CSC Joins Forces with BrandVerity to Provide Paid Search Monitoring Service

BrandVerity and Corporation Service Company® (CSC), a provider of legal, business, and financial services, are working together in a pretty fantastic way. CSC now offers paid search monitoring to its clients through BrandVerity.

“We are thrilled to partner with CSC to provide paid search monitoring services to their customers,” said BrandVerity CEO David Naffziger. “We are excited about the opportunities it presents and look forward to a long, prosperous partnership.”

BrandVerity and CSC together support organizations as they seek to protect their brands in the digital marketplace. Our Paid Search Monitoring detects a broad spectrum of brand abuse and enables clients to enforce against it. It’s a great collaboration!  

Check out CSC’s blog post about the partnership or our complete press release for even more information.  


PPC Keyword Litigation’s Legal Landscape

BrandVerity welcomes guest blogger Eric Misterovich from Revision Legal, PLLC.

Do not try to sue a competitor that’s bidding on your trademark(s) as pay-per-click keywords. Seriously, just don’t do it. It’s tempting and we get that, but while victory may seem imminent and even justified, actual instances of plaintiffs winning such cases are exceedingly rare. And recent court rulings will make those instances all but extinct.

Trademark Law’s Dual Protection

While this may sound blasphemous to trademark owners, it is important to remember that trademark law serves to protect both trademark owners and consumers. J Thomas McCarthy, author of the most prominent legal treatise on trademark law, describes the duality as follows:

To select as paramount either protection of the trademark property or protection of consumers would be to oversimplify the dual goals of trademark law, both historical and modern. Trademark law serves to protect both consumers from deception and confusion over trade symbols and to protect the plaintiff’s infringed trademark as property. Both Congress and the Supreme Court in modern times have stressed that trademark has these two goals.

1 McCarthy on Trademarks and Unfair Competition § 2:2 (4th ed.).

While elements to trademark infringement vary by jurisdiction, the three main elements always present are:

  1. ownership of a valid trademark by plaintiff,
  2. an unauthorized use of the mark by defendant, and
  3. a likelihood of consumer confusion by defendant’s use of the mark.

When courts apply the likelihood of confusion test (the third element) during trademark infringement litigation, they are focusing much more on consumer protection than the property rights of the trademark owner. If consumers are not confused by use of the mark, courts are reluctant to hold infringers liable and give trademark owners a de facto monopoly over the mark.

Where is the Confusion?

It is the likelihood of confusion test that has all but removed keyword advertising lawsuits from a trademark owner’s toolkit. The test varies by jurisdiction as well, but the seminal case concerning online advertisers, Network Automation, Inc. v. Advanced Systems, Concepts, Inc., highlighted four main factors courts should consider in these cases, and other courts have followed suit. 638 F.3d 1137 (9th Cir. 2011). The factors are:

  1. the strength of the mark
  2. evidence of actual confusion
  3. the labeling and appearance of the advertisements, and
  4. the degree of care likely to be used by the typical purchaser.

Of these four factors, evidence of actual confusion appears to be most important to reviewing courts.

In a more recent decision, the Tenth Circuit further reduced plaintiffs’ ability to prevail in PPC lawsuits. In 1-800 Contacts, Inc. v., Inc., the Court held that in order to show a likelihood of confusion (or technically in this case “initial interest confusion”), evidence of actual confusion must be shown, and click-through rates (CTR) can serve as such evidence.

Using the evidentiary standard of consumer surveys (the standard way to show actual confusion) the Court held that any CTR below 10% on an ad connected to a specific keyword would eliminate an actionable claim. The problem with that decision is that a CTR above 10% is unheard of, so almost no trademark owner will ever be able to show actual confusion and therefore will never be able to recover in an infringement action based on a competitor bidding on its trademark.

This is all grounded in protecting the consumer. If courts do not believe that users are being confused by search results, they will not “overprotect” the trademark owner by giving it the sole right to its trademark as a search term. The 1-800 Contacts court saw no evidence that users searching “1800 contacts” and seeing in the search results would be confused into thinking was either part of 1-800 Contacts, or associated with it in some other way. Whether or not you agree, the growing case law featuring identical reasoning is making it impossible to win these cases.

How to Combat Misuse of Your Trademarks in PPC Campaigns

The most effective form of protection, from both a cost analysis and results approach, is to rely on the advertising platform’s rules regarding trademark infringement. For example, the Google Adwords Trademark Infringement Policy gives trademark owners plenty of ammunition to protect their brands.

Consistent with the explanation above, Google Adwords’ Policy does not cover bidding on trademarked terms as keywords. However, it does prohibit some uses of trademarked terms in ad text in certain situations. And this is where things can get a bit more complicated. Many questions arise:

  •   How is the trademarked term being used within the ad text?
  •   What landing page does the ad link to?
  •   Is a reseller using the trademarked term?
  •   Does that reseller have permission to do so?
  •   What countries are these ads targeting and what law applies there?

All of these factors weigh into whether Google will listen to your trademark complaint.  And as you can see, if you are not monitoring what is happening, you have no ability to even start protecting yourself.

Further, Google Adwords will not investigate the use of trademarked terms within a Display URL, even though this may form a cause of action under the Uniform Domain Name Dispute Resolution Policy (UDRP) or the Anticybersquatting Consumer Protection Act (ACPA).

This is when services such as the ones provided by BrandVerity are a good start to protecting your business. First, monitoring what is happening is the first step in knowing the extent of the problem you are facing. Second, BrandVerity’s ability to communicate with the advertising platform may provide the quickest, most cost-efficient resolution.


While keyword-based litigation is not a wise use of resources, understanding and protecting your PPC advertising remains a valuable tool in any marketing budget.

About the Author

Eric Misterovich is an attorney with Revision Legal, an intellectual property and Internet law firm. To understand more about trademark law, get a free copy of Revision Legal’s Asked and Answered: Trademark law ebook here.


Meaningful Losses: Seeing the Impact of Trademark Bidding

As we’ve been finding in our Report on Branded Keywords, the typical brand is losing thousands of visitors per month to trademark bidders.

This traffic represents real costs to brands, who would otherwise be able to turn those visits into customers and revenue. To illustrate the potential costs to brands, we’ve developed some graphics that cover a few of the industries in the study:

Online Retail




Online Education


We hope these graphics are informative! If you have any questions about them, we’d be happy to chat. Feel free to reach out to use on Twitter @BrandVerity!

If you’re interested in checking out our full report, it’s available as a free download.


London Calling…Well, Technically ALL of Europe

BrandVerity has expanded its geographical footprint by opening an office in the heart of London. We wanted to provide more in-person, customized services for our clients in Europe.

“Better serving our clients in Europe and expanding our presence in that market are important for our long-term growth at BrandVerity,” said BrandVerity CEO David Naffziger. “We are delighted to increase our investment in the region and excited about the opportunities it presents.”

Let’s face it. Enormous investments are made in the development and ongoing promotion of brands. Given their potential value, it’s now more important than ever to protect and monitor a brand online. With this in mind, BrandVerity is keen on expanding its global presence. Look for more globe trotting coming from BV staffers in the future.  

Furthermore, we are thrilled to announce that Jonathan Elkin has been named Regional General Manager. He will spearhead BrandVerity’s growth strategy for the European market, operating out of the new office. He’s a great guy. Set up a call with him and find out for yourself.  

The leadership team will be rounded out with Preston Holland, who has been with BrandVerity for quite a bit. Holland brings years of sales and customer account service experience with him. He led the establishment and launch of the new office and will continue to oversee its development.

Read the full press release here.  


Fewer Ads on Bing & Yahoo, Plus Other Insights — All in Our Latest Report

OK, by now you’ve probably heard us rambling on and on about how we have released our fantastic report on The State of Branded Keywords in Paid Search covering Q2. You can download it here.

The study provides brands with a benchmark of what advertisements appear on the search engines when potential customers search for their brand and how much traffic brands may be losing to trademark bidders. We also do our best to note overall industry trends and observations. One interesting find concerns Yahoo and Bing:

Ads Drop on Yahoo & Bing

In contrast to earlier quarterly reports, advertising on Yahoo has dropped significantly. In the past, Yahoo generally came in secondly only to AOL in terms of how many ads it displayed on the typical Search Engine Results Page (SERP). Now, we’re seeing the average of number of Ads per SERP drop considerably on Yahoo.

It’s not entirely clear what’s up with this development, but it may be attributable to the changes in the Microsoft-Yahoo deal that were announced in April. Yahoo’s advertising may simply be in a bit of flux as it adjusts to its new world order.

While not so dramatic as the drop in advertising on Yahoo, Bing also experienced a drop of its own. However, despite the similarity in the amount of advertising on Yahoo and Bing, Bing still showed far more of the brands’ own ads than its counterpart – thus making Bing a bit more brand-friendly.

Get Your Copy

To read the whole story and the scoop on 10 different industry verticals, check out the full report. It’s available as a free download on our site.

Of course, feedback is welcome!


Google Drops the Hammer on Download Sites

Today, we’re happy to release the latest analysis of branded keywords in paid search, covering the second quarter of this year.  You can download it here.  

One of the interesting pieces of discovery to stem from the report is that our analysts noted that Google has indeed made good on its promise to change how advertisers could promote software in AdWords. And, this is a very good thing for consumers and brands.  

The new policy only permits advertisers to link to the primary distribution source for a piece of software. Google has virtually wiped out Download & Toolbar sites from Google and Google Mobile – and even reduced them on search partner AOL.

We hope this trend will continue and that we see a reduction in the number of third parties advertising on brand terms of software and technology companies.  

The announcement came in March and took effect in April.

To read more about this and to download our quarterly report titled, The State of Branded Keywords in Paid Search, click here.   


Rolling out the Welcome Mat: Ensuring Guests Find Your Hotel Online

The average hotel brand is losing out on direct web traffic to the tune of about 26,500 visitors each month.  This can lead to a real loss in revenue as those bookings go elsewhere.

Our concise infographic breaks down the numbers for you, based on information found in the hotel section of our quarterly report on The State of Branded Keywords in Paid Search.


The report evaluates the paid search landscape on branded keywords of over 250 popular, consumer-facing brands from 10 different industry categories, including hotels. BrandVerity monitored core brand terms during Q1 of 2015 to evaluate trends in how brands are targeted. From those results, we’ve found that trademark bidding costs the typical brand tens of thousands of visitors to their site each month.

The full report is available as a free download. Also, if you’re keen for more information on paid search pertaining to hotels, check out BrandVerity’s Report on OTA Brand Bidding.


New AdWords URLs Won’t Curb Affiliate Hijacking

On July 1, Google officially migrated all accounts to Upgraded URLs. While Google’s descriptions of the new feature have primarily focused on the simplification of tracking templates and decrease in ad downtime, we were intrigued to see if the changes might spill over and affect affiliates’ ability to hijack paid search ads.

So, we did some testing of the new AdWords URLs to see what we could find. The results? Unfortunately for brands, this update doesn’t seem to have done much to mitigate ad hijacking. There may be some short term reductions as ad hijackers have to update their campaigns to accommodate the new URL requirements—but most hijackers have probably taken these steps already.

In the long term, it’s unlikely that hijackers will be thwarted by the change. The upgrade appears to have been purely focused on the improvement of tracking URLs and ad uptime. To us, that underscores the need to be continually monitoring your affiliates and ensuring that they’re following your program’s rules.

Have you seen any changes in affiliate activity recently? How has your migration process gone? Let us know in the comments below!


Our Latest Report on Branded Keywords in Paid Search is OUT!

We’ve been crunching the numbers.  Well, technically Sam has been crunching the numbers…but either way we’re excited to make this announcement!

Today, we bring you the latest edition of our report on The State of Branded Keywords in Paid Search, covering our observations and findings from Q1 of 2015.

The report evaluates the paid search landscape on the core branded keywords of over 250 popular, consumer-facing brands from 10 different industry categories. (Yes. That’s 10 different industries and more than 250 different brands!)

BrandVerity monitored these core brand terms during Q1 of 2015 to evaluate trends in how brands are targeted in general and within their specific industry segments. The result is that we deduce trademark bidding can cost the typical brand tens of thousands of visitors to their sites per month.  Yikes, right?

The report is available as a free download on our site.  Check it out and learn a bit more about what advertisements appear on search engines when potential customers search for a certain brand.

And, let us know if you find this report useful.  Tell us what information you would like to see about brand and trademark bidding.  We’re all ears.  Comment below or contact us with any questions!


Microsoft Boots its Display Business and Takes Over AOL Search

Earlier this week, Microsoft announced they would be taking over AOL Search and shifting some parts of its advertising work onto both AOL and AppNexus, an online advertising company.

Bing will now power search and search advertising across the AOL portfolio of sites, which includes Huffington Post and TechCrunch to name a few.

AOL also will become Microsoft’s seller of all display formats—including mobile and video—across nine major markets (Brazil, Canada, France, Germany, Italy, Japan, Spain, United Kingdom and the United States).

Furthermore, AppNexus now becomes Bing’s exclusive programmatic technology and sales partner in ten of its European markets (Austria, Belgium, Denmark, Finland, Ireland, the Netherlands, Norway, Portugal, Sweden and Switzerland).

One might be led to believe that this expanded partnership shows a more aggressive pursuit of access to advertisers in Europe.  And, that the closer ties with AOL (owned by Verizon) aids in their validation of Bing across more platforms.  Just sayin’.

We’re very curious to see how this changes what advertising appears on AOL. As we’ve seen in past iterations of our Report on the State of Branded Keywords, AOL typically shows far more trademark bidding than Google, despite pulling ads from the same search network. When it becomes powered by Bing, will it show the same amount of trademark bidding? Stay tuned.