Google’s Trademark Use Policy for Software Reseller Sites

Short answer: your SaaS reseller agreement or channel contract should address trademark use directly — a reseller can use your brand in its Google ads under the nominative-fair-use doctrine, but only if the product is actually for sale on the landing page and the ad does not imply a false endorsement.

Whether you structure your channel through a software distribution agreement or a SaaS reseller agreement, the rules matter. Until a policy change, a reseller or informational website could not use the trademarks of the manufacturers it represented in the ad text of its Google ads. That made some sense, since they are not your trademarks. But Google revised its Trademark Policy, likely because of the fair use doctrine.

There are still a few rules before anyone can use this.

Who Qualifies Under Google’s Trademark Policy.

You qualify if you are a:

• reseller,
• informational site,
• maker or reseller of component parts, or
• seller of compatible components or parts related to the trademark.

The Landing Page Requirement.

The reseller’s product or service must be on the:

• ad’s landing page, and
• clearly available for purchase.

So if you are an ISV, do not be surprised when your resellers show up in Google ads using your trademarks. And if you are a reseller or informational site, you may be able to use the trademarks of the manufacturers you represent in your Google ads. Talk to your trademark lawyer with any questions.

Why the Law Allows This: Nominative Fair Use.

Google’s policy tracks a real trademark doctrine called nominative fair use, which the Ninth Circuit set out in New Kids on the Block v. News America Publishing. The short version: you may use someone else’s trademark to refer to their product, as long as you do not imply a false endorsement. A reseller saying “we sell Acme Analytics” is using the Acme mark to name the actual thing it sells. That is exactly what nominative fair use protects. The line you cannot cross is suggesting the brand owner sponsors or endorses you when it does not, which is the false-endorsement problem the Lanham Act (15 U.S.C. section 1125) targets. So use the mark to identify the product, not to imply a relationship you do not have.

What to Put in Your SaaS Reseller Agreement.

If you are the software vendor, you cannot fully stop accurate references to your brand, but you can control how your channel uses it. Put the rules in your SaaS reseller agreement and pick the right channel structure in the first place. A clean trademark-use section should grant a narrow, revocable license to use your marks only to promote and resell your product, require resellers to follow your brand guidelines, prohibit any suggestion of endorsement beyond the reseller relationship, address whether partners may bid on your brand, and let you pull the license on termination. That way the channel markets effectively while your brand stays protected. It is the same control instinct behind the restrictions you place in any license.

The Place It Still Goes Wrong: Keyword Bidding.

The policy covers using a mark in ad text, but the fights I see are usually about bidding on a brand as a keyword. A reseller, or worse a competitor, bids on your brand name so its ad shows when someone searches for you. Courts have gone in different directions on whether that alone is infringement, often turning on whether the ad creates “initial interest confusion.” Practically, two things matter. If you are the vendor, your channel agreement should say whether partners may bid on your brand terms at all, because the contract can restrict what trademark law might otherwise allow. If you are the reseller, keep your ad and landing page honest about who you are. Honest identification is protected. Implied endorsement is where the liability starts.

Frequently Asked Questions.

Can a reseller put my brand name in its Google ad? Often yes, under nominative fair use, if the product is genuinely for sale on the landing page and the ad does not imply you endorse the reseller.

Can I stop resellers from bidding on my brand as a keyword? Trademark law alone is uncertain here, but your reseller contract can prohibit it. So put the rule in the agreement rather than relying on the doctrine.

What is the difference between using a mark and infringing it? Using it to truthfully name the product is fine. Using it to suggest sponsorship or endorsement you do not have is where infringement and false-endorsement claims begin.

For how the reseller relationship itself should be structured, see SaaS Reseller and OEM Agreement Models. I hope this helps.

Disclaimer:

This post is for informational and educational purposes only, and is not legal advice. You should hire an attorney if you need legal advice, which should be provided only after review of all relevant facts and applicable law.