Advertising, Branding, Chicago, Content Development, Creative Content, Entertainment, Internet, Marekitng, Media, Monetizing Content, Social Media, Trademarks, Uncategorized

CMO Council Release 2011 State of Marketing Report

The CMO Council released the fifth State of Marketing Report in its annual series that surveys its members to gather insights and views specific to marketing mandates, spend, intentions and frustrations. The Report gathers a broad range of insights from major geographic regions and the top tiers of corporations. The Report identified three critical areas of attention that top the “to do” list of marketers in 2011: Performance, Customer Experience and Brand Loyalty.

Marketing Performance. According to the CMO Council, digital and new media strategies, including Social Media, dominate the imperative to grow market share and refine brand and value proposition. Marketers must use multiple marketing channels with a focus on interactivity, while defining and connecting measurements to assess effectiveness.

Customer Experience: Marketers must focus on providing an “experience” – not just a “message” – that is engaging, personalized and differentiated. While the platform for engaging the customer will undoubtedly include social platforms, it must also integrate the messaging and engagements through traditional channels. The goal is a seamless multi-channel journey for the customer, one that is gratifying and satisfying, thereby improving loyalty, retention and repeat purchase.

Measurement Feedback and Brand Loyalty. A major issue that continues to plague marketers is the struggle to mine customer data, extract valuable insight and create accurate predictive models. Gathering data from every impression, every search, every transaction, status update, or tweet can develop a more complete profile or the customer. However off-line data sources need to be synthesized as well, including localized marketing tools, adaptive merchandising systems, interactive self-serve technologies, mass-personalized messaging solutions, social media channels, mobile relationship marketing platforms, and corporate social responsibility programs (e.g. sustainability).

CLICK HERE TO DOWNLOAD REPORT

ABOUT THE AUTHOR

David M. Adler, Esq. is an attorney, author, educator, entrepreneur and partner at the boutique intellectual property, entertainment & media law firm LEAVENS, STRAND, GLOVER & ADLER, LLC based in Chicago, Illinois. My responsibilities include providing advice to business units and executives on copyright, trademark, ecommerce, software/IT, media & entertainment and issues associated with creating and commercializing innovations and creative content, drafting and negotiating contracts and licenses, advising on securities laws and corporate governance and managing outside counsel. Learn more about me here: http://www.ecommerceattorney.com and here: Leavens Strand Glover & Adler, LLC

Advertising, Branding, Compliance, Creative Content, Finance, Infringement, Internet, Legislation, Litigation, Marekitng, Media, Monetizing Content, Privacy, Social Media, Technology, Uncategorized

Will the News of the World voicemail snooping saga accelerate US privacy reform?

The United States is one the few countries in the developed world that lacks a comprehensive law protecting consumer privacy. Geolocation, personalized ads, group-buying deals, tracking cookies and other technologies have a wide range of privacy implications. Incidents like the phone-hacking scandal in the U.K. underscore the growing concern among both the general public and Congress here in the U.S.

Unlike citizens in Europe, Asia and Latin America, U.S. laws addressing rights and obligations surrounding sensitive-information tend to be sector-specific and inconsistent (HIPPA, COPPA, etc.). Notably, the FTC, the federal agency tasked with safeguarding consumers, has taken a largely laissez-faire approach. The result of Guidelines and enforcement actions is essentially a policy of “do as you like, just don’t lie about it.”

While congressional attention has been focused on updating the regulatory regime, the current legislation reflects the piecemeal approach of the past. Here is a break-down of the Five leading government privacy initiatives. Bills starting with H.R. are from the US House, and bills starting with S. are from the US Senate. The numbers are from the 112th Congress: 2011-2012.

H.R. 654: Do Not Track Me Online Act, sponsored by Rep. Jackie Speier [D-CA12] is to direct the Federal Trade Commission to prescribe regulations regarding the collection and use of information obtained by tracking the Internet activity of an individual, introduced Feb 11, 2011. Status: This bill is in the first step in the legislative process.

S. 913: Do-Not-Track Online Act of 2011, sponsored by Sen. John Rockefeller [D-WV] is a bill to require the Federal Trade Commission to prescribe regulations regarding the collection and use of personal information obtained by tracking the online activity of an individual, introduced May 9, 2011. Status: This bill is in the first step in the legislative process.

H.R. 1895: Do Not Track Kids Act of 2011, sponsored by Representatives Edward J. Markey, Massachusetts Democrat, and Joe Barton, Texas Republican, is aimed specifically at internet marketing to minors, introduced May 13, 2011. Status: This bill is in the first step in the legislative process.

S. 413: Cybersecurity and Internet Freedom Act of 2011, associated with the phrase the “internet kill switch” was, sponsored by Sen. Joseph Lieberman [I-CT], introduced Feb 17, 2011. Status: This bill is in the first step in the legislative process.

S. 799: Commercial Privacy Bill of Rights Act of 2011, sponsored by Sen. John Kerry [D-MA] Introduced Apr 12, 2011. Status: This bill is in the first step in the legislative process

Complete text of the various bills is available at GovTrack.us.

ABOUT THE AUTHOR

Advertising, Branding, Compliance, Facebook, Finance, Social Media

US bank consortium develops social media framework

BITS, the technology policy division of US bank-backed The Financial Services Roundtable, has released “Social Media Risks and Mitigation,” a framework for financial institutions adopting social media and a guide to managing related security risks.

Social media issues span legal, compliance, marketing, communications, IT and human resources departments. “Financial services customers are using social media and demanding that institutions have a secure and prudent presence there,” said Andrew Kennedy, BITS’ social media lead. The bits paper provides an enterprise-wide view of policies, practices, communications and risk management strategies.

Read the full article here: http://tinyurl.com/44rntx2

ABOUT ME

Uncategorized

Consumer Watchdog Asks FTC to Stop Facebook Virtual Currency

Social gaming, and the market in virtual goods they support is serious business. According to some estimates, sales of virtual goods may be as large as $2.1 billion in 2011. Facebook has recently announced a requirement that Social gaming developers such as Zynga, famous for its “Farmville” game among others, that use the Facebook platform must exclusively use Facebook Credits in the operation of their games.

With over 500 million users worldwide, and a substantial portion of them in the United States, Facebook may well control over 50% of the market for virtual goods offered in social gaming. Scheduled to take effect on Friday, July 1, 2011, in addition tot the exclusivity requirement, the Facebook Credits terms mandate that developers agree not to charge lower prices to consumers outside of Facebook and pay a 30% service fee for all Facebook Credits purchases.

Critics see the risks as two-fold. First, combining its dominance as the leading platform for social gaming with control of virtual commerce may stifle innovation and competition. Second, Facebook is expected to offer streaming media, music, and potentially real-world, non-digital goods for purchase with Facebook Credits as the applications become more diverse on the social network.

In a complaint, the nonprofit, nonpartisan public interest group Citizen Watchdog asks the FTC to issue an injunction that would stop the anticompetitive behavior.

Read the complaint here: http://www.consumerwatchdog.org/resources/cwd_ftc_facebook_credits_complaint-3.pdf

————–
David M. Adler, Esq. is an attorney, author, educator and entrepreneur with a multidisciplinary practice focused on Intellectual Property, Media & Entertainment Law, Ecommerce, Information Technology and Software development, implementation and licensing. Mr. Adler provides legal counsel all aspects of media and intellectual property law, including trademark and copyright clearance, registration and enforcement, digital and new media licensing, production, finance, regulations, litigation and corporate-commercial transactions. Mr. Adler assists interactive and digital marketing and advertising companies, content providers and licensors with advice on affiliate, publisher and partnership agreements, digital content licensing, syndication, distribution, Social Media and many other related deals.

Advertising, Branding, Chicago, Content Development, Copyright, Creative Content, Entertainment, Entrepreneurs, Facebook, Infringement, Marekitng, Media, Monetizing Content, Production, Small Business, Social Media, Start-ups, Technology, Trademarks, Uncategorized

Facebook Marketing: Legal & Regulatory Compliance By David M. Adler, Esq.

Image representing Facebook as depicted in Cru... — Image via CrunchBase

AllFaceBook Presents AF Expo San Francisco June 27-29, 2011

COMMERCE & MONETIZATION: Facebook Marketing: Legal & Regulatory Compliance

The use of social media for marketing and advertising purposes is one of the fastest growing areas for business and marketers. The advent of social media sites like Facebook provides the opportunity for authentic interaction and engagement with customers. Therefore, it is no surprise that it is being used as a marketing tool by companies large and small to help them achieve their strategic goals. But with every technological development and opportunity, new legal and business risks present themselves. Understanding and minimizing these risks will help you maximize the opportunities. A best practices approach to social media marketing involves having the company’s philosophy, methodology, and guidelines captured in a comprehensive written policy that is clearly and regularly communicated to the employees, and regularly updated to keep abreast of new developments, opportunities and evolving legal guidance. Attendees will learn how to identify the legal issues and develop policies and procedures to keep informed about the current technology, marketing strategies and regulatory compliance.

Everyone at AF Expo shares a belief that the Facebook experience represents a paradigm shift in the way that marketing professionals identify, engage and convert customers. In the past, marketers had to conduct research to locate customs and to determine their wants and needs. Once these were identified, you needed to convince your customers to value your brand, understand your product/service and ultimately purchase what you were selling.

Facebook changes all of these assumptions. It offers an interactive platform where customs are actively engaged in seeking out the brands they are interested in – whether individually or through trusted networks, tell brand owned what they do and do not like about their brand and tell marketers whether they are open to receiving more information. Interestingly, the platform allows marketers to continue the conversation even when the customer has nominally disengaged (through trusted networks).

Like everything else, with great power comes great risks. Facebook marketing that is thoughtful, respectful and legally compliant is extremely effective. [give examples] However, marketing efforts that fail to understand and account for the requirements to maintain legal compliance can be a fixated.

In the beginning one could poke, like and comment. But what happens when you can purchase? Facebook is rapidly becoming a platform to identify, locate, contact and transact business with consumers of goods and services, both physical and virtual, using currency that is both physical and virtual.

My presentation will identify and explain the risks for Facebook marketers, grouped into three risk categories, “The Three Cs” of Facebook marketing:

Content

Connecting

Commerce

Social Media Legal Risks: Copyright (adlerlaw.wordpress.com)

Advertising, Branding, Certification Marks, Content Development, Creative Content, Entrepreneurs, Infringement, Litigation, Marekitng, Small Business, Technology, Trademarks, Uncategorized

Trending @ The Trademark Office: Bona Fide Intent

Nintendo of America HQ headquarters — Image via Wikipedia

Recent Decisions Highlight Need For Objective Evidence of Intent to Use Mark

Two recent decisions at the Trademark Trial & Appeal Board (TTAB) indicate what may be an emerging trend in Trademark practice: challenges based on lack of evidence of a “bona fide” intent to use a mark for which a Section 2(b) Intent-to-Use (ITU) application has been filed. The two relevant decisions are Kaplan v. Brady and Nintendo of America, Inc. v. Adar Golad.

Every ITU Applicant makes a legal averment, under oath, that it has a “bona fide” intent to use the mark in commerce. “To show a bona fide intent to use, there must be ‘objective evidence,’ that is evidence in the form of ‘real life facts and by the actions of the applicant.’ J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, Sec. 19:14 (4th ed. 2009). There should be some ‘definite’ (if not necessarily ‘concrete’) plan by applicant. For example, ‘written plan of action for a new product or service,’ or a ‘re-branding of an existing line of goods or services.’ Id.” In the two cited cases, lack of such definite evidence proved fatal.

The first decision is a Cancellation action where one party (Kaplan) sought to have the registration of another party (Brady) cancelled. Kaplan’s claim for cancellation of Brady’s FUNNY-FACE mark was based on the existence of Kaplan’s ITU application for the mark FUNNY FACE FIZZY BLAST! Although the parties exchanged several motions, of interest here is the Board’s determination that Kaplan lacked standing to prosecute the cancellation because Kaplan had “produced no documentation supporting his alleged bona fide intent to use such mark other than a “completely phony” and undated business plan that is merely a “slightly altered version” of a business plan for use of the mark BAKE OFF! on a “cleansing product.”

The second decision is an Opposition proceeding where one party (Nintendo) sought to prevent the registration of another party’s (Golad) mark by opposing the application. Golad filed an ITU application to register the mark FLASHBOY for “plug and play interactive video games … comprised of computer hardware and software.” Nintendo opposed the registration on the ground that FLASHBOY is likely to cause confusion with its Registration for the mark GAMEBOY for game equipment, etc.

During discovery, Golad admitted that he did not have a business plan or any other documentation reflecting plans to “advertise, manufacture or otherwise use the mark FLASHBOY in commerce on the goods for which applicant seeks registration.” That was enough to establish a lack of bona fide intent.

Summary: Practice Tip

Both applicants and trademark counsel need to be aware of the requirement that an ITU application be supported by at least some definite evidence of the applicant’s bona fide intent to use the mark. While it remains unclear whether a business plan alone is sufficient to meet this burden, an applicant must be able to produce some type of evidence, through documents or testimony, indicating plans to advertise, manufacture, distribute, license or otherwise use the mark.

Advertising, Branding, Certification Marks, Chicago, Content Development, Copyright, Creative Content, Entertainment, Entrepreneurs, Infringement, Litigation, Marekitng, Media, Monetizing Content, Production, Small Business, Social Media, Start-ups, Technology, Trademarks, Uncategorized

Neoformix Tweet Topic Explorer is a Powerful New Tool For Social Media Marketing

Image via CrunchBase

WordCluster Analytics Provide Rapid Visualization of Hot Topics

Kudos to Barry Ritholz and his Blog The Big Picture for turning us all on to a phenomenal new social media metrics tool: Tweet Topic Explorer. This Tool retrieves the most commonly used words in recent (no word on time period covered by “recent”) “tweets” for a specific user and displays these visually using bubble clusters. The area of the circle for a word is proportional to that word’s frequency. Words most often used together are grouped by color.

For example, using my Twitter handle, @adlerlaw, produces a cloud that shows the words “film,” “media,” “legal,” “social” and “Chicago” are among my most frequently used words. Looking at groupings, “Film” is used most commonly with words like “tax” and “indie.” The words “Law” and “Legal” appear most frequently with “social,” “media” “brand,” and “trademark.”

The potential for brand managers and social media marketing professionals is obvious. First, a brand manager can quickly and easily analyze what key words are being used and how they are being used for any given twitter handle. Note that if your handle is identical to a brand name, this is critical visual evidence of the words being used in connection with your brand! Second, if you area marketing professional, you can analyze individual handles to get feedback on words being used by social media influencers and other specific followers.

The value should be obvious by now. This tool creates an amazing feedback mechanism. The brand owner/marketing professional can easily see if the message they are trying to communicate is really coming through as well as they intend. For example, check out the word cloud for “Coca-Cola.” I was amazed to see that the most frequent word is “^GD.” I don’t know about you, but that’s not communicating anything about the brand. Whereas positive attribute words like “sharing” and “delicious” are much less prominent.

Also, the potential to uncover negative words will be displayed prominently. This gives brand managers insight into the areas, issues and users that they need to target.

I’m not saying its going to be easy. In order to get the most out of this tool, one is going to have to spend time analyzing users one by one. However, this is one of the best tools I’ve seen that breaks tweets down into a clear, visual, actionable matrix.

ABOUT THE AUTHOR

David M. Adler, Esq. is an attorney, author, educator, entrepreneur and founder of a boutique intellectual property law firm based in Chicago, Illinois. With over fourteen years of legal experience, Mr. Adler created the firm with a specific mission in mind: to provide businesses with a competitive advantage by enabling them to leverage their intangible assets and creative content in a way that drives innovation and increases the overall value of the business. Learn more about me HERE.

David M. Adler, Esq. Safeguarding Ideas, Relationships & Talent®

Uncategorized

Five Things To Know Now

Here are five interesting articles to look at this weekend.

1. Copyright Fair Use Gets a Boost. Last Friday, the federal district court in Nevada held that the non-profit organization Center for Intercultural Organizing’s posting of a copyrighted news article was a non-infringing fair use. The well-reasoned opinion sets a powerful precedent for fair use and against copyright trolling. http://www.eff.org/deeplinks/2011/04/righthaven-v-cio-it-s-hard-out-here-troll

2. Proper Authentication of Social Media “Evidence” Used at Trial. The Maryland Court of Appeals in the case of Griffin v. State examined a relatively new social media legal issue: determining the appropriate way to authenticate at trial electronically stored information printed from a social networking site. http://www.marylandinjurylawyerblog.com/2011/04/the_maryland_court_of_appeals_2.html

3. Commercial Privacy Bill of Rights Act of 2011 Does Not Spell Do Not Track. Although the proposed law requires disclosure of “clear, concise and timely notice” of a company’s privacy policies and practices regarding the collection, use and distribution of personally identifiable information, the bill does not include specific authorization for a do-not-track mechanism. http://www.itbusinessedge.com/cm/blogs/bentley/senators-formally-introduce-online-privacy-bill/?cs=46477

4. Is Your Web Site Eligible For Trade Dress Protection? While Copyright law protects certain original expression from unauthorized copying, Trade dress law protects commercial use of certain distinct features in connection with a product or service. When consumers associate such “look & feel” features with a product or service, trade dress protection exists. Protection has been extended to the packaging of a product, the décor of restaurant, the design of magazine covers, and even kiosk displays.

In Conference Archives v. Sound Images, 2010 WL 1626072 (W.D. Pa. Mar. 31, 2010), a federal district judge in the Western District of Pennsylvania suggested that under the concept of “look and feel,” trade dress law can reach beyond static elements on a website, such as photos, colors, borders, or frames, to include interactive elements and/or the overall mood, style, or impression of the site since a graphical user interface promotes the intuitive use of the website.” Conference Archives, 2010 WL 1626072 at *15.

5. Do We Need An Open Wireless Regime? See what the EFF has to say. http://www.eff.org/deeplinks/2011/04/open-wireless-movement

ABOUT THE AUTHOR

David M. Adler, Esq. & Assoc.: Safeguarding Ideas, Relationships & Talent®

Entrepreneurs, Litigation, Media, Small Business, Social Media

NLRB Raising Profile of Social Media in the Workplace

According to the National Labor Relations Board, the Thomson Reuters Corp. Social Media policy may be violating federal law. At issue is the company’s Twitter policy. The NLRB maintains that it improperly restricts an employee’s right to use Twitter to discuss working conditions with co-workers.

According to the Newspaper Guild, a labor union representing Reuters employees, Reuters publicly disciplined reporter Deborah Zabarenko for posting a Twitter message that said, “One way to make this the best place to work is to deal honestly with Guild members.” The NLRB is taking the position that Reuters policy impairs employees’ rights to discuss working conditions and that it applied the policy improperly.

This marks the second case initiated by the NLRB involving a company’s social media policy.

In the first case arising last October, American Medical Response of Connecticut Inc. allegedly violated labor law when it terminated an employee allegedly for criticizing her boss on Facebook.

The significance of these cases should be clear to any business. First, it is important to have a Social Media policy in place. More importantly, however, Social Media policies need to be written with legal and regulatory compliance in mind. An overly retractive Social Media policy or one that penalizes employees for expressing protected speech will result in legal liability.

Advertising, Branding, Chicago, Content Development, Copyright, Creative Content, Entertainment, Entrepreneurs, Infringement, Litigation, Media, Monetizing Content, Social Media, Uncategorized

Social Media Legal Risks: Copyright

Understanding Social Media Legal Compliance

The use of social media for marketing and advertising purposes is one of the fastest growing areas for publishers. The advent of social media sites like Facebook, Twitter, YouTube and LinkedIn provides the opportunity for authentic interaction and engagement with customers. Therefore, it is no surprise that these services and others are being used as marketing tools by companies large and small to help them achieve their strategic goals. But with every technological development and opportunity, new legal and business risks present themselves. Understanding and minimizing these risks will help you maximize the opportunities.

How does copyright law impact social media?

Copyright protects “original works of creative authorship fixed in a tangible medium of expression
What this means:
- any content whether (a) created by you, (b) by some one else at your request, or (c) by an independent third party IS PROTECTED BY COPYRIGHT [Note limited exceptions (e.g. government works, public domain) and work-for hire]
- GET PERMISSON FIRST if the content is not created by you or under a written work-for-hire agreement
Practical Applications
- Can placing a hyperlink to a photo on a publicly-accessible Web constitute misappropriation of the photo?
- Can an advertiser’s use of a photo from a publicaly-accesible photo-sharing web site constitute misappropriation? YES
- Are “Tweets” protected by Copyright?
- Is Tweeting a Conference Lecture a Copyright violation?
- Is Tweeting a Major League Sports event a Copyright violation?

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AllFaceBook Presents AF Expo San Francisco June 27-29, 2011

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Understanding Social Media Legal Compliance

About the Author

David M. Adler, Esq. & Assoc.: Safeguarding Ideas, Relationships & Talent®

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