Amazon Defeats Lawsuit Over Its Keyword Ad Purchases–Lasoff v. Amazon

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Lasoff owns Ingrass, which makes artificial turf. He claims he’s losing business to “cheaper, counterfeit” versions of Ingrass. (The opinion uses the term “counterfeit,” though it probably means knockoffs). He objects to the fact that Amazon runs keyword ads for “Ingrass” at the search engines and in promotional emails that are algorithmically programmed for remarketing (i.e., promoting products the email recipient viewed on Amazon but didn’t buy). The promotional email ad copy comes from third party sources. Prospective customers who saw these ads for “Ingrass” were directed to the Amazon product pages containing listings from the alleged counterfeiters.

Section 230

Citing the Ninth Circuit’s ccBill v. Perfect 10 ruling, the court cleans out all of the state law claims (unfair competition, state trademark infringement, tortious interference, negligence and unjust enrichment) due to Section 230. The court says:

The content to which Plaintiff objects (the “Ingrass” keyword and the misrepresentations by copycat competitors that their products are “Ingrass” products) is provided by third parties and the claims which Plaintiff prosecutes attempt to cast Amazon as the “publisher or speaker” of that content….The fact that Defendant created the automated system which identifies the desirable keywords and then propagated advertisements based on those keywords is not what Lasoff seeks to hold it liable for; it is that the information generated by that system is improperly damaging to his legitimate and protected business interest in the brand “Ingrass.”

Though the court reaches a logical result, it’s weird, or perhaps nonsensical, to say that the word “Ingrass” is third party content for Section 230 purposes.

Federal Trademark

Secton 230 doesn’t preempt federal trademark claims, so we move to the prima facie case there. Ingrass isn’t a registered mark, but the court concludes that it’s suggestive. Amazon argued that it hadn’t “used” the mark because its algorithms did all the work, but the court rejects the argument per Network Automation and Rescuecom.

Still, the court is troubled by the prospect of holding Amazon directly liable for trademark infringement because it doesn’t compete with Ingrass. In a footnote, the court explains:

Trademark infringement law is primarily concerned with stopping one person or entity from gaining an unfair competitive advantage over a business rival by misusing a protected mark. No one who offers their product for sale on amazon.com is a “competitor” of Amazon, and attempting to shoehorn the company into a direct trademark infringement framework creates a “square peg-round hole” situation for which traditional trademark law seems ill-suited.

I totally agree, though these analytical problems haven’t always stopped judges before. The court bolsters this intuition with the directly relevant Tiffany v. eBay precedent. The court says:

The Court finds Amazon’s position directly analogous to that of eBay, and further finds that the holding of Tiffany (NJ) – that there are “uses in commerce” which do not subject the user to liability for direct trademark infringement – applicable to this case.

Lasoff argued contributory trademark infringement but didn’t plead it initially, so the court disregards those arguments.

Lanham Act False Advertising

Frustratingly, the court doesn’t address whether Section 230 applies to Lanham Act false advertising cases. I believe it should because those are not “intellectual property” cases; but courts sometimes have nevertheless excluded Section 230 because the Lanham Act false advertising provisions are in the same section as the Lanham Act trademark provisions.

Nevertheless, the court says this claim suffers problems “similar to” the Section 230 analysis–“that the misrepresentations of which he complains originate with third-party vendors, not with Defendant.” Citing the Baldino’s Lock & Key v. Google case, the court says:

Plaintiff attempts to distinguish the case on the basis that the Google advertisements were published directly by the unlicensed locksmiths, but this argument strengthens Defendant’s position: just as Google could not be held liable for reproducing material which it did not know was false, neither can Amazon. Plaintiff fails to draw a meaningful distinction between two interactive computer service providers who created a platform for advertising which contained misrepresentative material generated by third parties. In both instances, liability lies with the vendors who created the misleading content, not the service providers who transmit that content.

Sherman Act Monopoly

Lasoff argued that Amazon dominates keyword ad buys, which the court says would be more accurately framed as a monopsony rather than a monopoly. The court rejects the argument because of the substitutability between search engine keyword ads and other forms of online marketing (cite to Person v. Google) and the presence of many other keyword ad buyers.

Implications

This wasn’t the most well-constructed case from the plaintiff’s side, so Amazon probably welcomed the opportunity to use the case to set some favorable precedent. The net consequence is that Amazon once again sidesteps exposure for the possible presence of knockoffs/”counterfeits” on its site, following cases like the Tre Milano and Milo & Gabby cases. I’m sure the knockoff/coutnerfeit issue isn’t going away for Amazon, even though Amazon says it is taking more aggressive steps to fight illegitimate offerings on the site, but plaintiffs are running out of legal theories that might support a successful case.

Like the eBay case, or perhaps the Jurin v. Google case from a while ago, this case raises the interesting thought-exercise of what messages Amazon itself communicates to prospective consumers when its ads indicate that something related to Ingrass is available on its site. Fundamentally, Tiffany and Ingrass argued that their brand name as the “lure” and that acted as a type of brand-authenticity warranty to consumers. Fortunately, both courts recognized that consumers can assume that the offerings relate in some manner to the trademark without the follow-on assumption that they are only going to see authentic goods from the manufacturer. I’m not sure Section 230 really gets at the conceptual dilemma in that thought-exercise. However, as we saw with some of the infringing-app-name cases, Section 230 does a great job of screening out the para-IP claims so that the court can devote more energy to resolving the underlying IP questions.

The opinion doesn’t mention the Multi-Time Machine v. Amazon case, but that ruling defended Amazon’s use of keywords on its internal search pages. Combined with this ruling, it seems to give online marketplaces a lot of freedom to use third party brands to make matches between consumers and vendors who aren’t the trademark owner.

Case citation: Lasoff v. Amazon.com, 2017 WL 372948 (W.D. Wash. Jan. 26, 2017)

More Posts About Keyword Advertising

* More Evidence Why Keyword Advertising Litigation Is Waning

* Court Dumps Crappy Trademark & Keyword Ad Case–ONEPul v. BagSpot

* AdWords Buys Using Geographic Terms Support Personal Jurisdiction–Rilley v. MoneyMutual

* FTC Sues 1-800 Contacts For Restricting 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

February 3rd 2017 Marketing

Actress in Viral Video Can’t Prevent Video From Being Made Into an Advertisement–Roberts v. Bliss

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Bliss produced a viral video called “10 Hours Walking in NYC as a Woman” featuring actress Shoshana Roberts. You probably saw this video when it came out; it has been viewed over 40M times. The video shows how random strangers constantly comment on Roberts’ looks as she walks around NYC. For reasons not specified in the opinion, Bliss didn’t get a written release from Roberts, and she claims he orally promised to pay her if the video succeeded (which it did, but still he didn’t pay). She also claims she made editorial contributions to the video, such as “actively assist[ing] Bliss in deciding how and where to walk, and how to film without the camera being noticed.”

Sadly, the video’s success induced Bliss to sell out; he licensed the video so TGI Fridays could make an ad. The ad uses the NYC settings and the mens’ catcalls, but digitally replaces Roberts with images of french fries and mozzarella sticks that appear to be the target of the mens’ catcalls. The court says: “Because of the superimposition of the giant appetizers, Roberts is not pictured or represented in the ad at all.” (The parties dispute whether Roberts is completely replaced; she claims that some versions showed her hands or feet, but the court says that wouldn’t change the analysis). Here is the 15 second version of the video (there was also a 30 second version that I haven’t yet found):

The court helpfully included some (unfortunately, black-and-white) screenshots comparing the two videos:

roberts1

roberts2

From my perspective, the TGI Fridays ad is terrible. It takes a thought-provoking and educational ad about sexual harassment and turns it into a so-called “parody” about mens’ “love” for fried foods. Sexual harassment isn’t funny, and the TGI Fridays ad implicitly celebrates the catcalls and denigrates the issue’s importance. If I had any prospect of being a TGI Fridays customer, this would prompt me to boycott them; but since I haven’t eaten there in decades and can’t imagine a situation where going to TGI Fridays would be a choice I or anyone in my social network would ever make voluntarily, I don’t think I was really in the target audience anyway.

Anyway, the main question for this blog: when can an actress stop video from being turned into an ad? Regular readers recognize the obvious parallels with the Garcia v. Google case, which also involved an actress trying to use copyrights to control an unwanted usage of video footage of her where (for purposes of the opinion, though maybe not in fact) there was no written contract between the actress and the producer. This is a more favorable case for the defendants because the producers’ alleged deceit was much more modest (maybe over the possible future payout); and the TGI Friday’s video made Roberts unidentifiable whereas the Innocence of Muslims producers just overdubbed dialogue. Fortunately, it also reaches (for now) a defense-favorable result.

This opinion only addresses Roberts’ Lanham Act false endorsement claim.

Persona Use. The court says there’s no endorsement because Roberts isn’t depicted in the ad:

Although the ad may well call to a viewer’s mind the 10 Hours video, and perhaps even Roberts because of her role in it, the ad does not use Roberts’ image or persona, nor suggest in any way that Roberts herself endorsed the product advertised.

The court then references a number of very familiar cases where the plaintiff claimed the offending ad invoked their fame (most of which Rebecca and I discuss in our Advertising Law book), including Waits v. Frito-Lay, White v. Samsung (the Vanna White Robot case), Oliveira v. Frito-Lay (the Girl from Ipanema case), and Burck v. Mars (the Naked Cowboy case). The court says maybe a person’s movements could be sufficiently distinctive (such as Michael Jackson’s moonwalk, though he didn’t originate the move) to comprise someone’s “persona,” but Roberts didn’t claim that. The court also says that claims an ad takes someone’s “signature performance” also have repeatedly failed, specifically analyzing the Oliveira case.

Likelihood of Consumer Confusion. The court says there’s no possibility that ad viewers would be confused into thinking Roberts endorsed TGI Fridays:

Plaintiff here has not plausibly alleged that the advertisement creates consumer confusion because any viewer would understand the ad to be engaged in a parody of 10 Hours. While the advertisement does “call to mind” 10 Hours, the supplantation of Roberts with large gimmicky images of appetizers is an “obvious[] modification” of, and a “conscious departure” from, the original work. This modification, moreover, is outlandish, not subtle….The ad replaces Roberts—the object of the harassing men’s attention in the 10 Hours video—with the appetizers. They are now the subject of the men’s desire. That, together with the play on words between “appcalling” and “catcalling,” is what makes it a parody. And because the parody is obvious, the “risk of consumer confusion is at its lowest.”… That Roberts, of course, looks nothing like the overblown images of walking food, and that an online video designed to highlight a societal ill and a chain restaurant attempting to promote its appetizers occupy distinct merchandising markets, reinforces the conclusion that it is implausible that a viewer of the ad would be confused about whether Roberts endorsed it.

If “outlandish” means mean-spirited, venal and offensive, then I fully agree.

Finding no Lanham Act violation, the court dismisses the claim. It declines to retain supplemental jurisdiction over the state law claims (breach of contract and covenant of good faith and fair dealing, violation of NY Civil Rights Law Sections 50-51, violation of the right of publicity, quantum meruit, and unjust enrichment).

So what are the lessons from this case? Well, the big one: if you are producer and hiring an actor/actress for a video you hope will go viral, for god sakes, PLEASE get a written release. A less-obvious one: if you’re going to make a thoughtful and insightful video about sexual harassment and are lucky enough to go viral, please don’t sell out the video to advertisers. And if you’re still a TGI Fridays’ customer, good god, what are you thinking?

Case citation: Roberts v. Bliss, 2017 WL 354186 (SDNY Jan. 24, 2017). Roberts’ statement about the lawsuit.

January 27th 2017 Marketing

Restaurants Creating Crave on Instagram

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According to a post on the Instagram Business blog the number one driver of visits to restaurants is the act of craving. In advertising this simply means making people hungry for what your are selling. Restaurants love Instagram because of its visualness, its frequent use of video in posts and probably most importantly, its primarily consumed on a mobile device.

A 2015 study showed that 53% of frequent diners and 41% of occasional diners use their mobile phone to decide on a fast-food restaurant. You have to assume that’s just as prevalent with restaurants in general. Instagram says that for restaurant goers on mobile, 23% take a photo purely to remember the experience, and 15% share that experience on their social channels. They report that after seeing friends’ photos and videos of fast-food restaurants on Instagram, 66% of frequent diners want to visit.

Interestingly, Instagram users that follow restaurants are 1.4 times more active on Instagram than average, indicating that they use the platform for more than just posting photos. Instagram reports that they like 4.5 times more content, post 3 times more than the average user and comment 7 times more frequently than typical. That’s amazing. One wonders if there is some other common variable other than liking restaurants, but we’ll go with that for now.

Since Instagram was launched food has been a big part of the app, with people posting millions of photos and videos of what they were about to eat. Restaurant have taken note of this posting fetish and thought, what can we do to feed into this without becoming another unwanted ad? That’s where the concept of crave comes in. Restaurants are focusing posts and ads on making people hungry, using Italian music when showing a video of a pizza being made, showing extreme closeups of a Ruby Tuesday hamburger so that people can almost taste it, in the case of Fridays showing a very satisfied person eating their ribs. The point is to focus on the food in order to create the crave.

Instagram says that Ruby Tuesday ran a series of 5 video ads and saw a 22-point lift in ad recall—outperforming similar campaigns by 96%. They say it also drove a 10-point lift in purchase intent among 45-54 year olds—which outperformed nearly 75% of similar campaigns for the same demographic.

“TGI Friday’s developed a two-phased campaign that used video and carousel ads, as well as local awareness ads on Facebook, to promote its ribs and encourage people to enjoy them at a physical location,” noted the Instagram ad team. “The six-week company not only drove a 3-point lift in purchase intent, but more than 50,000 restaurant visits were attributed to the campaign.”

Dairy Queen’s Instagram campaign reach 20 million people, driving an 18 point lift in ad recall among 25-34 year olds. They say it also drove an 8 point lift in awareness of its “Upside Down or Free” promotion and a 3 point lift in purchase intent. Not much in purchase intent but it definitely drove the crave.

“We wanted to build up our presence on Instagram and occupy the currently sparse dessert space,” said Jenell Lammers, Digital Marketing Manager, Dairy Queen (View photo at top). “We’ve done just that with this campaign, which further proved that Instagram is not only great for organic posts but can really drive results.”

The post Restaurants Creating Crave on Instagram appeared first on WebProNews.

January 26th 2017 Marketing, Social Media

What Marketers Can Expect From LinkedIn in 2017

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With the backing of Microsoft, LinkedIn has big plans to increase its effectiveness for marketers in 2017. Russ Glass, LinkedIn Marketing Solutions’ Head of Products, was interviewed by LinkedIn Account Executive at Vivek Venugopal:

Venugopal: What about LinkedIn has kept you excited about being here? What gets you up in the morning and into work everyday?

Glass: I think LinkedIn Marketing Solutions specifically. It’s also very exciting because our mission is to be the most effective platform for marketers to reach professionals. It’s one of those issues you can actually accomplish. We’ve got this global network of professionals, this incredible platform that they come to on a frequent basis, that has great content and great information.

We have an opportunity now to take all of those assets and put great capabilities around it for marketers to be successful. Every day we are a little better than we were the day before and I think we are going to continue to see that kind of growth.

Venugopal: Can you tell us a little bit about what marketers can expect to see out of the LMS platform in 2017 and talk a little bit about the Microsoft acquisition and how that might impact the roadmap?

Glass: I could talk a long time about what we’re doing next year and all the opportunities with Microsoft, but maybe I’ll focus on the most important stuff, the stuff I’m most excited about. The first half of 2017 we will launch more product than the entirety of 2016.

We’re focused on a couple of key areas, the first of which is data. How do we allow marketers to bring their own data to LinkedIn so that they are targeting audiences more effectively and then combine that with LinkedIn datasets in order to do things you just can’t do on any other platform? Such as bring their own email data, bring their own account lists, connect with their CRM systems, connect with their marketing automation systems and use website pixels so they can retarget visitors on the LinkedIn platform. Then layer LinkedIn’s unique understanding of a professional and who they are in their business life so that you can get in front of exactly the right audiences and you can put content in front of exactly right audiences.

The second big area is reporting and analytics. We have a ton of analytics and reporting efforts that we’re going to start rolling out early next year including website audience analytics and conversion tracking, which we started to roll out and will continue to iterate on.

The third big area is return on investment. How do we help marketers, particularly lead-gen marketers, that are trying to convert our members into the buyer’s or download case studies or register for events. How do we let them do that more effectively? We’re launching products like our lead-gen form product where without leaving LinkedIn and without having to go to a landing page a user can submit their LinkedIn profile information to a marketer. It goes right into their CRM system and right into their marketing automation system. It’s an incredible product particularly for the B2B marketer.

The post What Marketers Can Expect From LinkedIn in 2017 appeared first on WebProNews.

January 17th 2017 B2B, Marketing

2H 2016 Quick Links, Part 10 (Marketing, Uber, Airbnb, Taxes & More)

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Marketing/Advertising

* Danny Sullivan: Facebook’s racial targeting isn’t new, bad or always illegal despite renewed attention

* In re Sling Media Slingbox Advertising Litigation (SDNY Aug. 12, 2016). Sling isn’t liable to consumers for adding its own ads to recorded videos without telling buyers that would happen.

* AdWeek: AdBlock Plus Is Launching a Marketplace for ‘Acceptable’ Ads, but Will It Just Infuriate Everyone? Also, NY Times: Adblock Plus, Created to Protect Users From Ads, Instead Opens the Door

* Digiday: Breitbart declares war on Kellogg’s after brand pulls advertising

* Bloomberg: “With the right guidance, he said, almost anyone could Instagram professionally. To prove it, he made me an offer: He’d help me become an influencer myself.”

* Bloomberg: FTC to Crack Down on Paid Celebrity Posts That Aren’t Clear Ads. Instagrammers, the FTC is COMING FOR YOU. More from TINA.org: EXPOSURE WITHOUT DISCLOSURE: CASHING IN WITH THE KARDASHIANS

* New York Law Journal: Schneiderman Announces More Astroturfing Settlements

* WSJ: Incredulous Judge Tosses Lawsuit Accusing Starbucks of Putting Too Much Ice in Cold Drinks. See Forouzesh v. Starbucks Corp., 2:16-cv-03830-PA-AGR (C.D. Cal. Aug. 19, 2016)

* Wurtzberger v. Kentucky Fried Chicken complaint. Allegations that the KFC “Family Fill Up meal” promotional photos show an overflowing bucket of chicken, while the actual product only contains a half-bucket of chicken. (Raising the obvious: maybe KFC should use a smaller bucket?)

* Amanda Scardamaglia & Angela Daly, Google, Online Search and Consumer Confusion in Australia, (2016) 42(3) International Journal of Law and Information Technology 203:

Australian consumers lack understanding about the operation and origin of the different elements of the Google search results page. They are best able to understand and identify ads, as compared to their understanding and identification of organic results and results from subsidiary services. There is particular confusion in relation to the operation and origin of Google’s Shopping service.

* Search Engine Land: Why are payday loan ads still showing on Google after the ban?

* Maureen K. Ohlhausen, Administrative Litigation at the FTC: Effective Tool for Developing the Law or Rubber Stamp, 10 J. Comp. L. & Econ. 1 (2016)

* CNN: Russian ‘methbot’ fraud steals $180 million in online ads

* TINA.org’s Worst List: 6 Class-Action Settlements That Missed the Mark

* TPW Management, LLC v. Yelp Inc., 2016 WL 6216879 (N.D. Cal. Oct. 25, 2016). No preliminary injunction against Yelp for the phrase “We Know Just the Place”

* In re Lenovo Adware Litigation, 2016 WL 6277245 (N.D. Cal. Oct. 27, 2016). Certifying two classes of buyers (indirect purchasers and CA purchasers) against Lenovo for pre-installing Superfish’s VisualDiscovery software.

* Adweek: How AT&T Benefited From Getting Out of the Way of Content Creators

* Vox: Why most cereal brands are discontinued within 5 years

Uber

* XYZ Two Way Radio Service, Inc. v. Uber Technologies, Inc., 2016 WL 5854224 (E.D.N.Y. Oct. 6, 2016):

No doubt, these statements are intended to convey the impression that Uber takes the safety of its passengers seriously. But they do so in terms that clearly fall within one or more of the accepted definitions of puffery. The overall tone is boastful and self-congratulatory. Many of the statements are couched in aspirational terms—“committed to,” “aim to,” “believe deeply”—that cannot be proven true or false….Others are vague and hyperbolic; if Uber literally set the “strictest safety standards possible” at the outset, it could not “improve them every day.” In sum, the Court concludes that the challenged statements cannot reasonably be understood as specific representations of objective facts.

* The Verge: How Uber secretly investigated its legal foes — and got caught

* NY Times: How Uber Drivers Decide How Long to Work

Airbnb

* MediaPost: Airbnb Drops Challenge To New York Advertising Law:

“Home sharing company Airbnb has dropped its attempt to block a New York state law that imposes fines of up to $7,500 on people who post ads for illegal rentals. Airbnb’s move came after New York State Attorney General Eric Schneiderman agreed that he wouldn’t seek to hold Airbnb liable for violations of the law….”

* NY Times: Airbnb Adopts Rules to Fight Discrimination by Its Hosts

* S.F. Chronicle: As city lowers boom, Airbnb and rivals thrive

* Cracked: 5 Apps That Have Rampant Discrimination Built In

* FTC: The “Sharing” Economy: Issues Facing Platforms, Participants & Regulators

Commerce

* Fortune: The Ugly Unethical Underside of Silicon Valley. Quoting Dave McClure as saying: “You know the saying ‘There’s a fine line between genius and insanity’? There’s probably a fine line between entrepreneurship and criminality.””

* Law.com: After Feds Drop FedEx Case, Watchers Say More Companies Might Gamble on Trials

* NY Times: Amazon Is Quietly Eliminating List Prices

* Bloomberg: Hampton Creek Ran Undercover Project to Buy Up Its Own Vegan Mayo

* NY Times: How Scalpers Make Their Millions With ‘Hamilton’

* Congress enacted the BOTS Act to suppress technological trickery in the distribution of event tickets.

* Rory Van Loo, The Corporation as Courthouse, 33 Yale J. REG. 547 (2016). From the introduction:

Although legal scholars have written thousands of pages about arbitration in recent years, they have largely ignored businesses’ internal processes for resolving consumer disputes.7 Yet these unexamined processes are pushing the bounds of dispute resolution beyond anything seen in courts or arbitration. The result sometimes conflicts with traditional notions of justice. For example, Bank of America recently developed big data software that considers the wealth of family members in deciding how to handle a customer’s request for a fee waiver.8 At the same time, new internal business processes are advancing societal goals in numerous ways, such as by making it ever more possible to obtain low-cost redress that preserves the relationship between the parties. Rolled out over hundreds of millions of disputes each year, the design of companies’ internal processes can influence efficiency, the distribution of wealth, and fairness on a massive scale….

In this largely private order, the corporation plays three key dispute resolution roles. The first is the customer service department handling disputes about its own products….The second main dispute resolution role is largely absent from the literature: when the corporation serves as a judge for disputes between its own consumers and independent, third-party sellers….The corporation plays a third key dispute resolution role as a reputation-based enforcement mechanism….

Taxes

* NY Times: San Francisco Considers Tax on Tech Companies to Pay for Boom’s Downside

* Techdirt: 46 California Cities Join Rush To Impose ‘Netflix Tax’

European Union

* Reuters: “Germany’s Justice Minister says he believes Facebook Inc. should be treated like a media company rather than a technology platform, suggesting he favors moves to make social media groups criminally liable for failing to remove hate speech.”

* NY Times: Europe Presses American Tech Companies to Tackle Hate Speech. Also, Facebook Runs Up Against German Hate Speech Lawsb

* NY Times: Google, Trying to Endear Itself to Europe, Spreads $450 Million Around

* Washington Post: 7 reasons why some Europeans hate the E.U.

Contracts

* Ars Technica: TOS agreements require giving up first born—and users gladly consent

* Wired: The EPA’s Fuel Efficiency Testing May Not Work. Like, at All. Government-mandated disclosures are expensive to produce but are supposed to be justified by being trustworthy for consumers. If they aren’t, that’s bad news for everyone.

* Oddee: 9 Weirdest Tattoo-Related Offers. My 2005 contracts exam and sample answer.

January 15th 2017 Marketing

We Don’t Sell Products, We Sell Change

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“I actually believe that we don’t sell products, we sell change,” says Tiffani Bova, Customer Growth and Transformation Evangelist at Salesforce. Bova was interviewing legendary speaker and author Seth Godin when she made that comment.

“What great marketers and great sales people and great organizations do is only one thing, as Michael Schrage has written about, we make change happen,” responded Godin. “My favorite example of this is Harley Davidson. Harley turns disrespected outsiders into respected insiders. That’s what they do. They make half of their revenue licensing their logo, because the logo, the totum, the uniform is a symbol of the change. You don’t even have to have a motorcycle to be changed by the brand.”

This is the company’s internal marketing positioning statement that illustrates the point that Bova and Godin are making:

The only motorcycle manufacturer
That makes big, loud motorcycles
For macho guys (and “macho wannabes”)
Mostly in the United States
Who want to join a gang of cowboys
In an era of decreasing personal freedom.

Per Inc. Magazine

Godin also talked colorfully about sales, marketing and social media:

“It all comes down to what story does the sales person tell himself when he shows up at work every morning. Trust and awareness are the two key things here. What we want isn’t email, we want me-mail. What we want isn’t to hear about you, we want to hear about us. We want to hear about our dreams, where we are going. Salespeople who get that, who show up at work everyday intent on making that happen, they don’t have a social media problem.”

The post We Don’t Sell Products, We Sell Change appeared first on WebProNews.

January 4th 2017 Marketing

2H 2016 Quick Links, Part 4 (Counterfeits and Olympics)

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“Counterfeits”

* Gucci v. Alibaba, Case 1:15-cv-03784-PKC (SDNY Aug. 4, 2016) (cites omitted):

Plaintiffs have failed to plausibly allege that the Merchant Defendants engaged in anything but independent conduct, without coordination and for their own economic self-interest. Indeed, the Merchant Defendants’ relationships with one another are not alleged to be any different from their relationships with the millions of other merchants operating on the Alibaba Marketplaces. True, the SAC alleges that each Merchant Defendant—and not legitimate merchants—engaged in fraudulent conduct with the purpose of profiting from the sale of counterfeit products, but it does not allege that they “‘associated together for a common purpose of engaging in a course of conduct.’” Nor does the SAC plausibly allege that these competing Merchants “work[ed] together to achieve such purposes.” The fraud perpetrated by each Merchant Defendant could be accomplished without any assistance from any other Merchant Defendant. The Merchant Defendants all operate from China and happen to sell counterfeit goods bearing Plaintiffs’ Marks. But there is no indication that the Merchant Defendants, “located in different parts of the country, came to an agreement to act together—or even how they knew each other.” Plausibly read, the SAC alleges only that each Merchant Defendant engaged in a pattern of racketeering activity “independently and without coordination.”

Plaintiffs argue that the existence of a relationship between and among the Merchant Defendants can be inferred from the Merchant Defendants participation in the Alibaba ecosystem. Plaintiffs contend, for instance, that the Merchant Defendants were aware of each other’s existence by virtue of operating within the Alibaba ecosystem. But the Alibaba Marketplaces consist of “millions of merchants.” Moreover, the Merchant Defendants operated on different Alibaba Marketplaces—some operate on Alibaba.com, and others operate on Taobao.com or AliExpress.com. In any event, a generalized awareness of the existence of a competitor does not establish the existence of an “interpersonal relationship.”

Plaintiffs also argue that the Merchant Defendants’ awareness of one another is evident from the fact that some Merchant Defendants sold counterfeit raw materials (i.e., leather emblazoned with Plaintiffs’ Marks), which they contend other Merchant Defendants could purchase to produce counterfeit products. But nowhere in the SAC do Plaintiffs allege that those raw materials were marketed to other Merchant Defendants. Nor do Plaintiffs allege that other Merchant Defendants’ purchased those raw materials. In fact, the SAC asserts that the two Merchant Defendants who sold raw materials indicated that North America was one of their “main markets,” rather than other producers in China. Alleging that the Merchant Defendants were aware of one another based on the fact that Merchant Defendants could have sold or purchased raw materials from another Merchant Defendant, especially where all the Merchant Defendants did not operate in the same Alibaba Marketplace, amounts to little more than a “‘naked assertion’ devoid of ‘further factual enhancement.’”

Nor does the fact that all the Merchant Defendants obtained common benefits from the Alibaba ecosystem demonstrate that a relationship existed between and among the Merchant Defendants. The Merchant Defendants obtained the benefits of the Alibaba ecosystem—such as marketing and shipping services—from the Alibaba Defendants, not from one another. While such allegations may imply a relationship between each Merchant Defendant and the Alibaba Defendants, one cannot infer that the Merchant Defendants acted in a coordinated manner by receiving common benefits. The Merchant Defendants did not “act in certain ways ‘to benefit’ one another,” rely on one another to accomplish their activities, or otherwise “function as a continuing unit.” Nothing about receiving benefits from the same source makes “it plausible that the Court is confronted with something more than parallel conduct of the same nature and in the same time frame by different actors in different locations.”

Plaintiffs also argue that the Merchant Defendants benefited from one another as a result of “self-reinforcing network effects that benefit” all participants in the Alibaba Marketplaces. The Merchant Defendants benefit, Plaintiffs argue, through “online retail clustering because . . . ‘more merchants attract more consumers, and more consumers attract more merchants.’” But the benefit that the Merchant Defendants received from one another as a result of selling counterfeit goods is no greater or different than the benefit that merchants selling genuine goods receive by operating in the Alibaba Marketplaces. Furthermore, these allegations still fail to show that the Merchant Defendants engaged in anything more than parallel conduct. Two stockbrokers, for example, both of whom engage in similar acts of securities fraud, are not bound by an interpersonal relationship just because their conduct targeted the same stock on the New York Stock Exchange. Boyle’s relationship requirement demands more—it demands plausible allegations that individuals operating within the ecosystem coordinated their conduct to accomplish a common purpose. Such allegations are missing in the present case.

* CNBC: Amazon’s plan to fight counterfeiters will cost legit sellers a ton

* Washington Post: This car company ripped off Land Rover. Here’s why it might get away with it.

The cars are basically indistinguishable unless you hone in on the exact stitching of the seats or the fine arrangement of the headlights. Even then, changes are so minuscule, it’s nearly impossible to realize one of these vehicles costs $41,000, and the other just $21,700.

British luxury carmaker Jaguar Land Rover and Chinese carmaker Jiangling will go to court this summer in China to settle their dispute over what exactly is fair game in the auto industry. Can Chinese companies continue to get away with “shanzhai” — a Chinese term for prideful counterfeiting — of car designs?

Olympics

* AdWeek: Here Are the Many, Many Ways Your Business Can Get in Trouble for Tweeting the Olympics

* NY Times: Olympic Cover-Up: Why You Won’t See Some Shoe Logos

* Adweek: 10 Ways Brands Are Talking About the Olympics Without Saying ‘Olympics’

December 31st 2016 Marketing

More Evidence Why Keyword Advertising Litigation Is Waning

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A venerable and classic Internet Law question: when a consumer uses a trademark as a search term, what are they looking for? If they are seeking the trademark owner–and only the trademark owner–then competitive keyword advertisers may encroach on the trademark owner’s goodwill and “steal” the trademark owner’s customers (and the search engine/ad network may be profiting from this “theft”). In contrast, if consumers have heterogeneous search objectives when using a trademarked search query, trademark law would overreach–in ways that would significantly harm social welfare–if it prevented ads from parties other than the trademark owner.

Nearly a decade ago, I argued–without empirical proof–that searchers had heterogeneous search objectives when using trademarks in search queries, which made competitive keyword advertising both permissible and desirable. Since then, some empirical studies have supported this argument, especially the Franklyn/Hyman study; see also the Tucker/Bechtold study.

A new empirical study, Jeffrey P. Dotson et al, Brand Attitudes and Search Engine Queries, 37 Journal of Interactive Marketing 105 (2016), provides further support for this conclusion. The study is based on a rich dataset: a time-series of actual Google search queries in the cellphone and automotive categories by opted-in consumers. The authors don’t consider the legal questions, but their conclusions buttress the perspective that consumers have heterogeneous motivations when they use trademarks in their search queries.

The authors say:

there are many reasons a user might submit a brand search query. Users who are shopping in a category are more likely to search for any brand in the category; users are more likely to search for brands for which they hold positive attitudes; users who own a brand are more likely to search for the brand; and users who are category enthusiasts are more likely to search for all brands in the category.

They provide some additional details:

We also find evidence that that customers who are actively shopping are more likely to search for any brand in the category. Customers who indicated that they made a purchase or intended to make a purchase (“In-Market”) during the observation period were significantly more likely to search for any brand (1.4 times more likely for both categories). Similarly, customers who indicated that they “always pay attention to the category so that they know when to buy” are more likely to search for all brands in the category (1.4 times more likely for smartphones and 1.2 for vehicles.)…

We also find that owning a particular smartphone or vehicle brand is a very strong predictor of brand search, with the odds of searching being 2.5 times greater for brand owners versus non-owners in the smartphone category and 3.5 times greater in the vehicle category. This large increase in brand search among owners (regardless of whether that user is actively shopping), could be partially due to owners searching for information about how to use the product….

customers who are highly engaged in a category are more likely to search for brands in that category, even when they are not in market. The two categories that we studied, smartphones and automobiles, are categories where a high percentage of the population has enduring product importance and would be expected to continue to engage in product search even when they are not actively shopping (Bloch and Richins, 1983). For these types of categories, brand managers should keep in mind that a substantial volume of search is coming from these “enthusiasts,” whose interest in brands many not reflect the larger community of potential shoppers…

The authors also note that technological innovation will continue to shape consumer search behavior:

In the future, search behavior is likely to evolve as technology and search engines evolve. Search engine providers are constantly innovating to make search results more useful and this could lead to major shifts in brand-search volume that have nothing to do with how consumers perceive those brands….

Overall, this study provides further evidence that consumer motivations behind search queries are complex and diverse. Because of this, the evidence is making it provably false that a searcher using a trademark in their search query is looking only for the trademark owner. So if you still hope to argue that consumers searching for the brand want only that brand, bring some citations.

I’ve repeatedly declared that the keyword advertising litigation wars are over, and the primary reason is that we have scant evidence that competitive keyword ads confuse consumers in a way that trademark law recognizes (or should recognize). The Dotson et al study provides more reason to believe that searchers want a broad range of information in response to a trademark search query, and trademark law should support, not thwart, that outcome.

Blog Posts on Competitive Keyword Advertising

* Court Dumps Crappy Trademark & Keyword Ad Case–ONEPul v. BagSpot

* AdWords Buys Using Geographic Terms Support Personal Jurisdiction–Rilley v. MoneyMutual

* FTC Sues 1-800 Contacts For Restricting 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

December 28th 2016 Marketing

Instagram Beginning To Look A Lot Like Snapchat

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Instagram announced today the ability to add stickers to your posts, just like Snapchat. The stickers will be both for the consumer like Snapchat, but more importantly will also be targeted at businesses which are looking for creative ways to promote their products and services.

“Now you have new ways to turn any business moment into something you want to share with your followers,” posted the Instagram blog team. “No matter where your business is or what you’re up to, you can add context to your story with stickers.”

Instagram also announced that on iOS you can now save your entire business story from the past 24 hours to your camera roll as a single video.

How to Use Stickers on Instagram

Simply take a photo and video and then click the new stickers button which is right next to the text and drawing buttons. They say you can “tap the smiley face to find customizable stickers for weather, the current time and even your location.”

December 21st 2016 Marketing, Social Media

How Chrome Digital Signage Drove Traffic to The Statue of Liberty Website

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I ran across a story on Google’s Connected Workspaces blog how digital signage powered by Google Chrome was used to drive website traffic to the Statue of Liberty and to make the store underneath it more engaging.

Evelyn Hill, the gift shop under the Statue of Liberty on Ellis Island, wanted to emulate a photo contest they saw promoting a remote national park in Florida called Dry Tortugas. They were told to contact BlackDogscreen-shot-2016-12-13-at-5-35-36-pm Advertising based in Miami, Florida, which created a cool kiosk in their visitor center showing photos where people were vying to win a $500 prize. The Evelyn Hill gift shop wanted that too.

“We took on the challenge of transforming Evelyn Hill’s gift shop and restaurant, the Crown Cafe, into a visitor destination, and driving traffic to thestatueofliberty.com,” says John W. Penney, creative director and CEO of BlackDog Advertising.

Evelyn Hill was interested in replicating the photo contest. “This time, we’d be creating a live photo feed so visitors could see images as they were uploaded” Penney said. “My company had a great experience using Chrome devices before, so we decided to use Chrome digital signage devices because they are easy to deploy, cost effective and make content management a breeze.”

screen-shot-2016-12-13-at-5-34-42-pm

Penney says that “the photo contest has driven incredible engagement” with over 21,700 photo votes cast, both in person and online. The website saw a 270% increase in traffic but more importantly, the kiosk itself has become a very engaging part of the visitor experience. Because of this the store is looking at ways to expand the photo contest to more locations on Ellis. Best of all, it’s a very inexpensive way to increase website traffic and also make the visit to their Ellis Island store more fun.

How To Do It For Your Business

To drive high engagement, we created live-updating digital signs to draw visitors into the Crown Cafe and engage them in the photo contest. Monitors are powered by Google Chromebits that are remotely operated using Chrome Device Management, so the cafe can easily display contest results. Meanwhile, visitors can use the #PictureLiberty hashtag to share their photos on the Statue of Liberty website and encourage their friends to vote for their submission.

The flexibility of Chrome lets us optimize signage solutions. With Chrome Device Management we were able to easily install WooBox, which collected contest photos from social media, on all of our managed devices (in this case, Chromebits). We don’t want to deliver cookie-cutter solutions to our customers, and Chrome enables us to build solutions that stand out from the crowd.

Using Chrome also helped keep the campaign cost effective. Since Chrome Sign Builder is free to use and the photo content is user-generated, hardware was the only cost. Each of Liberty Island’s four units cost just $109, including access to Chrome Device Management, which allowed us to easily install apps on the Chromebits. Achieving this low cost would have been impossible with any other digital signage solution.

Read more of the post by BlackDog Advertising’s John W. Penney on Google’s Connected Workspaces blog.

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December 19th 2016 Google, Marketing