What are the Rules for Trademarks in Paid Search Ads?
18th December 2020
Disclaimer: The purpose of this article is to provide a general introductory overview of trademarks rules across different platforms. SilverDisc is not liable for any eventual loss that you may experience due to the interpretation of this article. If you require legal advice, please contact a qualified solicitor.
There are so many things to think about for business owners and marketing managers setting up Pay Per Click advertising. When you manage Google Ads campaigns, you will spend plenty of time crafting your ad copy and monitoring performance. It’s actually really exciting to see your business moving forward. Now, how much time do you spend thinking about trademarks and copyright issues for your paid search ads? You will be forgiven if your answer is ‘not much’. However, this could prove to be a costly mistake. In the best-case scenario, your ads will not be approved. In the worst-case scenario, you could be liable in court and face a costly legal battle. In this article, we will cover some basic rules about trademark regulations for paid search ads.
Trademarks in Google Ads
If you own a business and have your trademarks registered then you will be fine to advertise and to mention your own brand in your ad copy text.
It gets a bit more complicated if you are a retailer and you sell third-party products. For example, if you sell phones it’s okay to include words like ‘Apple’ or ‘Samsung’ as long as:
- The primary purpose of the ad landing page is to provide informative details about products or services corresponding to the trademark.
However, according to Google, you are not allowed to use trademarks in:
- Ads referring to the trademark for competitive purposes.
- Ads with landing pages that require users to provide extensive information before displaying commercial information.
- Ads that are unclear as to whether the advertiser is a reseller or informational site.
It is also permitted to use trademarks if you have written permission or agreement from the other business.
Trademarks in Microsoft Advertising
Microsoft Advertising trademarks rules are similar to those for Google. Below are instances where you are free to use trademarks:
- Use of a trademark by a reseller of authentic goods or services
- Informational websites about goods or services, such as product reviews
- Ordinary dictionary use of a term (for example cleaning windows)
- Comparative advertising
Google and Bing Disapproved Ads Appeal Process
It is often the case that even if you have valid permissions to use trademarks in your ads, they could still get disapproved. That’s because the approval process is automated and an ad can be disapproved by default.
However, there is an appeal option in Google Ads. If you think that there was clearly a mistake within the automated system, you can choose to appeal and someone will review your ads manually. If the appeal system does not work for you, then you might need to contact Google/Bing support directly. The chat box is the most efficient method to talk with Google or Bing reps. It’s a good idea to prepare for the conversation and have some documents ready to show. For example, a written agreement with the third party stating you are allowed to use their trademarks.
Trademark Rules in Facebook and Instagram
Advertising Facebook provides a lot of in-depth information about trademarks. You can find the full article here. According to Facebook:
‘Generally, trademark law seeks to prevent consumers from being confused about who provides, endorses or is affiliated with a particular product or service. To prevent this situation, a trademark owner may be able to stop others from using their trademark (or a similar trademark) without permission if that use may cause confusion.’
It means that if you sell iPhones through your Facebook or Instagram stores, you should not give a customer an impression that you are the Apple brand. In practical terms, it means that it’s okay to include ‘iPhone’ in your ad copy text or even include a picture of an iPhone if you are selling it, but you should avoid using the ‘Apple’ logo in your merchant page image.
You should also note that:
‘Facebook can’t adjudicate disputes between third parties, and so we wouldn’t be in a position to act on trademark reports that require an in-depth trademark analysis.’
This means that Facebook/Instagram does not want to get caught in the middle of disputes between you and the other party. Therefore, it is likely that the trademark owner will be favoured by default in more complex issues. If you use third-party trademarks in your advertising, it is a good idea to have an agreement in place so that you can avoid long legal battles and rest assured that your ads will not get banned.
Trademarks in Twitter Advertising
In contrast to Facebook and Instagram, Twitter rules seem to be much simpler. You can find the full article here. According to Twitter:
‘Using another’s trademark in a way that may mislead or confuse people about your affiliation may be a violation of our trademark policy.’
Therefore, you will be fine to use specific names of other brands in your tweets, but you should not mislead people into thinking that you are a specific brand if you are not.
Interestingly, according Twitter, it is not a copyright infringement if you are:
- using a trademark in a way that is outside the scope of the trademark registration e.g., in a different territory, or a different class of goods or services than that identified in the registration; and • using a trademark in a nominative or other fair use manner. For more information, see our parody, newsfeed, commentary, and fan account policy.
Advertising Internationally and Trademarks
If you advertise internationally then you should prepare yourself for differences in trademarks rules. Even though your ads might be banned in the UK, if trademarks are not registered and protected overseas you might still be able advertise there. However, it works both ways and it can be frustrating to find out that you are not able to use your own brand name in your ad copy because it is not registered abroad or someone else already registered it as theirs.
This could happen even to big companies and there was a famous story of the PlayStation 5 launch in India, which encountered problems because someone else already registered PS5 as a trademark there.
To avoid this sort of problem, it is good to think in advance, plan your overseas expansion early and ensure that your trademarks are registered in the countries that you are going to operate in.
Trademarks issues are very complicated, and it is sometimes a case that you will need a lawyer rather than a marketer to steer you through any complex issues. However, there seems to be general consensus that you can use third-party trademarks if you sell products from other brands as long as it doesn’t mislead customers into thinking that you are actually that brand.