Published on March 20th, 2018
Something very interesting happened in the search marketing space this past month and it most certainly caught my eye.
Google was hit with a $209 million lawsuit from Edible Arrangements for allegedly duping consumers searching for the term “Edible Arrangements.”
Rather than showing users what Edible Arrangements says is “customary information about their business” that would traditionally appear to the right of the top-most search results, Edible claims Google has been showing competitors’ ads.
The company insists consumers were misled into making a brand “connection” between them and other competitors’ products -- and needless to say Edible Arrangements wasn’t happy about it.
Now, before we get into the nitty-gritty, let me pause here and explain; this is not a case of what we in the marketing world know as traditional “piggyback” marketing, where two or more companies with non-competing products team up and form a marketing plan that is mutually beneficial (i.e. a Wedding Planner and a Video Photographer).
Instead, this lawsuit is about one company literally “piggybacking” on a competitor’s branded keywords and brand recognition to gain better positioning, and in some cases, stealing potential customers.
Not sure if it sounds sneaky or strategic? Well, that’s the grey area that makes this a tricky topic for marketers at organizations of all sizes, including yours.
Here’s what you need to know and what you can learn from this latest lawsuit.
Friendly Rivalry or Cut-throat Competition?
According to Edible Arrangements, competitors using their branded keywords in paid search advertising has led to a massive loss; $200 million dollars in sales and approximately $9 million profit, to be exact.
-- And this is not the first time something like this has been the focal point of a lawsuit.
In 2010, a North Carolina court ruled in favor of an attorney whose name was used in a paid search campaign by another stating that this “cut-throat tactic” is a violation of the state’s Rules of Professional Conduct 8.4(c)*.
On the other hand, However, in a very similar case in a Texas court, it was ruled to allow competitive keyword advertising and not punish those who use it.
Google’s Stand on Competitive Keyword Advertising
Clearly, courts aren’t agreeing on the matter, but where does Google stand on the topic of competitive keyword advertising?
Unfortunately, at the moment, that’s just as unclear.
Google does restrict the use of trademark terms (when disputed by brands), but currently, it has no protection for things like “Edible Arrangements” which is both a brand and a non-branded keyword used to describe what a person may intend to search for.
(It’s an issue anthimeria really, but that’s a talk for a whole different article.)
Note: While we are on the topic of trademarks, if you are advertising on Google and want to be protected by their Trademark policy, I suggest that you take a few minutes to fill out the Trademark Complaint Form. This will prevent a situation like Edible Arrangements’ from happening to you.
If you intend to market using a trademark that is not yours, then I recommend you fill out Google’s Trademark Authorization Form. (This would cover advertising for brands that are not your own).
Google’s methodical delay in responding to allegations like those from Edible Arrangements has the search marketing industry captivated.
The outcome of this lawsuit could potentially affect hundreds of thousands of advertisers and Google wants to ensure it has its ducks in a row and is ready to defend itself and its advertisers in court.
So, What Are The Possible Outcomes?
Thinking about the two possible outcomes here presents an interesting predicament.
If Google wins, there is potential for the floodgates to open and for competitive keyword advertising to become the norm.
Every business in a competitive space will no longer have to think twice about implementing a competitive keyword strategic marketing tactic. It will be a necessity in all verticals.
For example, if you are an up-and-coming SaaS company whose name is not quite well known yet, but believe your product can rival the best in the industry. You could build out a strategy where you move some of your AdWords
Your Ads would speak to why the user who intended to find Salesforce would want to consider trying your product instead.
On the contrary, if Google settles with Edible Arrangements, a whole new can of worms could be opened and many more lawsuits could follow from companies.
This is certainly a tough place for Google to be in. I am looking forward to following this story as it’s outcome could be a game-changers for search marketers and Google advertisers alike.
What Does This Mean for You?
1. Protect Your Brand
Until this lawsuit is settled, the playing field is wide open. There is nothing stopping your competitors from bidding on your brand’s keywords (or name for that matter) and their ads showing up when your potential customers search for you.
My advice is to dedicate ad spend to bidding on your own branded terms to ensure you hold your own in this space.
2. Know Your Competitors
Take a few minutes to Google yourself (often) to see who your paid search competitors are and take note of who is bidding on your branded terms.
3. Understand Google’s Advertising Policies
The last thing you want to do is put yourself or a client’s advertising account in jeopardy. Take the time to read and understand what Google deems acceptable and what they do not. Google may not have policies about branded keywords right now -- but that could change quickly.
4. Don’t Let Your Strategy Go Stale
Your keywords strategy should always be adapting to your own business growth as well as your competitor’s.
If you are not keeping an eye on your keyword strategy after you initially roll it out, then you are doing it wrong. You will see shifts month to month, especially in highly competitive spaces. So stay committed!
As we’ve learned, in situations like this one between Edible Arrangements’ and Google, things are not so cut-and-dry.
This wasn’t a case where a competitive brand was pretending to be Edible Arrangements, although the company would like for us all to believe that.
The particular keywords in question could both be conceived as branded and non-branded.
Think of it like this, if you owned a flower shop that sold chocolate-covered fruit bouquets or baskets, what keywords would you want to show for?
I would imagine “edible arrangements” would come to mind. It’s a perfect description of your product; A perfect use of a keyword that would certainly fall within a buyer's search intent.
So, should you be allowed to use this keyword to help sell your product or will Google view this as a branded keyword infraction and prevent your ad from showing?
That indeed is the $209 million-dollar question.
I guess we will see soon enough as this plays out where Google stands on the situation and how we proceed when it comes to our keyword strategies.