When a brand manager first sees an ad on their own brand name that isn't theirs, the instinct is immediate and wrong: they're using my trademark — I'll have my lawyer shut them down.
In 2026, for the bid alone, you will almost certainly lose. In a six-month stretch in late 2024, two federal appeals courts — the Second Circuit and the Ninth, covering a huge share of the country — both held that buying a competitor's trademark as a search keyword is not, by itself, trademark infringement. The Supreme Court was asked to revisit one of them and declined. The law on this is now about as settled as law gets.
But "settled against you" isn't the whole story, and the part that's missing is the part that matters for an affiliate program. Because there's a hard line between two situations that look identical on the search results page:
- A competitor bidding clean on your brand owes you nothing but trademark law — which now mostly protects them.
- An affiliate bidding on your brand signed your program contract — and that's a lever the courts just made more valuable, not less.
This is the legal landscape, accurately, for the person who has to decide what to actually do about it.
I am a founder, not a lawyer. Everything below is sourced to the actual court opinions, and none of it is legal advice — get a trademark attorney before you act on any of it.
What the courts actually said in 2024
Two cases. Read them together and the rule is unmistakable.
1-800 Contacts, Inc. v. JAND, Inc. (Warby Parker) — Second Circuit, October 8, 2024 (2024 WL 4439136). 1-800 Contacts sued Warby Parker for bidding on its trademarks in Google's keyword auction. The court threw the claim out, and the language is about as blunt as appellate courts get:
"We now join the consensus view and decide that the mere act of purchasing a competitor's trademarks in the context of keyword search advertising does not constitute trademark infringement."
And the line worth memorizing:
"Warby Parker's practice of bidding on competitors' trademarks during search advertising auctions is a permissible and standard industry practice… This well-known marketing strategy — standing alone — cannot support a claim of trademark infringement absent additional use of 1-800's Marks."
The court ran the full likelihood-of-confusion analysis, found that several factors actually favored 1-800 — and held it didn't matter, because Warby Parker never displayed 1-800's mark in the ad copy, the URL, or the landing page. No display of the mark, no confusion, no case.
Lerner & Rowe PC v. Brown, Engstrand & Shely LLC — Ninth Circuit, October 22, 2024 (119 F.4th 711). A law firm sued a competitor over keyword bidding and lost on summary judgment. What makes this one quotable is the math. The court had the actual numbers: 236 alleged instances of confusion against 109,322 ad impressions — a 0.216% confusion rate — and held:
"No reasonable jury would conclude that this percentage is anything but de minimis and fails to support a finding of likelihood of confusion."
It also shut the back door that trademark plaintiffs love — "initial interest confusion," the theory that merely diverting a shopper's attention is actionable. The court said that theory applies only to "misleading and deceptive" uses, "not to legitimate comparative and contextual advertising," and that "the owner of the mark must demonstrate likely confusion, not mere diversion."
One judge went further. In a concurrence, Judge Desai urged the Ninth Circuit to reconsider, en banc, whether keyword bidding is even a "use in commerce" under the Lanham Act at all — because the bidder "never presented [the] marks to the consumer… or to any consumer at all." That invitation was not taken up: Lerner & Rowe sought rehearing (denied December 2024), then petitioned the Supreme Court, and cert was denied on May 27, 2025. The ruling stands as final, binding Ninth Circuit precedent.
The trend held into 2025 — courts kept dismissing pure keyword-bidding claims (Eric Goldman, the leading academic tracking these cases, catalogued several through the year). If you take one thing from the case law: the bid by itself is not the violation, and that door is closed.
The line that still creates liability: "additional use"
Here's where it stops being bad news. Both courts were careful to say what they were not holding. The bid alone is fine — but the moment the advertiser does something more with your mark, you're back in business. The Warby Parker court spelled out the boundary, including in a footnote that should interest anyone fighting affiliate fraud: if the landing page "mimicked 1-800's website such that it was a mirror image" of it, that could support a trade dress claim. And the whole holding turns on the phrase "absent additional use."
So bidding crosses back into actionable territory when the advertiser:
- Puts your mark in the ad copy — the headline, the description, an ad extension.
- Uses a deceptive display or final URL that suggests it's you.
- Runs a landing page that mimics or impersonates your site (trade dress), or otherwise implies official affiliation.
- Layers in typosquatting — a lookalike domain.
Look at that list again, because it's a near-perfect description of what brand-bidding affiliate fraud actually does. The fraudster who bids your name, runs a "[Your Brand] Official Discount" ad, and bounces the click through a lookalike coupon domain is not doing the clean, protected thing the courts blessed. They're doing the thing that still gets you a claim. The 2024 rulings protect the boring conquesting competitor; they do not protect the deceptive interceptor.
Why this is a different question for affiliates
Now the distinction that actually changes your strategy — and that most coverage of these cases completely misses, because it's written for competitors, not programs.
A competitor has no relationship with you. Your only weapon against them is trademark law, and trademark law now mostly sides with them on the bare keyword bid.
An affiliate is bound by a contract. They applied to your program and agreed to your terms. If your terms prohibit bidding on your brand — and they should (see the enforcement workflow) — then an affiliate who bids your brand has committed a breach of contract, full stop. It does not matter whether that same bid would survive a Lanham Act challenge. You are not suing them for trademark infringement; you are enforcing an agreement they signed, through a venue — the affiliate network — that can reverse the commission and terminate the publisher in days.
That reframing is the whole point. The 2024 rulings made trademark litigation a weaker tool against brand bidding. They did nothing to your contract. So against an affiliate, the courthouse was never the right venue anyway — your program terms and the network's compliance process are faster, cheaper, and don't care what the Ninth Circuit thinks about "use in commerce." (And when recovery is on the line, that enforcement runs against a validation-window clock — the lever is speed, not litigation.)
This is also the deeper lesson of the PayPal Honey case: the affiliate networks acted in weeks where the courts have taken years. The contract and the network are where attribution disputes actually get resolved.
Why Google won't save you either
The other reflex is to file a Google Ads trademark complaint and assume it solves the problem. For a clean-bidding affiliate, it mostly doesn't, and the reasons are worth knowing precisely.
Google's trademark policy (current in 2026) will not restrict using a trademark as a keyword. It only reviews the use of your mark in ad text, only against specific advertisers you identify by URL, and only where you hold registered trademark rights — and since July 24, 2023, you have to file per-advertiser, not industry-wide. So an affiliate who bids your name but keeps it out of the ad copy is outside Google's complaint mechanism entirely. Google will take your brand out of their headline; it will not take them out of your auction.
(One regional exception worth flagging if you operate internationally: in the EU/EFTA, Google's policy is different — it may restrict trademark use as a keyword after a complaint, and European case law on keyword ads has historically been less permissive than the U.S. position. If your fraud is European, talk to local counsel — the U.S. rulings above don't govern you.)
So what actually works
Put the case law and the policy together and a clear hierarchy falls out. Against brand-bidding affiliates, in order of leverage:
- Your program terms + network enforcement. The primary lever. A bid that breaches your terms gets the commission reversed and the publisher terminated — no trademark theory required. This is Step 0 and Step 1 of any real enforcement program.
- The "additional use" trademark claim — when it's there. Mark in the ad copy, a mimicking landing page, a deceptive URL: those survive Warby Parker and Lerner & Rowe. Document them; they're your strongest legal facts.
- UDRP / WIPO for typosquat domains. If the affiliate registered a lookalike domain, the domain-dispute process is fast (typically weeks), cheap (around $1,500), and reliably wins against an obvious typosquat — far better than federal court.
- The FTC disclosure angle for affiliates running deceptive, undisclosed setups — a lever the FTC can pull, and a standard you can cite in a demand letter.
Notice what's not at the top of that list: suing a clean-bidding party for trademark infringement. After 2024, that's the weakest play in the deck.
What brands get wrong
Three misconceptions I hear constantly, and the 2026 correction for each:
- "I can sue anyone who bids on my brand name." Mostly false now. Bare keyword bidding, without your mark in the ad or a deceptive landing page, is "permissible and standard" per two federal circuits, and the Supreme Court left it alone. You need additional use to have a claim.
- "A Google trademark complaint will stop them." Only if your mark is in their ad copy. It does nothing about the keyword bid itself, requires a registered trademark, and since 2023 must be filed advertiser-by-advertiser.
- "My trademark registration protects my keywords." Registration matters for the cases where you do have a claim — but it does not stop anyone from bidding on your brand as a keyword. Owning the mark and owning the auction are two different things.
The honest summary: the law moved the leverage out of the courtroom. Against a competitor, you mostly have to live with the clean bid. Against an affiliate, you never needed the courtroom — you have a contract and a network, and those still work exactly as well as they did before 2024.
Mario Vaher is the founder of AdCrime, which scans Google Ads across multiple regions for affiliates bidding on brands they aren't authorized to touch, resolves the redirect chain and publisher ID behind each one, and packages it as the evidence you'd file with the network — where brand-bidding disputes actually get resolved. If you want to see what's bidding on your brand right now, the first scan is free — or read the full, ungated Affiliate Brand-Bidding Fraud Playbook.