Twitter Partners with Pepsi to Launch Promoted #Stickers

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Twitter announced the launch of Promoted #Stickers as a new marketing tool for brands. Twitter launched #Stickers for users back in June for those wanting to add some fun to their tweets.

“Starting today, brands can create and promote custom stickers for anyone on Twitter to use,” posted Twitter’s Head of Product, Brand & Video Ads, Ilya Brown. “A brand’s stickers will be featured in the #Stickers library and offer a form of creative expression that makes a person’s photos more fun and engaging. Promoted #Stickers represents a huge opportunity for brands to drive brand affinity and raise awareness of their message at scale.”

“Brands can design four or eight stickers — like accessories and other props — for users to add to their own photos,” says Brown. “Photos with a brand’s stickers are shared with all of a user’s followers, allowing brands to be featured by their fans in a truly authentic way. #Stickers act as a visual hashtag, meaning that photos with your brand’s sticker will be connected and discoverable to anyone who taps your brand’s sticker. This allows a brand to see and engage with the people who are using their stickers in creative ways.”

Brown says that Pepsi will be Twitter’s exclusive launch partner of their Promoted #Stickers, creating and sharing around 50 unique stickers across 10 of their markets. They are hoping to jumpstart their global PepsiMoji campaign into a fan-driven viral marketing push. Pepsi will not only be pushing their campaign, but also will help educate Twitter users on how to use their #Stickers. It’s unknown what Pepsi paid Twitter, if anything, to be their first Promoted #Stickers advertising partner.

The proprietary Pepsi emoji designs were created, according to Pepis, “to help consumers around the world “Say it With Pepsi” and will bring the program to life like never before by combining two of the most popular means of visual communication – emojis and photos.”

“#Stickers have been hugely popular with consumers, and we are thrilled to now include brands in that conversation, starting with Pepsi,” said Adam Bain, chief operating officer at Twitter, @adambain. “Now, people around the world can all share their universal passion for Pepsi and make the brand come alive in a powerful new way on Twitter.”

“The ‘Say It With Pepsi’ campaign has helped consumers around the world express themselves using our proprietary set of Pepsi emojis and we’re truly taking it to the next level with this partnership with Twitter,” said Brad Jakeman, president PepsiCo Global Beverage Group, @bradjakeman. “By allowing people to add our emojis directly to their photos, we’re giving fans a whole new way to engage. If a picture is worth a thousand words, a picture with Pepsi stickers can really spark a conversation.”

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August 16th 2016 Marketing, Social Media, Twitter

FTC Sues 1-800 Contacts For Restricting Competitive Keyword Advertising

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For over a decade, I’ve blogged about 1-800 Contacts’ campaign to suppress competitive keyword advertising, including its legislative games (e.g., those times when 1-800 Contacts asked the Utah legislature to ban competitive keyword advertising) and at least 15 lawsuits against competitors costing millions of dollars of legal fees. I’ve also marveled at its duplicity; 1-800 Contacts historically deployed the same competitive keyword advertising practices it subsequently sought to suppress.

Things have been quiet on the 1-800 Contacts front for the past several years after it suffered a major blow in the 10th Circuit’s ruling, but sometimes the machinery of justice keeps turning quietly in the background. This week, the FTC sued 1-800 Contacts for antitrust violations. I believe this is the FTC’s first foray into keyword advertising issues, and it’s left some folks scratching their heads.

The FTC’s Allegations

Let’s take a closer look at the FTC’s allegations. (As you know, pleadings by government entities are usually a mixture of truth, half-truth and fiction). The complaint says 1-800 Contacts has 50% share of the contact lenses online retail market. Facing emerging competition from lower-priced entrants, starting in 2004, 1-800 Contacts pursued trademark enforcement against advertisers engaged in competitive keyword advertising. 14 advertisers agreed to settlement terms; only didn’t give in. (The complaint redacts the names of the settling advertisers, but in a supplement to this blog post, I identify many of them). The settlement agreements barred the competitors from bidding on “1-800 Contacts” or variants; and 1-800 Contacts reciprocally agreed not to bid on the competitors’ trademarks.

1800 Contacts Screenshot13 agreements also required the competitors to put “1-800 Contacts” on the negative keyword list. Thus, a search for “1-800 Contacts Cheaper Competitors”–which strongly implies that the consumer sought competitive alternatives to 1-800 Contacts–would not display these competitors’ ads. The FTC provides a screenshot of that search, shown at the right. As you can see, 1-800 Contacts is the only keyword advertiser. However, the top organic result is a link to, which claims to be “an unbiased source of trustworthy information on eye health and vision correction options” and possibly would be a helpful aggregator for consumers. The organic search results also link to some deep pages on 1-800 Contacts’ site, none of which consumers would find responsive to the query. While these search results seem a little funky, the search term “1-800 Contacts Cheaper Competitors” is a VERY long-tail query that few, if any, consumers actually tried. The settlement agreements had reciprocal negative keyword obligations for 1-800 Contacts.

The complaint alleges that “1-800 Contacts has aggressively policed the Bidding Agreements, complaining to competitors when the company has suspected a violation, threatening further litigation, and demanding compliance.”

1-800 Contacts’ campaign to restrict competitive keyword advertising could potentially hurt three different marketplace players: (1) the competitors who are hamstrung in their efforts to reach interested consumers, (2) consumers who suffer from a less competitive market, and (3) search engines whose ad auctions are rendered less efficient (and less profitable) when interested bidders choose not to participate. The complaint recaps some of the harms allegedly caused by 1-800 Contacts’ conduct, including:

* distorting the price-setting mechanisms of search engine ad auctions
* degrading the quality of search results pages by keeping them from displaying the most relevant ads to consumers
* preventing truthful non-misleading information from reaching consumers
* suppressing price and service competition among online contact lenses retailers, which causes “at least some consumers to pay higher prices for contact lenses than they would pay absent the agreements, acts, and practices of 1-800 Contacts”
* increasing consumer search costs to purchase contact lenses online

In other words, the FTC sees competitive keyword advertising as contributing to efficient search advertising auctions and, more importantly, improving consumers choices and fostering vendor competition on price and quality. Viewing competitive keyword advertising as procompetitive isn’t novel, but it’s satisfying to to see the FTC embrace the view so enthusiastically.

Finally, the complaint enumerates the FTC’s wish list of remedies, including:

* banning 1-800 Contacts from entering into contracts with competitors that restrict participation in search engine ad auctions or suppress the dissemination of truthful non-misleading information
* banning 1-800 Contacts from “filing or threatening to file a lawsuit against any contact lens retailer alleging trademark infringement, deceptive advertising, or unfair competition that is based on the use of 1-800 Contacts’ trademarks in a search advertising auction. Provided, however, that Respondent shall not be barred from filing or threatening to file a lawsuit challenging any advertising copy where Respondent has a good faith belief that such advertising copy gives rise to a claim of trademark infringement, deceptive advertising, or unfair competition.”

While the FTC’s focus on keyword advertising is new, its interest in advertising restrictions are not. For example, our Advertising and Marketing Law casebook covers the FTC v. Polygram case from 2003, in which the FTC successfully pursued two competitors’ agreements to restrict advertising of old stock in order to prop up a new product release.

Questions Raised

Why Is the FTC Acting Now? The FTC says 1-800 Contacts started its enforcement-and-settlement campaign in 2004. Why is the FTC acting now, a dozen years later?

Normally a complaint like this is instigated by a competitor’s complaint, and it would make sense if tipped off the FTC about its situation. (In addition to the trademark battle, had a parallel antitrust lawsuit against 1-800 Contacts going back years). However, I assume would have raised this issue with the FTC a long time ago. After all, filed its antitrust lawsuit in 2011. Perhaps the FTC waited to see how that lawsuit would play out before deciding whether or not to intervene. The district court dismissed’s antitrust complaint in 2014; I then see a notice of appeal to the 10th Circuit but it’s murky what happened after that.

Perhaps the FTC is acting now because competitive keyword advertising law has cleared up a lot over the years. As I’ve mentioned many times, lawsuits over buying competitors’ trademarks haven’t succeeded in court for about a half-decade; and even lawsuits over the inclusion of a competitor’s trademark in the ad copy rarely make much progress in court any more. While I doubt the FTC could have confidently taken a strong stand on the legality of competitive keyword advertising in the aftermath of the Second Circuit’s 2009 Rescuecom opinion, the jurisprudential dust has settled a lot since then.

It’s also possible that the FTC finally appreciated how restrictions on competitive keyword advertising distort ad auctions. Auctions work really well to set market prices when all of the relevant bidders participate. I could see how the FTC Bureau of Competition folks, steeped in economics doctrine, had their interest piqued when they first learned about agreements among potential auctions bidders not to participate in the ad auction. Perhaps it took a while for the issue to find its way to the right folks.

Will 1-800 Contacts Accept a Big Fight Against the FTC? When the FTC conducts an investigation into a complaint like this and thinks there’s a problem, inevitably it discusses settlement options with the investigated company before suing. Therefore, it seems very likely that 1-800 Contacts already refused a settlement offer from the FTC. I can understand why 1-800 Contacts might do so. Presumably, 1-800 Contacts believes that its actions over the past dozen years are justified, and it’s willing to throw more money to defend that proposition (and, as discussed below, to try to maintain its above-market prices).

Still, fighting the FTC is a daunting challenge for any company. The FTC always says it’s a small agency, but it’s still the freaking U.S. government and has more resources than any company it targets. Further, it has an exceptionally strong batting average in litigation, and judges view the FTC as the voice of the consumer–making it a more sympathetic litigant than a competitor trying to defend its profitable investments inn competitive keyword advertising. Furthermore, the FTC has picked a friendly litigation venue. The FTC steered this case into its in-house adjudication process, so the case will be heard before an FTC administrative law judge with appeals going to the FTC Commissioners before this case can be heard in federal court. By keeping this litigation within the FTC, it will take years and lots of money before 1-800 Contacts can tell its story to an adjudicator not employed by the FTC.

I respect companies who have the fortitude and wealth to stand up to the FTC, but I often question their wisdom and logic.

Is Competitive Keyword Advertising Legitimate? The FTC’s complaint assumes, but doesn’t prove, that competitive keyword advertising is a legally legitimate practice. For example, the FTC alleges (para. 18) that “1-800 Contacts claimed—inaccurately—that the mere fact that a rival’s advertisement appeared on the results page in response to a query containing a 1-800 Contacts trademark constituted infringement.” I’m sure 1-800 Contacts (and all trademark owners) would love to see the FTC’s citations for the “inaccurately” comment. Later (para. 32), the FTC says–again, without any citations–that agreements not to engage in competitive keyword advertising “exceed the scope of any property right that 1-800 Contacts may have in its trademarks, and they are not reasonably necessary to achieve any procompetitive benefit.”

Now, as you know, I emphatically agree with this proposition. I’ve argued for over a decade that competitive keyword advertising is pro-competitive and should be legal; and I’ve chronicled the systematic failure of trademark owners’ anti-keyword advertising lawsuits over the past half-decade. However, I acknowledge that this issue is still being hotly contested in the courts. Indeed, just last week I blogged about a ruling sending a competitive keyword advertising lawsuit (with the trademark used in the ad copy) to a jury because the defendant couldn’t convince the judge that it was entitled to summary judgment. So while I wish the state of competitive keyword advertising law was definitively resolved, the FTC’s implied factual claim is aggressive.

For those of us a little tired by the decade-long competitive keyword advertising battles, the FTC’s move offers some tantalizing prospects. Because the FTC stacked the litigation deck in its favor, we could get some clean and powerful judicial pronouncements about the legitimacy and procompetitive nature of competitive keyword advertising. Combined with developments like the Texas ethics opinion greenlighting competitive keyword advertising by lawyers, this case could help push the pendulum so decisively in favor of competitive keyword advertising that it permanently ends the debates.

What About Vertical Restrictions on Competitive Keyword Advertising? This case deals with horizontal restrictions between competitors. While those are relatively rare, it’s quite common (at least in certain industries) for trademark owners to restrict keyword ad bidding by vertical channel partners such as affiliates and distributors. What implications does this lawsuit have for those vertical restrictions?

Usually, distributors can use manufacturers’ trademarks for the goods or services they resell without a trademark license. In contrast, affiliates usually need a trademark license, in which case the trademark owner should be able to put conditions on its trademark license to affiliates. However, trying to impose those same conditions on distributors could be a legal overreach because they didn’t need trademark permission at all.

The FTC might be signaling that it’s a problem to restrict keyword ads by channel partners who don’t need trademark permission in the first place. However, manufacturers have substantial power to control intra-channel conflicts (see, e.g., the modern deference to resale price maintenance), and restrictions on keyword advertising help the trademark owner manage the trademark and prevent channel partners from driving up the owner’s cost of doing so. So vertical restrictions on keyword advertising bidding may have better competitive justifications than horizontal restrictions. My guess is that the FTC didn’t intend to implicate vertical restrictions; but it probably wouldn’t categorically greenlight them either because some vertical restrictions could indeed have anti-competitive effects.

What Does This Mean For Trademark Owners? Trademark owners, PAY ATTENTION. Effectively, the FTC is saying that 1-800 Contacts committed antitrust violations by making overreaching trademark demands. I can’t recall when the FTC last implied that trademark overclaiming could create antitrust problems (nothing comes to mind immediately). Among academics, we’ve frequently discussed how trademark overclaims can hurt competition, so many academics probably think it’s about time the FTC moved in that direction. However, if this lawsuit signals that the FTC plans to pay more attention to trademark owner overreaching, that would be a seismic event for the trademark owner community.

Two related notes. First, as I’ve said before, I think 1-800 Contacts is an exceptionally weak trademark because it’s more a phone number than a source identifier. Just like trademark law won’t protect [noun].[tld] domain names (when the domain name relates to the noun) or #noun, “800 [noun]” also should be generic. It creates a lot of friction when we weaponize such highly descriptive terms, and it makes sense for the FTC to pay particular attention to those weapons deployments.

Second, I’ve observed before that owners of weak descriptive marks tend to be the most litigious and make the most aggressive interpretations of trademark law. They often use litigation to try to overcome the intrinsic shortcomings of the mark; and they are often paranoid about the so-called “policing duty” that makes trademark owners think they will lose the mark if they don’t shut down other users of the term. However, the trademark policing “obligation” is often overstated; and the TTAB has expressly said there’s no policing obligation against competitive keyword advertising.

About Past Coverage of 1-800 Contacts. I have been critical of 1-800 Contacts for over a dozen years, starting with the 1-800 Contacts v. WhenU district court ruling. That ruling spurred me to file a Second Circuit amicus brief with the EFF and ultimately motivated my Deregulating Relevancy article. After some jaw-dropping shenanigans in the Utah legislature (e.g., that time when 1-800 Contacts’ government lobbyist also was a Utah legislator and voted in favor of the bill backed by 1-800 Contacts), I vowed I would never buy from them. I don’t wear contacts, but if I did, I’d still not deal with 1-800 Contacts to protest against their overreaching IP positions. Indeed, the FTC complaint alleges: “To this day, 1-800 Contacts’ prices for contact lenses remain consistently higher than the prices of its online rivals.” If true, this provides some evidence that they are still getting supra-competitive rents. 1-800 Contacts customers might consider that when voting in the marketplace with their wallets.

Some blog posts about 1-800 Contacts:

* Tenth Circuit Kills the Initial Interest Confusion Doctrine–1-800 Contacts v.
* Just How Egregiously Must a Trademark Plaintiff Act Before a Court Awards Attorneys’ Fees to the Defendant?–1-800 Contacts v.
* How Much Does 1-800 Contacts Hate Competitive Keyword Advertising? $1.1M Worth!?
* Utah HB 450 Dies in Utah Senate Without a Vote
* Utah House Barely Passes HB 450 (Maybe)–UPDATED
* Utah Trying to Regulate Keyword Advertising….Again!? Utah HB 450
* Utah Amends Trademark Protection Act (But Only After Some Drama)
* 1-800 Contacts Sues LensWorld for Keyword Advertising
* Utah Legislators Realizing They Screwed Up By Banning Keyword Advertising
* Utah Bans Keyword Advertising [Updated]
* Supreme Court Denies 1-800 Contacts Cert Petition
* 1-800 Contacts Appeals 2nd Circuit WhenU Decision to the Supreme Court
* Important 2d Circuit Adware Case–1-800 Contacts v. WhenU
* LA Times on Adware Advertisers–Including 1800 Contacts?

Supplement: 1-800 Contact’s Trademark Enforcement Cases

I searched PACER’s records for all of the trademark enforcement actions brought by 1-800 Contacts. I excluded the ones that clearly didn’t involve keyword advertising, but I didn’t carefully verify that the remaining cases involved keyword advertising. Still, it’s likely that some or all of following defendants were among the 14 blacked-out competitors listed in the FTC complaint (most or all of these were filed in District of Utah):

* 1-800 Contacts v. Harner, 2:10-cv-00927 (filed Sept. 20, 2010, closed March 21, 2011)
* 1-800 Contacts v. Web Eye Care, 2:10-cv-00770 (filed Aug. 10, 2010, closed Sept. 13, 2010)
* 1-800 Contacts v. Standard Optical, 2:10-cv-00643 (filed July 13, 2010, closed Feb. 7, 2011)
* 1-800 Contacts v. Walgreen, 2:10-cv-00536 (filed June 8, 2010, closed July 20, 2010)
* 1-800 Contacts v. Tram Data, 2:10-cv-00420 (filed May 6, 2010, closed July 28, 2010)
* 1-800 Contacts v. Contact Lens King, 2:10-cv-00205 (filed Mar. 8, 2010, closed April 8, 2010)
* 1-800 Contacts v. Empire Vision Center, 2:10-cv-00173 (filed Feb. 25, 2010, closed May 18, 2010)
* 1-800 Contacts v. Arlington Contact Lens Service, 2:10-cv-00131 (filed Feb. 18, 2010, closed March 10, 2010)
* 1-800 Contacts v. Memorial Eye, 2:2008cv00983 (filed Dec. 23, 2008, closed August 17, 2011)
* 1-800 Contacts v. Lensfast, 2:2008cv00984 (filed Dec. 23, 2008, closed Feb. 3, 2010)
* 1-800 Contacts v., 2:2008cv00157 (filed Feb. 26, 2008, closed August 12, 2008)
* 1-800 Contacts v., 2:2008cv00015 (filed January 8, 2008, closed September 9, 2008)
* 1-800 Contacts v. Premier Holdings, 2:2007cv00946 (filed December 6, 2007, closed May 16, 2008)
* 1-800 Contacts v. Inc., 2:2007cv00591 (filed August 13, 2007)
* 1-800 Contacts Inc v. Manila Industries Inc, 8:2007cv00102 (filed January 26, 2007, closed April 7, 2008)

(And, of course, the WhenU litigation).

In reviewing the PACER dockets, two things stood out. First, many of the complaints were virtually identical and filed by the same lawyers. Economies of scale, I guess. Second, many lawsuits settled within weeks or months of 1-800 Contacts’ complaint. Apparently, many defendants found it cheaper to settle than fight and 1-800 Contacts was amenable to that option.

Blog Posts on Competitive Keyword Advertising

* Competitive Keyword Advertising Lawsuit Will Go To A Jury–Edible Arrangements v. Provide Commerce

* Texas Ethics Opinion Approves Competitive Keyword Ads By Lawyers

* Court Beats Down Another Competitive Keyword Advertising Lawsuit–Beast Sports v. BPI

* Another Murky Opinion on Lawyers Buying Keyword Ads on Other Lawyers’ Names–In re Naert

* Keyword Ad Lawsuit Isn’t Covered By California’s Anti-SLAPP Law

* Confusion From Competitive Keyword Advertising? Fuhgeddaboudit

* Competitive Keyword Advertising Permitted As Nominative Use–ElitePay Global v. CardPaymentOptions

* Google And Yahoo Defeat Last Remaining Lawsuit Over Competitive Keyword Advertising

* Mixed Ruling in Competitive Keyword Advertising Case–Goldline v. Regal

* Another Competitive Keyword Advertising Lawsuit Fails–Infogroup v. DatabaseLLC

* Damages from Competitive Keyword Advertising Are “Vanishingly Small”

* More Defendants Win Keyword Advertising Lawsuits

* Another Keyword Advertising Lawsuit Fails Badly

* Duplicitous Competitive Keyword Advertising Lawsuits–Fareportal v. LBF (& Vice-Versa)

* Trademark Owners Just Can’t Win Keyword Advertising Cases–EarthCam v. OxBlue

* Want To Know Amazon’s Confidential Settlement Terms For A Keyword Advertising Lawsuit? Merry Christmas!

* Florida Allows Competitive Keyword Advertising By Lawyers

* Another Keyword Advertising Lawsuit Unceremoniously Dismissed–Infostream v. Avid

* Another Keyword Advertising Lawsuit Fails–Allied Interstate v. Kimmel & Silverman

* More Evidence That Competitive Keyword Advertising Benefits Trademark Owners

* Suing Over Keyword Advertising Is A Bad Business Decision For Trademark Owners

* Florida Proposes to Ban Competitive Keyword Advertising by Lawyers

* More Confirmation That Google Has Won the AdWords Trademark Battles Worldwide

* Google’s Search Suggestions Don’t Violate Wisconsin Publicity Rights Law

* Amazon’s Merchandising of Its Search Results Doesn’t Violate Trademark Law

* Buying Keyword Ads on People’s Names Doesn’t Violate Their Publicity Rights

* With Its Australian Court Victory, Google Moves Closer to Legitimizing Keyword Advertising Globally

* Yet Another Ruling That Competitive Keyword Ad Lawsuits Are Stupid–Louisiana Pacific v. James Hardie

* Another Google AdWords Advertiser Defeats Trademark Infringement Lawsuit

* With Rosetta Stone Settlement, Google Gets Closer to Legitimizing Billions of AdWords Revenue

* Google Defeats Trademark Challenge to Its AdWords Service

* Newly Released Consumer Survey Indicates that Legal Concerns About Competitive Keyword Advertising Are Overblown

August 11th 2016 Marketing

9 Expert Tips to Closing a B2B Sale

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Closing a B2B sale is a process that involves understanding your customer and making them believe that your product or service will without a doubt improve their business. Your entire sales process should be built around that principal.

9 Expert Tips on Closing B2B Sales:

1.How do you get your 1%?,” asks Ravi Kompella, Director, Enterprise Sales for Salesforce. “I guess the best way to address this is by going back to the drawing board and figure out if you have done everything REALLY well. Keeping your customer warm throughout the sales cycle can give you information you never thought would get, which in turn can be used to get your 1%.”

2. “In the past, sales people were taught that skills such as ‘pitching’, ‘differentiation’ (USP’s) and ‘closing’ were essential for winning business,” writes Laurie Smith, Director & Executive Coach. “Nowadays, these ‘techniques’ have no relevance in the modern business environment. They need to take on a far wider range of skills and competencies that they may not have been aware of or exposed to before (that of a researcher, educator, negotiator, accomplished communicator, business expert, insight-provider, trusted adviser and value creator).”

3.Forget closing tactics,” says Jeffrey Gitomer, King of Sales author and speaker. “They’re worn. They’re awkward. They’re manipulative. And they don’t put you in a very “professional” light. What you have failed to uncover is the prospect’s motive to buy what you’re selling. You’re looking for a tactic when what you really need is a better strategy.”

4.Why didn’t you hang up already?” asks Steli Efti, the CEO at CEO at “I’m sure you’ve hung up on many other people who cold called you, so why are you still on the line with me? Why did you open my email or respond to it? What exactly about my email sparked your interest? Ask this question early in the conversation. The answer will guide your approach to the conversation, tell you which angle to use when conveying benefits of your product, and which questions to ask to keep them engaged. It’s a shortcut to gaining real insights into their wants and needs, so you have a more targeted conversation.”

5. “In other words, if you’ve earned the right to ask for a sale, ask for the sale then say nothing,” writes Lewis Greene, Recruitment Director at Globaleye Wealth Management. “The temptation to talk is great but once you learn how to resist the temptation and how to close your mouth, your sales closing percentages will increase.”

6.Master closers know the outcome long before they get to the end of the process and the reason is; they have a well-qualified prospect, they know the prospect’s dominant buying motives, they have identified all the potential objections before they were even expressed, they have carefully observed the various buying signals from the prospect and they gave an effective and interactive presentation,” said David Shultz, CEO & President of Market Share Consultants. “They know long before they ask their closing question what the answer will be.”

7. “Don’t worry about closing the sale, instead, focus on making a authentic connection with your customer,” says Dale Carnegie instructor Doug Stewart. “Asking quality questions about their work their needs and their life. This will open the door for you to talk about your product. Once they trust you and believe you have their best interest in mind, they will buy from you if you have a product that will in fact meet their needs. All you will need to do is ask.”

8.It is vital NOT to use a close before you have confirmed that your prospect is ready to make a commitment,” writes Australian sales guru Peter McKeon. “If you do, they will feel pressured and the stress level will go up. Use a trial close instead. You should make closing easy and natural, not uncomfortable. Once you know it’s time to ask for a commitment you don’t need any tricky closing techniques. A simple question to gain commitment is all that is needed.”

9.A deep understanding of your client and the political process they must navigate within their organizations is essential to how to make a sale,” says John Shea, CEO of the Alignment Group. “There is no comparable step in the buyer’s journey to what is happening politically within your prospect’s organization. The people, process, politics, agendas, and other projects on the plate are unique to each company. Understanding the political landscape, players and agendas is well beyond the buyer’s journey and sales process, but critical to closing leads; inbound and outbound.”

The post 9 Expert Tips to Closing a B2B Sale appeared first on WebProNews.

August 11th 2016 Marketing

How Companies Can Solve the China Puzzle

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Amy Karam, author of the book, The China Factor:Strategies to Compete, Grow and Win in the New Global Economy, recently was interviewed at Google’s Mountain View campus, providing insight for companies to better compete.

“The main intention of “The China Factor” is to equip western-based companies with strategies and tactics and knowledge to better compete with emerging entrants like those from China,” says Karam. “China has risen, they’re doing a great job, there a strong force in our economy and they do business differently. The premises is that we as western-based companies need to change our game. We need to know that emerging competitors have different approaches and we need to be more creative about that.”

“The other element is the innovation advantage and how do we protect or maintain and evolve our innovation advantage?” she asks. “How did China become so strong? What are the strengths and weaknesses of each side, the West and the East?”

Working for Cisco in China Was Eye Opening

Karam’s time at Cisco where she was involved in the Cisco sales strategy shaped her opinions of how Western companies can better compete. “The results were eye opening,” she said. “Wow, this isn’t business as usual. It’s not like our domestic competitors. It’s not a product superiority play anymore, where it’s like my box is better than your box so I’ll win the business. That’s not what was happening in emerging markets and especially with some emerging competitors.”

“That was the catalyst for me to say, wow, this is not a trend, this is not a blip, this is here to stay.” She noted some big competitive differences with Chinese companies. “First is the severe price discounting and that’s no shocker right? Most of us know that that’s generally a pretty consistent market penetration strategy, but there was really no bottom to it. I encountered a lot of escalations where they say, hey my competitors just discounted me by another 25% and I need approval for another discount. We realized that wasn’t going to be a successful strategy for either competitor and even for the customer, it wasn’t a winning game.”

“Another big thread was financing, which we didn’t really get into very much as a Western based company but that’s a a real helpful tool for emerging customers. This competitor would help them with financing and to an extreme degree. Sometimes they would help finance over a very long
period of time and that was a real great value to these emerging markets customers.”

“Another huge trend that came up was the use of politics to influence business decisions,” Karam said. “We’re like whoa, where did that come from what do we do about that? I would get escalated complaints from emerging markets that we’ve been working this deal for two years, we had in the bag and in the eleventh hour they would just say it was a an influence from above and we have no idea where it came from. It was government-to-government influencing for business decisions at a more granular level.”

What Can Western companies Do at the Practical Level?

“For those who are business geeks, you know there are the 4 P’s of marketing… product, price, place, promotion, so I created the 5th “P” which is politics,” said Karam. “I created the 5 P’s of Global Marketing framework. Because this has become such a a big world but it’s small at the same time, we need market access, we want to play and other peoples sandboxes, but there are certain rules and there are certain limitations that we need to encounter. When Google pulled out of China in 2010 for censorship reasons that was a big decision and the implications were huge. You could have affected 1.5 billion people in terms of access to knowledge, but there were really good reasons and those were the the boundaries within which a Western based company decided that they did not want to operate.”

“Recent headlines say that Google is going back in,” says Karam. “So market access is really important and reach is really important, so the political element is knowing that co-oppetition is is the new element. It’s an integral part of a strategy going forward, it’s not us versus them. It’s how do we all play together within our own boundaries and desirables to get ultimately the success that we need. That’s it at a high level.”

“Then how do we at the working level deal with politics?” she asks. “Politics even happens at the organizational level and generally there’s a pretty negative connotation to politics, but it’s really important, we can’t ignore it anymore, we we need to embrace it and apply it.

“So how do we apply it from a sales perspective is to educate the sales teams on some of the tools available from the US government and the local governments in the different countries,” asks Karam. “How can they engage with their own government to help influence their own sales locally? Reaching out to the consulates, how do you get them involved, how do you know that some of these deal opportunities are happening early on in the game? There may be unfair trade issues that you’re experiencing so that maybe some intervention sooner rather than later so it’s not at the eleventh hour when we oftentimes hear about it.”

“We’re also organizationally changed and we’re able to convince the senior vice president of government affairs to shift the focus from just a policy perspective to helping with sales objectives,” she says. “Using the influence that they have in the government affairs group for more of the end result in terms of numbers and not just policy has been very effective.”

How Should Western Companies Evolve and Change?

“Very simply, go global,” says Karam. “A lot of times Western based companies have been hesitant to go global. The second part is let’s move out of emerging markets being a novelty. I think a lot of Western based companies dabble in emerging markets thinking it’s really cool, it’s let’s try it out let’s throw a few people and in there and see how it works out, and then… oh no, not making the ROI that we need so we need to pull out. It needs to be a longer-term investment, it needs to be a commitment and you need to know that it’s it’s not just a temporary thing.”

“Make sure that your product development is catering or customizing to local customer needs,” she says. “We can’t just recycle, saying this is a mature product in this market and let’s just throw it over the fence and see if they’re going to like our old product.

How Can Western Companies Maintain Their Innovation Advantage?

“Every company, East to West, really wants to be innovative because that’s where the next phase of growth comes from,” says Karam. “We see contingents of emerging folks coming to Silicon Valley wanting to learn the secret of how is Silicon Valley innovative, how do you do it how do you become creative? But the idea is that we have to also be creative – we have to be innovative at being innovative, so you can’t just the rest on your laurels. This whole concept of innovation is evolving and as more players from different backgrounds are becoming innovative they’re bringing different business models.”

“Some business model innovations are coming from the East,” she says. “They’re really good and commercializing things and we’re really good at making things, really cool things, but they’re really good at making money yet from really cool things or even making money from ok cool things.”

“We also talked about supply chain or process innovation,” said Karam. “There’s the reputation of manufacturing, they’ve got it down. One venture capitalist who I interviewed for the book says, you know all this business about bringing manufacturing back to America, we don’t have the efficiencies, we don’t have the ecosystems yet to do that, and some of the Eastern countries do. We need to either establish that ecosystem or just understand that there’s there’s a different source of innovation happening out there.”

“What I’m saying s let’s get more creative, let’s figure out what’s our what’s our innovation 2.0,” she says. “How are we going to step up our game and learn from others as well?”

The post How Companies Can Solve the China Puzzle appeared first on WebProNews.

August 9th 2016 Marketing

How Google Analytics ruined marketing

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Children w. shopping carts let loose in a supermarket during an experiment by Kroger Food Foundation to determine what the kids would buy; most filled carts w. staple goods, no doubt on instructions from mom & dad.  (Photo by Francis Miller/The LIFE Picture Collection/Getty Images) Marketers in the high-tech world who use phrases such as “social media marketing,” “Facebook marketing” and “content marketing” do not understand the basic difference between marketing strategies, marketing channels and marketing content. And Google Analytics is to blame. Read More

August 8th 2016 Marketing

Competitive Keyword Advertising Lawsuit Will Go To A Jury–Edible Arrangements v. Provide Commerce

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The parties compete in the “chocolate and fruit-based gift packages” market. Provide bought competitive keywords that used the plaintiff’s trademark, including the keywords “edible arrangements,” “edible arrangements locations,” “edible arrangements coupons,” “edible arrangements promotional code,” “edible arrangements bouquet,” “edible arrangements flowers,” “cheap edible arrangements,” “edible arrangement discount,” and “incredible edible arrangements.” (The court doesn’t discuss broad matching, but Provide could have achieved similar results by broad matching the “edible arrangements” search term. Perhaps Provide got a better ROI by bidding on these highly specific terms compared to broad matching just the trademark?). At some points, Provide’s ad copy included the phrase “edible arrangements,” but it later changed the ad copy to reference “edible fruit arrangements” as depicted in this screenshot from the opinion:

edible arrangements

Provide asserted that it always used its house brands in close proximity to the “edible fruit arrangements” phrase, but Edible provided examples where the house brand only appeared in the URL displayed in the ad copy. Provide has subsequently given up using the “edible fruit arrangements” phrase in its keyword ad copy.

Edible provided evidence that the competitive keyword advertising had some success. They cite evidence where Provide allegedly said the ads were “one of Provide’s most successful tools for converting sales,” and that for “Provide’s 2012 Mother’s Day promotions, ‘EDIBLE ARRANGEMENTS’ is the top generator of ‘impressions’ for Shari’s Berries.”

The court tries to apply a standard multi-factor likelihood of consumer confusion test comparing the trademark “Edible Arrangements” with the ad copy references to “edible fruit arrangements,” but many of the factors are unenlightening or nonsensical. Still, with the inferences stacked against the party moving for summary judgment, the court easily denies Provide’s summary judgment motion.

The court then separately analyzes the trademark implications of Provide’s keyword bidding. Here, the court expressly acknowledges that several factors in the standard multi-factor test are “not particularly helpful.” So instead the court creates a new mutant variation of the “Internet trinity” (which the Ninth Circuit repudiated in the Network Automation case) focusing on three factors:

(i) “the strength of the plaintiff’s mark as a unique search term related to a distinct line of products,”
(ii) “the similarity of the marks and whether the defendant’s mark draws a clear distinction as a competing brand,” and
(iii) “what the consumer saw on the screen and reasonably believed, given the context.”

Oh joy, an all-new expedited test for consumer confusion in the keyword advertising context. I’m sure this test will work perfectly in future cases.

The court says this test indicates that Provide should be denied summary judgment:

* strength as search term: “a reasonable trier of fact could conclude that a consumer searching for ‘edible arrangements’ is looking for a distinct product line of aesthetically shaped fruit and not merely for any and all gifts containing boxes of edible fruits and berries.” OK, let’s assume searchers were using the search term “edible arrangements” to find the trademark owner. If so, then either they will not be steered away by competitive alternatives, or apparently their brand loyalty dissolves the instant they are exposed to any other option. See my Deregulating Relevancy article for more on the risks of overassuming what a searcher wants when they use a trademarked search term.
* brand distinction. “the Court finds that the Provide advertisements it has examined make a very poor effort to differentiate either a competing product or seller.” Hello, it’s a keyword ad. There’s not a lot of room for lengthy expositions about the relative brand positioning of competitors in the marketplace in the tightly limited character space.
* Consumer screen depictions. “Provide’s choice not to identify Pro Flowers or Sherri’s Berries as the advertiser in the text of the advertisement or the link, and only in the small print of the URL, contributes to a misleading environment for the consumer. In particular, a user searching for EA’s products might not even know that they had clicked on a link for a competitor’s product until they actually landed on the webpage of one of Provide’s sellers, or even after that point.” Isn’t this the same point as the prior bullet point? So did the court implicitly collapse this bastardized test to 2 factors instead of 3? Warning: this court is saying that putting the advertiser’s brand only in the URL, when the ad copy otherwise uses a similar phrase to the competitor’s trademark, is confusing.

The court summarizes:

A reasonable trier of fact could conclude that Provide’s purchase of “edible arrangements” as a non-consumer facing keyword could result in a likelihood of confusion by directing consumers to a search results page in which it advertised “edible fruit arrangements” in an text advertisement in which the seller is only identified in the small print of the URL. A jury could find that the purpose and effect of Provide’s keyword bidding – in conjunction with its use of EA’s mark in its advertisement on the search results page – was to mislead consumers as to sponsorship or affiliation with EA and to misdirect the web traffic of users searching for EA’s mark.

Finally, “edible arrangements” is a completely descriptive mark, so Provide has a powerful descriptive fair use argument. The court questions why Provide needed to describe its “fruit” as “edible” and whether its packaging of chocolate-covered strawberries constitutes an “arrangement.” Thus, the court says “EA has raised a material issue of fact as to whether Provide’s use of the phrase ‘edible fruit arrangements’ relies upon the ordinary meanings of those words to describe a product containing a box of ‘deliberately placed’ strawberries.”


This is a bad ruling for Provide and a bad ruling for keyword advertisers. Here’s a short list of the things I like least:

* a new bastardized multi-factor consumer confusion test for keyword advertising. NOTHING GOOD WILL COME FROM THIS.
* the court’s failure to understand that consumers cannot simultaneously be brand-loyal when they search a company’s trademark and then instantly brand-disloyal the moment they see competitive alternatives. I had hoped we had sufficiently debunked this inconsistency a decade ago.
* the court’s skepticism that a house brand in a URL sufficiently clarifies the advertiser’s identity to consumers. If you are using a competitor’s trademark in your ad copy, take note.
* the questions about the applicability of descriptive fair use for a trademark so obviously descriptive, especially when the defendant used a modified variation of the term (i.e., the addition of the term “fruit”)
* the court’s insufficient acknowledgement of the pro-competitive implications of keyword advertising. As I explained in my Deregulating Relevancy article, the real question is: did the people searching for “edible arrangements” get what they were looking for? The court cites almost no evidence suggesting that they didn’t; and my article explains numerous reasons why it’s likely that anyone who searched for “edible arrangements” and ended up buying Shari’s Berries got EXACTLY what they wanted. If in fact no consumer was harmed by Provide’s ads, what exactly is the problem that needs to be solved in court?

Fortunately, not all hope is lost. I know of three jury trials over competitive keyword advertising, and the defense won all three. I am not sure if Provide’s modified trademark usage in the ad copy makes this case sufficiently different from those cases, so perhaps those data points are not totally predictive. Still, a lot depends on the skill of Provide’s trial counsel as well as the jury instructions, and it appears the judge will put the thumb on the scale for the plaintiffs when it comes to drafting those.

I contacted both sides’ lawyers for public comment. Plaintiff’s counsel Mark Cantor emailed me: “Edible is very pleased with the result and believes the analysis was relating to keywords was well reasoned.” I didn’t hear back from defense counsel.

Litigation note: This case seemed unusually lawyer-heavy. 8 lawyers from 3 law firms represent Edible Arrangements; 4 lawyers from 2 law firms represent Provide. Next time you shell out for either an Edible Arrangements or a Shari’s Berries, you might reflect on how many private school tuitions are riding on your order.

Case citation: Edible Arrangements, LLC v. Provide Commerce, Inc., 2016 WL 4074121 (D. Conn. July 29, 2016)

Related Posts on Keyword Advertising

* Texas Ethics Opinion Approves Competitive Keyword Ads By Lawyers

* Court Beats Down Another Competitive Keyword Advertising Lawsuit–Beast Sports v. BPI

* Another Murky Opinion on Lawyers Buying Keyword Ads on Other Lawyers’ Names–In re Naert

* Keyword Ad Lawsuit Isn’t Covered By California’s Anti-SLAPP Law

* Confusion From Competitive Keyword Advertising? Fuhgeddaboudit

* Competitive Keyword Advertising Permitted As Nominative Use–ElitePay Global v. CardPaymentOptions

* Google And Yahoo Defeat Last Remaining Lawsuit Over Competitive Keyword Advertising

* Mixed Ruling in Competitive Keyword Advertising Case–Goldline v. Regal

* Another Competitive Keyword Advertising Lawsuit Fails–Infogroup v. DatabaseLLC

* Damages from Competitive Keyword Advertising Are “Vanishingly Small”

* More Defendants Win Keyword Advertising Lawsuits

* Another Keyword Advertising Lawsuit Fails Badly

* Duplicitous Competitive Keyword Advertising Lawsuits–Fareportal v. LBF (& Vice-Versa)

* Trademark Owners Just Can’t Win Keyword Advertising Cases–EarthCam v. OxBlue

* Want To Know Amazon’s Confidential Settlement Terms For A Keyword Advertising Lawsuit? Merry Christmas!

* Florida Allows Competitive Keyword Advertising By Lawyers

* Another Keyword Advertising Lawsuit Unceremoniously Dismissed–Infostream v. Avid

* Another Keyword Advertising Lawsuit Fails–Allied Interstate v. Kimmel & Silverman

* More Evidence That Competitive Keyword Advertising Benefits Trademark Owners

* Suing Over Keyword Advertising Is A Bad Business Decision For Trademark Owners

* Florida Proposes to Ban Competitive Keyword Advertising by Lawyers

* More Confirmation That Google Has Won the AdWords Trademark Battles Worldwide

* Google’s Search Suggestions Don’t Violate Wisconsin Publicity Rights Law

* Amazon’s Merchandising of Its Search Results Doesn’t Violate Trademark Law

* Buying Keyword Ads on People’s Names Doesn’t Violate Their Publicity Rights

* With Its Australian Court Victory, Google Moves Closer to Legitimizing Keyword Advertising Globally

* Yet Another Ruling That Competitive Keyword Ad Lawsuits Are Stupid–Louisiana Pacific v. James Hardie

* Another Google AdWords Advertiser Defeats Trademark Infringement Lawsuit

* With Rosetta Stone Settlement, Google Gets Closer to Legitimizing Billions of AdWords Revenue

* Google Defeats Trademark Challenge to Its AdWords Service

* Newly Released Consumer Survey Indicates that Legal Concerns About Competitive Keyword Advertising Are Overblown

August 5th 2016 Marketing

Texas Ethics Opinion Approves Competitive Keyword Ads By Lawyers

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The Texas State Bar’s Professional Ethics Committee has issued Ethics Opinion #661 approving lawyers’ use of competitive keyword advertising. The opinion concludes:

A lawyer does not violate the Texas Disciplinary Rules of Professional Conduct by simply using the name of a competing lawyer or law firm as a keyword in the implementation of an advertising service offered by a major search-engine company.

This is the result that my co-author Angel Reyes and I advocated in our recent (uncited) article, Regulation of Lawyers’ Use of Competitive Keyword Advertising. While the conclusion may seem to non-lawyers like common-sense, this issue has bedeviled lawyers and I did not expect such a clear and decisive ruling. Going forward, I expect this ruling influence other states evaluating their own ethics rules about competitive keyword advertising.


Competitive keyword advertising occurs when a company buys its competitors’ trademarks to display keyword advertising. Although it’s not a universally lauded practice, most industries have embraced–or least acquiesced to–its legitimacy. In parallel, courts routinely find competitive keyword advertising permissible under IP (e.g., trademark and publicity rights) laws. Nowadays, plaintiffs rarely win lawsuits over competitive keyword advertising, even when the advertiser displays the competitor’s trademark in the ad copy.

Unlike most other industries, the legal industry has not yet embraced competitive keyword advertising. That’s due in part to the legal industry’s traditional role as a late adopter; plus the legal industry must consider how its ethics rules overlay the IP rules. As a result, the legal industry is still working towards a catharsis over competitive keyword advertising. The three main legal precedents in the field:

* Habush v. Cannon, holding that publicity rights didn’t restrict competitive keyword advertising by lawyers
* The Florida Bar initially proposed banning competitive keyword ads by lawyers. After a group of academics (including me) intervened, the bar reversed that ban into a tacit acquiescence.
* In an under-the-radar move, the North Carolina bar banned competitive keyword advertising by lawyers in 2012, and it has disciplined one lawyer pursuant to that interpretation.

The Texas Opinion

The opinion analyzes three Texas Rules of Professional Conduct. The opinion discusses Rule 7.01(d), which restricts creating a false impression that lawyers are associated, and Rule 7.02(a), which restricts material misrepresentations in lawyer advertising:

[competitive keyword advertising] would not in normal circumstances violate either Rule 7.01(d) or Rule 7.02(a). The advertisement that results from the use of Lawyer B’s name does not state that Lawyer A and Lawyer B are partners, shareholders, or associates of each other. Moreover, since a person familiar enough with the internet to use a search engine to seek a lawyer should be aware that there are advertisements presented on web pages showing search results, it appears highly unlikely that a reasonable person using an internet search engine would be misled into thinking that every search result indicates that a lawyer shown in the list of search results has some type of relationship with the lawyer whose name was used in the search.

My article with Angel Reyes gets into more detail about consumer expectations towards keyword advertising.

The opinion also discusses Rule 8.04(a)(3), which prohibits conduct “involving dishonesty, fraud, deceit or misrepresentation”:

given the general use by all sorts of businesses of names of competing businesses as keywords in search-engine advertising, such use by Texas lawyers in their advertising is neither dishonest nor fraudulent nor deceitful and does not involve misrepresentation.

The opinion then expressly rejects the North Carolina opinion:

this Committee has considered but does not concur with 2010 Formal Ethics Opinion 14 of the Ethics Committee of the North Carolina State Bar (April 27, 2012) (ruling that a lawyer’s use of a competitor’s name as a keyword in a search-engine advertising program violates the equivalent of Texas Disciplinary Rule 8.04(a)(3) because such use constitutes “conduct involving dishonesty” in that the conduct shows “a lack of fairness or straightforwardness”).

The opinion does not expressly discuss what happens if the competing lawyer’s name shows up in the ad copy. So long as the ad doesn’t create a false or misleading impression about the relationship between the advertiser and competitor, the opinion does not seem to restrict that practice.


Texas has the third most lawyers in the country (and Florida is 4th), so this opinion should get a lot of attention from other states when they confront competitive keyword advertising. The opinion is clean, decisive and unambiguous (in contrast to Florida’s marble-mouthed expression of the same conclusion), and it also has logic and common sense on its side. For these reasons, I anticipate other states will similarly reject North Carolina’s outlier, anachronistic and poorly reasoned opinion. If so, the Texas opinion should accelerate the end of debates over the legitimacy of competitive keyword advertising by lawyers.

August 3rd 2016 Marketing

9 Useful Facebook Messenger Chatbots: Marketing Examples to Learn From

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August 1st 2016 Marketing

A Tale of Two Spokeos

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Screen Shot 2016-05-19 at 9.13.39 AMThe Supreme Court provided important guidance about Article III standing, especially what constitutes an injury sufficient to satisfy Article III, in the Spokeo v. Robins ruling from May 2016. At the time, it was unclear whether the ruling was more helpful to plaintiffs or defendants. Both sides expressed triumph. Reflecting that murky assessment, post-Spokeo standing rulings appear to be somewhat mixed. I have not surveyed the cases, but I would venture to guess that on balance they probably lean slightly towards plaintiffs. Two recent cases highlight the split:

Hancock v. Urban Outfitters: This case alleges a retailer wrongfully collected personal information in conjunction with a credit card transaction (Washington DC’s version of the Song-Beverly credit card act). The question is whether merely asking for (and collecting) such information created an sufficient injury to confer standing. The lower court dismissed on the merits, saying that a zip code is not an “address” and thus not covered by the statute. (Compare with Pineda v. Williams Sonoma, a case from the California Supreme Court coming to a different conclusion under the California statute.) Second, the court held that plaintiffs did not allege that the transactions would not have been completed absent the requested information.

On appeal, the D.C. Circuit remanded the case for dismissal, saying that plaintiffs failed to satisfy article III standing in the first instance. The court focused on the “bare procedural language” from Spokeo and said that the Court mentioned some examples of disclosure that would not support standing. Here, the plaintiffs’ complaints were one step removed—they were complaining about collection, and not even disclosure or misuse:

If, as the Supreme Court advised, disclosure of an incorrect zip code is not a concrete Article III injury, then even less so is Hancock and White’s naked assertion that a zip code was requested and recorded without any concrete consequence. Hancock and White do not allege, for example, any invasion of privacy, increased risk of fraud or identity theft, or pecuniary or emotional injury. Cf. Spokeo, 136 S. Ct. at 1549 (A “risk of real harm” or an “intangible” harm may satisfy Article III’s requirement of concrete injury.). And without any plausible allegation of Article III injury, the complaint fails to state a basis for federal court jurisdiction.

[For more on the potential social and legal differences between collecting, sorting and using data, see Eric’s article, Data Mining and Attention Consumption.]

Mey v. Got Warranty: This is a TCPA case where the plaintiff alleged that the defendant placed calls using auto-dialing equipment. Defendant moved to dismiss for lack of subject matter jurisdiction. The court stayed the case pending resolution of Spokeo. The court says Spokeo did not change the law and break new ground. The key question is whether unwanted calls cause “concrete harm” and the court emphatically (and in an 18 page order!) says yes. Such calls could cause monetary injury by depleting minutes or expend battery power. It constitutes an invasion privacy, which is a tort that has common law roots. It also could constitute a trespass. Interestingly, the court even goes as far to say that unwanted calls can constitute future harm:

Unwanted calls . . . cause a risk of injury due to interruption and distraction.

[Sidenote: if distraction is injury, sign me up for disability asap!]


Given the split rulings, it’s tough to draw definitive conclusions about the effects of Spokeo on future cases. Spokeo will likely be a useful tool for defendants in information security and privacy cases. We’ve seen a slew of these types of cases (Song-Beverly Credit Card Act; Shine the Light statutes; data breach cases) grapple with standing because the plaintiffs object to the defendants’ technical statutory violation but cannot show any consequence of that breach to them. Given the absence of any meaningful harm to consumers from those technical breaches, some judges will use Spokeo to clear their dockets. Plus, the D.C. Circuit is an influential court, so the Hancock ruling should get some mileage. On the other hand, for a TCPA case, Spokeo is unlikely to help.

Mey v. Got Warranty, Inc., 2016 WL 3645195 (N.D.W.V. June 30, 2016)

Hancock v. Urban Outfitters, 14-7047 (D.C. Cir. July 26, 2016)

Related posts:

Will the Spokeo v. Robins Supreme Court Ruling Favor Plaintiffs Or Defendants? Uh…

9th Circuit Says Plaintiff Had Standing to Sue Spokeo for Fair Credit Reporting Violations

Court Revisits and Dismisses Fair Credit Reporting Act Lawsuit Against Spokeo — Robins v. Spokeo, Inc.

Court Allows Fair Credit Reporting Act Claims Against Spokeo to Move Forward — Robins v. Spokeo

Court Dismisses Class Action Against Spokeo for Lack of Standing — Robins v. Spokeo

“Manufactured” TCPA Suit Fails For Lack of Standing

Seventh Circuit: Data Breach Victims Have Standing Based on Future Harm

California Supreme Court Rules That a ZIP Code is Personal Identification Information — Pineda v. Williams-Sonoma

Ninth Circuit Turns Out The Lights on California ‘Shine the Light’ Case

July 31st 2016 Marketing, spam

Facebook’s Future: Video, Search, Messaging and VR

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Facebook’s goal is to connect with everyone, yes every single person in the world. Not just that, but Facebook wants to connect to everyone at all times, in every waking moment. Facebook envisions a future where you will always be engaging with some part of the Facebook ecosystem, whether it’s on its mega social platform at Facebook, using it’s search engine, messaging a business associate or communicating on video or via a virtual reality environment.

But first lets talk business.

“I often talk about how when we develop new products we think about it in three phases, said Zuckerberg. “First, building a consumer use case. Then, second, making it so that people can organically interact with businesses. And then third, on top of that, once there’s a large volume of people interacting with businesses, give businesses tools to reach more people and pay. And that’s ultimately the business opportunity.”

During the earnings call yesterday, Mark Zuckerberg opened the curtain into Facebook’s plans, strategies and dreams for the future. He first provided the latest metrics illustrating Facebook’s continued success, 1.7 billion people now use Facebook every month, and 1.1 billion people use it every day. He said that Facebook revenue grew by 59% year-over year to $6.4 billion, and advertising revenue was up 63% to $6.2 billion.

Sheryl Sandberg, COO of Facebook said that Q2 ad revenue grew 63% and mobile ad revenue hit $5.2 billion, up 81% year-over-year, and was approximately 84% of total ad revenue. Facebook is now truly a mobile app rather than a desktop experience for the vast majority of its users.

Zuckerberg said that they continue to see excellent growth and over the past year Facebook has added over 200 million people using Facebook on a monthly basis. Time spent per person increased double digit percentages year-over-year across Facebook, Instagram and Messenger. And that doesn’t even include WhatsApp yet.

Facebook is still growing rapidly and that’s because it has continued to evolve. It’s evolution has happened because of increased bandwidth, technological advancements, acquisitions of new platforms like WhatsApp and Instagram and most importantly continuing to be on the cutting edge of what people want in a social network. All of this while simultaneously building a successful business model that pays for this evolution.

What’s really interesting however, is how Zuckerberg sees Facebook transforming in the future. “Our results show our progress as we work to make the world more open and connected across our three-, five- and ten-year horizons,” he said. “Over the next three years we are focused on continuing to build our community and help people share more of what matters to them. The next five years are about building our newer products into full ecosystems with developers and businesses. And over the next ten years we are working to build new technologies to help everyone connect in new ways.”

Facebook is seeking to be the world’s business platform, not just the peoples. More on this below in the Search section on a Facebook future where it is competing with LinkedIn.

“We’re excited to announce that we now have 60 million monthly active business Pages on Facebook,” said Facebook COO Sheryl Sandberg. “We also continue to grow the number of active advertisers on our platform. This shows that both our free and paid products are providing value to marketers of all sizes around the world. We continue to focus on our three priorities — capitalizing on the shift to mobile, growing the number of marketers using our ad products, and making our ads more relevant and effective.”

Trust me, this is just the beginning of Facebook’s morphing into both a personal and business platform in the future.

The Future of Facebook is Video

Facebook used to be mostly text and over the years they changed to be photo centric, with many people using Facebook as their family photo album. People still do that but Zuckerberg envisions a huge change coming. “We see a world that is video first, with video at the heart of all of our apps and services.”

“Over the past six months we have been particularly focused on Live video. Live represents a new way to share what’s happening in more immediate and creative ways,” Zuckerberg said. “This quarter Candace Payne’s Chewbacca mask video was viewed almost 160 million times. Live is also changing the way we see politics, as news organizations and delegates go Live from the Republican and Democratic conventions. And we have seen in Minnesota and Dallas how Live can shine a light on important moments as they happen.”

At Fortune‘s Most Powerful Women International Summit in London, Nicola Mendelsohn, VP EMEA at Facebook, predicted that the Facebook newsfeed will be all video in 5 years. “It will definitely be mobile. It will probably be all video,” Mendelsohn said. “I just think if we look, we already are seeing a year on year decline in text. We’re seeing a massive increase as I’ve said on both pictures and video. So yeah, if I was having a bet, I would say video, video, video.”

“When you think about what’s happening on video on our platform we’re really excited by the production and consumption of video and we’re seeing the full range from people posting the things in their personal lives; the power of what a mobile phone can produce and distribute now is pretty incredible when you compare it to just a few years ago to some of the most sophisticated content producers in the world producing for us,” added Sandberg.

Facebook Focuses on Search

Facebook is moving into the search space aggressively, definitely to help it compete with Twitter and perhaps even Google in the future. Facebook launched true keyword search in late 2014 that allows users to search not just profile names or just your friends posts, but also everyone’s public posts. And, if you didn’t know, all postings default at public, which means that anyone can search for your posts.

The first goal for Facebook with search is to become more like Twitter, where people post their thoughts, feelings and most importantly news reports, especially the on-the-scene kind. When the next plane lands in the Hudson, Facebook wants the survivor standing on the wing to use their platform to post about this breaking news, not Twitter. More precisely, Facebook wants you to use Facebook Live to stream your personalized live news coverage.

“We’re making good progress on core services within the Facebook app, like Search,” Zuckerberg stated. “A growing way people use search is to find what people are saying about a topic across the more than 2.5 trillion posts in our network. Now, people are doing more than 2 billion searches a day, between looking up people, businesses and other things that they care about. Continuous, steady improvement to services like search are an important part of helping people connect and realizing our mission.”

He also said this in minimizing their true plans, in my opinion.

So I’d say we’re around the second phase of that in search now. We have a pretty big navigational use case where people look up people and pages and groups that they want to get to and look at and search. One of the big growing use cases that we’re investing a lot in is looking up the content in the ecosystem and that is an area that we’re very excited about which helps people find more content.

But certainly there’s a reasonable amount of behavior in there which is looking for things that over time could be monetizeable or commercial intense and at some point we will probably want to work on that but we’re still in the phase of just making it easier for people to find all the content they want and connect with businesses organically.

But what’s their next goal? Facebook has certainly focused on the business use of their platform as they continue to look for monetization opportunities. My guess is that Facebook will seek to compete with LinkedIn as the business platform of record.

Over the last few years LinkedIn has certainly moved from a glorified directory of business professionals to a platform for business related news, conversation and connection. Facebook has the platform but would need to figure out how to easily separate family life from business life, which could be done rather easily. With Microsoft buying LinkedIn, Facebook will be highly motivated to compete.

Next up for Facebook Search would be to compete with Google. Why… you ask? Because Google has a market cap of $520 billion, with the majority of that credited to its search business, while Facebook has a market cap of $362 billion. More importantly, it’s about revenue and profit. In 2015, Google had $75 billion in revenue and $16 billion in net income while Facebook had $17 billion in revenue and $3.6 billion in net income.

Google tried to compete with Facebook with Google+ and it failed miserably, but that’s because it’s harder to get people to change their social habits than it is their search habits. You don’t need your friends to use Facebook Search in order for you to find it useful, but you definitely need your friends to move to a new social platform to make it work for you. That was Google’s dilemma, but it won’t be Facebook’s.

“Since it refocused on keywords, Facebook is now seeing 2 billion searches per day of its 2.5 trillion posts,” stated TechCrunch writer Josh Constine. “That’s compared to 1.5 billion searches per day in July 2015, and 1 billion in September 2012. That’s a 33% climb in just 9 months.”

That’s lets than half a reported 3.5 billion searches per day on Google. The difference is that Google’s searches are monitizable, while Facebook searches, not so much. However, this must scare the heck out of Google because it shows how ingrained people are to use Facebook for search. Therefore, over time I predict that Facebook will add web indexing to it’s search engine. They already have 3.5 billion searches, why not open up search to everything and in the process open up a huge monetization opportunity.

One other prediction, Facebook will disconnect its search app from just, just like they did Messenger. Then, voilà, Facebook is competing with Google.

Making Instagram Stronger

Instagram was purchased by Facebook for $1 billion while it was just getting off the ground. It is now center to its plans on connecting with everyone in the world on a constant always on basis. That’s why Instagram is so important to Facebook, it has a foothold with younger people and its active user base is not a clone of Facebook’s, so it expands the corporate Facebook’s universe of connectivity and engagement.

“Over the next five years we are working hard to build ecosystems around some of our newer products,” said Zuckerberg. “Instagram now has more than 500 million monthly actives, with more than 300 million daily. Now we’re working to make the experience more engaging.”

He said that when Instagram, despite user pushback, began to rank its feed in order to improve the experience, that they are already seeing a “positive impact” with people spending more time and share more content within the platform.

As always, business is important to Zuckerberg as well. “We’ve also introduced our advertising tools on Instagram and we’re seeing marketers engage with people in creative and innovative ways.”

Messaging with Messenger & WhatsApp

“In the two years since we separated Messenger from the main Facebook app — which was a controversial decision at the time — we’ve improved performance and given people new ways to express themselves,” commented Zuckerberg. “Now, for the first time, more than 1 billion people are using Messenger every month.”

Facebook sees a huge opportunity with messaging because it moves them closer to their goal of connecting everyone on a constant always on basis. That’s why they paid $22 billion for WhatsApp, which is a service that barely had a business model.

“I’m also happy with the updates we’re making to WhatsApp — which also has a community of more than 1 billion people,” said Zuckerberg. “This quarter we launched new desktop apps and end-to-end encryption, and millions of people are using WhatsApp’s voice calling features.”

Facebook has big plans for messaging because not only does it help them bring even more people into Facebook’s universe, but it moves them into the business space, where Facebook desperately wants to be, because that’s where the money is.

“The scale we’ve achieved with our messaging services makes it clear that they are more than just a way to chat with friends,” Zuckerberg noted. “That’s why we’re also making it easier for people to connect with groups and businesses as well. We are going to keep focusing on this over the next several years.”

Facebook owned messaging has now taken over standard text messaging according to Zuckerberg.

“Between Messenger and WhatsApp I think we’re around 60 billion messages a day which is something like three times more than the peak of global SMS traffic.”

It’s incredible to think that Facebook now owns the messaging space. Who would have thought that 3 years ago?

New Technologies

“I’m also excited about the early progress we’re making on our 10-year initiatives. We are investing in new technologies to give more people a voice — including the 4 billion people around the world who aren’t yet online — and helping more people take advantage of the opportunities that come with the internet.”

Facebook is seeking to connect everyone in the world, regardless of any obstacle. It’s a long term plan, but Facebook is on it.

“One of the biggest opportunities to grow our community is in developing countries where connectivity is less advanced than what we take for granted here at home,” Zuckerberg said. “So over the past couple of years, we’ve began making steady improvements to our apps to make them work regardless of the device or connection people are using. We also built a light-weight version of our Android app, called Facebook Lite, that is tuned to work on 2G networks and is now used by more than 100 million people.”

Virtual reality is another huge area of investment for Facebook, especially with their $2 billion purchase of Oculus. They see VR as an extension of connecting and sharing. Know one really knows the future of VR, but it will be deeply engrained in advertising in the future and since all of Facebook’s revenue comes from advertising, they need to be in this space.

“We believe that virtual reality can help people share richer experiences and help everyone understand what’s going on around the world,” said Zuckerberg. “It’s really early for us in VR but we’re hitting some important milestones. As of the second quarter more than 1 million people a month are using Oculus on mobile phones through our Gear VR 4partnership with Samsung.”

Zuckerberg also commented on the potential revenue importance of their investment in VR:

“More than 300 apps are already available at the Oculus store for Gear VR, we’ve filled all of our pre-orders for Oculus Rift and we are seeing increasing demand from retail as stores plan for the holidays. While it’s still early for augmented reality, we’re doing AR research and are seeing lightweight versions of AR technology today in mobile apps like MSQRD.”

Facebook is Just Getting Started

“So that’s a recap of the progress we’re making in our 10 year plan,” said Zuckerberg. “We have a saying at Facebook that our journey is only 1% done — and while I’m happy with our progress, we have a lot more work to do to grow our community and connect the whole world. That means making big investments and taking risks — focusing not just on what Facebook is, but on what it can be.”

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