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Hi all,
Here is a hot topic I would like to share with affiliates and on which I would invite views and comments.
We at i-love-bingo.co.uk, have a strict policy to respect operators terms and conditions and not to bid on their brand(s) terms. There are only a hand full of keywords on which we bid, “bingo” being the obvious one.
We set our keywords on “Match” and “phrases” and “broad” and Google probably pick up “the brands” + ” Bingo” as part of the phrase or broad status.
We can justify, demonstrate and prove that we do not bid on operators brands as we keep a record on all of our PPC campaigns past and present.
However, we increasingly get emails from certain operators, accusing us of brand bidding. We always reply with the the above statement and also point out that if their were to type their names with “bingo” attached” or indeed without bingo, our ads would not appear.
We are prepared to add their brand names as negative keywords but are not prepared to add all possible generic terms combination.
For example, if their name is “silverhatbingo”, we would add “silverhatbingo” and “silverhatbingo.com” as negative. But often they request that we add “silver”, “silver hat”, “hat” or “silver hat bingo” and all possible combinations known on earth.
In my opinion, since we are not in breach of contract (and can prove it), a request to add all possible combination of a generic terms which happen to form part of a operator’s name is not reasonable nor acceptable. We as affiliates, cannot continiously spend time adding all the possible generic terms as negative keywords.
I would really be interested in reading your comments on the matter.
This is indeed a very interesting topic.
The majority of programs do have the clause that you may not bid on their brand name, and I do concur that this makes sense for them.
However, like you described, this is not always under the control of the bidder.
I think enforcement of these terms needs to be reasonable. I don’t think affs can be expected to excempt every single word and word combination of the brand name.
If so, the brand needs to send you a complete list of what all may be prohibited.
Thanks Dominic but I still dont believe that operators should nor indeed have a legal right to give you a list of all the words they wish affiliates to add as negative keywords.
I fully agree and appreciate that the trademark needs to be respected if included in their T&Cs but I know that demanding that generic terms be added on the negative list simply because they form part of their names would not stand a leg in court as not part of their coprights or trademark.
Furthermore, bidding on a keyword such as “casino”, “bingo” and “poker” set as broad or phrase is not a breach of contract since you are effectively not bidding on terms indicated in the t&Cs.
Thats my point. If an affiliate is not using any of the brand terms but simply bidding on the obvious keywords set as broad and phrases, Google will pick anything to go with those keywords but the affiliate is not in breach since none of the brands terms are being used.
Surely thats an issue which should be raised with Google, but the affiliates is fully legitimate as far as the legal bound with the T&Cs is conerned.
I have to agree that the aff is within legal rights.
I once had a lawsuit filed against me by a company (not in this industry) who had a product name (one of many) I had never heard of. So when it was suggested as keyword by word tracker, I used it.
We went back and forth on this for a while and eventually I dropped the keyword and they dropped the law suit. I suggested to them that they need to deal with word tracker on this.
It’s a bit more tricky though with aff program – they have your money and may try to withhold it on such a technicality.
If that is the case, I suggest you post in the CAP resolution forum and see if it can’t get settled asap that way.
Thanks Dominique.
Well so far, sending the operators an email similar to the content of my post has been sufficient and we have not been asked again to add an entire terms list.
I think that the fact that we add their trademark name (as in one word xxxxbingo, xxxxbingo.com) as a negative keyword is regarded as a good will gesture and they tend to be satisified.
Nevertheless, we wouldn’t hesitate to go to court if our program were stopped on this basis and I would be happy to post the progress on this forum.
Interesting read here on a case re Louis Vuitton trying to sue Google in France re people buying their trademark via AdWords – French Connection: Google’s AdWords Clipped by Louis Vuitton : Legal Bytes
Re your situation – It is hard as I can see the operators point of view initially when they see this activity but at the same time you are making an effort not to buy their trademark/brand as well so its not you being agressive purposely buying their brand in Google….Problem as Dom says is that its an affiliate deal and the last thing you want is the time, effort and money involved if they hold you to ransome
@Fabien Bello 222536 wrote:
Thanks Dominic but I still dont believe that operators should nor indeed have a legal right to give you a list of all the words they wish affiliates to add as negative keywords.
I fully agree and appreciate that the trademark needs to be respected if included in their T&Cs but I know that demanding that generic terms be added on the negative list simply because they form part of their names would not stand a leg in court as not part of their coprights or trademark.
Furthermore, bidding on a keyword such as “casino”, “bingo” and “poker” set as broad or phrase is not a breach of contract since you are effectively not bidding on terms indicated in the t&Cs.
Thats my point. If an affiliate is not using any of the brand terms but simply bidding on the obvious keywords set as broad and phrases, Google will pick anything to go with those keywords but the affiliate is not in breach since none of the brands terms are being used.
Surely thats an issue which should be raised with Google, but the affiliates is fully legitimate as far as the legal bound with the T&Cs is conerned.
They can’t (or it would be very difficult) legally prohibit you from broadly buying their terms. However they can certainly choose not to do business with you for this reason, or for whatever reason they choose. They have no legal obligation to allow you to promote them. All the talk about what a casino can and can’t do legally is irrelevant if you want to do business with them. If they don’t like how you are promoting them, they don’t have to let you continue to affiliate for them.
Thank you both (alexpratt and nolimitvegas) for your contribution and comments.
I found the negative terms demands (based on the fact that one is T&Cs compliant that is) utterly ludicrous and futile. Lets face it, if a user took the time to type the brand name in Google, and you ad which doesn’t have any reference of the brand name searched for, happens to be triggered because you set your obvious keyword on broad and phrase in 10th position to the left of Google page, what are the chances for it to be clicked????? Looking at my stats over 3 years, I have never had one single PPC click generated in that way.
Now following your contribution and comments, I thought I’d bring up further points which force me to enter a very controversial territory, but I think it is important to raise affiliates profile and confidence when they work so hard.
I can see that operators may choose not to do business with you because they decide erratically to terminate the contract (which would clearly not be in their interests nor yours) but I recall a legal article posted on iGBAffiliate (“the Terms of the contract”, October/November 2009″ issue, which states that a change in the contract terms which would be unfavourable to the affiliate would be a breach of contractSo, taking this article into consideration and stretching its content, the affiliate would no longer be benefiting from the operators promotions from the termination effective date however he/ she would still be entitled to claim the revenue generated by the players he/ she brought up to the termination date since no breach of contract would have been committed. (I would be quite interested to know where an affiliate stands from a legal point of view, when an operator terminates a contract for no legal reason; any advise and documentation on the matter would be welcome).
Don’t get me wrong, I am all for a good relationship between Operator and affiliate and this has always been the case. I will endeavour to do anything to keep a good business relationship and I work very hard. However affiliates often feel helpless and intimidated by operators who use their weight to bully, have excessive demands or act unreasonably. When this occurs (and I have been in the situation myself whereby commissions were reduced without prior noticed and applied to my existing players (i won’t be giving any names, but I am sure the operators in question will recognise themselves), I think it is vital that affiliates know what their rights and options are and stick together.In the worse case scenario (and hopefully all can be resolved amicably before getting there), despite the fact that they may lose brands, affiliates can still intelligently use the situation to their advantage.
I want to stress again, that it is not my intention to get into any fights, but one has to defend himself when necessary.
@Fabien Bello 222593 wrote:
Thank you both (alexpratt and nolimitvegas) for your contribution and comments.
I found the negative terms demands (based on the fact that one is T&Cs compliant that is) utterly ludicrous and futile. Lets face it, if a user took the time to type the brand name in Google, and you ad which doesn’t have any reference of the brand name searched for, happens to be triggered because you set your obvious keyword on broad and phrase in 10th position to the left of Google page, what are the chances for it to be clicked????? Looking at my stats over 3 years, I have never had one single PPC click generated in that way.
This is an ancient clause that has been present in most all programs since the early days when gambling PPC was legal everywhere and for everyone. Back then there were huge bidding wars between affs and casinos, driving the cost sky high. So, affiliates were forbidden to bid on the brand name.
@Fabien Bello 222593 wrote:
Now following your contribution and comments, I thought I’d bring up further points which force me to enter a very controversial territory, but I think it is important to raise affiliates profile and confidence when they work so hard.
I can see that operators may choose not to do business with you because they decide erratically to terminate the contract (which would clearly not be in their interests nor yours) but I recall a legal article posted on iGBAffiliate (“the Terms of the contract”, October/November 2009″ issue, which states that a change in the contract terms which would be unfavourable to the affiliate would be a breach of contractI think that was my article – the one they added a disclaimer to
@Fabien Bello 222593 wrote:
So, taking this article into consideration and stretching its content, the affiliate would no longer be benefiting from the operators promotions from the termination effective date however he/ she would still be entitled to claim the revenue generated by the players he/ she brought up to the termination date since no breach of contract would have been committed. (I would be quite interested to know where an affiliate stands from a legal point of view, when an operator terminates a contract for no legal reason; any advise and documentation on the matter would be welcome).
You are correct, if the contract (T&C) states that the player will be tagged to the affiliate for life, then there is a breach of contract. Any legal actions are very difficult to bring against the program, since the jursidiction they are under may or may not support the claim, and proper presentation and a possible litigation can be very expensive when you are dealing with international jurisdictions. An example is Grand Prive, previously Referspot. They simply closed the Grand Prive aff program and opened another, and discontinued stats reports from the legacy Referspot. Then they asked ecogra to evaluate what they owed people and just didn’t show them the legacy stats.
So they walked clean, while owing hundreds of thousands to affiliates.
@Fabien Bello 222593 wrote:
No, using trademarks will still be illegal and can be legally pursued. Whether you are under contract or not.
@Fabien Bello 222593 wrote:
Don’t get me wrong, I am all for a good relationship between Operator and affiliate and this has always been the case. I will endeavour to do anything to keep a good business relationship and I work very hard. However affiliates often feel helpless and intimidated by operators who use their weight to bully, have excessive demands or act unreasonably. When this occurs (and I have been in the situation myself whereby commissions were reduced without prior noticed and applied to my existing players (i won’t be giving any names, but I am sure the operators in question will recognise themselves), I think it is vital that affiliates know what their rights and options are and stick together.In the worse case scenario (and hopefully all can be resolved amicably before getting there), despite the fact that they may lose brands, affiliates can still intelligently use the situation to their advantage.
I want to stress again, that it is not my intention to get into any fights, but one has to defend himself when necessary.
We have been blacklisting casinos for years. Try googling “grand Prive” and “casino blacklist” or “blacklisted casinos” and see.
