Brand Bidding and Trademarks in Paid Search
Bidding on a merchant's trademarked keywords is heavily litigated and almost always contractually restricted. The legal picture versus your affiliate agreement.
Brand bidding — buying a merchant’s trademarked terms as keywords in paid search — is one of the most litigated and most contractually restricted practices in affiliate marketing. The legal picture and the contractual picture are different, and you have to satisfy both.
The legal position
US courts have largely held that merely purchasing a competitor’s or merchant’s trademark as a keyword is not automatically infringement. Liability turns on likelihood of confusion, which courts assess mainly by looking at the content of the ad text and the landing page. An ad that uses the trademark in its copy or display URL, or that implies an official relationship, carries far more risk than one that bids on the term but presents clearly independent content.
Some plaintiffs invoke “initial interest confusion” — the idea that confusion which draws a consumer in is actionable even if dispelled before purchase — but courts have grown skeptical, and trademark owners generally face an uphill battle proving confusion in keyword cases.
Legal tolerance is not permission
Even where the law might permit bidding on a brand term, your affiliate agreement almost certainly forbids it. Affiliates are terminated for brand bidding far more often than they are sued for it.
The contractual position
Merchant and network agreements commonly prohibit affiliates from:
- bidding on the merchant’s brand terms, trademarks, or common misspellings;
- using trademarks or brand names in ad copy, display URLs, or paid-search domains;
- direct-linking ads to the merchant’s site;
- using the brand in ways that compete with the merchant’s own paid search.
Violations typically trigger commission clawback and account termination. Because these are contractual remedies, they apply even where the underlying conduct would not meet the legal threshold for infringement.
Practical guidance
Read each program’s PPC and trademark policy before running any paid search. Assume brand-term bidding is prohibited unless a program expressly allows it. Keep trademarks out of your ad copy and display URLs. When a program does permit brand bidding under conditions, follow those conditions precisely and keep records of the permission.
Related: trademark issues and affiliate program terms.
Authoritative sources
Last reviewed July 2026. This page is general educational information, not legal or tax advice.