Vivid it seems has a problem, not a big, OMG scandal of the day or anything like that but still a problem that is important nonetheless.  By now I’m sure by now you’ve all heard the phrase “Vivid Girls” or “Vivid Girl”.  This describes someone either currently or at least at one time under contract with Vivid, but the phrase itself is actually a Vivid Entertainment owned trademark.

Up until recently Vivid or at least the people running the website side of things has been pretty foot loose and fancy free with letting their friends infringe upon their trademarks and use their words in things like paid search engine advertising.  The problem?  Well when Vivid wants to buy the keyword “Vivid Girls” for their own pay per click advertising campaigns they now have to pay more for it.  So it was kind of a dumb ass movie to let people use it in the first place.

If a site was to rank by it honestly, without paying for the advertising spot, I don’t see any problem with that but if you pay to have the top spots in Google, then that is where the problem comes in and effective immediately, the Vivid Cash program (that’s the Internet side of the Vivid juggernaut), has decided they are going to revoke the rights of their affiliates to use Vivid’s trademarks in paid search advertising campaigns.  In other words, if you pay for your site to be in Google for the phrase “Vivid Girls”, Vivid Cash is going to punish you but not paying you any money you may have earned from the Vivid Cash program.

They have decided to send out an email mailer about this giving their affiliates one days notice.  Only problem is, they sent the email out at nearly 8:30 pm EST on a Friday night and informed people that by the next day (Saturday) you have to have your links removed from all pay per search engine advertising programs like Google Adwords.  What about those people not on the west coast that go home by 5 or 6?  The letter got to more the the US after business hours, on a Friday.

But let’s take a look for a moment what we find when we Google the phrase “Vivid Girls”.  I Googled’ “Vivid Girls” tonight and then included a screen-shot of it for you below.

The very first listing, albeit a paid listing is Vivid’s own website.  The next 3 sponsored links for the keyword phrase “Vivid Girls” belong to Gamelink, Hot Movies and AdultVidsForFree.com.  The last seems to just be infringing on Vivid’s trademark for the sole purpose of driving traffic to their website, because at first glance the site has nothing whatsoever to do with Vivid girls.  But Gamelink and HotMovies both sell Vivid products and they have nothing whatsoever to do with the Vivid Cash program.  Their deal is directly with Vivid as they promote Vivid DVDs and now Vivid movies on demand.  The Vivid Cash people can’t stop these companies from using the Vivid trademarks.   And not one single Vivid Cash affiliate is using the keyword phrase Vivid Girls, so why the rush to send out this order of cease and desist in the manner that they did with what seemed like such rushed urgency?

Something smells fishy here.

Let’s look at the first 8 REAL listings in Google for the keyword phrase “Vivid Girls”.

At the time I read my report Google listed the real Vivid website as #1, a Meggan Mallone fan site as #2, which does in fact take part in the Vivid Cash program, Wikipedia was next, then comes a site called VividGirls.org.  This is also a site that uses the Vivid cash program, although by the looks of it, the site hasn’t been updated in many years.  Next we have the IMDB listing for a Vivid 4 hour comp movie.  Then you have the Vivid Comix website and after that you have a site who may or may not be legally selling printed pictures of Vivid girls.  Don’t know the details for sure but it looks as if they are doing it not 100% legal.  I however could be wrong.  They may in fact have the legal print rights for those images.  Either way that’s not really the point of this post.  Last but not least we have a link to a news story about the Vivid girls partying with Britney Spears.

Now these sites are real listings in Google and have no actual control over where they get placed in Google.  Sure they can try and get higher for certain keywords using common search engine optimization techniques, but in the end it is still Google who decides who lands in those top spots.

Now let me quote you from the letter from the Vivid Cash people.  On one hand they say it’s all just about the PAID listings.  Here is where they say that …..

Effective 11/15/2009, the VividCash affiliate program Agreement is amended to prohibit affiliates from bidding upon Vivid Marks and any variations or words that contain Vivid Marks in any paid search auctions.  Affiliates are encouraged to utilize niche keyword phrases and other organic search methods to aggregate search traffic.

In that part notice they even say that they encourage their affiliates to get their search engine traffic via the organic method – that means the real listings like the top 8 I mentioned above – those people who didn’t pay for their spot in Google.  But that same email also says something else quite interesting …..

It has been a long standing policy of Vivid Entertainment, LLC to protect its trademarks.  Vivid Entertainment, LLC. does not allow the use of it’s trademark’s to be engaged in any marketing by way of pay-per-click, sponsored links, search engines; keywords, AdWords or similar promotion which utilizes any of its brands, marks or logos, including, but not limited to Vivid, Vivid Video, Vivid Entertainment, Vivid.com, Vivid Girls , (collectively “Vivid Marks”) and any variations or words that contain Vivid Marks.

Now what they are say right there is Vivid does not even allow you to rank the normal way in search engines.  Notice it clearly says “search engines”, as well as pay-per click and sponsored links.  The way it is written it leads one to believe that at any time Vivid Cash could say anyone who ranks high in search engines for any keywords for Vivid trademarks, we are not going to pay you anymore, just as they have for those buying the top spots in pay per clicks.

That is not to say Vivid Cash is going to do this, but the letter they sent out leads one to believe that is seemingly a very big possibility.

Why is this a big deal?  Well because it could fuck a whole hell of a lot of people.  Look at listing number two.  This is a fan site dedicated to Meggan Mallone, a current Vivid girl and as such the website mentions that “On January 18, 2008 Vivid Entertainment announced they signed Meggan Malone to an exclusive one year contract“.   So that means that if they go through with this and start punishing webmasters for non paid listings, this site would then be in violation of their terms and as such not get paid any of the money this site earned from their Vivid Cash program.

This Meggan Mallone site also says “Prior to Meggan Mallone signing with Vivid and becoming an infamous Vivid girl, she was virtually unknown”.  Again using a Vivid trademark phrase to describe Meggan Mallone’s status but if you read into this letter from the Vivid Cash people enough, it could very well mean they could not pay this webmaster.

The guy who owns VividGirls.org, you could argue that his actual domain name is a violation of their trademark, and while that is true, what about the content?  All that page is, is a promotion to join Vivid.com through the Vivid Cash program.  But because he is doing what an affiliate program is designed to do, drive traffic through the affiliate’s website to your own, that COULD one day be an issue, because in doing so he mentions the world Vivid at least 6 times on that one page alone.

And you know what, there are thousands and thousands of Vivid Cash webmasters out there.  How many of them have used the word “Vivid” or “Vivid Girl” or “Vivid Entertainment” on their websites?  Because if you say any of those words and the search engines index your site, you risk ranking for that keyword phrase and that means, at least according to the letter sent out from Vivid Cash, that is a violation of their terms of service.

Their TOS states that you may not use their trademarks (ie: Vivid Girls or Vivid Vivid or Vivid) or  any variations, misspellings or portions of their trademarks in our domain name – so like buying ILOVEVIVID.com would be a violation of their TOS.  But it also goes on to say that you can’t use their trademarks in any portion of your websites, or in meta tags, hidden text or source codes. So that means, basically if you mention the word Vivid on your page, it does appear in your source code.   Although this may not be their intent, to take this TOS literally, if you were to say “Have you seen the latest Vivid movie?” you have become in violation of their TOS and Vivid Cash doesn’t have to pay you.

So in the end, I think I was right.  I thought something seemed oddly fishy about their late night Friday letter and it seems like they may just be looking for an excuse not to pay some of their webmasters.

So consider yourself warned.

I don’t know what they are doing over there at Vivid Cash but if I were you I would sure in the fuck find out.