Archive: September 2009

September 24, 2009

Competitor Keyword Bidding = Lawsuit?

Sander Morehead at Woods, Fuller, Shultz and Smith P.C. here in Sioux Falls was kind enough to let us re-purpose the article below on our blog. It's a great read for those who engage in competitor/trademark PPC bidding and details some pending litigation that could drastically alter the paid search bidding landscape.  It's a bit early to be hitting the panic button, but this is a case we'll certainly be watching closely.

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Keyword Bidding as Tactic to Foil Competitor Ruled Infringement
By Sander Morehead • sander.morehead@woodsfuller.com

Sander’s areas of law include: Commercial Law, Intellectual Property, Litigation
One year ago, we provided information about an internet advertising practice known as “keyword bidding.” Federal courts were divided as to the legality of certain kinds of keyword bidding. In light of recent developments, business owners face ever-increasing risks of litigation if they bid on internet keywords that are similar to their competitors’ trademarks.

KEYWORD BIDDING REVIEW
Keyword bidding is part of the “pay per click” advertising model. “Pay per click” is used on search engines, advertising networks, and content sites, such as blogs. Advertisers pay their host only when their ad is clicked. With search engines, advertisers typically bid on keyword phrases relevant to their target market. For instance, a law firm might bid on the keyword phrase “internet law.”  Websites that utilize pay per click ads will display an advertisement when a keyword query matches an advertiser’s keyword list, or when a content site displays relevant content. Such advertisements are called sponsored links or sponsored ads, and appear adjacent to or above the unsponsored, standard results on search engine results pages.

COMPETITIVE KEYWORD BIDDING
As keyword bidding became a common advertising practice, competitors began bidding on each others’ trademarks. For instance, if Coca-Cola bid on the keyword “Pepsi,” then when an internet user typed “Pepsi” in an internet search engine, an ad for “Coke” might appear in the sponsored links and/or sponsored ads of the search engine’s results page.  Predictably, trademark owners, especially those with well-known and recognizable names, began filing lawsuits against competitors who engaged in this practice, alleging trademark infringement. 

When we first brought this issue to our clients’ attention a year ago, courts were somewhat divided over whether bidding on a competitor’s trademarks could constitute trademark infringement. Courts from the Northeast, including the New York Federal District Courts, regularly dismissed suits based on competitor keyword bidding, holding that the practice could not constitute infringement. Meanwhile, courts from Virginia, Minnesota, and the Ninth Circuit Court of Appeals permitted such suits to move forward.

That division no longer exists. In a recent case, Rescuecom v. Google, Rescuecom brought a trademark-infringement action against Google because Google permitted Rescuecom’s competitor to bid on its trademark as a keyword. The New York trial court dismissed the suit, noting the split of authority discussed above. The Second Circuit Court of Appeals reversed that decision, and also expressly disapproved of earlier decisions dismissing similar lawsuits. That lawsuit is now moving forward. 

What this means is that there is no longer a split of authority. The only courts that expressly endorsed the legality of the practice have been overruled. Parties may maintain lawsuits regarding this advertising method in most, if not all, jurisdictions. If you are currently using internet keyword bidding as an advertising method, or if you are considering entering this exciting advertising market, you need to be aware that if you bid on another company’s trademark, you are taking a significant risk that a trademark infringement suit will follow.   

NOTICE: This article is intended to provide only general information. It does not represent a legal opinion or advice regarding any particular case or issue. Transmission of the information is not intended to create, and receipt of the information does not constitute, an attorney-client relationship. For legal advice on a specific matter, please see counsel. © 2009 Woods Fuller Shultz & Smith P.C. All Rights Reserved.
   

September 23, 2009

In the News: Mobile Marketing Trends

Below is an article from a recent edition of the Sioux Falls Business Journal discussing the increasing popularity of mobile marketing.  Click Rain was asked to provide insight on the future of mobile, as well as the opportunities and challenges that marketers face with this emerging medium

Mobile marketers tap into texting trend
By Luke Tatge, for the Sioux Falls Business Journal • September 23, 2009

As more people use mobile devices, marketing and text-solution companies in Sioux Falls see merit in developing mobile-marketing strategies.

For example, 2DigitMedia Inc., a local mobile phone text-solution company, provides technology and tools that marketers and businesses can use to engage mobile phone text customers.

Robert Amundson, a former aerospace engineer who worked with organizations such as Lockheed Martin Corp. and NASA, is the CEO and president of 2DigitMedia, which opened in January. He had written a business plan that was selected to be a part of the Governor’s Giant Vision Business Awards program.

Mark Schuler, an investment banker who previously worked with Wells Fargo and is now the chief financial officer and vice president of 2DigitMedia, said use of mobile means as a marketing tool is on the rise.

“The growth curve is enormous,” he said. “Very few people understand the technology.”

2DigitMedia has worked with Taylor’s Pantry. Part of the convenience store’s marketing strategy was to use text messaging to send discounts and digital coupons to consumers. According to Amundson, the idea was to take them away from the pump and drive them into the store.

“We don’t want to become spam,” Amundson said. “You have to really think, ‘Is it a value to that customer?’”

People want value in each text they receive, in case they have to pay for it, according to Paul Ten Haken of the online marketing firm Click Rain Inc. He said discounts or valuable information typically are acceptable subjects of marketing texts.

Click Rain “uses text messaging as a way to send out a little nugget of online marketing once a month,” Ten Haken said.

“You’ll reach a certain demographic with mobile marketing, but it’s definitely a tailored and targeted demographic,” he said.

Click Rain has done three or four text-based campaigns. One involved polling patrons about their preference in coffee drinks. Ten Haken said two important results of a poll such as that are consumer engagement and the consent of the users to receive future texts.

“One of the biggest challenges of mobile marketing is to build a list to send to,” Ten Haken said. “You have to grow your own.”

Ten Haken said the difficulty in using texting for marketing purposes lies in the retrieval of cell phone numbers. People have to opt in to receive texts from a group before the number is obtained.

“In a lot of ways, people protect their mobile number like their Social Security number,” Ten Haken said.

Obtaining mobile clients can be a difficult task, Schuler said. Under standards set by the Mobile Marketing Association, which strives to stimulate the growth of mobile marketing and associated technology, not abiding by regulations can result in losing a built-up contact list.

Amundson said American consumers’ anxiety about spam because of experiences with e-mail might prevent them from opting into text message lists. But because cell phone companies and the marketing firms that represent them do not sell consumer information, the data “belongs to the phone companies and the customers we represent,” Amundson said.

Ten Haken stressed the importance of creating mobile versions of a company’s Web site in order to successfully market to mobile users.

“The challenge a lot of marketers face with texts is the limited number of characters,” Ten Haken said.

Texts must be kept to 160 characters. “It’s kind of an art,” Schuler said.

Amundson said there are so many possibilities when it comes to text message marketing.

“We’ve just let our minds run sometimes,” he said.

One stage of the growth of this type of marketing can be seen in the real estate business, Amundson said. It’s becoming more common for Realtors’ signs to have a text option in which, upon making contact, the consumer receives information about the property, and the Realtor obtains the potential client’s phone number.

The key components of a successful mobile-marketing campaign include text messaging, mobile advertisements, a mobile version of the company’s Web site and inclusion in search engine results, according to Ten Haken. Companies need to make sure that their contact information and content is submitted to a mobile search, he said.

Ten Haken said integration with Web-based networks also can be advantageous.

Sites such as Twitter and Facebook often are accessed through individuals’ mobile devices. But the same rules apply as before – the information being texted or sent via Twitter or Facebook needs to have value, Ten Haken said.

Amundson and Schuler would like to take their business further.

The next step involves secured technology and encrypted messages that meet privacy guidelines and can be used in places such as hospitals, Schuler said.

Amundson suggested the relevance of text messaging in the medical industry could involve anything from setting up appointments to reminders to direct communication between nurses, doctors and patients.

September 14, 2009

Intuit Acquires Mint

I've used Mint sporadically for the past year and tried my darndest to make it a regular part of my online routine.  At times, it's a great app. Things like the SMS alerts and 2.0-esque interface have made it one of the slickest SaaS solutions to come out in the past couple of years.  At other times, however, you can tell they still have some wrinkles to work out with sporadic bugs/loading issues and some limited financial access (e.g. I don't believe my local bank - small but not tiny - has yet to be Mint-approved thus, making the app fairly unusable for me). However, they've made steady interface improvements as of late and have grown their user base to 1.5 million strong. It's those reasons, among others, that lead Intuit to acquire them today for a $170 million bargain. On the surface, it appears to be a win-win.  It's certainly not rare to see the big boys gobble up a 2.0 start-up before they turn into a bona fide competitor. Seems like Mint was getting close, if not already there. Good for them. And hopefully, good for Mint users as well.

September 07, 2009

Twitter is so in, it's out

Next week, I have the opportunity to give a couple of presentations at the Upper Midwest CVB Conference on Twitter and social networking in general.  In preparing for the presentation, I am coming across some great stats. While several jumped out at me, a couple of them leaped - most notably, the fact that 72.5% of all Twitter users joined during the first five months of 2009 (Sysomos, June 2009).  While it's clear that the Twitter boom shows no immediate signs of letting up, I've been seeing more and more heavy Twitter users start to throttle back their use.  Their posting frequency decreases, their participation in dialogue with other users declines, and their initial zeal for Twitter starts to wane.  These aren't Twitter newbies, either.  These are early adopters who have been on on the Twitter bandwagon from the start but who are now beginning to feel bored and, in some cases, overwhelmed with the increasingly crowded Twitterverse in comparison to the peaceful and sparsely populated Twitter of old.

I'm certainly not saying that Twitter is on the decline because that is clearly not the case.  However, I can't help but sense a certain level of apathy setting in with veteran Tweeps - myself included - as they wonder where the social journey will take them next. While the concept of social networking is here to stay, like sands through the hourglass so are the vehicles of the social networking space. I'm anxious to see where the journey leads next. I bet MySpace is too.

September 02, 2009

Five Common PPC Mistakes

We've been elbows deep in paid search projects lately - some that we've setup from scratch, others that we've inherited.  Paid search is a great medium for those who love numbers and stats.  Being able to track users from first click through conversion and backing out an ROI causes us to geek out a bit.  Here are the top five pitfalls we typically see relating to paid search that causes what could be a great campaign to sputter along in mediocrity.

  1. Poor ad group setup
    Dumping keywords into a single ad group and not optimizing ad groups properly can cause quality scores to wane and CPC's to grow.
  2. Too narrow of a keyword list
    Throw the net out wide and see how many fish you can pull in the boat.  Too many campaigns target too tightly and end up missing some low-hanging fruit.
  3. No A/B testing of ads
    No brainer, right?  Use a champion/challenger approach and make sure you know what terms and copy are resonating with your audience.
  4. Landing pages lacking clear calls to action
    Assume your users are idiots.  Place a huge and easy to recognize call to action right in front of them and don't make them work for it.  Keep is simple.
  5. Haphazard bidding practices
    Blanket bidding across all phrases or overbidding on poor converting phrases can quickly zap a budget. 
There's obviously more to it that this, but these are a few of the more common mistakes that can cause your paid search campaign to live in mediocrity.  If you have a poor performing campaign, give us a shout and we'll help bring it from good to great.  Or bad to great.  Hopefully not great to bad, though.