While it's ultimately the advertiser's responsibility to make certain that the use of keywords and ad content does not infringe or violate intellectual property rights, marketers need to understand what constitutes fair use of another brand's trademarks or logos.
Trademark infringement can become a serious issue. The most recent instance involves the use of a trademark that might create consumer confusion in search engine query returns, in the case filed by the watch company Multi Time Machine that did not authorize distribution via the online retailer Amazon. MTM sued Amazon for trademark infringement and sought injunctive relief to bar Amazon from using its trademarks.
David Doherty, the author of the Microsoft post, outlines several serious scenarios. He examines situations in which another advertiser may bid on a different company's brand terms, as well as a more in depth look at the differences in trademark policy in the European markets.
Fair use of trademark use in ad copy seems routine, but there are many instances in which use could constitute a legitimate use of a brand term in paid-search advertising, Doherty writes. Some of the examples he provides includes use of a trademark by a reseller of authentic goods or services, information Web sites about goods or services such as product reviews, and an ordinary dictionary use of a common term that's also a well-known brand.
In Microsoft's case, the latter makes it more interesting because that entails a company selling windows bidding on the term "windows," with the search ad referring to actual windows and not the Microsoft product brand, Windows. Similarly, the brand selling windows might run a search ad that reads "Affordable window cleaners in your area."
In the case of informational Web sites about goods or services, such as product reviews, a legitimate use of brand terms in paid-search advertising would allow a fictitious company like Contoso Food Finder offering information, rather than products for purchase, a list of coffee shops such as Fourth Coffee Shop – Cafés in your area.
Disallowed use in a Bing Ad would be if Contoso Coffee Shop uses Fourth Coffee Shop’s brand term in the ad copy with no relevant content on the landing page and with a similar product offered.
Doherty writes that in some European markets -- Spain, The Netherlands, Denmark, Finland, Sweden, Norway, Germany, Austria and Switzerland – Microsoft will not review requests concerning advertisers that may choose to bid on another company’s brand term. Contoso Coffee Shop may bid on the keyword "Fourth Coffee Shop."