If you make a Mac-related product, or provide a Mac-related service like consulting, you’re probably using some of Apple’s trademarks like "Mac" and "Macintosh" in your advertising. Chances are you’ve never thought twice about doing that, since, after all, you’re contributing to the vibrant economy that helps the Macintosh continue to be profitable for Apple – without software from independent developers and without Mac consultants, the Mac would quickly wither away.
And yet, some recent unsettling events indicate that Apple may in fact be moving in the direction of preventing third-parties from using Apple trademarks in advertising. Last week, I received a confusing email message from Google AdWords Support, telling me that they had "disapproved" several of the ads I placed for "Take Control of Mac OS X Backups" because the ads used the trademarked term "Mac" in their text (there was no complaint about the fact that I was using "Mac" as one of the keywords that triggered my ads). Google’s message gave no further details about why these ads, which had been running for many months, were suddenly in violation of Apple’s trademark (presumably – the message didn’t identify the trademark owner). It did point to Google’s page on Trademark Complaint Procedures, which didn’t tell me, as the person supposedly violating a trademark, anything useful.
Initially, I presumed it was all just a silly mistake, since it’s utterly inane that Apple would restrict the use of its trademarks in advertising for Macintosh-related products. Apple has fairly explicit guidelines for the use of Apple trademarks and copyright, and they say in part:
"Developers may use Apple, Macintosh, iMac, or any other Apple word mark (but not the Apple Logo or other Apple-owned graphic symbol/logo) in a referential phrase on packaging or promotional/advertising materials to describe that the third party product is compatible with the referenced Apple product or technology, provided they comply with the following requirements…"
But then I learned from a number of other well-known Macintosh developers and consultants, including Bare Bones Software and Fetch Softworks, that their Google AdWords ads had been disapproved as well. The ban wasn’t universal, though, and a Google search on "Apple Mac" still reveals numerous ads that use "Mac" in their text. Clearly, the plot was thickening.
Next, I queried Google AdWords Support in an attempt to discover why only some ads had been singled out, and on what basis they were disapproved, given Apple’s highly public guidelines for trademark use. To their credit, Google AdWords Support responded fairly quickly, though with utterly generic and unhelpful text. The message again referred only to "the trademark owner of ‘Mac,’" rather than identifying Apple in any way, and said that "The trademark owner of ‘Mac’ notified us that your AdWords ads were running with the trademarked term without the trademark owner’s permission or other legal authority for doing so." It went on to tell me that if I believed I should be able to use the term "Mac" in an ad, that I should resolve that with the trademark owner.
Annoyed by such mealy mouthed responses from Google, a company I thought better of, I made my requests even more specific, asking for confirmation that Apple Computer had explicitly requested that my particular ads be disapproved because they included the word "Mac." It seemed reasonable that if such a complaint was in fact being made about my ads, that I be given the chance to see it, especially in light of Apple’s trademark guidelines, which seemed to give all the permission that was needed. I also asked again why only some ads had been disapproved. The response was again quick, and only moderately more informational, if not actually helpful. Google refused to provide me with a copy of Apple’s request (this was the first time that they had acknowledged that Apple was the trademark owner), and ignored my other questions. The note did, for the first time, give actual instructions for how someone using a trademarked term in a disapproved ad could have it approved again: it involved Apple faxing a signed letter on company letterhead to Google with an explicit statement authorizing the use of the trademarked term, along with my Google login email address or customer ID.
In an effort to learn Google’s official line, I talked with Google PR, through whom Rose Hagan, senior trademark counsel at Google, told me, "It’s our policy to not disclose information on specific actions we have taken regarding our trademark policy in order to protect our advertisers’ confidential information. However, we can confirm that we have received a complaint under our trademark complaint procedure from Apple regarding ads targeting the EU. Our longstanding policy outside of the United States and Canada is that we do not allow the use of trademarks as keywords if the trademark owner objects."
Hagan also said, "Google AdWords uses the targeting criteria of the campaign to determine whether or not to show ads with trademarked terms as keywords or in the ad text. Depending on where the ad is targeted, will determine what trademark policy applies." But when I created and submitted a new ad that used the word "Mac," it was rejected instantly as containing a trademark, even though the campaign was limited to the U.S. When I requested an exception based on the geographic distribution, Google allowed it through.
What if you want to use Google AdWords to market your Mac-related product or service in the EU? Good luck, since your only hope is to get that permission slip from Apple Legal sent to Google, and at the moment, there’s no indication that Apple is willing to issue such permission slips to everyone who might want one. Although they ignored my request for additional information, you can attempt to contact Apple’s Trademark Department at <[email protected]>. Unfortunately, I was unable to learn why EU trademark law is sufficiently different from U.S. trademark law to enable these restrictions.
In case you were wondering, the Apple trademarks at issue here are apparently: Apple, iPod, Shuffle, Mac, Mac Mini, iMac, iBook, PowerBook, Power Mac, iTunes, and iTMS. That’s by no means a full list of Apple trademarks, which has some truly amusing entries, such as AirMac, Encyclomedia, HotSauce, Moof (and the associated dogcow logo), PowerLunch, SourceBug, and, get this, Yum.
Of course, it’s possible that Google disapproved other ads that included words like "apple" and "shuffle" because of this, but since Apple’s trademarks are topic-specific, you can in theory still advertise an apple peeler or a book about card shuffling tricks. In such situations, I certainly hope that exception requests would be honored instantly.
Now, I hope it’s clear that I don’t think Google is primarily to blame for this snafu. I think Google AdWords Support handled it poorly at the beginning, but Google PR eventually came through with an official line that contained the necessary clue on how to work around the problem for anyone who doesn’t want to market to the EU via Google AdWords.
Apple is another story. Although I’ve learned from sources that Apple Developer Relations is aware of the issue and has suggested the same workaround as Google’s trademark counsel (limiting geographic distribution), Apple PR failed to get back to me with an official statement explaining the situation. In the absence of such a statement, all I can do is speculate as to Apple’s motivations and goals, and in this case, that’s more difficult than normal. Usually, when Apple makes an unpopular move, it’s relatively easy to see how the company stands to benefit, even if there’s a trade-off in bad publicity. That’s certainly been the case when Apple pulled out of Macworld Boston, when it sued Think Secret, and when it attempted to subpoena records from online journalists relating to leaked information regarding a FireWire audio interface for GarageBand. In those situations, Apple was attempting to keep control over its product release schedule, how it spent marketing money to attract new customers, and its trade secrets.
Control is likely the issue here as well. Apple’s trademark use guidelines are quite explicit, but it’s likely that most people aren’t aware of them at all, so this sort of a request could be a shotgun approach to clearing out people who are misusing Apple’s trademarks in Google AdWords ads, at least in the EU. If so, it would seem to be a highly misguided approach, since it will harm every legitimate Macintosh or iPod developer, consultant, or reseller that relies on Google AdWords as a way of reaching EU customers. Sure, it’s not absolutely essential to include Apple’s trademarked terms in ad text, since the ads will still show if the appropriate keywords are entered during a search. But at the same time, for ads relating to Macintosh or iPod products or services to be effective, it’s a bit of a stretch to come up with wording within Google’s tight character count limits that’s clearly descriptive. Heck, it can be hard enough even when you can use trademarked terms.
Could this be a trial balloon to prevent Apple’s trademarks from being used in any sort of third-party advertising or marketing materials? It seems highly unlikely, but even restricting the use of Apple trademarks in the EU seemed ridiculous. And again, apart from a sense of control, it’s unclear why Apple would even conceive of doing this. Without successful software and other products and services from people outside Apple, the Macintosh would wither quickly, and although the iPod isn’t nearly as reliant on all the cases and accessories that have appeared, it too would suffer. It’s difficult enough to attract new customers in the limited Macintosh market as it is, and I can’t see how making it even harder helps anyone.
In the end, I’m going to err on the side of stupidity rather than spite, and guess that some eager legal beaver at Apple saw an egregious misuse of an Apple trademark within an ad at Google and decided to shut it down via a cease-and-desist letter that was far broader than it should have been, or was interpreted that way by Google’s lawyers. It’s especially a crying shame that Apple had to go off half-cocked like this, with neither Apple PR nor Apple Developer Relations knowing what was happening initially, since the AdWords disapprovals caused much unnecessary gnashing of teeth and tearing of hair in the Macintosh developer community. Even assuming that the decision had some rationale behind it, Apple should have anticipated the furor and put a process in place to deal with it ahead of time, rather than wait for Mac developers and the press to squawk. Now we just have to wait and see how Apple cleans up this entirely avoidable mess.