In mid-February, Microsoft announced that a sweeping change would be made to their Intellectual Property Guidelines for advertisements that support Bing and Yahoo’s PPC marketing. Of those proposed changes, the most significant to search advertisers is the planned change to Microsoft’s Investigations Policy, in which it is stated that adCenter will no longer review trademark keyword complaints. The new policy change went into effect on March 3rd.

In a direct-email statement from the Microsoft Advertising adCenter team to their advertisers, Microsoft did state that adCenter will continue to investigate brand owner complaints related to trademark use in ad text.

The current Microsoft policy informs its advertisers that “As an advertiser, you are responsible for ensuring that your use of keywords and ad content, including trademarks and logos, does not infringe or violate the intellectual property rights of others.”

Although most seasoned advertisers would see the policy as simple enough, others would say that Microsoft is turning soft on those who play fast and loose with the rules regarding trademarked terms in search keyword lists that support their ads.

To cement the change, Microsoft’s policy goes on to state the proper procedure for issues concerning trademark infringement – in the text of a search ad alone. “If a trademark owner is concerned that its trademark is being used improperly in ad text on ads served by either Bing or Yahoo! Search, it should first contact the advertiser directly to address the issue.”

That certainly seems easy enough – and if a trademark owner is dissatisfied with the outcome of their conversation with the offending party, they can then fill out a Trademark Misuse Form (which, by the way, asks for the trademark term, owner, registration number, and country of origin) and Microsoft will begin an investigation into the ad text. Keywords are fair game.

Here is an example of how the policy change would look to the average ad:

Prior to March 3rd

Sportswear giant Nike cannot successfully bid on the term “Adidas” for their ads. If Nike submits “Adidas” as one of their chosen keywords, the ad is routed to Microsoft, and the keyword usage is summarily declined. Adidas never hears about the attempted infringement.

After March 3rd

Nike can absolutely bid on the term “Adidas” for their ads, and the keyword is instantly placed online.

The fallout (or benefit – depending on how you look at it) in the search advertising game is that those who have been busted by Microsoft for keyword trademark abuses in the past, can now re-submit those keywords.

Although the new Microsoft YaBing! policy appears to be kicking open a door for trademark name infringement in the keyword lists that drive search ads, this policy change-up isn’t anything new for search advertisers that regularly use Google AdWords for their online advertising. Microsoft’s new trademark policy closely resembles the Google trademark policy on sponsored links.

Although Google believes that advertisers “are responsible for the keywords they choose to generate advertisements and the text that they choose to use in those advertisements,” the company will not investigate issues of ad keyword infringement outside of the following regions: Australia, Brazil, China, Hong Kong, Macau, New Zealand, North, Korea, South Korea, and Taiwan.

Much like Microsoft, Google also encourages trademark owners “to resolve their disputes directly with the advertisers, particularly because the advertisers may have similar ads running via other advertising programs.”

Again, if you’re in the search adverting business, and you just happen to practice your craft in the U.S., Canada, the United Kingdom, or the other 243 listed regions where Google investigates trademark infringement complaints on ad copy alone, your keywords lists are wide open for any competing brand name additions you’d like to include.

The Wrap Up:

Some may wonder why the major search engines allow advertising to include trademarked names in their keywords lists but not in their ad copy. The answer may be as simple as visibility and labor costs.

Borrowed trade names such as Nike or Adidas that are buried in keywords lists are – by and large – invisible to the searcher. Only the ad text is apparent. This may be why Google and Microsoft have turned soft on infringement complaints in these areas. Additionally, it takes a good bit of staff and labor to investigate these complaints. The new policy is creating an “out of sight, out of mind” attitude to trademarked text.

The concerned owner of any trademarked brand that is currently advertised through any of the major search engines will surely want to create a greater offense in their ad strategy. Aggressive bidding may ensure that your impression share and ad positions will help support and protect your trademarked terms.