What does ‘marketing against another brand’ mean?
Marketing against another brand is when a business uses the unique and immediately recognisable identity of another business’ goods or services to promote the buying or selling of their own goods or services. This can manifest itself in a large variety of ways, including:
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bidding on your brand on Google Ads
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ambush marketing
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comparative marketing
Marketing against your brand via Google Ads
One way in which businesses market against other brands is by bidding on your brand through Google Ads.
How do Google Ads work?
When a person types a query into a search engine like Google, keywords extracted from the query are used to display the most relevant results on the search engine results page (SERP).
When businesses market on Google, they aim to reach a high spot on the AdRank (advertisement rank) – this is the order in which sponsored websites are displayed on the SERP. The idea is the higher the rank the more clicks the website will get, as users often press the first website that appears. Your AdRank is calculated as the ‘maximum bid’ and the ‘QS’ multiplied together.
The maximum bid is the maximum amount the advertiser is willing to pay for a click on an ad. They then select a group of keywords (typically 1-5) that they believe will best match the searcher's intent. For example, in May 2020 the most expensive keyword grouping was ‘HOUSTON MARITIME ATTORNEY’, which was priced at up to $1,090 USD cost per click (CPC).
The Quality Score (QS) measures the relevance of your ad to a user searching a query. It takes into account factors like the quality of your landing page (ie the first page the user visits when pressing on a sponsored ad on the SERP) and the relevance of the keywords the advertiser is bidding on.
What can you do to prevent businesses from bidding on your brand?
According to Google’s terms of service, a business can bid on any brand name, even if it is protected by a trade mark (ie a sign that distinguishes the goods and services of a particular business, which can be registered to ensure its protection). Businesses are also allowed to include a competitor's brand name in the display URL of their ads (ie the link that appears below the title of the website on the SERP).
When does an ad breach Google's terms of service?
If your trade mark-protected brand name is located in the purple title or the description of a sponsored ad on the SERP then this could be a trade mark infringement. This can be reported to Google, who would then take the ad down.
There are a few exceptions to this rule, including if:
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the landing page is clearly dedicated to reselling products or services, components, replacement parts, or compatible products or services corresponding to the trade mark
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the primary purpose of the landing page of the ad using the trade mark is to provide informative details about products or services corresponding to the trade mark, or
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the ad is using the trade mark descriptively in its ordinary meaning. For example, using ‘apple’ to refer to apple trees rather than ‘Apple’ the technology company
If you believe your ad has been wrongly restricted, you can submit an appeal by following the instructions in the notifications associated with those restrictions.
If the brand name is not protected by a trade mark, then the ad will likely not infringe copyright laws or Google's terms of service. This means that Google would be unlikely to take the ad down even if you make a complaint. In this case, the best thing to do would be to register a trade mark to protect your brand name as soon as possible. However, this process often takes up to three months.
In the meantime, you could send a Cease and desist letter to the business. For more information, read Cease and desist letters for IP infringement.
Unfortunately, this means that, if you want to prevent businesses from bidding on your brand name, there is not much you can do. The best course of action would be to contact them politely and ask them to stop.
If that is unsuccessful, it may be beneficial to attempt to outbid them, providing they are ranking higher than you on the SERP. Your ad is likely to be more relevant to a user searching for your brand than your competitor’s, giving it a higher quality score. This means you may be able to pay less (ie have a lower CPC) to rank higher on the SERP. Remember AdRank is determined by the CPC multiplied by the quality score. Alternatively, you could attempt to outbid them on their branded keywords as well, in order to mitigate the damage to ad clicks.
What is passing off?
Passing off is when an individual or business misrepresents their own goods or services as those of another business. Businesses mainly make passing off claims to protect their goods and services sold using unregistered trade marks, as they do not have the option to bring a claim for infringement of a registered trade mark.
It is important to note that you are more likely to win a ruling in your favour if you make a trade mark infringement claim than a passing off claim, as it is easier to prove that a trade mark has been infringed. Furthermore, it would result in more severe sanctions for the opposition. This is why it is always best to register your trade marks as soon as possible.
For more information, read Trade marks and passing off.
What is ambush marketing?
Ambush marketing is when a party benefits from the creation of an unofficial association between themselves and an organisation, brand, or event. This is primarily done with big sporting events, where being formally associated with the event through sponsorship typically costs large sums of money.
Arguably the most successful example of ambush marketing was at the 1996 Atlanta Olympics. During the games, without an official partnership, Nike set up a Nike village next to the official Olympic sponsor’s village, handed out Nike flags for fans to wave at cameras and gave athlete Michael Johnson Golden Nike shoes – he went on to set the record for the 400m sprint, later appearing on the cover of times magazine with the shoes round his neck.
How to protect yourself against ambush marketing
The use of names protected by trade marks in advertising campaigns without consent can amount to trade mark infringement. However, sophisticated campaigns can get around trade mark infringement by not explicitly using the trade mark-protected words while still alluding to the event. For example, an advertiser could refer to ‘National Football’ instead of the UEFA Euros.
In cases like this, general advertising laws from the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) and the UK Code of Broadcast Advertising (BCAP Code) can apply. More specifically, the requirement that advertising must not be deceptive or misleading towards the consumer. Aggressively attempting to create the illusion of sponsorship or official association with an event or organisation would be a breach of these codes. For more information, read Advertising regulations.
Any legal claims of ambush marketing would have to be supported by legitimate evidence. The first action to take is generally to send a Cease and desist letter to the business. If that is unsuccessful, you can make a claim with the Advertising Standards Authority (ASA), who apply advertising codes written by the Committees of Advertising Practice (CAP), although having an ad banned can be costly.
What is comparative marketing?
Comparative marketing is a tactic used by advertisers to promote a brand by comparing their own goods, services, or brand to those of a competitor. Some of the most famous examples of comparative marketing are those of the Pepsi and Coca Cola campaigns that directly compare the taste and benefits of each other's products.
How to protect yourself against comparative marketing
Rules specifically regulating comparative marketing are located in The Business Protection from Misleading Marketing Regulations 2008. Generally, a comparative advertisement will only be permitted if certain conditions are met:
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it compares goods or services meeting the same needs or intended for the same purpose
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it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price
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it does not discredit or denigrate the trade mark, trade names, or other distinguishing marks, goods, services, activities, or circumstances of a competitor
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for products with ‘designation of origin’ (ie branding that means the product is recognised for characteristics that are a result of the geographical area it comes from, eg ‘Cornish clotted cream’) – the advertisement must relate in each case to products with the same designation
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it does not take unfair advantage of the reputation of a trade mark, trade name, or other distinguishing mark of a competitor or of the designation of origin of competing products
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it does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name, and
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it does not create confusion among traders, between the advertiser and a competitor or between the advertiser’s trade marks, trade names or distinguishing marks, goods or services and those of a competitor
If you believe that your brand is in a comparative ad that breaches any of these conditions, you should make a complaint to the ASA immediately.
