Shameless Plug & Follow-up

A shameless plug for the blog post which I wrote for Latitude earlier this week, Google off the hook, but is anyone else left on it? following the judgement from the ECJ on the 3 Google Adwords cases referred to it from the French courts.  Please click on the link, because if I'm the employee with the most clicks on  the Latitude blog this month I could win the monthly blogging competition :-)

Plug over.

Now for the follow-up:

Obviously this isn't the result which trademark proprietors were hoping for, and since writing that post I've seen a number of reports in the blogosphere suggesting that enforcement costs for protecting brands online will rocket (see in particular this post from World Trademark Review).  We'll just have to wait and see if the price per click of branded keywords does increase, but I think to say that the costs of enforcement will rocket is perhaps a knee-jerk reaction because:

(a)  What this judgement does is further clarify what type of activity does and doesn't constitute trademark infringement, and clarity can only be a good thing for all parties concerned, and so there should be, per se, less infringement.  When we have the ruling in M&S v Interflora, we'll have even more clarity.

(b) Doubtless there will be some advertisers who take advantge of the ruling, but likewise there will be those who don't.  For instance, in terms of online advertising, some sectors are more sensitive to searches against generic keywords rather than branded keywords (eg "car insurance").  Indeed, individual advertisers also take their own ethical stance in whether or not they use competitor's trademarked terms as keywords in their own advertising campaigns.

(c) What trademark owners should consider are the other ways in which they can boost their online presence, such as through improved content (price per click is not the only factor which affects the placement of a sponsored ad) and organic search results.

Lots of analysis and views to digest still, I particularly enjoyed reading Eric Goldman's analysis of the ruling Google gets favourable ECJ opinion, but will it prove a hollow victory? and IPKat's summary of comments on the 3 cases.

CAPping it off: The digital remit extension

This week the Advertising Association announced that the advertising industry recommends the remit of the CAP Code be extended to cover all online marketing communications including social media.

It’s anticipated that this will be achieved by Autumn 2010, but the move needs to be ratified by CAP and will be subject to appropriate consultation with the industry first.

The existing Code covers paid for marketing communications online (such as PPC, display banner advertisements, preferential rankings on price comparison sites etc), and so the proposed extension to all online marketing will require a change in the mindset and awareness of online publishers of any marketing communication to ensure their communications do not fall foul of the Code.

This is great news (albeit a perfect example of how the law takes a little while to catch up with how consumers and businesses use technology). Some initial thoughts and questions from me:

• What will constitute an “online marketing communication”? It’s easy to identify a stand-alone PPC or display banner advertisement as a piece of advertising, but the line can become blurred when the format changes. For instance, an online “infommercial”, which presumably will be caught as similar are caught in the offline environment. But where will the line be drawn? Or will a line be drawn at all? Arguably a company’s entire website could be classified as a marketing communication as the primary purpose it serves is to promote a business and its brand.

• Articles and “press releases” are regularly submitted to search engines and online directories for the purposes of search engine optimisation and are prepared with the expectation that the content will only be “viewed” by the search engines for the purpose of increasing the organic search ranking of the website in question, rather than be viewed by individual consumers. That expectation won’t change, but these documents will potentially fall under the extended remit.

• The inclusion of social media is the most important proposed change to the Code as there is a clear engagement and influence between consumer and marketer with this type of online marketing communication. A company’s marketing activity on sites such as Facebook, MySpace, YouTube, Twitter and all manner of blogs and interactive communication portals will need to be managed more carefully to ensure content does not fall foul of the Code. This will be a challenge to the mindset of marketers using social media which is per se a more informal and laissez-faire type of communication.

• Social media marketing communications thrive on interaction and user generated content. Will user-generated content be captured by the Code? My initial reaction is no but that’s based on the assumption that user generated content is generated by consumers (whom the Code is aimed to protect) and not the company doing the marketing; but what about where user generated content is generated by representatives of the company posing as consumers or persons recommending that company’s products or services? How will this type of undercover online marketing be dealt with?

• In terms of twitter: Will a company’s entire Twitter stream be captured by the new remit, or just those tweets comprising a branded marketing communication? What about the Twitter stream of an individual associated with a company but who tweets for themselves, albeit their association with the company influences their tweets? If a marketing communication is tweeted, and is non-compliant with the Code, will any re-tweets of that original tweet be treated as non-compliant also?

I'm on consultation watch, and look forward to hearing other thoughts on how the extension of the CAP Code will potentially affect online marketing practices.

5 Twitter Best Practice Tips for In-house Counsel

In my previous post 5 Reasons for In-house Counsel to use Twitter I encourage in-house lawyers to embrace Twitter. Now here’s some best practice advice on making the most of Twitter specifically for in-house counsel:

1. By its nature, Twitter is a personable and informal means of communication, but be careful not to let your professional standards drop. This is particularly important if your Twitter profile identifies you as a lawyer and more so if it identifies the link to your employing company. For instance, whereas a lawyer for a private practice firm might be able to comfortably tweet “worked on defence to a fraud case today” and the lawyer/client privilege is not necessarily breached; but tweeting about your exposure to a fraud case as an in-house lawyer might not be the best PR you could be giving to your company.

2. On Twitter you represent yourself, your legal skills and profession and your employer. How do you balance these 3 potentially conflicting interests? Personally, I manage this risk by running two separate Twitter accounts: one protected account for my personal Twitter feed and a public account for my @in_house_lawyer tweets which I keep strictly professional. (Does this make me a Twitzophrenic?). Other users of Twitter merge their personal and professional tweets side by side. Twitter is a flexible tool, so experiment to find the best way for you of balancing your individualism and professionalism.

3. Twitter is a great information resource, yes. But, as a lawyer, rely on it with caution. No matter how authoritative your fellow Twitterers appear, Twitter is not a source of legal authority. Your information stream is limited to the people whom you follow, their quality of resource, accuracy and currency and also their “take” on a piece of information. Not to mention disseminating all of that into just 140 characters.

4. Connected with the previous point, very often you will see a tantalising tweet luring you to click on a link to a helpful article – you review the full article and then see the date at the bottom, its 6 months old! Twitter prides itself on being “real time” and as such there is an expectation of currency of information to be available on Twitter, and largely that is true, but that doesn’t always manifest itself in tweets and re-tweets of information sources. Top tip: when clicking on a link to a third party PDF or article the first thing you should do is check the date of that piece of information, not forgetting the jurisdiction it relates to (Twitter is a worldwide information stream).

Also beware the tweeters who post links to sites which appear to contain helpful information which is bang up-to-date, but which you then have to pay to download that information. These types of tweets are few and far between, but just one to watch out for.

5. To make the most of Twitter as a networking tool and information resource you need to mange who you follow with some regularity. Don’t feel compelled to follow back everyone who follows you, likewise don’t be offended if someone you follow doesn’t follow you back. Everyone uses twitter differently. The value of Twitter as an information resource for you lessens if your information stream becomes diluted with irrelevant or unhelpful information. Refresh who you follow every once so that you don’t miss out on new Twitter users who it might be mutually beneficial to follow. Having said all of that if a user directs a comment to you, it is Twitter etiqueete (Twitiquette?) to respond, even if you don’t follow that user.

More generally, I recommend reading Twitter’s own best practice tips for general use of Twitter, and The Creation of Twitter Best Practices on Ogilvy PR (an older article (see advice in point 4 above!) but the advice still rings true). I’d love to hear your best practice advice for in-house counsel using Twitter.

AdWords, Links & a Ticking Clock

I’ve been expecting 2010 to be a busy year for developments with the pending litigations relating to online infringement of brands when used as keywords to deliver sponsored search results, and yesterday I posted a blog for Latitude about it.  The purpose of that post was to bring non-lawyers up to speed with the topic but do feel free to comment there on any of the legal implications of these cases should the mood take you.  Meanwhile, here are a few useful legal links on the subject for the lawyers amongst you:

Eric Goldman’s Technology & Marketing Law Blog continues to be a first class source of updates on the US Google Adwords litigation; he is meticulously in backing up his blogs with a raft of legal sources and links and his comments are insightful both in terms of the legal ramifications and also in terms of well-spotted human-error and oddities (see his commentary on the Flowbee litigation linked below for a case in point).

Eric has recently blogged on the decision by Rescue.com to drop its lawsuit against Google (seemingly because of the duplicitous position which the plaintiff found itself in by arguing both sides of the coin in parallel lawsuits, and also because of the sheer length of time the dispute has now been dragging on for), the Jurin case (in which the keyword seller v advertising seller argument surfaces), and the transfer of the Flowbee litigation (by invoking the venue selection/governing jurisdiction provisions in its Adwords contract); and on top of all of that he also helpfully maintains a running record of all Adwords cases on the books in the US.

Moving to Europe, back in September 2009 the Attorney General gave his opinion on the 3 French Google Adwords cases which had been referred to the ECJ for judgement. The AG comes down on the side of the search-engines, a position which some commentators have referred to as a mistake, so we will have to wait and see how the ECJ ultimately rules. In addition, we’re expecting judgement on Interflora v M&S and L’Oreal v eBay from the ECJ. We are tantalisingly promised opinions in “early 2010”....tick tock tick tock...

Branded: Part 2 Donuts & Carnivals

In my earlier blog post Branded I set out on my quest to turn my in-house lawyer brand into a household name (or maybe that should be business hold name?) renowned the world over. The quest continues. I’m now pleased to be a contributor to the Law Donut Blog which offers free legal information and resources to people running smaller businesses. I’ve promised to work on my first series of contributions, musings and thoughts; although, said contributions, musings and thoughts might be more quickly inspired by the delivery of some Krispy Kremes to my desk....a-hem....moving on....

I was also interested to learn this week about Blog Carnival, a collection of blogging communities working together in shameless self-promotion. I’m all for that, and rather conveniently the UK Blawg Round Up community are currently in the process of organising their Easter edition hosted on this occasion by Peninsulawyer with the theme of "new beginnings". Another blog opportunity for me to muse upon and I encourage other UK law bloggers to contribute to the carnival also.

Speaking of readers of this blog, I thought it would be useful to know if there were actually any. So in a burst of ‘techiness and inspired by my digital marketing type colleagues at Latitude I incorporated Google Analytics into the HTML code of my blog (I needed a drink after this technical endeavour) to monitor hits and conversions, and much to my relief discovered that there are indeed readers of this blog. Phew.

Now, it seems that all I need to do to reach the highest echelons of legal blog brand fame is to get myself a dinky little animal avatar like those of the wonderful Technollama and IPKat.

Are you an in-house lawyer developing your brand? Let me know how you’re doing it (or how I could do it better!) by leaving your comments below.