Trademarks and Online Marketing: What’s Acceptable?

The core underlying idea behind whether or not using a trademark online is acceptable or not is the answer to this question:

“How likely is it that the use of this name will confuse the user into thinking it’s the “official” one?”

One very hot, and very “grey” area of internet trademark use concerns internet marketing and affiliate marketing.  Is it okay to make a comparison between two brands?”  “Can I use the trademark if I’m an affiliate promoting the company’s products?”  Or “Can I use the competitor’s trademark in my PPC advertising?” 

The affiliate network or publisher should have some guidelines in place to let you know whether or not this is possible.  Even if it’s “legally” possible though, you still may forfeit all your affiliate earnings by going against the publisher’s terms of service.

Trademarks in Search Engine Optimization and PPC Advertising

Some trademark owners will allow you to promote their brand names on their website, but will prohibit you from using those same terms in a pay-per-click campaign (because that essentially competes with the official website).

Using a company’s trademark to promote your own website in the search engines (even if the listings aren’t paid for) is generally frowned upon, as you’re leveraging their brand to promote yourself – and that could cause confusion for your website visitors. 

Common misspellings of the name and registering a domain name with the trademarked term in it (even if it’s misspelled as well — a practice known as “typo-squatting”) is setting yourself up for trouble. 

So is using the name too much – even in places where people wouldn’t ordinarily see it, like your site’s meta tags or alt tags on your images – could be viewed as infringing on the “Fair Use” of the term.  There’s no set number for how many times is “too many” – so if you’re going to use a trademarked name, less is more.

Can I Mention The Trademark on My Website at All?

There are a few instances where using a trademarked name is acceptable.  For example, you can tell people about your auction on eBay, link to a good book you read on Amazon.com or share your Apple iPod playlist without so much as a passing nod from these corporations’ legal eagles.  It’s a good idea to put some text such as “Brand X and Brand Y are the property of their respective companies and are presented here for illustrative purposes only”.

You can also do a legitimate comparison between your product and another brand name.  This is often done in pay-per-click advertising when the seller wants to direct potential buyers of Product A to Product X instead.  For example:

“Don’t Buy Product A!”
Until you read this detailed comparison
between Product A and Product X.

When In Doubt – Find Out!

If the publisher’s terms aren’t clear, or the trademark owner doesn’t have any guidelines for you to follow, it’s better to ask and find out beforehand, than use the trademark in a way they wouldn’t approve of, and find yourself being fined a serious sum of money. 

And domain owners beware:  even if your best friend registered a domain name with eBay in it, and he didn’t “get caught”, doesn’t mean you can do the same.  No one but the legal team knows which domains they want to go after and which ones to leave alone.

So before you invest too much time and money on that killer brand domain name, ask yourself why you’re using the trademarked name in the first place.  If it’s to call attention to your website – you might just get it — the legal kind of attention!

For More Information…

Domain Names and Trademarks – Nolo.com

Using Trademarks in PPC Advertising – PPC Hero

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