Affiliates, Domain Names and Trademark Violations

Posted on18 CommentsCategoriesGeneral Discussion, Spyware & Parasites

It isn’t unusual to see the following affiliate paid search policy set out and enforced by a merchant:

Affiliate paid search policy

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:

Affiliate websites with merchant's trademark in domain names

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.

18 thoughts on “Affiliates, Domain Names and Trademark Violations

  1. 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.

  2. 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).

  3. 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?

  4. Me? Of course, the affiliate, Eric, but not at the expense of sacrificing the trademark.

    Here’s an even more illustrative example:

    Affiliate versus merchant

    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.

  5. 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. 🙂

    1. 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.

  6. 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?

  7. 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!

  8. 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?

  9. 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!!!

  10. 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…)

  11. Hi Geno. Excellent Article. One question. If I create a blog about MS Excel, where I will teach how to usethat spreadsheet and I create that blog on a domain like: wwwl.LearnExcel.com or ExcelTrainning.com and apply to the Microsft Affiliate Program… Will I be doing something wrong?

    1. Carlos, I see that Microsoft’s Affiliate Program Agreement has no mention of trademarks in domain names. However, paragraph 2.6 of it says “Affiliate agrees not to bid on any keyword in Pay per Click Search Engines (PPCSEs) that is a Microsoft trademark, or a derivation of a trademark, or any other word or term that is likely to cause confusion regarding its affiliation with Microsoft.” By extention, I would presume that a website whose URL may “cause confusion regarding its affiliation with Microsoft” would similarly be prohibited. So, do double-check with them before you register those domains.

      1. Thank you for your quick and clear reply.
        Unfortunatelly, I’ve tried to contact them several times but nobody answers.

        Do you know how could I see their ECP and reversal Rates?. I signed up with LinkShare but I can’t find these reports anywhere in their website.

        Thanks again for your reply!.

        1. Carlos, I’ve already Tweeted to them here. Will post here if/when I get a reply. As far as EPC and reversal rates go, I don’t believe LinkShare shows advertiser reversal rates; and for EPC — I couldn’t find where they show that either, but I’m not too familiar with the affiliate interface there. You’d want to ask them directly (e.g.: submit a ticket).

  12. But at what point does mentioning the trademark name become kosher?
    Can they not put the trademark name in the title of the website? Can they not put the trademark name in the title of their article/post?
    ….Within the text?
    ….Anywhere at all?

    This is reductio ad absurdum, but it illustrates my question 🙂

    Thanks!

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