If you’re reading this, you probably know what dynamic keyword insertion is, and just want to know about the legal implications. But just in case, a quick bit of background.
Dynamic keyword insertion is a feature used by major PPC (Pay Per Click) advertising networks such as Google Ads and Microsoft Advertising (Bing Ads as it was known until recently). It’s a way to automatically add a keyword into the text of a PPC ad based on what the browser user seeing the ad actually searched for. Here’s how it works.
The marketer creating PPC ads uses a special DKI code in the ad text which tells the PPC network to insert the keyword that triggered the ad display into the text. Google, for instance, has this example:
Let’s say you’re advertising a chocolate shop. You could use a keyword insertion code in your ad headline:
Headline: Buy {KeyWord:Chocolate}
Google Ads will try to replace this code with one of your keywords in your ad group (“dark chocolate,” “sugar free chocolate,” “gourmet chocolate truffles”), but when it can’t, it’ll use the word “Chocolate.”
Okay, enough said (if you need more info, go look at that Google example).
And Now, The Legal Problem…
So, how does DKI lead to lawsuits?
Well, I’ve seen this a number of times in my work as an expert witness (I’m an expert witness in litigation related to Internet technology and digital marketing). Here’s what happens. First, the person setting up the PPC account decides to bid on a competitor’s “wordmark”; a trademarked word. Let’s say, for instance, that HBO decides to bid on the keyword sundance tv; that is, the marketer is telling the PPC service, “if someone searches for the term sundance tv–or similar–I want my ad to be shown.”
Now, that’s okay, the major PPC networks allow companies to bid on competitor’s trademarks, and in general the courts (at least in the United States) have ruled that it’s okay, too. Let’s say, though, that this keyword is inside a very big list of keywords in the ad group that the marketer is creating; the person setting up the account may not even pay much attention to it, it’s just one keyword among dozens or maybe hundreds.
Next, the marketer creates some text ads, and uses the DKI code inside the text of the ads somewhere; in a heading or the body of the ad. For instance, the heading might say {KeyWord:Watch HBO} – Streaming on HBO Max™
Perhaps the ad group’s keyword list contains mostly a list of HBO shows; so, for instance, if someone searched for stream starstruck the ad might be matched up with the starstruck keyword in the ad group’s keyword list and the heading of the ad displayed to the searcher would say Starstruck – Streaming on HBO Max™
The marketer sets the ad group to run, and the ads start appearing.
Now, let’s say someone comes to the search engine and searches for a term that includes the trademarked text; someone searches, for instance, for watch sundance or watch sundance tv. And let’s say the search engine matches up that term with the keyword sundance tv, and displays HBO’s ad. The keyword tag {KeyWord:Watch HBO} will be replaced with the text Sundance Tv, so the heading will show as follows:
Sundance Tv – Streaming on HBO Max™
If someone at AMC Networks, the parent company of Sundance TV, sees this ad…well, it’s game on! Let the accusations of trademark infringement fly!
A Simple Solution
This sort of problem is surprisingly common. But the solution is simple. Sure, go ahead and bid on competitors’ trademarked terms. But never use DKI in an ad group that contains trademarked terms. That’s all it takes; simply disassociate any trademark-term keywords from DKI–perhaps have a separate trademarked-term ad group–and you won’t be hearing from your competitor’s attorneys. (Well, you probably won’t, though many attorneys haven’t received the message that bidding on competitors’ trademarked terms is okay.)
