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Protecting Your Brand Online

One of the greatest sessions from SMX East a few weeks back was “Protecting Your Brand From Online Fraud, Infringement & Other Emerging Threats.” Today we have complied a few little tidbits from that session!  This session was moderated by Matt Van Wagner, president of Find Me Faster, and it starred Tad Miller, VP of Accounts at Marketing Mojo (@jstatad), Michael Steck, general counsel at Avalaunch Media (@stecklaw) and Eric Berman, counsel at Venable LLP (@allaboutadvlaw). Its worth noting that two of the three moderators are attorneys, as managing your online presence involves a tight hybrid between marketing best practices and application of good legal precedent.


In case you are unfamiliar with the concept of “conquesting” it is the method by which marketers attempt to advertise their products or services alongside a competitor’s content or ads.  There are two types of conquest campaigns out there, “Search Ad Conquesting” and “Editorial Conquesting.”

Search Ad Conquesting is advertising on someone else’s trademarks.  Google and other networks allow you to bid on competitors’ trademarked brand names so your ads display contextually with your competitor’s stuff.  Just because you can do it, doesn’t mean you should because:

  • Conquesting delivers the lowest conversion rates and ROI.
  • The best case scenario is the nobody wins the customer.
  • Competitor ads will usually get only a Quality Score of 1 or 2 out of 10.
  • That low quality score will typically translate into Cost-Per-Clicks (CPCs) that are up to 200 percent higher than a normal CPC-this makes running conquests ads very costly.
  • If you are running these ads, you could be paying up to 600 percent more than a person with a high Quality Score.
  • You will see a low share of impressions-it can be a struggle to get enough impressions with a lower Quality Score.
  • You can’t use your competitors trademarked words in your ad’s copy. So your ads won’t have the bold blue text on the trademarked word, which will cause you to lose the CTR lift from that attention getting feature.
  • Conquesting delivers the lowest conversion rates and ROI.

Editorial Conquest is when a competitor targets specific keyword phrases in search, such as reviews of products or news articles, especially around major announcements. For instance take a look at this image, this is a review from cnet on the new iPhone 6 completely wrapped in Samsung ads!



Miller included a list of the following recommendations for protecting your trademarks in the session:

  • File a trademark list for your company’s Intellectual Property (“IP”) with the search engines, and keep your “White List” of acceptable users (those authorized to use your marks) up to date.
  • Notice that you’re vulnerable off-brand — in other words, be aware that some word variations that are open and fair-use may be fuzzy matches in search for your brand name, allowing ads to appear. The example he provides is Oracle advertising a paper on “How a Sales Force Sells,” which then appears when people search for “Salesforce.” Sneaky!
  • Read the Art of War by Sun Tzu, and think strategically of how you can be attacked/defended.
  • Everyone is vulnerable in the short term, such as during your brand’s special events and announcements. Conquesting can ruin your very special (very public) days.
  • Close the gap on ALL the channels — for instance, YouTube.
  • Twitter is the next conquesting frontier: You have to buy hashtags and ads. Buy all the spots on a reveal day.
  • Think like an attacker. You have weak links. Advertise on YouTube, social sites, contextual ads, display. Don’t let anyone use your display URL if they’re an affiliate, or they’ll prevent your ads from showing.
  • Your brand is your most valuable resource. You’ve got to bid on it. Bid heavy with big budget on your special event days.
    Max out traffic on your brand.
  • Don’t allow affiliate domain URL hijacking — where affiliates may show your domain name in their ads, but they’re directly linking the ads to the destination URL with their affiliate referral code so they get commission checks from you. Since only one use of that Display URL may appear via ad auctions, this can keep your own ads from appearing. Affiliates don’t always follow brand guidelines. It can create “buggy” revenue attribution, giving you a skewed picture of how much on-brand traffic you are (or could) receive versus from affiliate/unbranded channels.
  • Most affiliate programs don’t allow direct linking.
  • Talk to your IP attorney if you’ve got these problems.
  • Get more ad budget to keep people from conquesting.


Classically intellectual property has been referred to as “creations of the mind.” Examples of this are artistic and literary works, symbols and designs, inventions, and names and images in commerce.

The digital landscape has shifted the definition to include personal data. Some examples of this are the Ashley Madison data breach and other breaches of personal data such as Target, where 40 million credit and debit card users were affected, and Home Depot, where 65 million people were affected.

Threats include everything from something so simple as a video being removed for using the “Eye of the Tiger” up to fraud, copyright protections/infringement and IP protections. In 2014 alone we have seen a 48% increase in cyber attacks compared to 2013, a trend that is growing for the foreseeable future.

According to McKinsey & Co. the average loss in a cyberattack against a US company is $2.9 million.  Not only that but these attacks will slow the pace of technology and business innovation over the next few years and will cost the economy $3 trillion annually.


  1. Registration. Register IP with the US Patent & Trademark Office, the US Copyright Office; and available for free to all without registration are the TM (trademark) and SM (sales mark) denotations.
  2. Core Online Legal Docs. Your sites should have: a Privacy Policy (should use the word “notice”); Terms of Use; COPPA; and should identify necessary notices according to your industry.
  3. Enforcement: Direct & Indirect Enforcement. Direct is using a Trademark Complaint Form/Authorization Form/DMCA/Cease and Desist Letters/litigation; Indirect is through: PPC — advertising on your own IP (like what Miller presented earlier) on your own keywords. And protection through use — use it or lose it; for SEO and SEM. Trademarks need to remain “in use” as a way of protecting them.
  4. Review Your Contracts. Review contracts for independent contractors, marketing agencies and limited use resellers. Contractually restrict what they can do with your company’s intellectual property.
  5. Review Operation Controls. Privacy Policy and Employment Policies.
  6. Risk Analysis. Who needs to know key data? Perform a data analysis.
  7. Cryptography. Your valuable data should be encrypted. Also, review who has information system access. Restrict data access to only those who need it.
  8. Breach Detection Analysis. Statistics show that most companies have had a persistent link in their network for more than 400 days. Review policies on how the company deals with a data breach.
  9. Response. What is the outcome/fallout? When it occurs, offer a sincere apology.
  10. Litigation. In litigation, you’re required to turn over requested data. Don’t attempt to destroy data. We prefer “hiding” the sensitive data in the bulk of disclosed data. We’d rather release it properly than delete it.

Now you have the tools to go out there and protect your brand online!