It isn’t unusual to see the following affiliate paid search policy set out and enforced by a merchant:
In the vast majority of cases the above PPC policy is one of those best practices that every affiliate program should implement. The reason is obvious: such affiliate activity adds no value to the merchant, and serves a purely parasitic purpose.
The sole purpose of such activity is to divert the trademark traffic to go through affiliate links/ads first. This sets an affiliate cookie on the end user’s machine, and should the latter place a sale/lead through within the cookie life duration, the trademark bidding affiliate will earn the commission on that sale/lead [more here]
Now, imagine my surprise when I see the same merchant (whose paid search restrictions I’ve started this post with) having the following affiliates (highlighted) on board:
If you go to page 2 of Google results for the above-shown key phrase, you’ll actually see more of similar affiliate websites — those with keyword-rich domain names where one of the “keywords” is the merchants trade name.
How is this different from paid search trademark poaching? It isn’t.
Tags: affiliate domains, affiliate policy, affiliate program agreement, domain names, trademark bidding, trademark infringement, trademark poachers, trademark poaching
It’s very much different! You showed the keywords publishers are prohibited from bidding on. What you pointed out was:
Web Site – Prohibited Web Site Domain Keywords
Keywords that publishers are prohibited from using in the top-level domain of their Web site
CJ clearly gives merchants an area to fill this in, and if they don’t, I assume it’s fair game. If merchants didn’t want their affiliates doing this, they’d:
1) contact the affiliates
2) update their terms
If the rules aren’t stated, then affiliates aren’t breaking them.
Eric, thank you for your comment. Maybe I should’ve been a bit clearer on what I’m trying to state here.
I didn’t say (or even imply) that affiliates are breaking any rules. You are right on the money pointing out that there are no rules set out by this merchant for domain keywords. Hence, there is no violation of any rule.
What is clear to me though is that the value of such activity is no different from the value of trademark bidding activity, which this merchant explicitly prohibits.
I believe, it’s a case where the merchant may simply not be realizing the damage that an unspoken word may have (when it comes to affiliate program policies).
I find it funny how many merchants do this: restrict bidding, but not domain usage. I haven’t seen CJ’s system for merchants, but I’m willing to be they’re coached into filling in the restricted bidding keywords. So many merchants fill these in, but either 1) don’t enforce them or 2) don’t mean what they say (TM bidding is prohibited, but TM+ is ok – yet they don’t outline that in their terms).
Whether or not this adds value to a program, I think that point is debatable. Would you rather see an affiliate ranking for “TM review”, or a competitor?
Me? Of course, the affiliate, Eric, but not at the expense of sacrificing the trademark.
Here’s an even more illustrative example:
Needless to say that the above one beats the merchant themselves on the “get TM” phrase.
I believe that both merchants, and other affiliates should be concerned in instances like these.
The irony of this is that some merchants who are also protective of their trade marks do not do good job at PPC at all, at least looking at their ads one can see ho poorly some of those adds are optimized.
I can see why a merchant would want such restrictions. We should not be surprised if restrictions on registering domains containing trade marks are just over the horizon.
I have never registered a domain containing trademark in it. While it helps, you can SEO to the top for your merchants TM without it in your domain name.
If the merchants decide to restrict the use of the TM in the domain names, they should “buy out” all the existing ones from their affiliates.
Hear Hear Vlad… I agree with you. [If the merchants decide to restrict the use of the TM in the domain names, they should “buy out” all the existing ones from their affiliates.]
I purchased a domain using a search term and phrase that I coined back in 2007. I didn’t TM the phrase (my bad). Just recently – Sept. 2010 – I received legal notice that a company TM’d my search phrase (TM registered July 2010). Now I have to shut down my site and walk away from all my hard work. Their attorney demanded that I turn over my domain name to them. I won’t but what’s stopping any company from searching the net for profitable niche sites and registering a trademark for them then demanding they turn over their domain name to them.
I suppose to be protected from vultures like these I have to trademark everything I do from now on.
Very interesting situation, Mary. So you coined a term first, but they trademarked it first, and therefore they have a right to “turn [the] domain name to them”? Very interesting situation indeed; but probably makes legal sense.
How were you using the domain?
It was home to a product that I created and was selling. Interestingly [they] have created a product quite similar to mine. My domain name was “keyword-phrase.org” and theirs is “the-keyword-phrase.com. When I registered my domain… “keyword-phrase.com” was already taken (not sure by whom) so I opted for the .org extension. Then my little vultures added “the” to my phrase and trademarked it.
I should have known better but I just didn’t think anything like this would have ever happened. Live and learn!
Simply “wow”, Mary, and sorry to hear about that. It appears then that all of the money you’ve spent on branding of your product since 2007 was spent on them/their product (and future profits). Is there any way to deal with this via legal means?
Mary, is there anything you could have done legally? From what you are telling you idea existed long before they have snatched the trademark. Especially when it is obvious?
I most likely have a legal leg to stand on and thought about hiring an attorney but I want to keep moving forward. I have other projects that are working even better. Financially, I am not in a place to fight this right now. I will have to bite the bullet and “let this one go”. When my hands are tied (such as in this case)… I have a tendency to take on a philosophical view of the situation. I need to rethink my strategy and begin again with this particular product and website anyway. This time with greater knowledge and fortitude. I only mentioned all this here because it might help someone else who is just starting out and for them to “err on the side of caution” especially if they have created a product and have invested time and money establishing themselves. Trademark and Copyright everything!!!
And one more thing. Life is filled with dirt bags. Eventually they will get so full of themselves that someone will have to take them out with the trash.
(Can you tell – I’m a bit “philosophically” resentful…)