Will social media listening replace market research?

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by Mike Moran

Advertising Age had an interesting story that was brought to my attention by a colleague, where a Procter & Gamble exec speculates that social media is already changing the world of market research. It’s an interesting story, mostly because of who is quoted. When a company with the marketing chops of P&G says something, you’ve got news. But the news is actually much bigger than what you are reading in Ad Age.

So, yes, the world is changing, but in an even bigger way than we think. Social media is not able to replace all uses for market research today, and won’t for many years, in my opinion. But I work with clients every day who use social media for market research. [Full disclosure: I serve as a senior strategist for Converseon, a leader in social media listening platforms.] In fact, one of the largest companies I know has worked on social media for several years, led by its market intelligence team.

Not only is social media listening replacing some traditional market research already, but P&G (as quoted in Ad Age) says that it’s changing the willingness of consumers to even be part of panels because there are so many other different ways that they can tell a company what they are thinking. The allure of being part of a panel went far beyond the gift the participant received–it extended to the ability for a consumer to tell a big company what to do. But now they can do that every day through social media.

But that client (and a number of other smart clients) has always known that social media is only one part of market research. Market research has always depended on the statistical sample that is representative, something that social media cannot easily deliver today. But traditional research also suffered from the dilemma that you can’t get the answers to questions that you don’t ask. And that you can’t control how the act of surveying changes people’s answers. So smart clients have used social media listening to find things they didn’t find with traditional research, using surveys and focus groups to confirm social findings when needed. So social is only a part of market research.

But while social media is only a part of market research, it is much larger than market research, too. Yes, customers have many ways of giving feedback to companies besides being chosen for a focus group. But you can’t just look at that for how it affects market research. You must recognize that social media has implications across many functions in the modern corporation. If market researchers recognize how these changes affect themselves, they ought to take a minute to tell their colleagues how it affects them.

The same tweet that complains about the poor battery life in your newest electronics product might need to be seen by many areas of the company:

Market research. Well, sure. We want to collect the voice of the customer through all means necessary, including social media.

Customer service. Wouldn’t you want to reach out to that customer and help?

Marketing. If power users are running out of battery life, might it make sense to target your marketing toward people who are lighter users?

Public relations. Is this meme taking off? Will this become a viral story that you need to respond to?

Product development. Shouldn’t they be thinking about how to fix this in the next version?

The list can go on and on. As each group (market research in this case) discovers how social media has an impact on them, they are reminiscent of the blind men examining the elephant. If they hadn’t shared their opinions with each other, they would have learned only a small part of the story. Don’t be seduced into thinking that social media will neatly affect your specialty without blurring it into five others. Those neat functional lines that we draw on our org charts won’t hold up as the new transparency comes crashing in.

The smartest clients I know are breaking out of these traditional roles and taking an enterprise approach to social media. You would be wise to follow.

Originally posted on Biznology.

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November 21st 2014 Marketing, Social Media

LinkedIn Can’t Shake Publicity Rights Claims Based on Reminder Emails

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This is a lawsuit against LinkedIn alleging that LinkedIn wrongly sent out repeated invites to users’ contacts. In an initial ruling, Judge Koh denied LinkedIn’s request to dismiss on the grounds of standing but dismissed the federal claims for alleged violations of the Stored Communications Act and the Wiretap Act. Screen Shot 2014-11-17 at 10.25.45 AMThe court said that Plaintiffs consented to the initial invitation email but not the second and third emails. (Blog post on the previous ruling here.) The plaintiffs’ second amended complaint drops the federal claims and alleges violations of publicity rights and California’s unfair competition statute. While the court finds some technical deficiencies with plaintiffs’ pleading, it still declines to dismiss the crux of the case.

The sign-up process: The court walks through the sign-up process in detail. Shockingly, LinkedIn does not have a check-the-box implementation for its sign-up process. Rather than forcing users to check the box as a condition of proceeding, LinkedIn merely includes an asterisk next to a “join linkedin” button that directs the user to a line at the bottom of the page that then link to the relevant policies.* After confirming that the user wishes to “grow their network on LinkedIn,” the user is then directed to the third party email provider page (e.g., Google, Microsoft, and even AOL) where the user then enters in their email password. The court’s run-down of the process vis-a-vis various other platforms is interesting, as the platforms vary in their presentation and amount of control they say they provide to users. sign upThe user enters their password and then can connect with those of their contacts who already have LinkedIn accounts and can also urge those who do not have accounts to sign-up and ultimately connect with them on LinkedIn.

[* Note: we have repeatedly blogged about cases where large, established companies have a less-than-airtight sign-up process, which results in all sorts of entirely avoidable legal issues. Zappos was one of the more prominent examples, but there have been others. I didn’t check to see if they revised their sign-up process, but if not, that is something LinkedIn should take care of ASAP.]

Reminder emails: The court also describes the reminder emails in detail. The first email is an “invitation to connect”; the body says “I’d like to add you to my professional network on LinkedIn.” If this email does not result in the recipient joining, a reminder email is sent. This is titled “reminder about your invitation from [user’s name].” Finally, LinkedIn sends a second reminder. For some reason, the second reminder email includes the user’s profile picture.

The plaintiffs describe the difficulty in stopping these reminder emails. Apparently, you have to “individually open up each invitation from within his or her LinkedIn account . . and click a button that allows the user to withdraw that single invitation.” Plaintiffs further point to the complaints users have raised (for example):

at this point I’m finding LinkedIn more of a problem in terms of hurting my reputation rather than helping it.

Ouch. Plaintiffs also point to the various representations LinkedIn made about “respecting users’ privacy” and that LinkedIn would “not email anyone without your permission.” Finally, Plaintiffs pointed to statements in LinkedIn’s filings and corporate materials to the effect that this type of network-based emails along with reminders continue to be an important way for LinkedIn to grow its user base.

LinkedIn raised three defenses, none of which resolve the lawsuit.

Statutory damages under section 3344: First, LinkedIn argued that plaintiffs were not entitled to statutory damages under California’s publicity rights statute because they did not allege emotional damages. The court agrees, and says that while economic damages and reputational harm are available as actual damages, the statutory damage provision was aimed to provide relief to non-celebrity plaintiffs who suffered mental harm from commercial misappropriation of their name. While emotional injury that results from reputational harm is sufficient, plaintiffs did not allege emotional injury. Because plaintiffs only asked for statutory damages and did not allege emotional injury, the court dismisses this claim, but grants leave to amend.

CDA 230: LinkedIn also raised a Section 230 argument, saying that the emails were third party (i.e., users’) content. The court disagrees, crediting plaintiffs’ allegation that LinkedIn was responsible for the content, layout, and design of the reminder emails and cannot take refuge in Section 230. The court focuses on the fact that LinkedIn decided how many emails to send and things like whether or not to include the users’ picture in the email. According to the court, the textual differences in the second and third email also point in the direction that LinkedIn ultimately controlled the content (or, as the court intimates without saying directly, made material changes to content provided by the user).

First Amendment: The court also rejects LinkedIn’s First Amendment defense. First, LinkedIn argued that the reminder emails are non-commercial speech, subject to the full protections of the First Amendment. The court disagrees. Second, LinkedIn argued that even assuming the emails are commercial speech, plaintiffs can only state a right of publicity claim when their likeness is used to promote an “unrelated product”. The court says neither the publicity rights statute nor common law contain such a limitation. Finally, LinkedIn argued it’s entitled to the “adjunct use” rule, where the commercial promotion is incidental to the protected expression. No luck on this score either.

[Finally, the court also rejects the “incidental use” argument, which seems vaguely similar to a fair use argument.]

__

LinkedIn is doing its best to whittle down this lawsuit, and perhaps it may still succeed, but the court’s order seems to indicate that there’s a cognizable claim buried in there. Auto-posts and emails sent on behalf of users that they can’t control are terrible behavior on the part of networks. Not giving users granular control over these emails just feels like LinkedIn was trying to get cutesy.

Publicity rights in California have turned into a sleeper hit for plaintiffs. (See, e.g., Fraley.) It’s interesting to see the positions reversed here, with the defendant seeking support in an argument premised on plaintiffs’ failure to allege emotional damages. Usually defendants are taking plaintiffs to task for not alleging and having support for economic damages. I’m not sure what to make of the statutory damages provision of section 3344. It would seem trivially easy for plaintiffs to allege that they suffered emotional harm as a result of seeing their network reputation suffer, and the court even alludes to the fact that emotional injury that results from reputational harm is sufficient.

As with all privacy lawsuits, this one is no different in citing to defendant’s flowery marketing assurances—there’s always plenty to choose from.

I don’t think there’s much to say about the First Amendment rulings. The First Amendment defenses did not seem particularly strong to begin with, and I’m surprised the court gave it as much attention as it did. As for the Section 230 defense I agree with Eric’s comments below–it smacked of desperation, or an after-the-fact justification that was not considered at the design phase.

Eric’s Comment: I hate to Section 230 losses but I can see why Judge Koh ruled as she did. She explains about the first and second reminder emails:

Contrary to Defendant’s assertions, then, the first reminder email appears to transform the substance of the initial invitation email from “Do you want to connect with me?” to “You never responded to the user’s first invitation so let us ask you again, do you want to connect with her?” The second reminder email is arguably more transformative still, as the substance changes from “Do you want to connect with me?” to “You never responded to the user’s first invitation or to our reminder concerning that invitation, so let us ask you for a third time, do you want to connect with her?”20 It is precisely this changed character of the reminder emails—from invitation at first to potentially annoying by the end—that the Court found could contribute to the additional harm the reminder emails allegedly caused.

As she summarizes later:

Plaintiffs allege that LinkedIn generated the text, layout, and design of the reminder emails and deprived Plaintiffs any opportunity to edit those emails, which Plaintiffs had no knowledge were being circulated on their behalf.

Perhaps LinkedIn prospectively thought it could rely upon Section 230 for these circumstances, but I doubt it. Instead, I suspect the Section 230 defense emerged only in desperation.

Case citation: Perkins v. LinkedIn, 13-CV-04303-LHK (N.D. Cal. Nov. 13, 2014)

Related Posts:

Email Harvesting: Repeated Emails From LinkedIn May Violate Publicity Rights

Path May Be Liable for Text-Spamming Users’ Contact Lists

Facebook’s “Browsewrap” Enforced Against Kids–EKD v. Facebook

Wiretap Claims Against Gmail Scanning Survive Motion to Dismiss — In re: Google Inc. Gmail Litigation

Court Rules That Kids Can Be Bound By Facebook’s Member Agreement

Facebook Sponsored Stories Settlement Approved – Fraley v. Facebook

Judge Seeborg Rejects Sponsored Stories Settlement For Now — Fraley v. Facebook

Facebook “Sponsored Stories” Publicity Rights Lawsuit Survives Motion to Dismiss–Fraley v. Facebook

Court Blesses Instagram’s Right to Unilaterally Amend Its User Agreement–Rodriguez v. Instagram

Privacy Plaintiffs Lose Because They Didn’t Rely on Apple’s Privacy Representations — In re iPhone App Litigation

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November 18th 2014 Marketing, spam

This Is What Consumers Want From New Tech

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What needs and priorities define the contemporary American consumer? The Future Foundation took a look at some key trends shaping modern life, and using its findings, selected four startups the research firm feels will appeal to these consumer needs and desires.

"They all skirt the boundary between the real world and virtual world in ways that suggest that very boundary is breaking down. They all help people take control of their lives and its objectives, and they all propel real trends. That’s why we’re watching them with keen interest," said Meabh Quorin, managing director of the Future Foundation. "When a startup addresses actual changes in consumer behavior, it’s not just an innovation; it’s a solution."

Infographic: Carlos Monteiro






November 17th 2014 Marketing, Technology

For Your Consideration: Can Branded Documentaries Bring Home Oscars?

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In a remote Costa Rican village, a group of female entrepreneurs known as the Asomobi (Asociación de Mujeres Organizadas de Biolley) has created a sustainable coffee production business.

Their inspirational story, told in the documentary A Small Section of the World, will debut in theaters in December, followed by a robust online and broadcast push distributed by FilmBuff, all brought to consumers by Italian coffee maker Illy.

Considering that it bears no branding (save for a shot of an Illy-sponsored conference and some scenes inside an Illy factory), the award-winning filmmakers don't want it to be labeled a "branded documentary." They believe in its merits regardless of how it was backed—so much so that they intend to submit it for consideration at the Academy Awards as well as advertising competitions like the Clio Awards and Cannes Lions.

"It really doesn't matter any longer if it's branded entertainment or entertainment," said Dominic Sandifer, Greenlight Media and Marketing president and co-executive producer. "What matters is if it's a great story." Getting a documentary bankrolled is harder than ever. At the same time, documentaries are in vogue thanks to the growth of online video channels like Netflix and the increasing demand for premium video content on the Web, said Marc Schiller, CEO of event and film marketing firm Bond. And brands are realizing they don't need to plaster their logos on a film to get their company's positioning across.

"It's the purest form of content marketing," said Rebecca Lieb, Altimeter Group analyst.

A Small Section of the World's director, Leslie Chilcott, who received an Oscar for co-producing the Al Gore documentary An Inconvenient Truth, admitted she was skeptical at the outset. Illy explained it had tried for a year to find a filmmaker after its agronomist visited Asomobi, which provides coffee for Illy. After being assured that she would have final cut—the last approval on a movie—she came on board. "To be honest, at first I said no," she said. "How can I make a movie on coffee producers paid for by a coffee maker?"

Similarly, Patagonia sponsored DamNation, a film about the damage that outdated dams can create. DamNation bears minimal branding, and its directors were also granted final cut. After completing a short theatrical run to qualify for the Academy Awards, DamNation was released online. It will also be available on Netflix. "We're here to solve environmental problems," said Joy Howard, vp, marketing at Patagonia. "If we can show that, then people process what we're about, become loyal and commit to the brand."

Morgan Spurlock, who helmed the movie about branded content, Pom Wonderful Presents: The Greatest Movie Ever Sold, said filmmakers should be cautious about taking a marketer's money. Still, he's not against it, having partnered himself with Maker Studios on multiple brand-sponsored Web series in early 2015. "You can have a brand come in and be a part of something, but you have to know they want to exert some sort of influence," he said.

"[Brand backing] can hinder the film's ability to compete in that space," said Howard. "Something that had a huge budget is not viewed on the same footing as a documentary that has a scrappier background."

Chilcott understands there may be bias against A Small Section of the World. But as more brand marketers finance filmmaking, she hopes people will judge on merit, not on who is footing the bill. "I think in three to four years, this won't even be a story," she said.






November 17th 2014 Marketing, Technology

10 Ad Mascots You Probably Didn’t Know Were Related to Kermit The Frog

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Jim Henson creations have a storied history in advertising, going back to the 1950s, when a violent proto-Kermit pitched Wilkins Coffee with 10-second TV spots.

Tappy, the latest creation from Jim Henson's Creature Studio, is similarly off-kilter in his role as a living credit card reader at a checkout counter. 

Tappy is the new voice of Softcard, an e-payment product that works at McDonald's and other major chains that now accept phone swipes as currency. Softcard needed a new mascot and some rebranding after changing its name from Isis, an unfortunate name since being co-opted by the infamous terror state.

Tappy is a bit out there as a concept, turning a boring inanimate object into a somewhat obnoxious little critter, but that's what the Henson team has done for decades, building characters for brands to support their more artful Muppet projects. In fact there’s a roster of corporate mascots that come from The Jim Henson Co. that you might not know are basically cousins to Kermit, Oscar and Big Bird. For Instance, Snuggle bear is part muppet and so is Jack In The Box’s oversized snowman.

Here's a look at the some of the characters made by Jim Henson's Creature Studio for commercials and video marketing:

Tappy, Softcard
In a history of oddities, Tappy stands out among the Henson creations for sheer adsurdity. He's a credit-card reading machine with teeth. We could learn to love him, maybe, on a long enough timeline.

Mel, Kraft
Mel the MilkBite is part dairy, part granola bar and totally confused. He's a character with an identity crisis, pondering, "What am I?"

Life, Pacific Blue Cross
Life is a Muppet in the classic sense, and he promoted insurance for Pacific Blue Cross. In the commercials, he bites people in the butt, symbolizing unexpected events like dental emergencies.

Polar Bear, Coca-Cola
The Coca-Cola polar bear, which debuted in commercials in 1993, is a classic, and Jim Henson’s Creature Shop brought him to life for appearances with the public.

Puppet Jack, Jack in the Box
Puppet Jack has very similar mannerisms to Kermit, like when he throws his hands in the air and freaks out. A true pitchman who knows where to find a receptive audience, he shows up on couches to educate stoners about fast-food deals.

Great Chocolate Factory Mystery Experience in 4D, Hershey's

Hershey’s Great Chocolate Factory Mystery Experience is an interactive show featuring talking candy bars at Hershey’s HQ in Pennsylvania. Henson made the digital puppets for the experience.

Lenny, Lending Tree
Lenny could be brothers with Kermit, given he's so obviously Muppet and green. He basically just follows around a guy named Len, trying to talk him out of taking a loan from a bank.

Fairy-tale characters, Reading Is Fundamental

The literacy effort Reading Is Fundamental featured puppets alongside famous cartoon characters for this ad inspiring adults to read to children.

Rico, Air New Zealand
Rico was a rather NSFW spokesppupet whose South American accent and wordplay raised eyebrows, such as when he praised "a nice Kiwi beach." He was best known for the viral marketing collaborations with edgy celebrities, including Snoop Dogg and Lindsay Lohan.

Snuggle Bear, Snuggle

Snuggle the fabric softener bear has deep Muppet roots. The bear debuted in 1983, a creation of Kermit Love (not related to the frog), who also made Big Bird.






November 16th 2014 Marketing, Technology

Bad Idea: Overdisclosing People’s Positive STD Status–Doe v. Successfulmatch

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This is a privacy lawsuit brought by people who signed up for a dating site (Positive Singles) for people with STDs. Plaintiffs allege that Successfulmatch, the company that operates the site, made numerous privacy representations stating in its website copy that it “care[s] about [users’] privacy more than other sites.”

A registration page said that the site would not “disclose, sell, or rent any personally identifiable information to any third party organizations.” The terms of service stated that profiles created on the site

may be shared with other sites within the SuccessfulMatch network. By posting or maintaining a profile on this or any other SuccessfulMatch Network site, [users] agree and consent that said profile shall be subject to placement on other SuccessfulMatch Network sites, at the discretion of SuccessfulMatch, without further notice.

Defendant operated its own sites but also allowed others to become “private label” or affiliate partners. An affiliate obtains a domain name and builds a site using SuccessfulMatch software, and populates the site with SM user data. Affiliated sites include “blackpoz.com” “hivaidsdating.com” “HIVgaymen.com” “alllifestyle4bbw.com” “christiansafehaven.com” and “STDhookup.com”. If a user registers with one of these affiliate sites, he or she also automatically registers with SuccessfulMatch and the user profile can be viewed across the entire network.

Plaintiffs alleged that SuccessfulMatch was liable for claims under California’s unfair competition and Consumer Legal Remedies Act by making affirmative representations regarding the scope of privacy protections, and for omitting the extent of sharing across the network. SuccessfulMatch brought a variety of defenses, none of which work.

The SuccessfulMatch website did disclose that profiles may be shared but plaintiffs argued, and the court agreed, that the disclosure did not detail the number of sites or the nature of the relationship between the affiliate sites and the main sites. Plaintiffs further alleged that the site they signed up on (positivesingles.com) uses terms such as “100% confidential” and “exclusive” to denote that profiles would be limited to that particular site. The court says whether reasonable consumers would be deceived is a factual question, and plaintiffs alleged sufficient misleading statements to state a claim. Defendant tried to argue that its disclosure of affiliate-profile sharing was sufficient to dispel any misunderstanding, but the court says that the location and prominence of the disclosure matters, plus the disclosures were qualified and general.

Defendant also argued that they did not have a duty to disclose the withheld information but the court says plaintiffs allege sufficient facts to fit this into a “duty to disclose” scenario. The information disclosed would be material to plaintiffs’ decision, and in fact plaintiffs requested and were not provided with the affiliate information. [This vaguely sounds like it implicates California's Shine the Light privacy statute.]

Finally, defendant raised two other arguments that did not get traction with the court. First, it argued that the allegedly deceptive statements were “mere puffery,” but the court doesn’t give it the benefit of the doubt given the ambiguity in defendant’s disclosures and plaintiffs’ allegations of being misled. Second, defendant argued that it complied with California’s privacy statute and this insulates it. CalOPPA, the statute which requires the posting of a privacy policy for commercial websites that collect personal information, does not expressly dictate what information the policy must contain. While it generally requires the posting of a policy, it is not a get-out-of-jail free card for allegedly misleading statements when such a policy is posted.

Finally, defendant asserted a “benefit of the bargain” argument, saying that plaintiffs received what they paid for (i.e., dating site services) and the fact that their profiles were wrongfully shared did not cause them to lose the benefit of the bargain. However, this argument is only credited when the misrepresentation was not material to the consumer. Given that the privacy representations are alleged to be material, whether or not plaintiffs’ received or took advantage of the dating site services is immaterial.

Finally, after all this, the court says that plaintiffs’ failed to satisfy Rule 9’s particularity requirement: they did not state exactly when the misrepresentations were made and which specific representations each plaintiff relied on. Thus, the court dismisses, but signals that plaintiffs can likely remedy this deficiency.

__

This is a privacy case where the plaintiffs and claims have key differences from the run-of-the-mill privacy case. First, the facts here are sensitive, and even incidental disclosure would support a claim for damages. Second, these are paying customers and did not sign-up for a free service. It’s unclear whether this is what keeps the lawsuit going in contrast to the numerous other information-sharing lawsuits we see that are routinely dismissed. The case of course contains the age-old scenario of a website making rosy marketing assurances that may not be backed up by its actual practices. (Something the FTC has been cracking down on and that ensnared mainstream sites and services such as Facebook, Snapchat, and even Twitter.)

The key factual question is the role of these affiliate sites. They could just be a means of driving traffic, and while this does not neutralize allegedly misleading statements, it does put it in a slightly different light than a case where a site is actually sharing information with third parties. Unstated in the court’s opinion is whether there is increased security risk or downstream disclosure from the affiliate sites. Once the information is out of SuccessfulMatch’s hands, it’s tough to control what happens to it.

Again, this case is a rare standout as a privacy lawsuit with legs. FWIW, this case involves non-California residents. California residents brought a separate lawsuit in state court. This recently resulted in a whopping $16.5M jury award against the company ($1.5M in compensatory damages and $15M in punitive damages).

Case Citation: Doe v. Successfulmatch.com, 13-cv-03376-LHK (N.D. Cal. Sept. 30, 2014)

Related posts:

Android ID Isn’t Personally Identifiable Information Under the Video Privacy Protection Act

Washington State Supreme Court Hears an Interesting Privacy Case: Dillon v. Seattle Deposition Reporters

Minors’ Privacy Claims Against Viacom and Google Over Disclosure of Video Viewing Habits Dismissed

Lawsuit Over Google’s Unified Privacy Policy Pared Down, But Two Claims Survive

Hulu Unable to Shake Video Privacy Protection Act Claims

Apple May Be Liable For Privacy Violations by Third Party Developed Apps

Privacy Claims Based on LinkedIn’s Security Promises Survive Motion to Dismiss

Android and Pandora Privacy Rulings Accept Low Hurdle for Standing

Talk on Why State Legislatures Shouldn’t Regulate Internet Privacy

Is Sacramento The World’s Capital of Internet Privacy Regulation? (Forbes Cross-Post)

Video Privacy Protection Act Plaintiffs Can Proceed Against Hulu Absent Showing of Actual Injury

My Testimony on California’s Efforts to Regulate Internet Privacy

California Assembly Hearing, “Balancing Privacy and Opportunity in the Internet Age,” SCU, Dec. 12

Google Gets Dismissal of Lawsuit Over Privacy Policy Integration–In re Google Privacy Policy

Privacy Plaintiffs Lose Because They Didn’t Rely on Apple’s Privacy Representations — In re iPhone App Litigation

Google Wins Cookie Privacy Lawsuit

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November 15th 2014 Marketing

Creating Interactive Videos

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Video creation, Video marketing and SEO, Video training… all areas of my expertise.  However, with all of the fun video software and gadgets in my library and tool belt, I am always looking for more opportunities.

Engagement via Video

Engagement via Video

Having already mastered the use of the Google Hangouts and the factory-like transition into sending them out as instagram vids and podcasts, it is time to expand on other areas where video content may be available.

The newest tool that I am looking at is clickwebinar.com, as another opportunity to capture a quality video for content re-purposing.  With that tool, and others, we can step back and look at the why and how.

Value of Engagement

The days of FFA link pages and blackhat SEO tactics are gone.  They may have worked at some time (yuck!), but now we require different tactics to become “known” on the internet.  Tactics like real quality engagement.  Imagine that — We need to actually talk to people!  My friend, John Rampton talks about this in his excellent article on Forbes, entitle, “Marketing Automation Could Be Harming Your Business – Here’s How to Tip the Scale.” Even his article addresses the need to look at alternative ways to engage with one’s audience. While automation isn’t a bad thing, the marketing efforts need to include actual real engagement.

Capturing Engagement

I already do this, in my use of videos and hangouts and recently invited Abby Hartz, from GetResponse.com to join us in an online event that also included a #SocialCafe Twitter Chat. This was a great way to pull in even more people into the community, as well as giving them an opportunity to learn about another tool that they could use. You can see an article written by Gail Gardner, on the fun that we had that evening, “#SocialCafe Chat with GetResponse [VIDEO].” That is the raw video and there is still an enhanced version… an example of content re-purposing.

Promoting Engagement

In your endeavors to use video, think about ways that you can maximize the promotion and especially, the engagement value. Who can you invite to your event and how would you like to capture it (i.e. what tool?). Then, do you want to release the raw version and an enhanced production version?

HINT: I have found that for maximum promotional and engagement value, release both. That way, if you don’t ever get around to the post-production (it happens!), you still have the raw version for people to watch. If you do publish the post-production version you can always update the code in your blog posts, or you can simply promote the second version and you have that many more opportunities for engagement.

By including other people in your event, you are adding to the potential for engagement with their followers and the promotion value can become exponential. Also, with tools like those that produce webinars, you can engage with the audience, similar to a “recorded before a live audience” approach, and then use the webinar recording (raw or post-production) as a training tool or a sales tool or a list-building tool. The options are limitless.

So, when are you starting your next video engagement?  With all of these options, you just may become a video addict like me!

The post Creating Interactive Videos appeared first on Internet Marketing Ninjas Blog.

November 15th 2014 Marketing, video

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

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OK, let me offer a proposition that seems so obvious to me that I feel silly saying it. If you buy your competitor’s trademarks as keywords, it’s not advisable to sue your competitors for buying your keywords. Yes? Are you with me? Yet, for reasons I can’t fathom, I’ve seen violations of this common-sense principle multiple times over the years.

The participants in today’s case are travel aggregators Fareportal, which runs the dubiously named cheapOair.com, and LBF Travel, which runs SmartFares and Travelation. Last year, Fareportal kicked off the litigation party by suing LBF for buying competitive keyword advertising on Fareportal’s trademarks. LBF retaliated by counter-suing Fareportal for its competitive keyword advertising purchases. Now what–mutually assured destruction?

Although it was filed second, the LBF-initiated lawsuit reached a substantive opinion more quickly than the earlier-filed Fareportal-initiated lawsuit. In the LBF-initiated countersuit, a magistrate judge partially granted Fareportal’s dismissal and partially denied it. The ruling is fairly run-of-the-mill for a motion to dismiss, where the judge must accept the pleadings as true. For example, the court reiterates that purchasing keyword ads constitutes a trademark use in commerce (a result virtually necessitated by the binding 2009 Rescuecom ruling):

We do not see a meaningful difference, however, between a search engine’s act of selling to an advertiser a service derived from the use of a trademark (which Rescuecom unequivocally found to be “use” under trademark law) and the advertiser’s action in purchasing that benefit. Both have “used” the trademark in the same way by engaging in a commercial transaction—the search engine as the seller and the advertiser as the purchaser—to produce a display of search result advertisements that derives from the use of a trademark.

So, who won/lost this ruling? Any win by one party in litigation A will be used against them in litigation B. For example, LBF’s win on the use in commerce question will become highly persuasive authority that LBF made a use in commerce in the Fareportal lawsuit. So is Fareportal happy or unhappy that it “lost” that point?

More generally, who wins when bidding battles over search engine positioning spill over into court? As I’ve shown repeatedly, the financial “damages” from competitive keyword advertising are often trivial. As a result, it seems almost inevitable that the only winners from these companion lawsuits will be the lawyers who act as arms dealers to the combatants. Normally, I believe that litigants suing over competitive keyword advertising would find it more profitable to invest their legal costs in more marketing rather than shoving the dough to the lawyers. I suspect that would have been true in these cases as well.

I’m also left wondering how consumers were disadvantaged by the parties’ competitive keyword advertising practices. Indeed, the court dismissed the state deceptive practices claim because LBF didn’t show sufficient consumer harm. I’d be surprised if either party succeeds in showing legally cognizable consumer confusion in their cases. After all, the evidence is growing that such confusion simply doesn’t exist.

Case citation: LBF Travel, Inc. v. Fareportal, Inc., 2014 WL 5671853 (S.D.N.Y. Nov. 5, 2014)

Some Related Posts

* 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

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November 12th 2014 Marketing

Is Your Company’s Digital Transformation Really Happening?

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CMOs are leading the way in steering their companies in a digital-first direction, but while most believe they’re deeply involved in the transformation, only a quarter actually have a clear understanding of what this means and/or have mapped the digital customer journey. 

Infographic: Carlos Monteiro






November 10th 2014 Marketing, Mobile, Technology

Microsoft’s Marketing Totally Backfired When CNN Used Its Devices as iPad Stands

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Microsoft's Surface Pro 3 had a bad election night on CNN when the on-air talent used the device to prop up their iPads. Microsoft was a CNN partner as the results poured in, but any positive marketing spin thoroughly backfired, with the tablet relegated to a kickstand for its biggest rival.

The journalists calling election results mostly tapped away on their personal iPads while the Surface Pro gadgets sat idly by, Gizmodo noted. Microsoft was tied into election night coverage by powering some of the action through the Bing search engine and Internet Explorer. The Surface Pros were used to feed information from CNN's "Magic Wall" to the journalists.

The Surface Pro is a hybrid device that is part tablet, part laptop, but it has had a tough time gaining market share. Still, Microsoft said last month that sales doubled to $900 million for the quarter. The iPad raked in $5.3 billion during that same time.

Microsoft has made some bold marketing moves with the Surface, so it's scratched and fought for every sale. The device is the official tablet on the sidelines of NFL games, thanks to a reported $400 million marketing deal. It's also the official tablet of the zombie apocalypse. And it's been blatantly product-placed in too many shows to count, with varying degrees of success.

Here is just a sampling of the Surface Pro's TV cameos:






November 6th 2014 ipad, Marketing, microsoft, Mobile, News, Technology