid on a competitor’s name as a keyword.