Pay Per Click advertising via keywords, UK and EU law

Bidding legally on competitors’ keywords on PPC

Pay per click advertising effectively reaps instant rankings and helps enterprises take up more of the SERP. Together this increases brand awareness through keywords alone. SEO, however, still gets more clicks compared to PPC.

Legally keywords fall under trade mark law as they provide huge economic benefits. In fact, collectively, intellectual property is the biggest investment any company has because your brand can, in itself, sell your product(s) and/or service(s).

“Noogle”

Digital trade marks

The list of digital assets is extensive. Web pages as a single digital asset includes various elements, for example, store location pages, category pages, product pages, reviews, holiday promotions, sitemaps and semantic make up. Simply by knowing your digital presence you should also know a list of your digital assets which you can monitor and therefore protect.

Trade mark infringment can occur on organic search and pay per click advertising. Web search keywords, more specifically branded terms, are your digital trade mark and these can be infringed, just like traditional trade marks, such as, a logo, for instance, if best practices are ignored.

In the early days of SEO it was possible to include keywords in the keyword HTML tag to improve your rankings, in fact, Bing and Yahoo still place a very small weight on such keywords, however, Google now ignores this tag and any weight placed by Bing and Yahoo is only going to come into play if another web site has the exact same on- and off-page ranking factors. Legally you are not allowed to include your competitors keywords to rank for their brand name in organic results because it is misleading to the searcher.

Pay Per Click advertising systems must be clearly labelled as “ads” and it is legal in the UK and EU to bid for your competitors keywords because PPC’s system distinguishes their results as paid adverts. For this reason PPC systems will always have to distinguish ads, in the form of labels or typography, for example, however this area is growing in case law, as outlined in 3 legal, summarative, case studies below:

European Pay Per Click advertising legal case study

In Germany a court ruling, May 2014, concluded that trade marks with reputation should be more difficult to bid for by using PPC. The German court heard that Eis.de had dramitically reduced the prices of a rival brand, Beate Uthse, and advertised this through PPC. The Frankfurt court ruled that Beate Uthse’s trade mark may be percieved negatively to the average searcher and therefore proving reputational damage is key to taking such a PPC case to courts.

Amazon and an EU wide ban

Amazon was banned throughout Europe from infringing a UK cosmetic company, Lush, after bidding for Lushes’ products and stating they were on sale when in fact they were not on sale after redirecting search engine users to Amazon’s internal search engine and in Google’s sponsored search results. After an agreement could not be reached between Amazon and Lush the case went back to the High Court and a EU wide injunction was issued to overcome Amazon’s technical difficult counter-claim.

UK PPC competitor keyword bidding

A 2013 legal dispute between Marks and Spencers vs Interflora came to a firm conclusion under British law: Bidding for competitors’ PPC keywords is legal so long as the trade mark is not underminded by the PPC advert through searcher confusion over who is selling the item, in this case flowers.

Pay Per Click advertising, UK, EU law, and competitor keyword bidding

1. Never mislead search engine users, for example, if you state on a PPC ad that product-a has 50% discount then that webpage must display productA as being half price on the referral web site.
2. Avoid any confusion
3. Put yourself in the situation. How would you feel? Is the PPC ad clear?

Bidding on competitors keyword using PPC is growing in case law and, therefore, must be continually monitored to find out the latest legal grounding.

Do you bid using PPC on competitors keywords? Tweet Gerald.

Posted by Gerald Murphy

Reference

• eConsultancy (2012)
• Outlaw (2014)