Can you use Competitor Brand Keywords in SEO and Paid Search?

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    Clients often ask us whether they can or should bid on their competitors’ names in their Paid Search campaigns (such as Google AdWords) – or vice versa, what can they do about competitors bidding on their name? While it is an interesting concept – piggybacking off a well-known competitor and trying to take some of their traffic – it’s important to protect yourself and get to know the legal ground.

    In a recent article for My Business Magazine, Australian lawyer Brent Van Staden went through some relevant legislation and previous court cases that have set a precedent in the area.

    It depends on the business name

    The main question to answer is whether your use of the business name is ‘as a trademark’ as defined under the Trade Marks Act 1995. In other words, is it absolutely clear that you are using the word on your website or in your Paid Search campaign and Google Remarketing Campaigns as a direct infringement of their brand name, or is it plausible that you are using the name as a generic term to describe the goods or services you are selling, i.e. is the business name also a descriptive keyword?

    Take for example a recent Federal Court case in Australia between Lift Shop Pty Ltd and Easy Living Home Elevators.

    This case revolved around Easy Living Home Elevators using the words ‘Lift Shop’ in their SEO campaign. The term was used as an SEO keyword – visible in the meta title of some of their website pages and therefore showing up in search results alongside Lift Shop Pty Ltd’s listings.

    lift shop vs easy living home elevators serps

    Lift Shop Pty Ltd claimed that Easy Living Home Elevators was infringing on their trademark. However, when brought before the Federal Court, the judge ruled that the term was used descriptively. Both businesses can be described as lift shops, and therefore it is plausible that both businesses optimising for that keyword was just in healthy competition.

    However, Brent Van Staden warns that although in this case it was not ruled as an infringement, “You should be mindful of Intellectual Property infringement when using keywords for SEO if they are distinctive of other traders in the marketplace.”

    Beware of inadvertently infringing with keyword match types

    Another thing to be mindful of, particularly in your Paid Search campaign, is you may inadvertently bid on or infringe a competitor’s trademark by choosing broad or phrase match keywords.

    When you bid on exact match keywords in AdWords for example, your ads will only show when someone searches that exact term. However, with phrase and broad match, your ads will show for similar and related terms, which could include a competitor’s brand name.

    This, coupled with the option to have dynamic areas in your advertisements using the {KeyWord:”xxxxxx”} command, where whatever term a user searches will replace this text, making your ads highly relevant to them, could mean that you inadvertently actually use your competitor’s name in your ad text.

    The best way to keep on top of this is to regularly review what words are bringing in impressions and clicks and ensure to add any potential trademark infringing keywords to your ‘negative keyword’ list.

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