Lost in Translation
An extremely useful and exciting aspect of the affiliate marketing on the internet is the ability to reach diverse customers through media that is extremely relevant and localized to their interests. This is especially true for companies targeting international or multi-lingual markets because there may be barriers to traditional channels and a lack of familiarity with the market. In this situation affiliate marketing is perfect because the advertiser can utilize the publisher’s existing experience serving these customers. However, these opportunities also a present risks to advertisers who want to protect their Trademarks (which is most of them). These risks relate to both legitimate and bad faith activities on the part of their affiliates.
Trademark Basics:
A Trademark is any word, name, symbol, slogan, package design or any combination of these that identifies and distinguishes a product from all others in the market. A service mark is basically the same thing but is used in advertising and selling services. A Trademark may be registered but does not have to be enforced. The primary limitation on Trademarks is that generic terms may not be protected. A generic term is one that does not function as an indicator of origin because it commonly refers to a particular category of goods or services to which it relates.
Policing International Trademark Usage:
When working with international affiliates it is extremely important to establish a policy for Trademark use and communicate it to affiliates. As a general matter, the owner of a Trademark can lose the full scope of its protection by allowing it to be misused or by diluting it. The purpose of Trademarks is to prevent customer confusion. Therefore if the Trademark holder allows confusion, caused by the acts of an affiliate to persist, the right will be diminished. It is important to note that Trademark rights are determined by market; therefore a Trademark may cease to be enforceable in one market but continue in another. This is relevant because with international affiliates the Trademark will be used across markets and maximum protection in all markets is desirable.
Special Problems:
Although there are myriad of problems that could arise in this context I will focus on just three. Translation of Trademarks into foreign languages may seem like a good way to tailor campaigns to foreign markets, but it is generally unadvisable to do so. This is because the Trademark identifies the source of the product and the literal translation will usually fail to do so. Furthermore, it is possible that the translated version may not receive the desired level of protection as compared to an established international brand.
Translation of domain names presents similar problems but in a more sinister way. A translated domain name, like on altered one is still likely to be covered under the Trademark for the original. This means that affiliates operating under such domains are doing so in violation of the Trademark. Advertisers should care about this for two reasons. First, they are losing money to people who are poaching their brand and failure to act may cause their rights to diminish as customer confusion about the brand persists in the market.
Finally, even in the absence of bad faith Trademark rights may be damaged by misuse on the part of the holder or the affiliate. Generally, companies must use their Trademarks in a way that reinforces consumer identification. Therefore, Trademarks must, among other things, always be distinguished for other matter, properly spelled and never used as a noun. These rules prevent the Trademark from becoming generic or irrelevant over time. While companies must be cautious in this respect in their own activities, they must be particularly vigilant when dealing with international affiliates. Language differences, local custom and law may mean that publishers may not protect the brand as well as the advertiser may like. To combat this problem it is important for advertisers to set out careful guidelines about the use of Trademarks and take particular care that materials used in international campaigns conform to meet these standards. Furthermore, it is advisable that advertisers monitor the use of Trademarks carefully and require approval of its use outside of the materials is distributes.
Sources:
www.ita.org/info/
www.impaqt.com/insights/sem-Trademarks.htm
Roman Kilun is a Research Analyst at DMO Global, Inc., a leading affiliate network solely dedicated to serving international and multicultural markets. Roman, a native born of Uzbekistan, is fluent in Russian and Spanish and focuses on emerging markets throughout the world. If you have any questions about online advertising opportunities in these markets in the online marketing space, please contact Roman Kilun at the address set forth below. DMO Global, Inc. is a wholly-owned subsidiary of Dragon Media Online, Inc., an international media and technology company.
