The Math Behind SaaS Startup Valuation

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mathematics One of the most critical metrics for software companies — but also one of the most difficult to measure — is the lifetime value of their customers (LTV). The lifetime value dictates how a company should spend its marketing and sales dollars. Unfortunately, many early stage startups struggle to measure LTV, because they haven’t been around very long and, consequently… Read More

August 29th 2015 Marketing

10 Ways the 2016 Olympics Won’t Resemble 2014

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An abridged version of this post was originally published in VentureBeat as “7 New Ways Brands Will Get Attention at the 2016 Olympics,” and this version has been published on LinkedIn as well. If you’re reading it for the third time, a) thank you, and b) why?

 With the Olympics now a year away, kicking off August 5, 2016, that may seem like a long time for most of the more than 200 million Americans who watch the summer Games. Yet it’s all too soon for marketers, technology firms, and media companies aiming to capitalize on the attention and interest that the Games generate.

Most of the playbooks marketers used for the 2012 London Olympics and even the 2014 Sochi Olympics will be dusty come the Rio Games. Building on a report we just released, Marketers’ Road to the Olympics, here are ten ways that marketing, media, and technology in 2016 will be different.

1) Secretly social: Hooray, more people will be using social media than ever. Unfortunately for those trying to monitor the chatter and target the chatterers, a lot of that will be happening in private outlets such as WhatsApp and Snapchat. The added social surge during the Games will be a great time to consider which such apps your audience is using and figure out how to reach such consumers who are more reluctant to marketers reaching them.

2) Many devices, consistent campaigns: The Olympics presents one of those perfect, ‘come to Christ the Redeemer’ moments for cross-device targeting. With even casual fans likely following the Games from multiple devices in multiple locations, marketers have opportunities to target them with consistent messages through cross-channel campaigns. A year ahead of the Games, marketers should ensure the various brand, agency, publisher, and technology teams are coordinating efforts.

3) At your service: The 2016 Olympics should be a boon for personal and virtual assistants. Consider that during the 2012 Olympics, NBC reported that 46% of 18- to 54-year-olds said they “delayed doing laundry and other chores” to watch major events such as gymnastics, according to The New York Times. If you have an easy way to clean someone’s home, restock their fridge, walk their dog, or make their bed, August 2016 should be the best time ever to demonstrate value. Then the big question is how to get customers to keep using those services come September.

4) Nolympics: The 2012 Olympics was the most-watched televised event ever in the US, with nearly 220 million American watching the Games. Break it down further, and NBC averaged 31 million viewers nightly. On a given night, that meant most people were doing something else, signaling opportunities for counter-programming. Will there be a Puppy Bowl of the 2016 Olympics – that tent-pole event for people who don’t care enough about athletics or patriotism to watch the Games? Will teens be immune to Olympic hysteria and instead keep logging into sites like Twitch where they’ll watch less athletic people compete in more sedentary games? Even while the Olympics air, much of the programming is relatively dead air between competitions, so marketers and publishers can focus on rolling out compelling mobile-centric experiences to attract multi-screening audiences.

5) The real influencers: While former presidents and current Hollywood celebrities will be among the most recognized ambassadors to the Rio Games, expect a lot of celebrities that most people older than 30 won’t recognize. Vine and Instagram stars such as Jerome Jarre and Fuckjerry will likely field offers to cover the Games for brands, as will many more niche influencers that have devoted audiences. Some Olympic athletes become celebrities during the Games, but to connect with younger Millennials and Gen Z, it’s good to work with the existing idols and icons who speak to them.

6) Up or down Periscope: The International Olympic Committee probably ranks Periscope somewhere between an ISIS attack and double toilet installationson its list of major threats to the Rio Games. If too much good footage is available via unathorized video streaming, that eats into broadcasters’ ad revenue. This year, video streaming from mobile devices has been fluctuating around a hype curve; the expectations for this tactical tool tend to outstrip its utility. Come August 2016, broadcasters will have a golden opportunity to show the value for mobile video streaming on a global scale, or perhaps show why it hasn’t deserved the attention it has already received.

7) Silicon Panda: As China strives to ensure its March of the Volunteers national anthem plays non-stop during the medal ceremonies, expect a surge of activity in Chinese apps, from core messaging apps like WeChat to goofy selfie studios like MomentCam and MyIdol. By 2016, China should have more than 620 million smartphone users, according to eMarketer – or a smartphone user base about twice as large as the entire US population. Brands that are ramping up in China should line up now to place bets on the biggest Chinese mobile social properties and offer exclusive content and deals.

8) Drone’s eye view: There will undoubtedly be all sorts of prohibitions against drones at the Rio Olympics, with regulations likely coming from Brazil’s government (concerned with drone terrorism) and the IOC (concerned with media rights). That’s all the more reason to make some fun drone stunts stand out to show fans a perspective they’ve never experienced before. Additionally, by next summer, automated user-tracking drones such as Lily will be on the market, which will allow people to capture their own Olympian-esque feats even if they didn’t quite quality for the Games.

9) Virtual reality, real hype: Forget who has the wittiest real-time social media post. The real bragging rights for marketers will go to who has the best virtual reality experience. Expect a lot of stunts on location around the Games venues, and other remote experiences for fans to try at stores, hotels, and other venues. Others will toy with more lightweight builds that work with Google Cardboard. Even with all the excitement around VR, this could prove to be the last Summer Olympics for awhile with so much hype about it, as content producers will be paying a premium for buggy technology that requires added hardware and is difficult to scale; by the 2020 Games, VR could go the way of 3D TV. Marketers can enjoy being among the first to market here, even if they’re also among the last.

10) The real value of wearables: Want to get in Olympian shape, or at least get off the couch more? In 2016, athletes endorsing products won’t be talking as much about what fast food sandwiches they’re eating as they will what wearable devices they’re using. Expect some apps to arise that allow people to compare their workouts to the athletes they follow, and get insights and tips from the medalists. Marketers can help create this content, tapping athletes on their payroll. For wearable brands, these real-world examples of athletes using the devices to achieve a meaningful goal may make existing customers brush off their trackers or upgrade to the new version.

This is an abbreviated list. Other themes that will surface include the role of artificial intelligence applications for both businesses and consumers, developments in the mobile payments space, the role of multi-channel networks, further applications of crowdsourcing, and an increasing focus on promoting female athletes in this age of celebrating women’s empowerment. Think a year’s enough time to get ahead of all this as the changes keep coming?


August 27th 2015 Marketing

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

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The plaintiff, Los Angeles Yellow Cab, and defendants compete in the taxi industry. The defendants bought keyword ads at the search engines, such as the following triggered by the search “Yellow Cab Los Angeles”:

Yellow Cab Los Angeles—Call 800–521–8294 or Book Online!
Our Cabs get you there Fast & Safe.

The plaintiff claimed this ad constituted false advertising (per B&P 17200 and 17500 and the Lanham Act) because the phone number and website misled consumers to contact one of the defendants instead of Yellow Cab Los Angeles.

The defendants moved to strike the lawsuit per California’s anti-SLAPP law. That law broadly protects defendants against lawsuits intended to suppress their socially beneficial speech, but the anti-SLAPP law doesn’t apply when the defendants are engaged in “commercial speech.” The appellate court has little trouble concluding that these keyword ads are “commercial speech” for purposes of California’s anti-SLAPP statute. The term “commercial speech” has multiple definitions in constitutional law; here, the court defines “commercial speech” as “speech that does nothing but promote a commercial product or service.” (For Con Law purists, note the word “promote” instead of “propose”). This definition should cover most–but not all–types of advertising; for example, cause marketing may not fit the definition, even if done by for-profit companies.

Referring to the ad copy quoted above, the court says it’s just an ad to sell services, nothing more:

the subject advertisements did not constitute participation in any public dialogue about public transportation via taxicabs, the taxicab industry, or taxicab licensing and regulation. Rather, the advertisements on their face were designed to further defendants’ private interest in increasing the use of their taxicab services.

Indeed, this is such an easy question that the court says the assertion of anti-SLAPP protection was “frivolous,” so the defendants must pay the plaintiff’s legal fees for litigating the anti-SLAPP motion.

As regular readers know, I’m a big fan of anti-SLAPP laws. As a result, I always get a little nervous when I see defendants lose anti-SLAPP motions. Furthermore, I disfavor a “commercial speech” exception to anti-SLAPP laws because it creates extra ambiguity and gray areas. Nevertheless, if anti-SLAPP laws have a commercial speech exception, a for-profit organization’s advertising seeking new customers seems exactly like the kind of thing that would be excluded. So it seems fairly straightforward why the defendants lost this motion and why the court thought their position was frivolous.

Nevertheless, there are some subtle advertising and trademark law issues lurking here. “Yellow Cab” is a tricky trademark, because many taxis are yellow, and color serves important visual search and trust-communicating functions for consumers. Because the color yellow and taxi services are so strongly linked in consumers’ minds, I’d like to know more about consumer intent behind their use of the search phrase “Yellow Cab Los Angeles.” I wouldn’t be surprised if many searchers were not seeking the trademark owner and were, in fact, clueless that term was trademarked. Now that the anti-SLAPP squabbles are out of the way, those subtleties may become relevant in subsequent proceedings.

(I know the Uber/Lyft/Sidecar loyalists reading this post are wondering, “what is a taxi and why would anyone use one?” FWIW, it’s not uncommon to see fierce IP battles among legacy players in dying industries).

Case citation: L.A. Taxi Cooperative, Inc. v. Independent Taxi Owners Association of Los Angeles, 2015 WL 4970092 (Cal. App. Ct. Aug. 20, 2015)

Related Posts on Keyword Advertising

* Confusion From Competitive Keyword Advertising? Fuhgeddaboudit

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

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

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

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

* Damages from Competitive Keyword Advertising Are “Vanishingly Small”

* More Defendants Win Keyword Advertising Lawsuits

* Another Keyword Advertising Lawsuit Fails Badly

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

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

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

* Florida Allows Competitive Keyword Advertising By Lawyers

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

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

* More Evidence That Competitive Keyword Advertising Benefits Trademark Owners

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

* Florida Proposes to Ban Competitive Keyword Advertising by Lawyers

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

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

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

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

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

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

* Another Google AdWords Advertiser Defeats Trademark Infringement Lawsuit

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

* Google Defeats Trademark Challenge to Its AdWords Service

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

August 23rd 2015 Marketing

Angie’s List Must Defend Fraud Charges Over Pay-to-Play Review Manipulation (Forbes Cross-Post)

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U.S. law is clear that consumer review websites aren’t liable for their users’ reviews. However, plaintiffs are increasingly challenging how review websites publicly describe their review databases. A recent court ruling against Angie’s List highlights how plaintiffs are tendentiously parsing review websites’ disclosures–and making progress in court doing so.

The Case

Moore was a paid Angie’s List subscriber. The court summarizes some of her key fraud contentions:

Moore alleged that she submitted a negative review of her contractor on Angie’s List, at which point she saw for the first time that he had received other negative reviews, information which she contends would have forestalled her hiring the contractor. She also alleged that she had a reasonable expectation of access to all reviews for a given service provider. And she alleged that she confronted an Angie’s List representative about “the suppression of negative reviews” and spoke of her experience to an electrician of her acquaintance who allegedly told her that “he pays ‘to be at the top’ of search results” on Angie’s List. Moore also stated that until then she was unaware (and had no reason to know) that service providers could “pay to manipulate search results.” Indeed, she points in her complaint to the company’s representations that “businesses don’t pay” and that it always places “the interests of the consumer first.”

The court says this sufficiently alleges a fraud claim:

The altered rankings that Moore alleges, and her acquaintance’s disclosure that he paid to alter his ranking, as well as the defendant’s nondisclosure of business practices that she claims, sufficiently allege a form of misrepresentation material to Moore’s use of the website. She also alleges her reliance on the defendant’s manifold utterances of its consumer-oriented ethos. And she has sufficiently pled Angie’s List’s non-disclosure or omission of its business practices with providers.

Moore also alleged that Angie’s List breached the following contract provisions:

1. ANGIE’S LIST SERVICE. Angie’s List provides reviews and ratings on a variety of Service Providers based upon the actual first-hand
experiences other users have had with these Service Providers and also provides You with the opportunity to provide Your own reviews and ratings on the Service Providers You use….

13. PUBLICATION AND DISTRIBUTION OF CONTENT. Angie’s List does not guarantee the accuracy, integrity, quality or appropriateness of any Content transmitted to or through the Service. You acknowledge that Angie’s List simply acts as a passive conduit and an interactive computer service provider for the publication and distribution of Content….

14. SERVICE PROVIDERS. Angie’s List does not endorse and is not responsible or liable for any Content, Service Provider Content, data, advertising, products, goods or services available or unavailable from, or through, any Service Providers….

The court says that Moore’s contract breach allegations were sufficient:

These provisions unambiguously depict the website with which Moore contracted as a provider rating system based on “first-hand” consumer reviews, unshaped by input from any other source. She alleges a breach by averring that (1) an electrician of her acquaintance disclosed that he pays Angie’s List to alter his rating, and (2) she could not initially view all negative reviews of the provider she contracted with–both of which counter Angie’s List’s representation that it is simply a passive conduit for the publication of content about providers.

Thus, the court rejected Angie’s List’s effort to dismiss Moore’s lawsuit and lets the fraud and contract breach claims continue.


The case is at an early stage. This isn’t a great ruling for Angie’s List, but Moore still faces a long road to final victory. The court seemed so open to Moore’s allegations because procedurally the court had to accept her allegations as true. Moore eventually will need to prove her allegations, and she won’t get the same favorable presumptions later in the case. Further, due to the case’s early procedural stage, the court declined to consider most of Angie’s List’s evidence. Angie’s List will get a chance to introduce exculpatory evidence later in the case. Also, even if Moore can establish her claims as an individual, it will be harder to certify a class of other Angie’s List customers, and denial of class certification would make this case much less significant.

Winning consumer trust. This ruling highlights the balancing act faced by review websites. Review websites must convince consumers that their site’s reviews and ratings are trustworthy, but efforts to educate consumers about the trustworthiness of the reviews and ratings creates additional legal risk of overclaiming or otherwise misleading consumers. As Moore’s claims illustrate, plaintiffs will pick apart every word uttered by a review website. Naturally, review websites can tone down how they describe their editorial practices, but the reduced disclosures may make it harder to win consumers’ trust. This tension leads to the typical clashes between the marketing and legal departments of review websites, and marketing often wins those battles.

Pay-to-play conspiracy theories. This case also illustrates that even subscription-based review websites will face conspiracy theories about collusion with advertisers. These types of pay-to-play allegations have dogged Yelp for a decade, and indeed, a year ago Yelp lost a very similar ruling where a court allowed a case to proceed over Yelp’s claims that it had the “most trusted” reviews. In contrast, Angie’s List has historically floated above that fray because its subscription revenues from consumers should reduce any pay-to-play temptation.

I asked Angie’s List to clarify its policies for suppressing or hiding reviews, and here’s what they told me:

Angie’s List’s policy is to not modify, suppress, or alter service provider ratings or member reviews, positive or negative. Angie’s List protects the integrity of its reviews, and strives to ensure we are fairly presenting our members’ reviews and ratings. A service provider’s decision whether or not to pay to advertise with Angie’s List has no influence on the service provider’s rating or the visibility or availability of reviews about that service provider. As fully disclosed on our website, Angie’s List allows providers who have earned an overall “A” or “B” rating to advertise in the form of exclusive discounts available to our members. Such highly rated providers are placed at the top of search results, but advertising does not affect either the provider’s rating or the content of member reviews of that provider.

As Yelp has learned all too well, so long as Angie’s List accepts money from reviewed businesses in exchange for heightened promotion, it will find it hard to squelch pay-to-play conspiracy theories.

Immunity and false advertising. Review websites rely heavily on 47 USC 230, a law Congress enacted in 1996 that moots many lawsuits predicated on user-generated content. For example, one section of Section 230 (47 USC 230(c)(2)) immunizes a website’s decisions about how to filter user content–a potentially helpful provision in this case. However, Section 230 interacts awkwardly with contract breach and false advertising lawsuits like this one, where the plaintiff complains about how the site discloses its policies and practices. Conspicuously, the opinion doesn’t discuss Section 230 at all. Perhaps this case reminds websites that, despite Section 230’s power, they still need to watch their words.

It does seem anachronistic that Angie’s List calls itself a “passive conduit.” Websites used that kind of language in the mid-1990s to try to avoid liability as an editor. However, Section 230 made clear that websites avoid liability for user content, irrespective of whether the review website actively manages its database or does nothing at all. Here, instead of helping Angie’s List, the “passive conduit” language counterproductively potentially exacerbates its liability.

Furthermore, consumers don’t want review websites that present consumer reviews “passively”; such sites would be completely untrustworthy. Instead, consumers want and expect review websites to curate, synthesize and package the consumer feedback (and police against review gaming) to make it more functional and trustworthy. Review websites (or, for that matter, any user-generated content websites) still calling themselves “passive conduits” really ought to reconsider that language.

Case Citation: Moore v. Angie’s List, Inc., 2015 WL 4669209 (E.D. Pa. Aug. 7, 2015)

August 22nd 2015 Marketing

How to Become Twitter Superstar: Jim & Ann Show #JimAndAnn

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How do you build your following on Twitter?

One of the most widely-used ways to build your following on Twitter is to mass-follow lots of people, then unfollow those who didn’t follow back and then follow more…

While this method is really effective for following building (many people do follow back), it’s obviously spammy, low-quality and easy to spot (Those who are using this method usually have more users they are following than those who follow them back or the number is even).

It’s also obvious that those people don’t really read their Twitter feed because, with thousands of people you follow, it’s impossible to manage.

But how do you build your following on Twitter?

You actually start with following those in your industry you want to hear from.

You cannot do without following on Twitter, so that’s where you start.

Next step is starting genuine interactions with those people you follow.

  • Comment on what they have to say
  • Quote, retweet and favorite
  • Tag them in Twitter updates (especially if you mentioned them on Twitter)

Start and support discussions on Twitter to gradually get noticed and followed back.

Twitter chats…

Participating in Twitter chats is a great way to build following and exposure.

A Twitter chat is a public open discussion on Twitter around one specified hashtag at a set time.

The beauty of Twitter chats is that they are open, so anyone can join (for example, by seeing your friends participating), so the exposure can grow exponentially.

There are lots of regular Twitter chats in most industries like health, politics, technology, etc. Just search Google or check out this site.

Here are some stats from our employee who host Twitter chats on behalf of our clients:

Twitter chat stats - Internet Marketing Ninjas

Speaking of that client, our social media team started with them when they had just about a hundred of followers and after 3 years this account has 16,000 followers.

The funny thing is, this was a small client who eventually has become a brand thanks to social media.

It’s amazing that social media can still be a huge competitive advantage because not many small businesses still get social media.

Twitter chats have educational and branding benefits, so definitely add them to your marketing agenda.

There are other ways to build following on Twitter.

Influencer baiting on Twitter

Here’s a great example of influencer baiting on Twitter:

Wouldn’t you retweet it if you got visually-quoted on Twitter?

We’ve been experimenting a lot with these kinds of visual quotes and got awesome results!

We’ve done other experiments as well like creative birthday greetings on social media too.

The key is to get creative!

Google may be mapping all those relationships and interactions with influencers because that’s how they can understand citations and quality better.

Subscribe to us on SoundCloud!

Watch the whole video here: How to Build Twitter Following

The post How to Become Twitter Superstar: Jim & Ann Show #JimAndAnn appeared first on Internet Marketing Ninjas Blog.

August 20th 2015 Marketing, Social Media

A/B testing your newsletters

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a:b testing your newslettersEarlier this year, I’ve written a few posts on email marketing. In those posts I’ve also mentioned that doing A/B testing for your newsletters (or other forms of email marketing) are a must. However, there are a lot of things you can test, so what should you be focussing on?

In this post I’ll try to answer that question by explaining what you can test. I won’t go into detail of testing examples, but I will tell you what you should pay attention to when testing.

Subject line

With most email campaign tools, you’ll have the possibility to test the subject line. This means you’ll be able to give your newsletter a number of different subject lines. If you have 2 different subject lines, ordinarily 50% of your newsletter list gets the first variation, and the other 50% gets the other variation.

Testing your subject lines is really only good for testing your open rate and not your click rate. The subject line won’t affect your click rate, since it doesn’t affect anything within the body of the email you’re sending. That being said, testing your subject lines is still very important, as you actually want as much people as possible to read what you’ve sent them, right?

One set of rules that our friend Jordie van Rijn (a great email marketer) taught us and has helped us since is C.U.R.V.E:

  • Curiosity: try to pique the readers’ interest by asking them a question.
  • Urgency: create urgency by having limited time offers or offering things that need to be done now.
  • Relevance: Make sure you’re putting the content that’s most relevant to your audience in your subject.
  • Value: Convey the value of the newsletter by offering something exclusive (this can be an exclusive product offer, but also exclusive content).
  • Emotion: Use punctuation, such as exclamation marks, to elicit emotional responses from your readers.

From name

Another thing you can almost always test, is your from name. This is exactly what it says: the name that shows from whom the emails are coming:

Inbox – thijs yoast com


This is, again, something that will only have an effect on your open rate. However, this is one that people tend to forget about, because it’s such a small thing to change. However, the from name can actually be pretty important. This will be the first thing people will see when your email arrives, so it had better be good. Testing this will make sure it is.

Send time

I’m not sure whether all email campaign tools offer this A/B testing option, but MailChimp does. You can test what send time (MailChimp calls this “delivery time”) works best for your audience. You need to do some work here beforehand though, because you’ll be setting the time the variations go out yourself.

So try to find out when most of your emails are opened or at least when most of your audience is awake. Especially if your emails go to an international group of people, like ours, this might be a good thing to test. Sending your emails at the right time can actually make sure more people see it and pay attention to it.


This is the big one. This is where you can go all-out and test basically anything you like. Everything within the content section of your email can be tested, and that’s a lot. You have to really think about what you want to test and treat these A/B tests as you would any other. I’ve written a post which will explain this: Hypothesize first, then test.

I always prefer to begin with this one, because this one is as late in the readers process as possible. This is my personal preference, because I just don’t like the idea of optimizing a part of the process (say, the subject) when what they see next (such as your email’s content) will undo all the optimization you did before.

Just a few ideas of what you could think about when wanting to test your email’s content:

  • Your email’s header;
  • An index summarizing your email;
  • More (or less) images;
  • Different tone of voice;
  • More buttons instead of text links;
  • More ideas on Jordie’s blog.

Before testing

When you start testing, most email campaign tools will offer you two options:

  • send your variations to your complete list, or
  • send your variations to a percentage of that list, declare a winner and then send the winner to the remaining people who haven’t received a newsletter yet.

I’d strongly urge you to use the first option. Let me tell you why. First of all, sending multiple variations to just a sample of your list means that you’re cutting down on “respondents”. You’ll have less data than when you send it to the complete list.

However, if your list is big enough, this probably won’t matter much. The reason I’d still choose the first option is that the winning variation gets sent out hours (or days) later. Especially for newsletters this can be quite crucial, because, well, then it’s not really “news” anymore. This also means you have less control over at what time the mail gets sent out. And as I’ve already said: send time can be quite important.

If timing is of less importance to the emails you’re sending out, then you could probably go for the second option, because then the remaining people in your list will always get the winner.


So you’ve thought up some brilliant variations of your newsletter, its subject, from name or send time. Time to send out that newsletter. Once you’ve sent it out, there’s nothing you can do, you just have to wait until the first results come trickling (or flooding) in. Make sure you take notice of the differences in results. Which version got the highest open rate? Which version had the highest click rate?

In this, click rate always has my preference, because then they’ll probably end up on your site, where you have a lot more opportunities for selling, for example. However, we also always use custom campaigns on all the links in our newsletter. And since we’ve set up eCommerce tracking in Google Analytics, we can see which version of our newsletter actually got the most revenue. And if you have a business to run, that’s probably the metric that you want to see increasing.

And unless you’ve set up some kind of eCommerce tracking within your email campaign tool, this metric won’t be available in their results. So don’t value the results of these tools too much. Make sure you focus on what’s important for your business and check those metrics.

Also: don’t be too quick to judge. I usually wait for a few days up to a week before I draw my conclusions, because a lot of people will still be opening and engaging your email after a few days.

Happy testing!

What do you think of the steps and rules we’ve set for ourselves? Do you have similar ideas that you follow? Or maybe something completely different? Let us know in the comments!

This post first appeared as A/B testing your newsletters on Yoast. Whoopity Doo!

August 14th 2015 Marketing

How Much Income Will I Get if I Rank in Top 5: From Weird Leads #JimAndAnn

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Welcome to this week’s edition of our “weird leads” series where we discuss some of the funny leads we are receiving here at Internet Marketing Ninjas.

Please watch the two previous ones:

Here’s another one:

The Lead:

…can you tell me approximately how much income I will get for best gaming mouse keyword, if i will rank in top 5 results??

Our Response:


  • It’s not really how much income you’ll make, it’s about whether it’s even possible to rank in top 5
  • Instead of putting all your effort into trying to rank, think about how you can get real publicity (that will both bring in sales and ultimately higher rankings too!)
  • You need to have the BEST gaming mouse in order to rank high and sell a lot: So invest in your product first!

Subscribe to Us On SoundCloud:

Watch the whole video here:How Much Will You Learn if You Rank High in Google? #JimAndAnn

Please tweet your questions to #JimAndAnn hashtag and we’ll try to answer!

The post How Much Income Will I Get if I Rank in Top 5: From Weird Leads #JimAndAnn appeared first on Internet Marketing Ninjas Blog.

August 14th 2015 Marketing

14 Interns, 2 Campaigns, 1 Critical Challenge

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At MRY, I’ve had the great pleasure of working with some inspiring classes of interns, and the summer intern class of 2015 was no exception. For the big team project this year, we gave them an especially daunting brief: come up with a campaign to support college students grappling with mental health issues. Oh yeah, and they’d have little time to do it, next to no budget, and they’d be working with people they just met.

As for the scale of the problem, a survey from the National Alliance on Mental Illness (NAMI) showed that among people who stopped attending college, 64% cited mental illness as a reason for dropping out. 

What the interns (with the assistance of a great, deep bench of mentors across the agency) was inspiring. I would have been surprised if any team pulled off anything remotely successful. It turns out that both teams not only put together impressive campaigns, but they each attracted hundreds of posts practically overnight from people around the world supporting their work. Perhaps in time they’ll have even started a movement.

Here’s a quick recap of what each team did, and this post won’t do justice to either, so spend some time checking out their links, videos, social feeds, and more. 

One team crafted a funny brand, Don’t Be a Dick, as a way to sardonically shame people who are all too dismissive or ignorant about their friends’ serious mental issues. The videos they created, especially the best of the lot, are both funny and biting, and the personas they brought to life feel all too real. Check out one of the videos below, featuring team member Courtney Ratner.  Beyond YouTube and their site, you can see their work on Instagram and Twitter

The other team, The How Are You Project, took a more serious approach. The centerpiece is a ten-hour video of team member Trevor Hains in a coffee shop who is just waiting to find out how you’re really feeling. There’s something so salient about how the team sought to make people pay attention when asking such a commonplace question. You can also find them on Twitter. And no, I’m not just embedding their video below to try to get you to spend ten hours on this blog. 

Kudos to the class of interns: Marisol Pelaez, Trevor Hains, Carly Harris, Georgina Morgan, Nancy Nystrom, Leah Greene, Cody Allen, Jason Hill, Aye Chan Moe, Richard Balagtas, Morgan Klovens, Peter Maturo, Courtney Ratner, and Charles Crain. I hope to have the pleasure of collaborating with all of them again, given how much I learned from working with them. To all of you #MRYinterns, thanks for your countless contributions to the agency this summer. 

August 13th 2015 Marketing

Trade School’s Domain Name Lawsuit Drops Like a (Granite) Rock

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I don’t often blog cases where New Hampshire figures so prominently, so this is a shoutout to all of my New Hampshirian/New Hampshirite friends!

The litigants are competitor schools that train tradespeople such as plumbers and gas fitters. Granite State Trade School is the incumbent, founded in 2006, and runs its website at The New Hampshire School of Mechanical Trades is the newer marketplace entrant from 2012, and it’s outspending Granite State on advertising. When preparing NHSMT’s television commercials, it was suggested that its domain name “” was a mouthful. As a result, NHSMT also adopted the domain names and for simpler pronunciation. It then promoted these URLs in its advertising, though the URLs just rolled over to its main domain name Granite State brought a trademark lawsuit over the “nhtradeschool” domain names.

Descriptive Trademark. The plaintiff’s purported trademark, “Granite State Trade School,” is a geographic mark, so it requires secondary meaning to achieve distinctiveness. The court repeatedly says distinctiveness is a “close call,” but it concludes the trademark achieved distinctiveness. In support of this conclusion, the court notes that the business has been around since 2006 and had the market to itself for the first six years, it has spent $58k on advertising since 2007 (an impressively small number–more on that in a moment) and, perhaps most persuasively, that NHSMT’s co-founder “candidly admitted that members of the trade community in New Hampshire associate the term “Granite State” with Granite State Trade School specifically, rather than with a generic trade school that happens to be located in New Hampshire.”

Likelihood of Consumer Confusion. The court then turns to consumer confusion. If the court rotely applied the multi-factor test, NHSMT could be in trouble because several factors measure the parties’ competitive proximity. Still, there is the nagging problem of mark dissimilarity. “Granite State Trade School” and “NHTradeSchool.[TLD]” differ in sight and sound, so Granite State emphasized the similarity of their semantic meanings. The court says this isn’t good enough:

While New Hampshire is proudly known far and wide as the Granite State, the URL is simply not similar enough to (or .net) to risk confounding an appreciable number of reasonably prudent purchasers exercising ordinary care.

Website Traffic and Actual Confusion. Granite State also alleged actual confusion based on traffic patterns to its website. The court reviewed this traffic chart submitted by Granite State:

granite state chart

When I first saw this chart, I looked for a legend saying that these numbers are in hundreds or thousands. Nope–WYSIWYG. When I realized that, I had a brief case of the chuckles. 2-4 social media referrals a month??? Total traffic of under 2,000 visits a month? Whoa, New Hampshire really IS a small state!

Granite State alleged, based on this traffic chart, that NHSMT must be siphoning off confused searchers because Granite State’s organic search referral percentage dropped from 73% in February to 31% in June. I’m generally skeptical of correlation-causation issues when trying to explain website traffic decreases, but here, this looks more like a misreading of the data. The court correctly notes that the percentage drop on the (comparatively) substantial expansion of referrals and direct traffic, which marketers normally view as good news. Meanwhile, the number of organic search referrals doesn’t materially change, so the percentage drop of search referrals is due to a growth in total website traffic. This is allegedly evidence of trademark confusion??? In an understated conclusion, the court says that “this is not compelling evidence of actual consumer confusion.”

I asked plaintiff’s counsel, Frank Spinella, to try to explain the web traffic issue to me. He wrote back:

The web traffic analysis presented by plaintiff’s expert showed overall traffic stable or even increasing in the Spring of 2015, but showed “organic” hits — essentially, Google-generated clicks — decreasing dramatically, both in real numbers and as a percentage of the whole. This suggests that search engine results were leading searchers to click links to defendant rather than to plaintiff. We tried to portray this as evidence of confusion between the marks. The Court was unconvinced.

Sorry to be a stickler, but this purportedly “dramatic” decrease was from a high of 748 visits in March to 439 in May–a decrease of about 300 visits for the entire month, or 10 visits/day. And the plaintiff’s own data also showed that the traffic went from 596 in February to 569 in June–basically, flat traffic. These kinds of microscopic traffic changes are entirely consistent with random volatility in search engine traffic, and I still can’t see any possible way to pin causality on the erosion of consumer free will.


The court denied Granite State’s motion for a preliminary injunction. According to plaintiff’s counsel, “Given the cost of acquiring the survey evidence that plaintiff would need in order to demonstrate confusion, plaintiff has decided to settle, and will drop its case in exchange for defendant dropping its counterclaim (which defendant has agreed to do).” Live free (of wicked weak trademark lawsuits) or die!

While it makes sense for the parties to stop fighting in court, especially to avoid a costly consumer survey, the high litigation costs of this case were 100% foreseeable from the beginning. As a result, I question Granite State’s decision to initiate the litigation. Recall the mockably small traffic numbers. Granite State hoped to recapture the “lost” 300 visits/month. How much money did it spend on legal fees chasing that small amount of traffic? Also recall that Granite State spent less than $10k/yr on advertising–a small fraction of the legal fees it presumably to bring this lawsuit. Did Granite State have more profitable ways to spend those legal fees, such as boosting its ad budget many-fold?

Case citation: Granite State Trade School, LLC v. The New Hampshire School of Mechanical Trades, Inc., 2015 WL 4628722 (D.N.H. Aug. 3, 2015)

August 11th 2015 Marketing

What’s Worse Than Cleaning Up A Meth Lab? A Trademark Injunction Against Using “Meth Lab Cleanup” In Metatags

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Opinions like this make me really crank-y. The litigants compete in the meth lab cleanup business. The plaintiff has registered trademarks for “Meth Lab Cleanup LLC.” Right away, we already know that weaponizing highly descriptive terms like that can cause legal mischief and produce dubious outcomes. So perhaps the rest of this post shouldn’t surprise you that much.

A previous lawsuit between the parties resulted in a confidential 2011 settlement agreement. The defendant agreed not to use the trademark or colorable variations “in connection with any trademark, service mark, trade name, logo, design, Internet use, website, domain name, metatags, advertising, promotions, solicitations, commercial exploitation, television, webbased or any other program, service, or otherwise.” However, in a tautological nod to descriptive fair use, the defendants could “continue to use the term ‘meth lab cleanup’ to generally describe the nature of services offered by Spaulding Decon, subject to the limitation, and that such use is not an intellectual property infringement.”

In 2014, the plaintiff sent a C&D because the defendants’ website “has metatags using the capitalized phrase ‘Meth Lab Cleanup.’” The defendant sent a conciliatory reply to the C&D, including a promise to remove the metatags. For reasons the court doesn’t explain, the defendant nevertheless kept using the metatags. This ruling addresses whether that continued metatag usage breached the 2011 settlement agreement.

The court concludes “the Defendants’ use of the capitalized phrase ‘Meth Lab Cleanup’ in the Metatags on the Website is a use that is confusingly or substantially similar to ‘Meth Lab Cleanup, LLC,’ the mark at issue in the Trademarks–in–Suit.” Plus, citing the 2008 Axiom case (how is that case still good law???), the defendants purportedly gained a competitive advantage from using the metatags. The contract’s pseudo-descriptive fair use clause doesn’t help the defendants:

The Metatags are not seen by the general public viewing a website, and the purpose of the Metatags is to optimize the search engine results, and otherwise direct potential customers to the Website. Reading the [contract] provision in conjunction with the specific limitations imposed on Defendants, and taking into account the [contract] provision’s specific use of the lowercased version of the phrase “meth lab cleanup,” it is clear that it was not the parties’ intent to permit the Defendants’ current use of the Metatags.

Based on that finding, the court concludes the “Defendants must remove and are enjoined from using the Metatags on the Website or the capitalized phrase ‘Meth Lab Cleanup’ or any confusingly similar phrases on any other website.”

Earlier, the court defined the term “Metatags” as “Meth Lab Cleanup” with title caps. Elsewhere, the court expressly said that the defendant can use the lower case term “meth lab cleanup” in the metatags.

* * *

FFS, it’s 2015. Are litigants really still bringing federal cases over “metatags”? That alone deserves merciless mockery, but this case stands out compared to recent metatags case for three reasons.

1) No one seems to acknowledge the different types of “metatags”

As everyone reading this blog knows, the term “metatags” is inherently ambiguous because there are many types of metatags, each with different technical properties. Despite this, the litigants’ summary judgment briefs use the term “metatags” indiscriminately (and painfully, the defendants’ brief also uses the term “meta-data,” apparently interchangeably), and the plaintiff’s (not very) expert report generically discusses “metatags” but seems to be describing keyword metatags.

Perhaps not surprisingly, this loose terminology confuses the court. The court cites to keyword and description metatag precedent and describes the technical attributes of keyword and description metatags. If the court thinks it is talking about keyword metatags, and if we feigned ignorance to assume keyword “metatags” affect search engine rankings, would the court’s distinction between lower case or title case keyword metatags make sense? No, but if we’re hypothesizing a fictional world where keyword metatags matter, why not create more fiction and assume capitalization matters too?

2) This case involves title tags, but apparently no one discusses that

The defendants actually used the term “Meth Lab Cleanup” in title tags, not keyword metatags or description metatags. Title tags work differently than other metatags in ways that matter. For example, when the the judge says “The Metatags are not seen by the general public viewing a website,” that’s factually wrong. Title tags show up at the top of the page (the actual visibility varies by browser), and often the title tags are displayed verbatim to consumers in the search results. Yet, in my limited review of the filings, I didn’t see the word “title tag” come up at all. And as far as I know, any search engine credit for terms in title tags doesn’t vary based on whether the term is title case or lower case.

3) The title tag clearly constitutes descriptive fair use

For reasons not clear to me, the court didn’t quote the exact language in the title tag. However, you can see how it’s presented in this screenshot from the plaintiffs’ summary judgment motion:

Meth Lab Cleanup Ex A Screenshot

As you can see, the title tag reads “Meth Lab Cleanup, Testing, and Decontamination – Meth Lab Services.” This looks like about as clear an example of descriptive fair use as I can imagine; and in context, there’s zero chance that consumers will somehow think the plaintiff sponsored or endorsed the “Meth Lab Cleanup” usage.

Furthermore, the contract permitted the defendant to “generally describe the nature of services offered by Spaulding Decon.” Isn’t that exactly what the defendants did in the title tag? Taken to its logical extreme, it seems like the court would be perfectly fine if the defendants tweaked the title tag to read “Meth lab cleanup, testing, and decontamination – meth lab services”? Is that really what the litigants are fighting over?

Implications for Trademark Settlement Agreements

The defendants made their situation more difficult because they agreed in the 2011 settlement agreement not to contest the trademark’s validity. If you agree to such restrictions in a trademark settlement agreement involving a descriptive trademark, be prepared for future regret. More generally, defendants should be really careful about settlement agreements that restrict their ability to use particular online marketing technologies. We’ve seen numerous cases where ordinary technological evolution makes it easy for a defendant to potentially fall out of compliance. See, e.g., litigation over post-settlement broad matching.

Case citation: Meth Lab Cleanup, LLC v. Spaulding Decon, 2015 WL 4496193 (M.D. Fla. July 23, 2015)

August 4th 2015 Marketing