Google To Update Policy Regarding Software Download Ads

One of the major takeaways from both editions of BrandVerity’s Branded Keywords Report has been that Download & Toolbar sites, which bundle free versions of software with other products, such as toolbars, malware, or adware, are a major problem for software technology companies. In fact, in our study covering Q4 2014, nine of the top 10 advertisers on branded technology terms were Download sites.

Unfortunately, this wasn’t news to us, as we’ve written about the issue at length on this very blog, in posts such as Software Bundlers Target Firefox—Is This Trademark Abuse and Advertisers Brand Bidding on Social Media Sites’ Logins. These kinds of sites are terrible for  consumers and brands in that they both dilute brand image and place unwanted software on consumers’ devices.

Luckily, some good news for brands and consumers concerning download sites came out on Monday. Wesley Brandi of iPensatori brought our attention to an upcoming change to Google’s advertising policies regarding free desktop downloads. On his blog he published an email he received from Google AdWords reading, in part:

Around late April, the Google AdWords policy on unsupported content will change to include additional requirements related to free desktop software downloads….After this change, you won’t be allowed to promote free desktop software unless the ad explicitly names the promoted software and leads to the designated primary distribution source for the software.

If you advertise free desktop software, please make sure that your ads and landing pages meet the following standards:

— The ad includes the promoted software’s name

— The ad directs to a landing page on the site that’s designated as the software’s primary distribution source

As Brandi points out, this change has the potential to significantly reduce the number of these sites advertising on Google–a big win for both brands and consumers! We hope that other search ad networks will follow, dramatically reducing consumers’ exposure to these ads. We’ll also make sure to examine this closely in upcoming releases of our Branded Keywords report.
We love starting the week with good news and hope you’re as excited about this as we are! If you have any questions or concerns–or are wondering if download sites are bidding on your search terms–contact us in the comments below or at BrandVerity.

We’re thrilled to be featuring the first guest post in our FTC Compliance series, written by attorney Richard B. Newman. Richard has been a great source for us at BrandVerity as we’ve developed our knowledge regarding regulatory issues, as well as a noted expert in the field, working on the Performance Marketing Association’s Blogging and New Media Disclosures Guide and contributing frequently to publications including mThink, OfferVault and LeadsCon.

For more information on the Restore Online Shoppers’ Confidence Act, check out the full text on the FTC’s website and, as always, please leave any questions or feedback in the comments below or contact us at BrandVerity.

In October 2014, the Federal Trade Commission filed its first Restore Online Shoppers’ Confidence Act (“ROSCA”) action against weight loss marketers in conjunction with the use of allegedly deceptive free trial offers to lure consumers into repeated charges. A second ROSCA case was initiated against a dating website the following month.

The Commission’s efforts to enforce ROSCA’s negative option mechanisms have been gaining traction. In other words, online marketers have more to consider now than just the FTC Act.

It should not be news to online marketers that proper substantiation is required as it relates to both express and implied advertising claims. Similarly, between ROSCA, the Commission’s Dot Com Disclosure Guidance, and Operation Full Disclosure, compliance obligations with respect to online marketing and negative option programs could not be clearer.

In short, ROSCA prohibits marketers from charging consumers in an online transaction, unless the marketer has clearly disclosed all material terms of the transaction and obtained the consumers’ express informed consent. All material terms of negative option plans must be clearly and conspicuously disclosed. Express informed consent must be obtained prior to consumers being charged and an easy way to stop recurring charges must be provided.

One need only look to recent consent orders for a roadmap of what, exactly, all of this really means.

Despite the Commission’s best efforts to outline triggers and red flags, DIRECTV is the most recent company to be invited to the ROSCA party. Earlier this week, the FTC filed a complaint under Section 5 of the FTC Act and ROSCA against the broadcast satellite service provider based upon its negative option program.

Briefly, the complaint alleges that DIRECTV misled consumers with its 12-month discount package. The FTC claims that the company failed to clearly and conspicuously disclose that a two-year contract is required. Compounding the matter, the price of the 12-month package increases in year two.

But wait, there’s more!

Consumers that attempted to cancel early were charged with a significant fee, according to the complaint.

The FTC also alleges that the continuity aspect of the company’s service was unlawful in that it failed to clearly disclose that consumers had to proactively cancel the free premium channels provided during the three-month trial period, or incur automatic additional charges.

According to the Commission, other material limitations and conditions were not properly disclosed, including that DIRECTV used credit or debit card information to charge consumers monthly for the negative option continuity plan.

Interestingly, also at issue are the relative size of written disclosures and the absence of material disclosures in the voiceover.

DIRECTV may ultimately challenge the FTC’s findings with respect to whether their disclosures were in compliance with the Dot Com Disclosure Guidance. Regardless, however, of the product or service being sold, and regardless of the medium, negative option marketers are advised to consult with an experienced advertising law attorney so as not to lose sight of ROSCA’s requirements and the clear and conspicuous standard: placement, proximity, prominence and presentation.

With increasing regularity, failing to proactively address these issues at the outset is triggering costly regulatory investigations and enforcement actions.

Disclaimer: Information conveyed in this article is provided for informational purposes only and does not constitute, nor should it be relied upon, as legal advice. No person should act or rely on any information in this article without seeking the advice of an attorney.

About the Author

Richard B. Newman is an Internet law, online marketing compliance and regulatory defense attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns across all media channels, regularly representing and defending clients in investigations and enforcement actions, complex commercial and intellectual property litigation defense, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.

Our office observed Pi-Day today. Christopher led the team in a blind tasting of five store-bought frozen apple pies.

The Candidates:

  • A: Mrs. Smith’s Original Flaky Crust Dutch Apple Pie ($5.99): The box art highlights ‘real’ butter and they are quite proud of their flaky crust.
  • B: Safeway Select Dutch Apple Pie ($4.89): The cheapest pie on the list. The box doesn’t describe much else about the pie, other than that it is ‘select’. The only pie without a web page to link to.
  • C: Sara Lee Oven Fresh Dutch Apple Pie ($5.00 reg. $8.99): Kind of funny that Sara Lee uses the phrase ‘Oven Fresh’ to describe a pie that you buy frozen.
  • D: Grand Central Bakery U-Bake Apple Pie ($16.95): Grand Central Bakery is a popular bakery a few blocks from our office in Pioneer Square. A few of us remember when President Obama had lunch there.
  • E: Marie Callender’s Lattice Apple Pie ($6.49 reg $8.99): This pie even has you sprinkle sugar on midway through the baking process.


Christopher baked all five apple pies according to the package instructions. This particular detail meant that the pies couldn’t all be baked at the same time as they had different instructions around oven temperature.

We were all pretty surprised by how different the five pies tasted – I certainly expected to have a difficult time telling them apart. Once everyone tasted the pies, they submitted their responses using a Google form where they were asked to select their Favorite and their Least Favorite.

The Grand Central Bakery Pie won pretty handily, although we were collectively surprised to see the cheapest pie (Safeway Select) perform pretty well against the competition:


The Sara Lee and Marie Callender’s pies were the pretty clear losers. No one in our group of tasters preferred their pies and a meaningful number of tasters chose them as their least favorite.

It probably isn’t surprising that the pie from the local bakery outperformed the pies from the frozen foods aisle in the super market, but it was a nice reminder what an impact high quality natural ingredients coupled with small batch production can do for something as simple as pie.

How did you celebrate Pi-Day?

FTC and FCC Sources, Resources, and Information

FTC Compliance is not a new topic for the BrandVerity blog–in fact, our first post after announcing our launch touched on FTC issues! And we’ve added a fair bit more content since 2009. In 2013, Sam Engel explored .Com Disclosures with the help of law professor Eric Goldman and looked at how well affiliates on Twitter were complying with those standards. We also recently took a look at e-cigarette companies and the potential for the FTC to enact further regulation in that space.

But quite honestly, a lot of what we know about FTC issues and a lot of the advice we give comes from the plethora of really great publications and blogs that are out there reporting on these topics every day. We’re thrilled to say that many of the authors and contributors to these blogs are going to lend their expertise to us over the next few weeks and months. We want to be sure to share the love and send our readers over to their sites as well!

This post is the beginning of what we hope will be a growing list of resources regarding FTC Compliance issues and is definitely a work-in-progress. We’d love your input, so if you have a favorite source that isn’t included here, please reach out and let us know—either in the comments below or at BrandVerity!

The Big One:


The FTC publishes tons of information to help both consumers and businesses understand its policies, have insight into its decisions, and better understand what key phrases as “Truth in Advertising” mean. Their Press Releases, Media Resources, and Tips for Businesses are essential reading.

Legal Blogs:


Written by the attorneys of Ifrah Law in Washington DC, this blog focuses on a variety of topics around FTC and state Attorney General action in e-commerce. Rachel Hirsch, an attorney with Ifrah Law, is a particular expert in the intersection of regulatory law and online advertising. They do a great job of breaking FTC decisions and policies down into actionable tactics for brands. It’s incredibly legible and accessible–even if you aren’t a legal expert.

Davis & Gilbert, LLC Press Alerts

The attorneys at D&G LLC, including Gary Kibel, put out a great set of press alerts (both email and online) on all kinds of legal news. They usually divide posts into three parts–giving background, a decision, and the significance of that decision–making the posts really helpful for those of us who don’t actively follow court cases over the span of several years. Their posts are perhaps best read by email, where you can subscribe to the sets of announcements most relevant to you.or our readers, those are likely “Digital Media, Technology, and Privacy” and “Advertising, Marketing, and Promotions.”

William Rothbard of FTC Ad Law was, in a prior life, an attorney for the FTC, making him uniquely positioned to comment upon the Commission’s decisions. His blog does a great job of illuminating the gray areas, dissenting opinions, and potential ramifications of FTC decisions as they come out. He also makes useful connections between ongoing and past cases that help the reader understand the scope of FTC and FCC regulatory concerns. Recent emphases have been on the TCPA, health care claims and substantiations, and the nature of conspicuous disclosures.

Hinch Newman LLP Blog

The Hinch Newman LLP Blog, written by attorney Richard B. Newman, covers a variety of aspects of internet law, with an emphasis on advertising and digital media issues. They do a particularly good job of pointing out what the potential ramifications of various decisions are, making it a useful read for folks who know they need to stay on top of the issues, but aren’t certain where to start. From the FTC to the FCC to the CFPB, their postings cover what you need to know as regulations emerge, change, and are defined.

Klein, Moynihan, Turco Blog

The Klein, Moynihan, Turco Blog gives particularly good updates on telemarketing law, as well as with the FTC and online gambling. Their posts breaking down the 2012 TCPA update and who is responsible for TCPA violations are must-reads if you work with pay-per-call affiliates.

Ad Law Access

Run by Kelley, Drye, & Warren, an advertising law group, Ad Law Access posts regular detailed updates and opinions on developments in telemarketing, class action, FTC, and and privacy law.


Information Law Group provides updates on advertising law of all sorts, including Better Business Bureau, FTC, and FCC policy updates.

Whitepapers and Key Documents:

Davis & Gilbert, LLP’s Advertising, Marketing, and Promotions 2014 Lessons Learned, 2015 Practical Advice

Written by Gary Kibel, a partner with Davis & Gilbert LLP, and his colleagues, this just-published report details the must-know decisions in advertising and marketing law from 2014, while also giving great advice on what to look out for in 2015. Covering everything from ad tech to environmental claims to data security, this report is essential reading for anyone wanting to be up to date on what various governmental agencies might be looking for in terms of disclosures and compliance across a variety of industries.

The PMA’s Blogging and New Media Disclosure Information Guide

Written in collaboration with Richard B. Newman of Hinch Newman, LLP, the Performance Marketing Association’s guide to blogging and new media disclosures is essential reading for bloggers, affiliates, and any brand or manager who works with performance marketing. It’s thorough, comprehensive, and breaks down the key issues in endorsements and disclosures in the current media landscape.

Industry News:


As the leading source for news and information in the advertising and marketing worlds, Advertising Age stays on top of changes to FTC and FCC advertising law. Katie Kaye and Brian Heidelberger do great jobs of covering those developments and keeping ad agencies, in particular, apprised of best practices for mitigating risk.


Performance Marketing Insider, a news source for performance and affiliate marketers, often posts updates on FTC and FCC decisions. They also maintain an active feed of “Legal Challenges” beyond regulatory concerns. Richard B. Newman is a frequent contributor along with their own stable of writers.

FeedFront Magazine

FeedFront, a quarterly magazine focused on affiliate marketing, occasionally publishes articles that address FTC and FCC issues as they relate to performance marketing. At 500 words or less, these are quick, digestible takes on how regulatory issues can impact the affiliate world. These articles are usually written by experts like Rachel Hirsch and Gary Kibel, and regularly feature members of the BrandVerity team as well.

AM Navigator

Geno Prussakov, who blogs at AM Navigator, also keeps his readers apprised of developments in FTC regulations as they relate to affiliate marketing. In particular, his posts on disclosures and endorsements are key reads if you’re working in the affiliate space.

General News Sources:


Bloomberg Business covers just about everything–but they do legal issues particularly well. They report on the key developments in FTC and FCC regulations for a general business audience.

performance marketing podcast

Did you know there’s a new digital marketing podcast in town? Digital Strategy Insights, a podcast hosted by Sarah Bundy and produced by All Inclusive Marketing, launched this February and is already doing exciting things. Sarah will be interviewing experts in the search, digital, and social marketing fields to provide insight and information regarding marketing strategy for brands, digital marketers, and affiliate managers. Her guests so far have included some of our favorite experts and colleagues in the affiliate marketing space, including Shawn Collins of Affiliate Summit and Todd Crawford of Impact Radius.

This week, we’re thrilled to announce that our very own CEO, David Naffziger, appeared on the show to chat about how to protect your brand, ensure partner and affiliate compliance, and improve your digital marketing strategy. From common issues in paid search–speaking of which, have you read our new report yet?–to essential strategies to combat them, this 20 minute podcast gives the rundown on what you need to know about protecting your brand in the ever changing world of digital marketing.

If you’d like to take a listen, the episode is embedded at the top of this post. You can also download it from All Inclusive Marketing’s site if you want to listen to it in your car or at the gym. Plus, you should check out episodes 1-3, also available on All Inclusive Marketing’s site.

Thanks Sarah and the All Inclusive Marketing team for letting BrandVerity be on the show–we’re excited to see where Digital Strategy Insights goes, and we’ll be listening!

If you have any questions or comments for Sarah and All Inclusive Marketing, reach out on their siteFacebook, or Twitter. And as always, let us know what you think either in the comments below or contact us at BrandVerity.

Our Q4 Report on Branded Keywords Is Out!

Cover_Image Final

We’ve just released the latest edition of our report on The State of Branded Keywords in Paid Search, which covers our observations and findings from Q4 of 2014.

In this edition of the report, we’ve added several new elements to provide brands with a clearer picture of how their specific industries are affected by trademark bidding. These new pieces of the report include:

  • Estimates of traffic loss for brands in specific industries
  • Lists of the Top 10 Trademark Users in each industry
  • A Holiday Shopping Supplement covering changes in trademark bidding during November and December

The report is available as a free download on our site. We hope this report and the updates to follow will provide valuable insights for brands into what advertisements appear on search engines when potential customers search for their brand!

Do you find this report useful? What information would you like to see about brand and trademark bidding in the future? As always, please comment below or contact us with any questions or feedback.

Sometimes the stars align and topics you’re already thinking about suddenly become major news items. Last week’s news cycle was was all about affiliate marketing, starting with a Wall Street Journal article about how style bloggers monetize their blogs, Pinterest, Twitter, and Instagram accounts, and culminating in Pinterest’s announcement that it would be banning affiliate links from its site.

Today, I want to talk briefly about that first article in the Wall Street Journal, written by Elizabeth Holmes, entitled “How Style Bloggers Earn Sales Commissions, One Click at a Time: Blog Links That Redirect Readers to Retail Sites Are Expanding to Twitter, Pinterest and Instagram.” This article raised a few red flags for us at BrandVerity, especially as we’ve been spending a lot of time thinking about FTC regulations over the past weeks.

A few lines in particular stood out as we read through this article:

“The money comes from the dozen or so links Ms. Tanita places at the bottom of each post that whisk readers to retail sites selling the products she is wearing…Every time a reader clicks and buys from a linked retailer, for the next month Ms. Tanita will get a cut of the sale, whether it’s an item featured on the blog or any product the retailer sells. And the typical reader is none the wiser.

“Commission-generating links are the nuts and bolts of “affiliate marketing,” a mechanism that is one of the most common, least visible ways the Internet funnels blog readers onto retail sites.”

“Julia Engel, a 24-year-old San Francisco resident with a style blog called Gal Meets Glam, says she thinks her readers understand how affiliate marketing works and don’t mind. “People are always going to ask me where something is from, and I’m always going to answer,” says Ms. Engel. “So if I can be credited for that purchase, it’s a win-win situation.”

Links are subtler than in-your-face display ads, and they are far simpler than the elaborate partnerships some brands have brokered with bloggers in exchange for sponsored posts, personal appearances and social-media mentions.”

They aren’t thinking about whether a blogger makes a commission like some store salespeople.

The article definitely leaves the reader with the sense that these bloggers are not clearly disclosing their relationship with these merchants. The FTC is very clear that disclosures need to be “clear and conspicuous” and that they should not be “relegated to ‘terms of use’ and similar contractual agreements.” (And a quick look at a few of these sites confirmed this is exactly what is happening. While disclosures are there, they are not on every post and are often buried fairly deep into the sites on separate “Disclosures” pages).

As Tricia Meyer made clear in a ReveNews post a couple years ago, the FTC does consider it necessary for affiliates to clearly disclose their merchant relationships to readers.  The fact that this Wall Street Journal article makes no mention of disclosures should raise a few eyebrows amongst merchants and OPMs. In most cases, it’s not the bloggers who are going to feel the effect of FTC violations, it’s the merchants, so they should be very wary of the views expressed in this article. As Tricia said in her post:

“The guidelines make it clear that the “old way” of putting a basic disclaimer somewhere on your site or even at the bottom of blog posts no longer counts. If you put an affiliate link on Facebook or Twitter, you must disclose that it is an advertisement BEFORE the link. How many people do you see actually doing that?”

Last week, the Wall Street Journal replied, “none.”

Launching the FTC Compliance Blog Series!

With 2015 now well underway (can you believe it’s February?!) and Affiliate Summit West behind us (though we’re already looking forward to our next chance to meet up with our customers in person!), BrandVerity’s team is looking towards what’s next for this blog space. Last year we did several exciting things, including deeper dives into how major events like Valentine’s Day, Black Friday, and the NFL Season impact paid search, how best to navigate the delicate balance of Reseller trademark bidding, and how to work with Lead Generation Publishers in a smart and thoughtful manner. This year we want to do even more.

To begin, we want to start off with a topic that we think lots of people worry about but very few know how to fully address: FTC compliance. Over the next few months we’re going to talk to people in the know both at BrandVerity and around the industry about what FTC compliance really means, what it looks like in a variety of industries, and how to interpret various FTC decisions and rulings from the past several years. We hope this blog series will serve as a resource for ongoing discussions about the (often opaque) FTC rules and regulations that all retailers, partners, and affiliates need to know about.

To start, we’re going to throw it back (even though it’s only Monday), to a presentation that our own Mason Smith gave at Performance Marketing Summit last summer. He’d be sure to want us to mention Rachel Hirsch of Ifrah Law who helped him put this presentation together. We think this presentation gives a nice overview of the issues at hand when it come to affiliate FTC compliance and is a great launching point for this series.

As we begin this process, we’d love to hear from you. What are some of the best resources regarding FTC compliance? Who do you think are the most well-versed experts in the field? What questions do you have regarding FTC regulations? Let us know in the comments below, on Twitter, or contact us directly!

Affiliate Summit West 2015 was, by all accounts, a great event. The office has been buzzing for the last week as the ten (!) people who were at the conference have shared stories, contacts, and favorite moments.

I wanted to continue that discussion online by letting some of the BrandVerity team who were there tell you about a few of their highlights (both professional and less professional) at Affiliate Summit West.

Best Event

Dave Naffziger, CEO

Both eAccountable and ShareASale’s 15th Anniversary parties were great. It’s really nice to see their continued success as the affiliate industry grows and changes.

Sam Engel, Marketing Manager

Bill Rothbard’s speed-talk on what to expect from the FTC. There’s certainly more than meets the eye when it comes to standards and regulation. I also enjoyed the opportunity to meet Tricia Meyer for the first time, just before the panel I was speaking on. While I would have liked a bit more time to actually speak to her one on one (it was just a brief “good luck” right before we started), it was great to finally meet her.

Andrew McCaffrey, Sales Manager

I really enjoyed going to some of the smaller happy hours organized by networks. I was able to speak with compliance folks from several issuers, networks, and large affiliates. They were great opportunities to share best practices, talk regulation, and introduce our technology.

Best Customer Insight

Julia De Friel, Sales Manager

I loved talking to people that had never heard of us before, and when you tell them what we do, their response is “that is exactly what I need!”

Jon Gordner, Director of Product Management

I was impressed by the growing demand for Content Monitoring. In multiple conversations I was speaking to people outside of the typical regulated industries (Finance, eCigarettes, Health, etc.) and found that advertisershad a lot of interest in making sure their offers were kept up to date and accurate on affiliates’ sites. It’s great to see advertisers emphasizing the importance of brand.

Best Feel-Good Moment

Georgia Gier, Senior Account Manager

My best professional moment was hearing all of the positive things customers had to say about the way we’re helping them and making their lives easier. I was also especially excited to meet our customers who had traveled long distances to be there!

Jon Gordner

Georgia and I being “those people” at the craps table, drawing people to our table to play because of the energy and good vibes—accomplished with loud chants, and renditions of 90’s Disney classic songs.  A few of the people who came up to the table due to our ridiculousness were fellow ASW attendees!

Julia De Friel

I found meeting clients really rewarding. Everyone was very happy with our software, and it was fun to hear that from users outside of the sales process.

Best Sports-Related Moment

Preston Holland, Sales Manager

The Seahawks victory was certainly a highlight.

Julia De Friel

Seahawks win!

Sam Engel

I feel like being Seahawks fans also became a natural conversation starter!

Best Decidedly Non-Professional Moment

Sam Engel

Georgia throwing $10 at the roulette table, betting on her mom’s birthday and immediately winning. Followed up by me doing the exact same thing 5 minutes later. Thanks mom!

Brendan Lash, Olivia Hull, and Julia De Friel at the “Meet Market.” PC: Affiliate Summit

We’d also like to send out our hearty congratulations to the winners of this year’s Affiliate Summit West Pinnacle Awards: Tricia Meyer, Joe Sousa,, Brian Littleton, Acceleration Partners, and FMTC, which won Tool/Service of the Year.

What were your favorite moments at Affiliate Summit West?  Were you at any of the same events as the BrandVerity team?  Did you meet any BV’ers while you were there? Let us know in the comments or contact us at BrandVerity!

My intrepid partner in [educating the world about trademark] crime, Sam Engel, presented at Affiliate Summit West yesterday morning on a panel called “Affiliate Legal Issues: Three Immediate Action Items.” Sharing the stage with him were Gary Kibel, a partner at Davis & Gilbert, LLP, and Gerri-Lyn Becker, President of The California Wine Club. The panel was moderated by Carolyn Kmet, CMO at All Inclusive Marketing.

Sam Engel (middle) with Panelists. PC: Affiliate Summit

While we wait to get the full update from Sam on how the panel went and everything else that happened at ASW (there were a ton of BrandVerity folks there this year!), I wanted to share Sam’s presentation. For frequent readers of our blog, there probably isn’t a ton of new info here, but it’s all presented in lovely, digestible slides.

A few major takeaways:

  • Make sure you know the FTC, FCC, and CFPB regulations for your industry. It is your responsibility to ensure your affiliates follow them.
  • Have a trademark bidding policy and stringently enforce it amongst affiliates and other partners.
  • Have a comprehensive approval process for new affiliates: do not auto-approve!
  • Have a compliance process that you can enforce given manpower and technological solutions.
    • This process should include monitoring known affiliate websites for changes. Affiliate sites change frequently and a site can go from compliant to non-compliant in seconds. Active, frequent, and consistent monitoring of sites for changes is the best way to guard against potential legal issues.
  • Research, Monitor, and Enforce! If you keep those three words in mind, you should be able to avoid regulatory and other legal issues with your affiliates.

Take a look at Sam’s presentation below and please reach out with any questions or comments.  Also, if you were at ASW, we’d love to hear any feedback. We’ll be posting a wrap-up post next week, but in the meantime, let us know about your experience! Comment below or contact us at BrandVerity!


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