Google recently updated its trademark policy, and although some believe the changes are cause for concern, citing increased costs per click, that may not be the case. The following aims to bring some clarity to the issue.
Google has consistently expanded its Google Ads policy in allowing trademark keyword bids and the use of trademarked terms in the text of advertisements. The tech giant has always expanded these policies by regions, and just last week, Japan was added to the mix.
Our friends (and former contributors) at Seattle-based BrandVerity produced an infographic showing that the average hotel brand is losing 26,500 website visitors on direct web traffic each month, leading to a real loss in revenue as these bookings are made elsewhere. Their findings are based on the information found in the hotel selection of their quarterly report on The State of Branded Keywords in Paid Search.
The report assesses the paid search landscape on branded keywords of over 250 consumer-facing brands. Looking at Q1 2015, it found that trademark bidding has cost the typical brand tens of thousands of visitors each month. The full report is available for download today at https://www.brandverity.com/branded-keywords/.
The Competition & Markets Authority (CMA), which investigates business practices and enforces anti-competition and consumer protection legislation in the UK, just released a report and call for information that signals more scrutiny for online reviews and endorsements. Though the report does not identify companies or sites that will be the subject of investigation, it expresses a general concern that a number of businesses are breaking the law. The report does not point fingers, but it’s worth noting that the hospitality industry is mentioned several times as an area of particular interest, based in part on a survey conducted by the British Hospitality Association in March of this year. Consumer reliance on reviews for vacation travel, the relatively higher cost for hospitality related services, and the sensitivity of the hospitality related services to negative reviews were cited by the CMA as reasons why the industry is an area of particular concern.
UK regulations are, of course, aimed at protecting UK consumers, but U.S. companies are well advised to take heed of the report’s warnings and recommendations because, as the report notes, the CMA plans to assume the Presidency of the International Consumer Protection and Enforcement Network (ICPEN), of which the U.S. is an active member. And, the practices flagged by the CMA, as well as the steps businesses can take to address the CMA’s concerns, closely parallel those identified by the Federal Trade Commission (FTC).
So, whether your customers are here in the States or abroad, the following practices may result in an investigation by the CMA (or FTC):
- Writing or commissioning fake negative or positive reviews.(Your marketing firm could also be on the hook for setting up fake Twitter or Facebook accounts to submit reviews).
- Cherry-picking positive reviews or suppressing negative reviews. (Your website user agreement or comments policy may well allow you to edit or delete user content containing expletives or other inappropriate material, but if those expletives all happen to be in negative reviews of your product or service, you need to consider what disclosures may be necessary to ensure the reviews as a whole are a fair and accurate representation of the actual comments received).
- Failing to disclose paid reviews or endorsements. (Whether its cash, a free dessert, or award points, you need to disclose compensation or incentives given to individuals submitting reviews or endorsements).
The best practices recommended by the CMA similarly echo the FTC’s guidelines:
- Be clear with your marketing department or outside marketing firm that they may not write or solicit reviews. Documenting that parameter in a letter or agreement will provide a paper trail that could prove handy down the road.
- If you do provide compensation or incentives for reviews or endorsements, be sure that that fact is clearly disclosed, e.g., by using a hash tag like “#paid ad.”
- Promptly publish all reviews, even negative ones. If reviews have been edited or deleted (e.g., to remove expletives), clearly disclose your policy or basis for doing so.
- Establish a procedure (whether in house or with your marketing firm) for detecting and removing fake reviews.
In conjunction with the report, the CMA published summaries on how to comply with UK consumer protection law on online reviews and endorsements.
Ultimately, the CMA and FTC share a common purpose: to protect consumers from unfair or deceptive business practices by protecting the consumer’s ability to make meaningful choices. Disclosure of the connection between a review or endorsement and its source (i.e., an independent individual or a sponsoring company) is essential to meaningful consumer choice. So, in devising your marketing strategy, especially if it includes a forum for consumer reviews, ask whether you’ve given your customer the information necessary to make a meaningful decision about your product or service. Doing so not only helps build brand loyalty, it could help avoid an investigation by the CMA (or FTC).
Protect Your Good Name: Keyword Advertising and Trademark License
Published in Hospitality Upgrade, March 2013.
The Internet can be a hard, hard place for brand owners. Yet failing to engage potential guests online across a variety of platforms is no longer a viable option for the majority of hospitality industry participants. It is crucial that brand owners exercise control over their marks whenever possible. This article focuses on the legal use of keyword advertising, and provides some tips about how to negotiate trademark licenses in online distribution and marketing agreements...To read the full article click here.
Have you ever seen the iconic advertisements on the side of the Hotel Figueroa in Los Angeles? I bet you have - if not on a commute opportunity through the metropolis, then in a movie. Or, perhaps your business is similar to the Pier House 60, Clearwater Beach Marina Hotel where a condition of approval required compliance with both the public art requirements for the development and the local sign code. If you are interested in how to avoid an eight-armed strangle on your business’ commercial speech, read on for the latest on the enforceability of local sign regulations.
Greg Duff founded and chairs Foster Garvey’s national Hospitality, Travel & Tourism group. His practice largely focuses on operations-oriented matters faced by hospitality industry members, including sales and marketing, distribution and e-commerce, procurement and technology. Greg also serves as counsel and legal advisor to many of the hospitality industry’s associations and trade groups, including AH&LA, HFTP and HSMAI.