As more businesses move to digital marketing channels to acquire clients, they are likely to look into paid cost-per-click (CPC) or cost-per-impression (CPM) marketing. This form of paid per click (PPC) advertising is already employed by many search engines such as Google and Bing. In fact, 96% of Google’s revenue is earned through Google AdWords – Google’s CPC paid advertising platform. If you are looking to begin advertising online through paid channels and running targeted CPC campaigns, you should ensure that you avoid any trade mark infringement claims. This article explores whether you can infringe intellectual property by bidding on competitor’s trade marks on Bing campaigns.

Bing’s Intellectual Property Policies

When you sign on as an advertiser on Bing Ads, you are responsible for the ad copy and keywords you bid on. You must not infringe or violate the intellectual property of other businesses, including their trade marks and logos. However, this does not prevent you from using a competitor’s name or keyword for comparative advertising purposes, as long as it is supported by independent research. In 2011, Microsoft changed its advertising policy to allow website advertisers to use trademarked keywords in their ad copy. The responsibility shifted to the advertiser to ensure they adhere to any trade mark laws and regulations.

Bing encourages owners of trade marks and logos to contact the advertiser at first instance if they believe their IP is being infringed or being used improperly in advertising copy. Failing a satisfactory outcome, IP owners can also contact Microsoft by submitting an Intellectual Property Concern Form and select “Trademark Misuse in Ad Copy”. The form requires information on the trade mark term, the registration number and country and whether the infringement took place on Bing or Yahoo Search. There is also an option to report a single infringement if there is only one violation to report.

Fair Use of Trade Marks

Microsoft permits the fair use of trade marks in certain circumstances. These exceptions include:

  • Ordinary dictionary use of a term – for example, your product or service offering does not compete with the good or service represented by the trade mark. (e.g. you are an “Apple Stall” selling apples, and not Apple MacBooks);
  • Using a trade mark by an authentic goods or services reseller;
  • Legitimate informational sites represented by the trade mark, such as product reviews (e.g. you run a food review website, and you use the name of a restaurant); and
  • Comparative advertising with supportive evidence.

Section 120 of the Trade Marks Act 1995 (Cth) sets out how trade mark infringement can occur. A trade mark lawyer can assist you with whether your use of keywords or ad copy is in violation of intellectual property law. If your trade mark is appearing on branded searches, take screenshots of the ad that appears on the search results page.

Key Takeaways

While you can use a competitor’s trade mark as a bidding keyword or in ad copy in your Bing campaign, you should ensure it is not misleading or deceptive conduct, or passing off. If your trade mark has appeared in another business’ ad copy or PPC ad, or you have any questions about intellectual property in the digital marketing space, contact our IT lawyers. Call us on 1300 544 755 or fill out the form on this page.

Anthony Lieu

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