Report: Facebook and Twitter Don’t Like You Promoting Your Snapchat Account

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A lot of businesses have been trying their hand at Snapchat, trying to gain some traction on the social media service du jour. One way many have been trying to promote their Snapchat presence is to do so on other social platforms like Facebook, Twitter, Instagram, and LinkedIn.

Many have even gone so far as to make their profile pictures (or Page avatars) their Snapcodes, which are scannable and lead to their Snapchat accounts (in case you’ve wondered why you’ve seen these so often) .

Screen Shot 2016-04-28 at 11.56.16 AM

Some of the social networks aren’t very cool with this practice, however. They no doubt see it as a way to drive traffic to a competitor. According to a new report from DigiDay, Twitter, Facebook, and Instagram have been “discouraging” brands from promoting their Snapchat accounts. From the report:

“They are preventing external links. You cannot add a Snapchat link in your Instagram bio anymore. If you try to do it, it’s not possible,” said Justin Rezvani, CEO of TheAmplify, a technology platform that works with influencers on Instagram and Snapchat.

Many brands and publishers have relied on promotional posts on Twitter. They now face pressure to remove the Snapchat links, according to sources. The Huffington Post, for instance, used to promote its Snapchat account via its Twitter avatar; now it isn’t. The Huffington Post did not return a request for comment about why it changed. The Information reported on the disappearing Snapchat codes earlier this month and said that The Huffington Post still sparingly uses its Snapcode on Twitter. Sources familiar with Twitter’s policies said that while the Snapcodes are not against the rules, they are frowned upon.

There’s not a lot of clarity around all of this right now, but more of a vague sense that it might be better to back off of the Snapchat account promotion a bit. As social media timelines utilize an algorithmic approach, businesses aren’t going to want to give any reason to be looked down upon (or “frowned upon” if you will).

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April 29th 2016 Facebook, Marketing, Social Media, Twitter

Infographic: People Have Smaller Attention Spans Than Goldfish (Marketing Tips For Overcoming This)

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Last year, Microsoft released some research finding that the average attention span for a goldfish is about nine seconds and that for people of the smartphone era, it’s even less than that at eight seconds. It’s somewhat troubling, but not all that surprising when you think about all the content being blasted at you every second from a device that you keep close by at all times.

While marketers have more tools in their arsenals than ever, cutting through the noise (not to mention the content of substance) is no easy deed. Last fall, Wyzowl put together this infographic that takes this goldfish to human comparison into consideration and provides some advice on how to overcome the issue.

While the infographic has been out there since October, it has been popping up in a few places in recent days, bringing it to our attention (I first saw it at Social Media Today).

The eight-second rule for grabbing attention in videos is particularly interesting this week as Google just introduced a new six-second, unskippable video ad format.

Images via iStock, Wyzowl

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April 28th 2016 Marketing

Email Marketing Only Becoming Bigger Priority For Marketers

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Email on Acid recently released the results of a survey of 3,550 professionals (including marketers and developers) from last fall, looking at development, design, and marketing trends and behavior in email marketing. Based on this, email marketing is going to stay a top priority for businesses this year.

The company found that 71.8% are planning to spend more time on email production while 86.7% intend to increase email marketing budgets in 2016. Of those who identified as marketers, 91.2% of them are willing to spend more time on email marketing in the coming year.

The survey found that 69.1% spend between one and five hours developing a typical email campaign and that 30.6% plan to spend an additional 20+ hours per month on their email marketing programs. 23.5% will send an average of over 30 emails per month this year.

86.7% of all respondents intend to spend more money on email marketing this year. 60.2% expect to increase budget on technology and tools, while 38.4% expect to do do on list growth. 37.7% intend to increase dollars on development, and 32.5% expect to spend more on design.

“Responsive design is becoming increasingly popular, with 56.9 percent of survey respondents reporting to use responsive templates,” says Email on Acid’s Tanya Wheeler-Berliner. “Hybrid fluid design is less popular, with 7.9 percent saying they use templates coded with this technique and 19.9 percent saying they use both responsive and hybrid fluid design. Only 15.2 percent report to use neither coding method.”

53% expect to use dynamic content elements in their campaigns in 2016. 45.8% expect to use merge tags for personalization. 26.6% intend to use CSS navigation, while 22.5% will use HTML5 video and 20% will use carousel hero images.

“The survey revealed that a third of marketers believe strategy development (33.3 percent) will have the biggest impact on their email marketing program in 2016,” writes Wheeler-Berliner. “Additionally, improving email content and providing contextually relevant email experiences were cited almost equally by about one-third of all respondents as marketers’ number one goal. Finally-not surprisingly-coding for email was identified as a perennial pain point of the production process. Tools that can fix code for you was rated the top idea that would help the email creation process (39.8 percent), followed by a more streamlined testing system (24.6 percent) and better project management tools geared for email (22.3 percent).”

Email on Acid put out this infographic highlighting the survey’s findings.


You can find the full report here.

Images via iStock, Email on Acid

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April 28th 2016 Marketing

Upcoming Marketing Webinars From Facebook Cover Important Topics

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Facebook announced eight upcoming webinars tackling various aspects of marketing with Facebook, Instagram, and Messenger. A couple of them are this week.

On Tuesday, April 26, they’re hosting one on running campaigns across Facebook, Instagram, and the Audience Network, with guidance on when to use the platforms together as opposed to separately. Facebook’s product team will cover advantages cross-platform advertising, which include incremental reach and better performance, according to the company.

Then, on Thursday, April 28, they’ll dig into getting more out of Facebook Lead Ads. This will look at benefits of the ads and provide tips on how to use them for higher quality leads.

After these, there will be webinars on May 5, May 26, June 9, June 15, June 29, and June 30. These will cover advanced performance marketing on Instagram, Messenger best practices, Dynamic Ad best practices, going global, Slideshows on Facebook, and Local Awareness Ads respectively.

You can find the full webinar series and descriptions of each one here.

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April 25th 2016 Facebook, Marketing, Social Media

Q1 2016 Quick Links, Part 4 (Copyright, Marketing and More)

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Photo credit: 3D Quick Link Crossword // ShutterStock

Photo credit: 3D Quick Link Crossword // ShutterStock


* Naruto v. Slater: “Naruto is not an “author” within the meaning of the Copyright Act.” I heart Naruto!

* Handshoe v. Abel, 1:14-cv-00159-KS-MTP (S.D. Miss. Jan. 8, 2016) (cites omitted):

Given that there is no dispute that the minor child drew the image, and therefore held a copyright in it under 17 U.S.C. § 102(a)(5), nor is there a dispute that Plaintiff posted the image without permission of the copyright owner or his agent, the only avenue through which Plaintiff could have used the image was through the doctrine of fair use. Plaintiff does not plead that his use of the image constituted fair use. More importantly, though, Plaintiff does not allege that Yount and Abel did not in good faith consider any fair use defense he may have had before issuing the DMCA takedown notice. See Lenz v. Universal Music Corp., 801 F.3d 1126, 1132-33 (9th Cir. 2015) (holding that the DMCA requires copyright owners to consider fair use before issuing a takedown notice under § 512). In fact, Plaintiff’s Amended Complaint excerpts the takedown notice, which states that Yount and Abel did “have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” As fair use is an authorized use under copyright law, the Court can only assume, absent any contrary allegations from Plaintiff, that Yount and Abel considered in good faith the applicability of the fair use doctrine in forming this belief. The Court therefore does not find that Plaintiff has sufficiently pleaded a misrepresentation under § 512(f).

* Farouk Systems, Inc. v. AG Global Products, LLC, 2016 WL 1322315 (S.D. Tex. April 5, 2016):

Farouk admits that the two images on its Facebook page were created by copying a quotation and images from Shutterstock, a provider of royalty-free images. In Image No. 1, the Farouk employee combined an unaccredited quotation with images of a comb, scissors, and brush from Shutterstock. In Image No. 2, the Farouk employee combined a quote from Picasso with a banner reading “Snips of Wisdom” and the image of a pair of scissors. Even though the images may be copyrightable as compilations, the copyright extends only to the original material contributed by the Farouk employee, not to the preexisting material borrowed from other sources. See 17 U.S.C. § 103(b). Each of the elements of Image No. 1 was copied from another source. Additionally, although Defendant’s version of Image No. 1 is extremely similar to Plaintiff’s, it is obvious that it is not a copy. In Image No. 2, the original elements added by a Farouk employee are the “Snips of Wisdom” and the image of the scissors. Neither of these elements is included in the allegedly infringing image on AG’s Facebook page. As a result, AG is entitled to summary judgment on the copyright infringement claims regarding Images No. 1 and No. 2.

Plaintiff alleges also that a photograph of Gulamani on his personal LinkedIn profile page constitutes copyright infringement. There is no evidence that, at the time the photograph was presented on Gulamani’s LinkedIn page, Farouk possessed a valid copyright for the photograph. It is undisputed that the photograph was taken of Gulamani by a third-party photographer. There is no evidence that the photographer transferred the rights to the photograph to Farouk in a written assignment as required by 17 U.S.C. § 204(a). Farouk argues that the photograph was taken while Gulamani was employed by Farouk, but the “work for hire” provision of the Copyright Act provides copyright protection under certain circumstances to an employer where the person creating the work is an employee. See 17 U.S.C. § 201(b). There is no similar provision where the subject of the work, not the creator of the work, is the employee. Absent evidence that Farouk had a valid copyright in the photograph, Gulamani is entitled to summary judgment on the copyright infringement claim.

As an additional, yet equal, basis for summary judgment in favor of Defendants on the copyright infringement claims, Plaintiff has conceded that it is seeking only an award of statutory damages and injunctive relief on its copyright claims. It is undisputed that Farouk did not attempt to register its copyrights in the two images and the photograph until April 21, 2015, after the alleged infringement and, indeed, after this lawsuit was filed in February 2015. The timing of the registration applications renders any claim for statutory damages and attorneys’ fees unavailable.

Copyright lawsuits over headshots are stupid!

* i09: Cosplayers threatened with legal action for hotel carpet costume

* Vice Sports: Who Owns Tattoos?

* Eriq Gardner: In Deal With Fox, Dish Agrees to Disable Ad-Skipping for 7 Days After Shows First Air

* CNET: Australia shelves a manual graduated response notification system because it cost too much.

* Malibu Media, LLC v. Weaver, 2016 WL 1394331 (M.D. Fla. April 8, 2016): “the Communication Decency Act is inapplicable to copyright infringement actions”

* New Republic: The Mass-Market Edition of To Kill a Mockingbird Is Dead

* Phantomalert, Inc. v. Google Inc., 2016 WL 879758 (N.D. Cal. March 8, 2016):

To the extent these allegations support an inference that the locations of some of the Points of Interest do not reflect the actual location of the corresponding Driving Condition and also are not purely a function of the need to give drivers notice as they approach a particular Driving Condition, the Court finds that PhantomALERT has sufficiently alleged that these individual Points of Interest reflect a “creative spark” and therefore, like the prices in CDN v. Kapes., are entitled to copyright protection…

PhantomALERT has not alleged that any specific Point of Interest whose location involved the creative process described in the FAC appears in the Waze application at the same location; nor has it alleged any specific facts suggesting that the overall arrangement, selection or categorization of the Points of Interest is preserved in the Waze application such that there is “substantial similarity.”

Prior blog post.

* Priceonomics: How a College Student Used Creative Commons to Dominate Political Photography

* MIT: The Rise of Visual Content Online

Other IP

* Reuters: U.S. to send attachés to foreign markets to boost digital trade. It’s about time the USTR started thinking about foreign trade barriers to our domestic tech community.

* Science: U.S. charges drug researchers with sending trade secrets to China, but will case stand up?

* Looks like a competitor gamed the marshals with respect to the Hoverboard ex parte seizure at CES. Ex parte seizures based on trade secrets are bad news.

* Tyler, TX Brags About Its “Friendliness” to Patent Trolls

Search Engines

* Google, Inc. v. Hood, 2016 WL 1397765 (5th Cir. April 8, 2016). While the court dissolved the injunction against Hood’s overreaching subpoena, the court introduced the issues:

This lawsuit, like others of late, reminds us of the importance of preserving free speech on the internet, even though that medium serves as a conduit for much that is distasteful or unlawful. See, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015) (holding unconstitutional a sheriff’s threats to credit card companies to stop doing business with a website that hosts classified ads for prostitution). Also like other recent litigation, this case implicates section 230 of the Communications Decency Act—Congress’s grant of “broad immunity” to internet service providers “for all claims stemming from their publication of information created by third parties,” which we and other circuits have consistently given a wide scope. Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008); see also Doe v., LLC, — F.3d —, 2016 WL 963848, at *3–9, 14 (1st Cir. Mar. 14, 2016) (affirming dismissal based on section 230 despite appellants’ “persuasive case” that the defendant “tailored its website to make sex trafficking easier” and stating: “If the evils that the appellants have identified are deemed to outweigh the First Amendment values that drive the CDA, the remedy is through legislation, not through litigation.”).

The court added in a footnote:

we do not suggest that section 230 of the CDA would not apply if Hood were to eventually bring an enforcement action, or cannot be applied at the motion-to-dismiss stage. Indeed, several courts have applied the provision to dismiss claims against Google

Prior blog post.

* Danny Sullivan: 10 big changes with search engines over my 20 years of covering them

* Washington Post: Google now shows presidential campaign finance data directly in search results. Good example of how deciding what information to present is hardly neutral.

* Ars Technica: Microsoft looks to be retreating from EU antitrust fight against Google. Re/code: Microsoft, Google agree to stop complaining to regulators about each other. A thousand private school headmasters are weeping at the resulting dropoff in their enrollments of lawyers’ kids.

* The Verge: Google is letting celebrities and businesses post directly to search results

* AdWeek: 6 Reactions by Marketers to the End of ‘Free Social’ as the Algorithm Era Unfolds


* Novation Ventures, LLC v. J.G. Wentworth Company, LLC, 2015 WL 9695257 (C.D. Cal. May 15, 2015):

While Plaintiff alleges in the Complaint that Defendants have “driven up the cost of being in the 1st, 2nd, or 3rd position so as to effectively preclude or minimize the competitive impact of other entrants,” Plaintiff does not explain how this forecloses it from competing in the market. Plaintiff does not, for example, allege that it attempted to bid on one of the top AdWords listings but was not permitted to do so. In fact, Plaintiff alleges that “JG Wentworth and Peachtree are able to consistently grab two of the top three or four search listing results,” but it does not suggest that Plaintiff could not bid for and be awarded one of the other remaining one or two available spots. Accordingly, Plaintiff has failed to identify any injury that it has suffered that is of the type that the antitrust laws were designed to prevent.

In a footnote:

Plaintiff essentially claims that it has been injured because Defendants have driven up the cost of obtaining one of the top four AdWords listing spots, which has effectively priced Plaintiff out of the bidding process. Yet as Defendants argue, that is not necessarily an antitrust violation. If Plaintiff has suffered lost profits or a loss of market share because it is unable to keep up with price competition, it is because Defendants have made obtaining these desirable spots more competitive.

* In re Rocket Fuel, Inc. Securities Litigation, 2015 WL 9311921 (N.D. Cal. Dec. 23, 2015). Rocket Fuel may have overclaimed its anti-ad fraud technology

* Search Engine Land: Google to bloggers: Disclose & nofollow links when reviewing gifted products. Following in the footsteps of the FTC’s Endorsement and Testimonials Guidelines.

* Rebecca: seller-incentivized reviews might be misleading (and violate FTC guidelines)

* New York Times: An Online Deal Just for You (Oh, and Everyone Else, Too)

* New York Times: “Clear Channel Outdoor Americas, which has tens of thousands of billboards across the United States…has partnered with several companies, including AT&T, to track people’s travel patterns and behaviors through their mobile phones.”

* Boston Globe: casinos are using online slot machines, paying worthless virtual credits, with better payouts than the machines in the physical casino. Is that false advertising?

* Priceonomics: How Esurance Lost Its Mascot to the Internet

* Recorder: Facebook Settles Suit Over Purchases By Minors


* WSJ: Donald Trump’s Long History of Litigation

* Cloudpath Networks, Inc. v. SecureW2 B.V., 2016 WL 153127 (D. Colo. Jan. 13, 2016)

the Court ultimately agrees with Second, Fourth, and Ninth Circuits’ shared conclusion: “exceeds authorized access” in the CFAA does not impose criminal liability on individuals who are authorized to access company data but do so for disloyal purposes; it applies only to individuals who are allowed to access a company computer and use that access to obtain data they are not allowed to see for any purpose. Given this, Cloudpath’s CFAA cause of action (Count One) is dismissed with prejudice to the extent Cloudpath alleges CFAA violations by any Defendant who was authorized to access the relevant information for at least some purpose at the time of the alleged violation. This dismissal also extends to any allegation of conspiracy to commit, or vicarious liability for, such a violation.

* New Yorker: sex offender registries sound like a good idea, but are they being implemented properly?

* Buzzfeed: How High-Flying Zenefits Fell To Earth

* Congressional Research Service: What Does the Gig Economy Mean for Workers?

* Super profile of Mike Masnick. I’ve never understood how Mike achieves his combination of speed, productivity & accuracy. Another great interview with Mike Masnick. He even produces interviews more quickly than I can read them.

April 24th 2016 Marketing

Sketchy Suit Between Native Advertising Competitors Produces Sketchy Section 230 Ruling–Adblade v. RevContent

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I chose the popcorn, but maybe I should do both. Photo credit: "Big Bucket of Popcorn" // ShutterStock

I chose the popcorn, but maybe I should do both. Photo credit: “Big Bucket of Popcorn” // ShutterStock

This case is filled with sketchiness. First, the litigants compete in the “native advertising industry,” which doesn’t have a great reputation (and this lawsuit isn’t likely to improve it). Second, the ads in question promote wrinkle creams, diet pills and muscle builders–the kinds of products that advertising law professors assume will be regularly overpromised and underdelivered. Third, the plaintiff believes the defendant is poaching advertisers through overclaims and other manipulative tricks–legitimate concerns, but perhaps tinged with irony in this industry context? Maybe the plaintiff views itself as the white knight that will save the industry from a race to the bottom. Fourth, the plaintiff itself recently lost a defamation case brought by a different competitor, and the FTC is regularly sniffing around native advertising and discretionary health products like the ones at issue here. With all of this litigiousness in the air, it makes me wonder if the niche will erupt in a fireball of litigation. Finally, I can’t help noting the litigants’ names are generic dot com cliches: the plaintiff is “Congoo,” a/k/a “AdBlade,” which is owned by “Adiant”; and the defendant is “RevContent.” In light of all the sketchiness, while reading the opinion I couldn’t decide whether to grab a bucket of popcorn or a bloodsplatter-proof poncho. (Or maybe it’s just my diet pills are giving me anxiety).

After reading the court’s short opinion, I remained unclear about exactly what RevContent allegedly did wrong, so I pulled the complaint seeking further clarity. Unfortunately, this didn’t really help. The complaint extensively details alleged problems with the implementation of three native advertising campaigns associated with RevContent (for the aforesaid wrinkle creams, diet pills and muscle builders), and AdBlade believes it’s losing customers to RevContent due to price competition that may be assisted by false advertising. Yet, after reading the complaint, I’m still not sure who wrote the allegedly problematic native advertising content or who controls the various product decisions that contribute to the alleged falsity. Attributing these actions to the defendant (rather than its advertisers or other third parties) ordinarily seems like an essential part of the plaintiff’s prima facie case.

Indeed, the plaintiff practically writes the defendant’s Section 230 arguments when the complaint says: “Plaintiff, and other native advertising companies, operate as an “intermediary” between (a) the actual advertisers, i.e., those businesses offering products and/or services for sale (hereinafter “Advertisers”), and (b) the news, information and content websites that publish the native advertisements.” Yet, the defendants’ Section 230 motion to dismiss fails. Why?

The court cites the following allegations from the complaint:

• Defendants have published or caused to be published many impressions of native advertising unit ads (“Defendants Ads”) with various Published Websites, including Publisher Websites that were previous clients of Plaintiff.
• Many, if not most of Defendants’ Ads and the Advertisement Websites to which the Ads redirect unsuspecting consumers, employ false and misleading advertising intended to deceive innocent consumers out of the significant monies by charging their debit cards or credit cards.
Defendants have employed the above stated false and misleading representative in advertising to generate greater income from their Ads and those of Defendants’ Advertisers [the court added the emphasis to the complaint]

Notice the tricky drafting. The defined term “Defendants Ads” lumps together items that could come from a variety of sources. The court takes the bait:

Construing the allegations in the Complaint in the light most favorable to Plaintiff, the Court finds that Plaintiff has sufficiently pled that Revcontent was responsible in part for the development of the subject advertisements. Thus, at this juncture, the Court finds that Revcontent has not established that it is entitled to immunity under § 230 of the CDA.

The plaintiff alleged that the defendant wooed advertisers to switch allegiances based on false promises about its advertising services. Those first party representations should be outside the scope of Section 230, a point the court acknowledges more expressly in its 43(a) Lanham Act false advertising discussion. However, typically third party ads, and third party websites promoted in those ads, should be clearly covered by Section 230. Unfortunately, the court bypassed all of that nuance in its pithy Section 230 discussion. What the court should have done instead was expressly identify the parts of the plaintiff’s complaint that were preempted by Section 230; which would have honed the dispute for the next round(s). We saw the more nuanced handling of a similar situation in the Tanisha v. Chandra ruling. Perhaps the court will become more exacting about the facts at the summary judgment stage.

Note: I approached both sides’ lawyers for a comment about the ruling. The defendants declined. The plaintiffs did not respond by posting time.

Case citation: Congoo, LLC v. Revcontent LLC, 2016 WL 1547171 (D. N.J. April 15, 2016). The plaintiff’s complaint.

April 21st 2016 Marketing

Q1 2016 Quick Links, Part 1 (Trademarks and Domain Names)

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Photo credit: 3D Quick Link Crossword // ShutterStock

Photo credit: 3D Quick Link Crossword // ShutterStock

* Academy of Motion Picture Arts and Sciences v., Inc., 2015 WL 5311085 (C.D. Cal. Sept. 10, 2015). A major win for GoDaddy—and domain name parking programs generally—against a long-running cybersquatting suit by the Motion Picture Academy. This ruling deserved a full blog post but I ran out of time. Here are some of the best excerpts:

According to AMPAS, GoDaddy was legally obligated to implement a filter that would automatically block any domain name from its Parked Pages Program simply because that domain shared a string of characters with a famous or distinctive mark, even if that mark was unregistered…. the Court takes judicial notice that many other common English suffixes double as registered trademarks, including “TION,” “TIC,” and “ISH.”…By AMPAS’s logic, GoDaddy had an affirmative legal obligation to disbelieve a registrant’s certification that the registrant had the lawful right to use, for example, the domain FISH.NET or OSCARDELAHOYA.COM, and keep those domains out of the Parked Pages Program, unless and until GoDaddy independently assured itself that the registrant was telling the truth….

courts applying the ACPA’s bad faith requirement should be wary of finding bad faith under the ACPA where the unique circumstances of the case place the defendant’s conduct well outside the ACPA’s heartland of ransoming a domain name or diverting Web traffic from the mark-holder’s legitimate website….

It is not sufficient under the ACPA for AMPAS to prove that GoDaddy had an intent to profit from its Parked Page Programs. Nor is it sufficient for AMPAS to prove that infringing domains were sometimes registered by GoDaddy’s customers and automatically enrolled by GoDaddy in the Parked Page Programs if no DNS was entered by the registrant for their domain name at the time of registration. Congress did not enact strict liability or a negligence standard in the ACPA. It required proof that a defendant registered, used, or trafficked in a domain name with the specific, subjective intent to profit in bad faith off a person’s trademark….

every time a registrant agreed to the legally binding DNRA (including with each of the 293 Accused Domains): with GoDaddy as the licensee of a registrant who GoDaddy reasonably believed to be the rightful owner of a domain name that did not violate any third-party trademark rights. To the extent GoDaddy intended to profit off of any such domain (or the marks contained therein) by enrolling the domain in the Parked Pages Program, GoDaddy did so in good faith….

The automated nature of the registration by third-party registrants and the routing and parked page processes for the Accused Domains refutes a finding of bad faith intent to profit from the AMPAS Marks….

GoDaddy did not engage in any volitional conduct specific to AMPAS or its marks…

Given the entirely automated nature of GoDaddy’s parked page system, GoDaddy lacked the subjective intent necessary to support a finding that it had any intent to profit from the specific AMPAS Marks at issue in this litigation, let alone a bad faith intent to do so with respect to any of the Accused Domains. Any inadvertent use by GoDaddy of domain names that are confusingly similar or identical to the AMPAS Marks via its automated processes was unintentional and not indicative of the specific intent required for liability under the ACPA.

Moreover, since GoDaddy did not select the domain names containing character strings corresponding to the AMPAS Marks and did not select the third-party advertisements from Google containing AMPAS Marks, AMPAS has failed to prove that GoDaddy had the required specific bad faith intent to profit from the AMPAS Marks. …

GoDaddy’s efforts to assist brand owners, including AMPAS, in protecting their intellectual property rights; the industry-leading nature of GoDaddy’s trademark dispute resolution procedure; the speed and efficiency of its notification and override processes; and general brand owner satisfaction with the operation of GoDaddy’s trademark dispute resolution process….

By adopting a DMCA-style notice and takedown procedure to help address alleged instances of trademark infringement, GoDaddy filled the gap left by Congress, managing to streamline enforcement efforts for tens of thousands of claims by trademark holders and to simplify the process for the removal of problematic material upon notice….If anything, GoDaddy’s notice and take-down process invites abuse from trademark holders by “incentiviz[ing] ‘false positives,’ in which the lawful use of a domain name is restricted by a risk-averse third party service provider that receives a seemingly valid take-down request.”…

The parallels between the evidence presented in the instance action and that in Tiffany are hard to avoid: (a) GoDaddy generates revenue by way of its provision of parked page services; (b) GoDaddy was aware that “unscrupulous domain name registrants” may register domain names containing third party trademarks with an intent to profit from those trademarks; (c) GoDaddy has an interest in eliminating any possibility of trademark infringement, not only to preserve its relationships with trademark owners but also to ensure its quality score with Google was not negatively affected; (d) GoDaddy’s ability to identify potentially infringing domain names was limited due to the inherent difficulties in ascertaining a registrant’s intent in registering a domain name, especially in those circumstances where the domain name contained a trademark that is also a common name, such as Oscar Hernandez or Oscar Sagastume; (e) despite this fact, GoDaddy established a robust Trademark Protection Policy, which included a VIP program for brandowners with frequent concerns of potential infringement; and (f) during the time period relevant to the litigation, GoDaddy never refused to redirect a domain name identified by AMPAS and acted in good faith in responding to AMPAS’s complaints, often responding to AMPAS’ complaint within one business day.

* Doug Isenberg: The much-maligned Uniform Rapid Suspension System (URS) is not only failing to catch on — it’s actually starting to fade.

* TorrentFreak: Inside Mpaa’s Piracy Deal With The Donuts Domain Registry. EFF: MPAA May Like Donuts, but They Shouldn’t Be the (Copyright) Police

* Vision Information Technologies, Inc. v. Vision It Services USA, Inc., 2016 WL 126058 (E.D. Mich. Jan. 12, 2016) (cites omitted)

Plaintiff provides evidence of both initial-interest confusion and actual confusion. Plaintiff relies on PACCAR Inc. v. TeleScan Techs., L.L.C., 319 F.3d 243 (6th Cir. 2003) (abrogated on other grounds), for the premise that ‘[a]n infringing domain name has the potential to misdirect consumers as they search for web sites associated with the owner of a trademark.‘ ‘This ‘initial interest confusion‘ is recognized as an infringement under the Lanham Act.‘ Plaintiff shows that a search for Plaintiff’s trademark VISIONIT on, and return Defendants’ website as the third, sixth and eighth hits, respectively. Plaintiff also shows that on Glassdoor,, an American website where companies and their management are reviewed by former and current employees, a ‘screen shot of the demographics of candidates who looked at Plaintiff’s company’s profile on Glassdoor shows that candidates who visit Plaintiff’s profile also commonly viewed the profile of Defendant Vision IT Services.‘…

These examples are more than mere speculation. Plaintiff has shown one instance of actual confusion, albeit approximately a decade ago, that occurred by what was probably a sophisticated user of Plaintiff’s services: Dell. The evidence of initial-interest confusion also adds weight to this factor in favor of finding a likelihood of confusion.

PSA reminder: initial interest confusion is stupid.

* Select Comfort Corporation v. John Baxter, 2016 WL 158516 (D. Minn. January 13, 2016) (cites omitted)

The Court notes that the Eighth Circuit in Sensient neither rejected nor adopted the initial interest confusion doctrine. Rather, it declined to formally adopt the doctrine because it would not apply to the facts of that case. Similarly, even if the initial interest confusion doctrine is recognized in the Eighth Circuit after Sensient, this is not an appropriate case for its application. Not only are Personal Comfort and Select Comfort beds expensive (the average Select Comfort bed costs between $1,600 and $2,300), they are specialty mattresses, and they are purchased online. These factors lead to the conclusion that consumers would exercise a high degree of care in purchasing such a mattress. Therefore, Plaintiffs’ trademark infringement claim will require Plaintiffs to establish a likelihood of actual confusion at the time of purchase.

* Rebecca: Reading list: dilution fails an empirical test. Our 2007 conference on the justifications for dilution.

* Free Kick Master LLC v. Apple Inc., 2016 WL 777916 (N.D. Cal. Feb. 29, 2016). App stores aren’t contributorily liable for trademark-infringing apps. Prior blog post.

* Emerald City Management v. Khan, No. 15-40446 (5th Cir. March 8, 2016). Shutting down and blocking administrator access to a Facebook account isn’t a trademark use in commerce.

April 16th 2016 Marketing

Here’s Bing’s Mother’s Day Guide For Marketers

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Bing is sharing some Mother’s Day search insights to help advertisers better plan for the holiday, which will be here in just over three weeks, meaning shopping time is from now and until then.

According to Microsoft’s search team, Mother’s Day mobile searches grew by more than a third from 2014 to 2015. Mother’s Day searches begin in April, but users are most active seven days before the holiday.

The top searches, according to Bing, are for generic “gifts” (43%), flowers (31%), jewelry (13%), cards (7%), and chocolate or other foods (6%).

Product ads via Bing Shopping campaigns saw “across the board increases” the week of Mothers Day with jewelry showing the biggest percentage gains.

“Insights gained from Bing Ads give advertisers the tools they need to decide when to increase the intensity of their Mother’s Day campaigns and across which devices,” said Bing Global Marketing Manager Frances Donegan-Ryan. “This helps ensure to ensure their campaigns are having the most impact while delivering the best value.”

“Data from Bing Ads also help shed light on some of the differences between Bing and Google audiences ­– including the fact Bing users are more likely to have spent money on jewelry, greeting cards or flowers in the last six months,” a spokesperson for Bing tells us. “This data is essential for advertisers looking to optimize their approach to a Bing Ads campaign over a one-size-fits-all approach.”

Bing Network’s market share is at close to a third in the U.S. Here’s a a Slideshare presentation Bing is sharing with additional Mother’s Day findings.

The post Here’s Bing’s Mother’s Day Guide For Marketers appeared first on WebProNews.

April 15th 2016 bing, Marketing, Search

Google Tag Manager Fundamentals Now More Widely Available

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Last summer, Google launched a training course for marketers, analysts, and developers to teach them about Google Tag Manager and how it can simplify tag implementation and management. It’s part of Google’s Analytics Academy learning program. On Thursday, the company announced that it is expanding this Google Tag Manager Fundamentals course to a total of fourteen languages.

The course is now available in Chinese, Czech, Dutch, English, French, German, Italian, Japanese, Korean, Polish, Portuguese, Russian, Spanish, and Turkish.

Lizzie Pace from the Google Analytics education team explains, “Google Tag Manager Fundamentals shows you how to use tools like Google Analytics and Google AdWords to improve your data collection process and advertising strategies including: the core concepts and principles of tag management using Google Tag Manager; how to create website tags and manage firing rules; how to enhance your Google Analytics implementation; the importance of using the Data Layer to collect valuable data for analysis; and how to configure other marketing tags, like AdWords Conversion Tracking and Dynamic Remarketing.”

The course is made up of four units, covering how to get started, setting up Tag Manager, collecting data using the data layer, variables, and events, and using additional tags for marketing and remarketing. Each of these is broken up into three or four lessons a piece.

You can get started with the free course here.

The post Google Tag Manager Fundamentals Now More Widely Available appeared first on WebProNews.

April 15th 2016 Google, Marketing

Viacom’s Sales Chief Uses Data to Get to Know Millennials Better

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Current gig Head of marketing and partner solutions, Viacom
Previous gig Head of sales and marketing, music and entertainment, Viacom
Age 52
Snapchat mainchair2323

Adweek: You've been in sales at Viacom for 11 years—a year in this new role. Where have you left your mark? 
Jeff Lucas: When I started with the entertainment group [in 2007], I made it client centric. And then when I got to the music group, I made that client centric. Prior to that, all the different channels [had separate sales forces]. And what I found was we had about 10 different sales forces based on whatever networks they covered competing with each other. It's not really all about competing for money; you're competing for time. And it's very hard when you're going to clients that have over 100 paid cable networks coming to them, plus radio, plus digital, which can be ad networks' platforms, plus print, newspaper.

How are your clients reaching millennials?
We put content on a constant basis every day across all those platforms. We also allow an advertiser to go for a ride along those platforms. We have a very big component called Viacom Velocity, which is our integrated marketing arm. And that is also our content creation arm—we've built an entire creative agency within our house. The No. 1 thing the clients are looking for is how to appeal to millennials in that authentic voice that will resonate with them.

How do you know what will resonate?
[We just did a deal with social tech platform Canvs] that's all about sentiment analysis. When content starts to go viral, we want to know what's what. We just created for you something to share with your friends; when you share it, you're going to get comments back, and we want to know what those comments are. So we track those comments and we do it with Canvs, which measures 56 different emotions for that sentiment analysis. And of the 56 different emotions, the No. 1 emotion you want is brand love. And you want that to be true brand love. If you can resonate so much that a client loves that piece of content, wants to share it and really believes in it, that's going to be someone who's going to use that product, someone who's going to buy that product. And you're not going to get much closer to someone's heart on that product.

What's some recent millennial-geared content Viacom has produced?
The Hershey's What's Up Moms holiday campaign. We found that the What's Up Moms [a troupe of funny moms with a YouTube channel] resonate better than anybody with millennial moms. With Hershey's it was holiday cheats. So all these different ways like you can influence your decoration, your creativity for the holidays through things around the house. One was making a really cool thing with a sled and candy canes, putting the Hershey bar right on it as the part of the sled.

How is Viacom adapting to what millennials want?
MTV News is coming back, because all the research shows that millennials want to know about the news and they don't necessarily trust nor like traditional news services. They want to find news digitally.

Is Kurt Loder back?
No, it's so funny you say that, though. I did say once maybe we should do promos with him leading into the new guy—Dan Fierman, who came from Grantland.

Last question—looking toward Gen Z, what are you doing?
I think Gen Z is top of mind right now.

So millennials are over?
Well, no, no, no. But you always have to look where you're going. You have to look where you are and look where you're going. You have to look ahead.

This story first appeared in the April 11 issue of Adweek magazine. Click here to subscribe.

April 12th 2016 Marketing, Technology