Keyword Advertising Compliance and Enforcement Checklist

By Casey Scott McKay · 2025-07-11

This checklist runs a paid-search trademark matter from intake to docketing in eleven phases, each a set of concrete actions rather than principles. It starts on the compliance side, confirming the registration actually covers what the ads target, writing the one-sentence operating rule, and auditing your own Google Ads and Microsoft Advertising accounts field by field before you audit anyone else's, then moves to locking the affiliate, reseller, and agency channel by contract, building a query matrix and monthly sweep, and capturing ads so the exhibits survive Federal Rules of Evidence 901 and 902(13)-(14). A five-question triage tree routes every capture to exactly one remedy: platform complaint, contract notice, demand letter, counterfeiting procedure, or nothing at all. It then walks the Google and Microsoft complaint forms, the demand paragraphs that avoid handing the recipient a declaratory judgment action under 28 USC 2201, and a settlement covenant drafted around the antitrust problem that 1-800 Contacts left open. It closes with venue, pleading, ESI, Rule 65(d) injunction scope, a deadlines table, and an operating calendar. A single invented matter, Brindle & Company and four very different adversaries, is carried through every phase so the reader sees what "done" looks like at each step.

IP and Technology > Internet | Checklist | Published 11 July 2025 - Updated 5 June 2026 | Casey Scott McKay - marksy.us

Summary. Eleven phases that take a paid-search trademark matter from intake to docketing, as actions rather than principles. Confirm the registration covers what the ads target, write the operating rule, and audit your own ad accounts field by field before you audit anyone else's. Lock the affiliate, reseller, and agency channel by contract. Build a query matrix, sweep it monthly, and capture ads so the exhibits survive Fed. R. Evid. 901 and 902(13)-(14). Run every capture through a five-question triage tree that routes it to exactly one remedy — platform complaint, contract notice, demand letter, counterfeiting procedure, or nothing. Then the Google and Microsoft complaint forms, a demand that does not hand the recipient a declaratory judgment action, a settlement covenant drafted around the antitrust problem 1-800 Contacts, Inc. v. FTC left open, and litigation with an injunction the court can actually enforce. One invented matter runs through every phase.

Keywords: keyword advertising audit · paid search compliance · google ads trademark complaint · microsoft advertising trademark concern form · trademark authorization list · negative keyword list · dynamic keyword insertion · search terms report · ads transparency center · evidence capture protocol · screenshot authentication · affiliate paid search schedule · keyword demand letter · negative keyword settlement clause · antitrust guardrails · initial interest confusion · injunction scope rule 65(d) · brand enforcement escalation · counterfeit triage · retail media networks

What this checklist is for

Working a paid-search trademark problem end to end: finding out what your own account is doing, finding the competitor ads that are actually actionable, capturing them so they hold up, getting them removed, and escalating the small number that justify it.

Who should use it. In-house counsel and brand managers running a search program; outside counsel handling a keyword dispute; solo and small-firm practitioners who need the whole sequence on a few screens. It assumes the doctrine rather than teaching it. The law — Rescuecom, Network Automation, Multi Time Machine, the circuit split, and why bidding is lawful while copy usually is not — is in Buying a Competitor's Name: Keyword Advertising and the Death of Initial Interest Confusion. The reasoning behind each step, with model letters and clauses, is in Running a Keyword and Paid-Search Trademark Program. The cluster as a whole, including SEO and marketplace surfaces, is in the Keyword Advertising, SEO, and Search Marketing Toolkit.

What you'll need before you start. Login-level read access to every Google Ads and Microsoft Advertising account the client or its agencies control — not a slide deck. Registration certificates and current TSDR status for every mark you intend to assert. The affiliate roster, reseller list, distribution and agency contracts, and any prior settlement or coexistence agreement. Analytics access with retention settings visible, plus twelve months of brand-term performance history. A capture workstation: clean browser profile, full-page capture tool, HAR recorder, hashing utility. And a matter number on a docket — half the value of this checklist is that it is calendared.

The one-sentence rule everything below applies: bidding on a competitor's mark is generally lawful; putting the mark in the advertisement generally is not.

The worked example. Brindle & Co. is a Portland cold-brew roaster doing $6.4 million a year direct-to-consumer, owner of U.S. Reg. No. 6,412,905 for BRINDLE in Class 30. Its founder, Priya Raghavan, found a competitor's ad above her own organic result and asked counsel to do something about it. Over eleven months the program dealt with four adversaries: Ninth Avenue Roasters (bids on BRINDLE, ad names only itself — lawful, no action), Harbor Line Coffee (headline "Brindle Cold Brew — Official Retailer," carries no Brindle product), Cold Vector LLC (terminated wholesale distributor still running "Authorized Brindle Dealer — Wholesale Pricing"), and Bean Deals Media (an affiliate whose dynamic keyword insertion started publishing BRINDLE headlines nobody approved). Each phase ends with what "done" looked like on that matter.

| Phase | What you produce | Typical effort | Owner | |---|---|---|---| | 1. Open the file | Rights memo, scope, one-page operating rule | 3-5 hrs | Counsel | | 2. Audit your own campaigns | Field-by-field compliance report on your accounts | 10-20 hrs | Counsel + growth | | 3. Lock the partner channel | Amended affiliate, reseller, and agency terms | 2-5 weeks | Counsel | | 4. Monitor | Query matrix and a repeatable monthly sweep | 90 min/month | Paralegal | | 5. Capture | Authenticated exhibit set with hashes | 5-25 min/capture | Paralegal | | 6. Triage | Every capture routed to exactly one remedy | 1-2 hrs | Counsel | | 7. Platform complaint | Filed complaints, removals, and a notice record | 40 min/filing | Counsel | | 8. Demand letter | A demand that compels without inviting a DJ action | 4-10 hrs | Counsel | | 9. Settle | Covenant that survives antitrust review | 4-8 weeks | Counsel | | 10. Litigate | Complaint, ESI protocol, enforceable decree | 3-8 months to PI | Litigation team | | 11. Close and docket | Operating calendar, archived baseline | 2 hrs | Counsel |

Phase 1 — Open the file: rights, scope, and the operating rule

[ ] Pull TSDR status for every mark you intend to assert and confirm the registration is live, not merely applied-for.
- Trap. A pending application supports a common-law claim and nothing else. It gives you no § 1114(1) count, no constructive notice under 15 U.S.C. § 1072, and no leverage on a platform form that asks for a registration number.
[ ] Confirm the § 8 declaration and § 9 renewal are current under 15 U.S.C. §§ 1058 and 1059, and whether the mark has gone incontestable under § 1065. See the Section 8 & 9 Renewal Checklist and Section 15 Incontestability.
[ ] Verify the identification of goods and services actually covers what the accused ads sell.
- Why. A Class 30 registration for coffee does not reach an ad for café services in Class 43, and opposing counsel will find the gap before you do. See the Goods and Services Identification Checklist.
[ ] Confirm the client displays the ® symbol, or document actual notice to each target.
- Authority. 15 U.S.C. § 1111 — absent statutory notice, no profits or damages unless the defendant had actual notice.
- Trap. The cheapest self-inflicted wound in the field. A brand that dropped ® from its site during a redesign has quietly capped its own recovery.
[ ] Draft the one-page operating rule and address it to the people who run the ad account, not to the board. Five provisions: (1) bidding on third-party marks is permitted where the platform permits it; (2) no third-party mark in any headline, description, display URL, display path, sitelink, callout, structured snippet, image asset, or business name field; (3) no dynamic keyword insertion in any campaign or ad group containing a competitor term or running on broad match; (4) comparison landing pages accurate, dated, and re-verified quarterly; (5) no exception without written sign-off from counsel, logged.
- Trap. Do not write "no one may bid on our trademarks." It is not the law, your own marketing team will violate it against a competitor within a quarter, and the internal email saying so becomes an exhibit.
[ ] Decide the venue question now, not at Phase 10, and write the answer into the memo.
- Why. A campaign close to unassailable under Multi Time Machine, Inc. v. Amazon.com, Inc., 804 F.3d 930 (9th Cir. 2015), is genuinely exposed under Select Comfort Corp. v. Baxter, 996 F.3d 925, 933-35 (8th Cir. 2021). Where your adversary sits changes the advice. The framework you will argue inside is in Proving Likelihood of Confusion.
[ ] Open the matter with a document-retention hold on your client's own ad accounts and analytics.

Done at Brindle. Matter BRIN-0042 opened. Reg. No. 6,412,905 confirmed live, first § 8 window docketed; ® present on packaging, site footer, and every product page; Class 30 covers coffee and cold-brew concentrate, which is what all four adversaries were advertising against. Operating rule circulated to three people and the agency.

Phase 2 — Audit your own campaigns before you audit anyone else's

[ ] Obtain login access to every Google Ads and Microsoft Advertising account, including agency-managed and legacy accounts, and inventory the Google Ads customer IDs (the ten-digit 3-3-4 numbers).
[ ] Export the full keyword list with change history.
- Why. This is the single most requested document in keyword discovery, and it names who added which term on which day. Read it before your opponent does.
[ ] Export twelve months of the search terms report for every campaign.
- Trap. The keywords you bought are not the queries you served against. Broad match will have run your ads on competitor brand terms nobody purchased. Search terms data is thresholded for privacy and trimmed over time — export it monthly into a warehouse you control.
[ ] Pull negative keyword lists at account, campaign, and ad group level, and confirm brand exclusions are set on every Performance Max campaign.
- Trap. Negative keywords do not match close variants. An exact-match negative on a competitor's brand will not block the misspelling, the plural, or the spaced-out version. Add variants explicitly.
[ ] Audit the creative library field by field for third-party marks: Headline 1-3, Description 1-2, display Path 1 and Path 2 (fifteen characters each), business name, sitelink text and descriptions, callouts, structured snippets, image and video assets, and every automatically created asset.
[ ] Search the account for dynamic keyword insertion and ad customizer syntax — {KeyWord:...} and equivalents — and disable it anywhere a competitor term or broad match is present.
- Why. DKI converts an invisible keyword into visible ad copy without anyone deciding to do it. "Our agency's template did it" has never been a defense to direct infringement; the advertiser is the principal.
[ ] Clear every comparison and "alternative to" page for accuracy, add a visible verification date, and record who verified it.
- Authority. Truthful referential use is protected under New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302, 308 (9th Cir. 1992); descriptive fair use under 15 U.S.C. § 1115(b)(4), as construed in KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 117-22 (2004). The audit version of this work is the Trademark Fair Use Audit Checklist; the doctrine is in Descriptive and Nominative Fair Use.
[ ] Check what your client's own internal site search does with a competitor's brand name, and add noindex to search result URLs.
- Trap. A page headed "Results for [competitor]" listing your client's products is the Multi Time Machine fact pattern rebuilt on your own domain, with no platform labeling to save you — and many implementations generate indexable URLs that surface in organic search.
[ ] Turn on defensive brand bidding on exact-match brand terms plus the commercial modifiers ("coupon," "promo code," "discount," "review," "alternative," "customer service") and the top three misspellings.
- Why. It is the only lever that works in forty-eight hours rather than four months, quality score on your own name is high, and it occupies the slot a competitor would otherwise buy.
[ ] Snapshot the baseline: brand-term cost per click, click-through rate, conversion rate, impression share, and organic brand traffic for the twelve months preceding any accused campaign. Extend analytics retention before you do.
- Trap. Default retention deletes the counterfactual. GA4's default event-data retention is two months and can be set to fourteen; make the change the week you open the file, because it does not apply retroactively.

Done at Brindle. The first audit found DKI enabled in two ad groups and four of Brindle's own affiliates bidding on Ninth Avenue's brand terms. All of it was fixed before a single letter went out. Defensive brand bidding started at about $900 a month.

Phase 3 — Lock the partner channel by contract

[ ] Amend the affiliate program terms to add a paid-search schedule with eight operative provisions: prohibited terms maintained as account-level negatives, prohibited creative, no direct linking to your domains, no unapproved sub-affiliates, a quarterly audit right over search terms reports and creative libraries, a twenty-four-hour takedown obligation, commission clawback and two-strike termination, and an indemnity that survives twelve months.
- Why. In 1-800 Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229 (10th Cir. 2013), the keyword theory failed outright — a 1.5% click-through rate was no evidence of confusion, id. at 1245-46 — but a contributory claim survived on the merchant's continued relationship with affiliates it knew were using the mark in ad text, id. at 1249-53, applying Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 854 (1982).
- Trap. Affiliates negotiate hardest against "remove first, argue later." Keep it. While you negotiate, the Inwood knowledge clock runs against you.
[ ] Bolt a paid-search exhibit onto every reseller and distribution agreement, with an express post-termination wind-down: campaigns paused, marks stripped from all creative, written confirmation within five business days.
- Why. The most winnable keyword defendant in America is a dealer whose authorization lapsed and whose ads did not.
[ ] Add a compliance representation, an audit right, and an uncapped indemnity to every agency and media-buying agreement.
[ ] Treat paid-search conduct as a quality-control obligation in trademark licenses. See Drafting a Trademark License That Survives and the Trademark License Agreement — Template.
[ ] Publish and maintain the prohibited-terms list at a stable URL the contract can incorporate by reference, updatable on ten days' notice.
[ ] Submit a trademark authorization list to Google naming the advertiser accounts permitted to use your mark in ad text, by customer ID.
- Why. It converts your reseller channel from a compliance risk into a whitelist and makes every unauthorized user visible by exclusion.
[ ] Run the affiliate audit before sending anyone a demand letter.

Done at Brindle. A new Schedule 3, a notice cycle to 340 affiliates, four terminations, and $6,200 in commission clawbacks. Total cost $11,000, no letters, no claims, and Bean Deals Media's DKI headlines stopped inside a week. Highest-return spend in the program.

Phase 4 — Monitor: build the matrix, run the sweep

[ ] Build a query matrix rather than a term. For each mark: the brand alone; brand plus commercial modifier ("coupon," "promo code," "discount code," "official," "customer service"); brand plus comparison modifier ("vs," "alternative," "review," "worth it"); brand plus product noun; and the top three misspellings.
- Trap. Sweeping only the exact brand term. Abusive ads cluster on the long tail, which is precisely where a compliance officer never looks.
[ ] Run the matrix monthly across at least five metropolitan areas, two devices, logged out, with cookies cleared. Quarterly is the minimum defensible cadence for a mark you intend to enforce.
[ ] Search the Ads Transparency Center by advertiser to establish which creatives an account ran, in which regions, over which dates.
- Why. It proves the ad existed without your having to prove you personally triggered it. Neither Google's nor Microsoft's library shows keywords.
[ ] Pull the auction insights report from your own brand campaign monthly and reconcile the domains against your approved reseller and affiliate list.
- Why. It is the closest thing to a list of who is bidding on your name. An unfamiliar domain is either a partner you forgot or an adversary.
[ ] Extend the sweep to the adjacent surfaces: title tags and H1s, <meta name="keywords"> on competitor pages (dead as a ranking signal, alive as intent evidence), competitors' indexed internal site-search pages, marketplace listing titles and backend search terms, shopping feed brand attributes, and app store listings.
[ ] Decide, on volume, whether to buy commercial SEM monitoring. Enterprise compliance tools run roughly $1,500-$10,000 a month; general SEO suites $130-$500 for a much coarser picture. For one to three marks, disciplined manual sweeps are usually better value.
[ ] Keep sweeping manually even after you buy a tool. Ad serving is personalized and geo-targeted, and the crawler is not your customer.
[ ] Log every sweep, including the sweeps that found nothing.
- Why. No statute imposes a duty to police paid search, but what you found and when is the spine of every later argument about notice, intent, and laches. The filings-side analogue is Trademark Watch Services; paid search sits alongside domains and marketplaces in the Online Brand Protection Toolkit.

Done at Brindle. A 34-string matrix across five metros and two devices, ninety minutes a month. The sweep surfaced Harbor Line in month one and coldvector.com in month four, both on long-tail queries the exact-match sweep had missed.

Phase 5 — Capture the evidence so it survives a motion

[ ] Write a numbered capture protocol, version it, and have the person who will testify help draft it.
[ ] Record for every capture: the exact query string; date, time, and time zone; geography and how it was set; device, OS, and browser version; logged-out and cleared-cookie status; public IP address; a full-page screenshot; page HTML source; a HAR file where feasible; the destination URL with all tracking parameters, before and after every redirect; a capture of the landing page; and a SHA-256 hash of each file tied to the capture ID.
- Why. Tracking parameters do free discovery. An ad resolving through ?aff_id=4417 identifies the publishing affiliate in an afternoon.
[ ] Click each sponsored result exactly once per capture and log it.
- Trap. Repeat clicking spends the advertiser's money, looks like click fraud, and contaminates the click-through data your damages theory may need.
[ ] Keep evidence collection with counsel and away from the marketing team.
- Trap. Marketing captures from a logged-in browser carrying a cookie history of every visit to the competitor's site, and the defense will spend a deposition establishing that no ordinary consumer ever saw that page.
[ ] Lay the foundation once, in a single declaration covering the whole set.
- Authority. Fed. R. Evid. 901(a), satisfied by a witness with knowledge under Rule 901(b)(1) or by describing a process that produces an accurate result under Rule 901(b)(9). Better, self-authenticate: Fed. R. Evid. 902(13) for a record generated by an electronic process and Fed. R. Evid. 902(14) for data verified by hash, each requiring the certification and the advance written notice and opportunity to inspect that Rule 902(11) imposes.
[ ] Serve the Rule 902(11) notice early, not on the eve of the pretrial conference.
[ ] Pre-brief hearsay so it does not surprise you: the ad copy is the operative conduct rather than an assertion offered for its truth, and where the advertiser is a party it is also an opposing party's statement under Fed. R. Evid. 801(d)(2); platform reports produced in discovery come in under Fed. R. Evid. 803(6) with a custodian declaration.
[ ] Store captures in a write-once directory, hash on write, and never re-save a file after capture. The collection framework generally is in the Evidence and Expert Witness Toolkit.

Done at Brindle. 214 captures between 4 March and 29 August 2025 under Paid Search Capture Protocol v2, hashed on write. Capture BR-0117 (3 June 2025, 10:14 PDT, Portland OR, desktop; query "brindle cold brew wholesale") recorded the headline "Authorized Brindle Dealer - Wholesale Pricing" and the display URL coldvector.com/brindle. One paralegal declaration laid the foundation for all 214.

Phase 6 — Triage: route every capture to exactly one remedy

Work the questions in order. Stop at the first "yes."

[ ] Q1. Does the sponsored link lead to counterfeit goods? If yes, this is not a keyword case. Move to counterfeiting procedure — civil seizure under 15 U.S.C. § 1116(d), treble damages under § 1117(b), statutory damages under § 1117(c), CBP recordation. See Trademark Counterfeiting and the Anticounterfeiting Program Checklist.
[ ] Q2. Is there a contract between you and the advertiser? Reseller, distribution, affiliate, prior settlement, coexistence. If yes, read it and send a notice of breach, not a Lanham Act demand. Cleaner damages, an agreed forum, often fee-shifting, and no likelihood-of-confusion element.
[ ] Q3. Does the creative display your mark anywhere — headline, description, display URL, path, sitelink, callout, structured snippet, image, or business name? If yes, file the platform complaint immediately and consider a parallel demand where the advertiser is a repeat offender or a former partner.
[ ] Q4. Does the landing page imitate you — trade dress, colors, product photography, or an implied affiliation ("Official," "Authorized," "Direct")? If yes, this is the strongest posture: infringement, § 43(a) trade dress, and false advertising under 15 U.S.C. § 1125(a)(1)(B). Where the page copies your photographs verbatim, run a takedown under 17 U.S.C. § 512(c)(3) in parallel — see Sending and Fighting a DMCA Takedown and the DMCA Takedown Notice Checklist.
[ ] Q5. Is the ad bid-only — mark nowhere in the creative, placement clearly labeled, landing page plainly the competitor's? If yes, do nothing legally. Answer it commercially.
- Trap. A demand here is affirmatively harmful. It is wrong on the law in most of the country and invites a declaratory judgment action in the recipient's forum plus a fee motion.
[ ] Apply the two modifiers. Upgrade one level if the advertiser is a former distributor or terminated dealer — courts have granted substantial relief on that posture since Mary Kay, Inc. v. Weber, 661 F. Supp. 2d 632 (N.D. Tex. 2009), while declining to prohibit the keyword purchase itself. Upgrade one level if the audience is unsophisticated, because consumer care is the Network Automation factor most responsive to evidence.
[ ] Check whether the ads travel with domains. If the link resolves to a brand-plus-keyword or typosquatted domain, open a parallel UDRP file. See Filing a UDRP Complaint, the UDRP Complaint Checklist, and Cybersquatting and the ACPA.
[ ] Check whether the seller is unauthorized but genuine, in which case the analysis shifts to first sale and material differences. See Gray Market Goods.

Done at Brindle. Ninth Avenue Roasters → Q5, no action, still bidding today. Harbor Line → Q3, platform complaint. Bean Deals Media → Q2, affiliate contract. Cold Vector → Q2 and Q4, demand letter with a contract count attached.

Phase 7 — File the platform complaint

[ ] Confirm the complaint is about ad text, not keyword selection.
- Trap. Google will deny a keyword-only complaint in writing, and the advertiser will attach that denial to its opposition brief as evidence that the platform reviewed the conduct and found nothing. It proves nothing legally and costs you something rhetorically.
[ ] Assemble the Google Ads trademark complaint fields before opening the form: the mark exactly as registered; registration number and issuing office; the countries in which you assert; whether you are the owner or an authorized agent, with the agent's authority; the verbatim ad text at issue; the advertiser's display URL; and your capture IDs.
[ ] List every country you want covered.
- Trap. The complaint is territorial. A US filing does not touch the same creative in Canada or Germany. Where a global campaign is in play, note that the EU standard governs the advertiser's own copy rather than the platform's labeling — see the International Trademark Toolkit.
[ ] File the Microsoft Advertising trademark concern form separately. Nothing carries over between platforms.
[ ] On Amazon, report at the listing level through Brand Registry's Report a Violation tool, not through an advertising complaint.
- Why. A Sponsored Products ad has no headline of its own; it renders the product title. Brand abuse appears as title-stuffing, and the remedy is a listing edit or takedown.
[ ] For app-install ads, use the App Store content dispute route; for Meta, TikTok, and LinkedIn, the platform IP report form.
[ ] For retail media networks — Walmart Connect, Roundel, Instacart, Kroger — escalate through your buyer or category manager. There is no public IP process worth relying on.
[ ] Log the complaint, the acknowledgment, the denial, the removal confirmation, and the date of each into the matter file.
- Authority. Notice is the currency of contributory liability. Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93, 106-09 (2d Cir. 2010), requires knowledge of specific infringements; item-by-item notice is exactly what distinguished the record in Rosetta Stone Ltd. v. Google, Inc., 676 F.3d 144, 153-57 (4th Cir. 2012). File even when you expect denial.
[ ] Before considering a suit against the platform itself, read 15 U.S.C. § 1114(2)(B): against the publisher of paid advertising in an electronic communication, remedies are limited to an injunction against future presentation — which is what the free form delivers in days.
[ ] Re-sweep the complained-of advertiser at thirty and ninety days for relapse and variants, and reference the earlier complaint by ID in any second filing.

Done at Brindle. Harbor Line's "Official Retailer" headline came down four days after a complaint that took forty minutes to prepare. A variant reappeared in month six and came down in three days on a second complaint citing the first.

Phase 8 — Send the demand letter

[ ] Demand about copy, never about bidding, and say so expressly in the letter's first paragraph.
- Authority. A per se bidding assertion hands the recipient a ripe controversy under 28 U.S.C. § 2201 and MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007), plus a theme for an exceptional-case fee motion under 15 U.S.C. § 1117(a) as construed in Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 554 (2014).
[ ] Identify each accused ad by capture ID, date, time, query, geography, device, verbatim headline, and display URL. Vagueness reads as bluff.
[ ] Plead the affiliation facts if the target is a former partner: the agreement, the termination date, and the sentence in the ad that asserts a relationship which no longer exists.
[ ] Include a preservation demand naming the artifacts specifically — search terms reports, keyword lists and change history, negative keyword lists, creative version history, landing page versions, affiliate rosters and payout records, campaign-level conversion and revenue data, and communications concerning your client.
- Why. This is the most valuable paragraph in the letter and the one most often omitted. Platform retention windows are finite and account-level deletion is irreversible. It also frames any later motion under Fed. R. Civ. P. 37(e).
[ ] Ask for specific, testable acts: strip the mark from every enumerated creative field in every account on every platform; disable DKI in any ad group containing a brand term; remove copied imagery; instruct affiliates and agencies to do the same and confirm in writing; confirm the completion date of each step.
[ ] State expressly that you are not asking the recipient to stop bidding and not asking it to refrain from truthful comparative advertising.
[ ] Give fourteen to twenty-one days. A seventy-two-hour deadline on a non-emergency reads as a stunt.
[ ] Do not name a damages number before you have the defendant's campaign data, which you cannot get pre-suit.
[ ] Count your outgoing letters across the market before you send.
- Trap. Eleven near-identical demands to eleven competitors in one quarter is a pattern, and the pattern is an exhibit in an antitrust counterclaim or an FTC inquiry. If the facts do not vary, ask why the letters do not.
[ ] Read the response side of the letter before sending yours. Architecture is in Sending an Effective Cease-and-Desist Letter with a starting form at the Trademark Cease-and-Desist Letter — Template; the mirror image is Responding to a Cease-and-Desist Letter.
[ ] Consider the alternatives before the letter goes out: a National Advertising Division challenge reaches comparative claims (Standard, Complex, or Fast-Track SWIFT, which produces a decision in twenty business days on disclosure sufficiency, misleading pricing, and simple express claims), carries a filing fee tiered by BBBNP membership, revenue, and track, involves no discovery, awards no damages, and refers non-complying advertisers to the FTC. It has no jurisdiction over a pure trademark question.

Done at Brindle. A September letter to Cold Vector quoting three of eleven captured ads, attaching the terminated wholesale agreement dated 31 March 2025, asking compliance by 3 October, and disclaiming any bidding claim. No substantive response.

Phase 9 — Settle without building a cartel

[ ] Recite the actual dispute in the agreement's recitals: what the ads said, when, and why they were deceptive.
- Why. The recitals are the antitrust defense. 1-800 Contacts, Inc. v. FTC, 1 F.4th 102, 114-20 (2d Cir. 2021), vacated the Commission's order because it condemned settlement bidding restraints under an abbreviated "inherently suspect" analysis and gave no weight to trademark protection as a procompetitive justification. Read it as a reprieve, not a blessing — Sherman Act § 1, 15 U.S.C. § 1, FTC Act § 5, 15 U.S.C. § 45, and treble damages under 15 U.S.C. § 15 are all still available, and nothing binds a court outside the Second Circuit.
[ ] Restrict creative broadly and bidding narrowly. A prohibition on using the mark in ad copy sits inside trademark law's zone; a prohibition on bidding does not.
[ ] Confine any bidding restriction to a closed schedule of exact-match house marks and close variants, expandable only by signed amendment.
[ ] Make every restraint reciprocal. One-way restraints imposed by the larger firm read as exclusion.
[ ] Add an automation clause covering DKI, ad customizers, and automatically created assets, so the covenant cannot be breached by a template.
[ ] Carve out truthful comparative advertising expressly, and make the carve-out non-severable from the bidding restriction.
- Why. Non-severability prevents a court from striking the procompetitive half and leaving the restraint standing. It is the single clause that most improves the instrument's antitrust posture and it costs you nothing you were entitled to.
[ ] Sunset the bidding restriction at three to five years, with renewal requiring an affirmative signed act. Let the creative restriction survive.
[ ] Build a cure period before any money accrues — written notice identifying a specific ad, three business days to remove, liquidated damages only on non-cure, in an amount that approximates provable harm.
- Trap. A $50,000-per-ad-per-day clause reads as punitive and invites a challenge to the whole instrument.
[ ] Inventory every settlement, coexistence, and reseller agreement your client has already signed containing a bidding restriction, and map them against market share before signing another.
[ ] Cover every platform, not just the one where the fight started, and require account-level negative keywords in each. Clause architecture belongs in the Trademark Coexistence Agreement — Template; the deal-side treatment is in the Trademark Transactions Toolkit.

Done at Brindle. The Cold Vector consent decree ran three years, reciprocal, exact-match only, with a non-severable comparative-advertising carve-out, an automation clause, a three-business-day cure, and $2,500 per non-cured advertisement. Brindle's counsel counted its own agreements first: two, both regional. Nothing that looks like a web.

Phase 10 — Escalate to litigation

[ ] Run the Rule 11(b) pre-filing test honestly against the Phase 6 tree. A bare keyword claim in the Ninth or Tenth Circuit is the archetype of the exceptional case that produces a fee award against your own client.
[ ] Price the remedy before you price the claim: roughly $150,000-$400,000 through a preliminary injunction, $700,000-$2,500,000 through trial. The clerk's civil filing fee is currently $405 — the $350 statutory fee under 28 U.S.C. § 1914(a) plus the administrative fee; confirm the current schedule. The Pre-Litigation Enforcement Checklist is the intake inventory for this phase.
[ ] Plead jurisdiction under 28 U.S.C. § 1338(a), supplemental claims under § 1367(a), venue under § 1391(b) — and plead the copy, not the bid. Quote the headlines, reproduce the landing pages, attach the terminated agreement.
[ ] Plead in the alternative: § 1114(1) and § 1125(a)(1)(A) infringement; false advertising under § 1125(a)(1)(B) with standing framed to Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129-40 (2014); dilution under § 1125(c) only where the mark is famous to the general consuming public and the copy uses it, remembering the § 1125(c)(3)(A) exclusion for nominative and comparative advertising — see Trademark Dilution Under the TDRA; ACPA under § 1125(d) where domains are involved; contributory infringement against any merchant whose affiliates published the copy; and breach of contract where one exists.
[ ] Name the platform exports in the Rule 26(f) ESI protocol and demand native format under Fed. R. Civ. P. 34(b)(2)(E). A search terms report exported to PDF is useless.
[ ] Request, at minimum: search terms reports for all campaigns and periods; keyword lists with change history; negative keyword lists with change history; the complete creative library with version history; DKI and ad customizer templates; landing page versions; affiliate and network rosters with payout records; campaign-level conversion and revenue data; all communications about the plaintiff; and every trademark complaint the defendant has received from anyone.
- Why. The negative keyword list is the sleeper document. A defendant that has negatived every competitor's brand term except your client's has told you something about intent in a file it produced without thinking.
[ ] Notice Rule 30(b)(6) topics on keyword selection and approval, creative approval, DKI enablement, affiliate approval and monitoring, the response to each platform complaint, campaign-level financial reporting, and ad-account retention settings.
[ ] Move for preliminary relief on the presumption. 15 U.S.C. § 1116(a) supplies a rebuttable presumption of irreparable harm on a finding of likelihood of success — a material change after eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006). Bond under Fed. R. Civ. P. 65(c). See Moving for a TRO or Preliminary Injunction in a Trademark Case and the Preliminary Injunction Motion Checklist.
[ ] Draft the decree in the vocabulary of the ad platform — headline, description, display URL, display path, business name, sitelink, callout, structured snippet, image asset, dynamic keyword insertion — and ask to enjoin the presentation, not the purchase.
- Authority. Fed. R. Civ. P. 65(d)(1) requires the order to state its terms specifically and describe the restrained acts in reasonable detail; Rule 65(d)(2) binds parties, their agents, and persons in active concert who receive actual notice. That last clause is how you reach affiliates you never named.
- Trap. An overbroad request to enjoin bidding signals that you have not understood the doctrine, and courts have declined it since Mary Kay.
[ ] Commission any survey around the stimulus that actually existed — the results page as served, with controls — and brief the Eveready/Squirt choice before the Daubert motion arrives under Fed. R. Evid. 702. See Consumer Surveys in Trademark Cases and the Trademark Survey Design and Challenge Checklist.
[ ] Build the money case on campaign-level revenue, not clicks. Under 15 U.S.C. § 1117(a) you prove the defendant's sales and the defendant bears the burden on every deduction; willfulness is no longer a precondition to profits after Romag Fasteners, Inc. v. Fossil, Inc., 590 U.S. 212, 218-19 (2020), though it remains a weighty equitable consideration. See the Trademark Monetary Recovery Checklist and Proving Trademark Damages and Disgorging Profits After Romag.
[ ] Prepare for the three counterpunches: a declaratory judgment complaint in the recipient's district (first-to-file analysis and a motion under 28 U.S.C. § 1404(a)); an antitrust counterclaim (the agreement inventory from Phase 9); and an exceptional-case fee motion (the Phase 6 tree, in writing, dated).

Done at Brindle. Complaint filed in the District of Oregon in November pleading infringement, false advertising, and breach of the terminated wholesale agreement. The preliminary injunction motion was fully briefed when the case settled in February. Cold Vector paid $145,000; Brindle's fees were $178,000. The only file that went to court was net-negative in cash and worth doing anyway, because it produced a decree the other 340 affiliates were told about.

Phase 11 — Close the file and docket the program

[ ] Archive the capture set, the complaint log, and the baseline metrics snapshot with the matter, and record the hash manifest.
[ ] Calendar compliance verification against any decree or covenant at thirty, ninety, and one hundred eighty days, and at each sunset date.
[ ] Put the recurring program on a real docket: weekly alert triage; monthly manual sweep and auction insights reconciliation; monthly complaint filing and relapse check; quarterly own-account audit and affiliate audit; quarterly comparison-page re-verification; semiannual reconciliation of the reseller list against the trademark authorization list; annual policy, circuit, and platform-policy refresh; annual baseline snapshot; and a forty-eight-hour paid-search sweep on the termination of any partner.
[ ] Fold the annual review into the portfolio cycle you already run. See the Annual Trademark Portfolio Review Checklist and the Trademark Portfolio Management Toolkit.
[ ] Re-read the operating rule against the year's decisions and platform policy changes, and reissue it with a new version number.

Done at Brindle. Eleven months, roughly $38,000 for everything except the Cold Vector suit: the audit, the contract work, the complaints, and $9,900 of defensive bidding that held the top slot on brand queries about 80% of the time.

Common Mistakes

Complaining about the bid. Google will deny it in writing, and the denial will be attached to a brief opposing you. Complain about copy.
Sending a per se bidding demand. Wrong on the law in most of the country, and an engraved invitation to a declaratory judgment action and a fee motion.
Auditing the competitor before auditing yourself. Discovery that reveals your own affiliates running "[Competitor] Coupon" pages with DKI enabled does not weaken the case; it inverts it.
Leaving DKI on in a broad-match campaign. The most common way a compliant program becomes an infringing one with no human deciding anything.
Negativing only the exact term. Negative keywords do not match close variants. The misspelling still serves.
Letting marketing capture the evidence. A logged-in browser with a personalized ad profile produces exhibits the defense dismantles in one deposition.
Building the case on click-through rate. Lens.com held 1.5% to be no evidence of confusion at all, and a high rate only proves the ad was well written.
Forgetting the ® and then asking for profits. 15 U.S.C. § 1111 caps recovery absent statutory or actual notice.
Treating a platform removal as a legal ruling. Policies are contract terms. Removal does not mean a court would enjoin; refusal does not mean it would not.
Filing one US complaint for a global campaign. The complaint is territorial, and the EU clarity standard governs the advertiser's own copy, not the platform's labeling.
Asking to enjoin the purchase. Courts scope keyword injunctions to the presentation; an overbroad request costs you credibility at the hearing.
Spending $300,000 to enjoin conduct worth $40,000 a year while a $12,000 affiliate contract amendment sits undrafted.

Deadlines at a Glance

| Clock | Length | Source | What starts it | |---|---|---|---| | Google Ads trademark complaint — substantive action | 3-10 business days | Platform policy | Filing a documented ad-text complaint | | Microsoft Advertising trademark concern | 5-15 business days | Platform policy | Filing the concern form | | Amazon Brand Registry Report a Violation | 1-7 days | Platform policy | Submitting the ASIN-level report | | Affiliate takedown obligation | 24 hours, dispute after removal | Contract (paid-search schedule) | Written notice identifying the ad | | Settlement cure period before liquidated damages | 3 business days | Contract (covenant) | Written notice identifying the ad | | Demand letter response window | 14-21 days | Drafting choice | Date of the letter | | NAD Fast-Track SWIFT decision | 20 business days | BBB National Programs procedures | Accepted challenge | | UDRP response | 20 days from commencement | UDRP Rules ¶ 5(a) | Provider's commencement notice | | UDRP decision | 14 days from panel appointment | UDRP Rules ¶ 15(b) | Appointment of the panel | | TRO issued without notice | Expires in 14 days; one extension for good cause | Fed. R. Civ. P. 65(b)(2) | Entry of the order | | Service of the complaint | 90 days | Fed. R. Civ. P. 4(m) | Filing | | Rule 26(f) conference | At least 21 days before the scheduling conference or Rule 16(b) order is due | Fed. R. Civ. P. 26(f)(1) | Case opening | | Rule 902(11)/(13)/(14) notice | Reasonable written notice before trial, with the record made available | Fed. R. Evid. 902(11) | Intent to self-authenticate captures | | Analytics retention | GA4 event data defaults to 2 months; settable to 14, not retroactively | Platform setting | Account creation | | Laches | Borrowed from the most analogous state limitations period | No federal Lanham Act limitations period | Knowledge of the conduct |