I’ve previously written blog posts and articles about some ethical dilemmas that face small businesses, particularly web companies, in the last few years, such as my posts about design theft particularly around websites copying our work. There’s another topic that I’ve now had some personal experience with; using trademarks or business names in advertising on Google results.
But first some quick background for those less web savvy. Google has a great system called AdWords, which we’ve worked with before, having used it for advertising both our business, as well as on behalf of a number of our clients. Basically, you can define what keywords and phrases you want to display your advertisement under, and craft an appropriate advertisement to show.
It’s all pay-per-click, so it’s low risk (if you know what you’re doing!), and can be great for short term promotions and the like.
Now, in the past, we’ve had clients become excited when you say they can choose the phrases the ad will appear under. For example, in our own case, we’ve used terms such as ‘Web design perth’, ‘website design perth’, ‘perth web design’ and so on.
It doesn’t take long for a few people to realise that you could do the nasty on a competitor by using their trademarks, business or product names as your target terms. Thankfully, this is where Google has a fairly good trademark policy in place. Not only is it unethical (which our clients normally quickly admit), it is against Google AdWords policy.
I’m not a lawyer, but it looks like it could be against Australian law, as claimed in that famous case a few years ago ‘Trading Post v ACCC’, where the ACCC said that using a competitor’s trademark to target AdWords campaigns was considered misleading conduct.
So it came as somewhat a surprise recently to find out that two of our fellow Western Australian web design companies are doing the same thing to us.
See the screen grab above – when you search on Google Australia for “bam creative” you’ll currently see two advertisements targeting a trademark and company name which Bam Creative Pty Ltd owns.
On one hand, it could be considered flattery they’d go to all that trouble to target people searching our company name, however on the other, people could say it could be called devious, misleading and possibly, illegal.
What do you think? Is this sort of advertising fair game or not? Comments welcome!
Entrepreneur, 
5 August 2010 at 2:17 pm
The same companies that have targeted Bam Creative have also targeted a couple of other well-known Perth companies, such as PerthWeb (http://www.google.com.au/#hl=en&q=perthweb) and Eduka (http://www.google.com.au/#hl=en&q=eduka). They’re clearly trying to rewrite the book of douchebaggery.
5 August 2010 at 10:29 pm
That’s astonishing. So rude of those companies, I can’t believe someone would try that scam. I hope you sort perth-web-design.net.au and positionmeonline.com.au out!
6 August 2010 at 2:09 pm
Yep, pretty low. Have you reported them?
20 August 2010 at 8:17 am
Awesome blog Miles, I never realised this and will be on the look out for my own clients now!
25 August 2010 at 4:54 pm
Look at this for ology
http://www.google.com.au/#hl=en&q=ology&aq=f&aqi=&aql=&oq=&gs_rfai=&fp=46e7c64d3eb6ebfb
11 January 2011 at 1:17 pm
We can see how advertising our company (PositionMEonline) under competitor business names may cause them to take issue with the matter, however we have specifically worded our ad to not be misleading. Hence the heading “Need a 2nd Quote/Opinion?”
Telstra and Optus do this sort of advertising regularly – it is not designed to mislead, except state factually the differences between the services.
If Bam is a trademarked term we will gladly remove it from any future AdWords campaigns, however a search of IP Australia suggests that it isn’t trademarked. Let us know otherwise and we will gladly oblige.
Advertising under competitor names is a common and effective means of utilising Google AdWords at a low cost per click. Those that have been critical of it need a better understanding of the law and Google’s policies, and providing they are compliant enjoy the benefits associated with this form of advertising. Our clients choose to work with us because of our intricate understanding of PPC advertising.
Perth-Web-Design however has definitely taken it too far with the example Mark has given. This would clearly be classified as misleading conduct by the courts.
11 January 2011 at 4:01 pm
Hello James,
Thanks for the comment, I appreciate your honesty and candidness here.
If you go to the ATMOSS database on IP Australia, and search for Trademark 1006314, you’ll see the trademark for Bam Creative. It’s been there since June 2004.
It’s OK, because we’ve registered our case with Google, and your ads won’t appear under our trademark in any case in the future.
Given your suggestion that “Advertising under competitor names is a common and effective means“, you may also be interested to read up on the ACCC v Google legal battle, about the Google Adwords campaign by The Trading Post that used competitor trademarks (as well as targeted as keywords those same trademarks) in their campaigns.
As for “Those that have been critical of it need a better understanding of the law and Google’s policies“, according to the ACCC, they consider that case definately ‘misleading conduct’, and Google’s policy is pretty clear, when they state “Our AdWords Terms and Conditions prohibit intellectual property infringement by advertisers.”
As for Telstra and Optus, I know many other companies behave in a way that I wouldn’t want to behave in my own business. That certainly doesn’t make it right in my eyes, and I wouldn’t use it as justification.
25 January 2011 at 11:55 am
If you think that’s bad, do a search for any of the following names of Perth web design companies;
Perthweb
Webfirm
Ology
Bouncing Orange
Red meets Blue
…all five of them come up with an Adwords advertisement from Perth-Web-Design…