Blurred lines: really part 2 this time

Sorry for earlier posting difficulties. 

The Lessons of Nauru
Bob Garfield, Co-host of On the Media and MediaPost columnist

Nauru: was wealthy; phosphate resource from centuries of built up guano was valuable, but only took 50 years to destroy, and now poverty is endemic.

[came in on the middle] The advertorial: “Borrowed interest”: most advertisers have been willing to label, relying on format and proximity to real ads.  Never a really big revenue generator or ethical problem in the newspaper days.

That was then.  Atlantic/Scientology: the most incriminating example of media prostitution.  Actually less worrisome than far less lurid publisher-advertiser dalliances, because this was so over the top that it was instantly pounced on. The real danger is what’s undetected.  The Atlantic also ran an IBM ad “Why Social Media Matters for Your Business,” but consumer wouldn’t be likely to recognize it as an ad. Doesn’t the reader have the right to know whose interests are being served by the content? Media means in between; the whole point is to have a third party at arm’s length. If IBM is such an authoritative source, why the charade? Why not proudly slap their authoritative logo over everything? Well, then it would be an ad that no one would read; that’s the central truth that can’t be rationalized away. It’s all based on consumer confusion. IPG MediaLab/Sharethrough study found that study subjects were 25% more likely to look at a native ad than a banner; they’re proud of this!  Native ad isn’t merely a deception, it’s a conspiracy. Even worse: the fake link/clickbait headlines as if editorially generated.  Wrappers for get rich quick schemes. 

Maybe you think these are suckers, or that an entire industry shouldn’t be condemned for a few bad apples. But the stakes are higher.  Native ad from Forbes, one of the most aggressive but also straightforward—type mimics rest of publication, but brand voice logo is prominent and at least there’s an explanation if you care to click through.  “The New ‘4Ps’ of Social Business Marketing.” That content migrates.  Within 8 hours of hosting, it had also shown up on 162 sites, and as far as those were concerned the source was simply Forbes.  The internet doesn’t know you’re a dog, and it doesn’t know you’re an ad. And here we are talking about this as if it were some sort of a savior. 73% of online publishers association already accept native ads, and 17% more to come soon!  Even though as currently deployed it violates the most basic publishing ethics.

Why? Existential crisis is always a bull market for noble ends invoked to justify dubious means. Save journalism from destruction!  If the police are underfunded, we do not think that a good idea is to sell badges and uniforms to whoever wants to buy them, on the theory that it will produce revenue and some of the ‘cops’ might deter crime by virtue of hanging around.  Trust is not meant to be a barter item. If trappings of trust can be purchased, public is exposed to deception. WGN’s “High Dividend Stocks of 2013” aren’t really from WGN.  We aren’t being saved.  To the contrary, Edward Wasserman, dean of Grad School of Journalism at Berkeley: accelerating towards more sponsored content will only deepen confusion and intensify mistrust.  Back to Nauru: Publishers are getting rid of their most valuable resource, one boatload of shit at a time.

Panel 2: Consumer Recognition and Understanding of  Native Advertisements

Moderator: Michael Ostheimer, Staff Attorney, Division of Advertising Practices, FTC

Panelists:

Chris Jay Hoofnagle, Lecturer in Residence and Director of Information Privacy Programs, Berkeley Law & Technology Center

We’re testing deceptiveness.  Advertorials can be understood as deception by omission/manipulation of schema.  Do native ads cause people to be confused about source of information?  Is lack of disclosure misleading? 

Methods: online survey, inherently not random.  Extrapolation is an issue.  Studying targeted advertising. Bought lists of consumers. One tranche: consumers vulnerable because of situational factors. Another: consumers who had some underlying condition. Another: subscribers to financial journals.  A control group of randomly selected internet users.

We put a native ad in context of a health blog.  Disclosure “sponsored report.”  Not clear who the speaker is. Manipulated background; lacked indicia of being health professional. Asked respondents was the material on diet pills written by journalists/editors, someone else, or didn’t know? 27% said journalists/editors, 43% someone else, 29% didn’t know; no significant differences between groups.

David J. Franklyn, Professor, Director of the McCarthy Institute for IP and Technology Law, University of San Francisco School of Law

Studied what people understand about paid/unpaid ads. Asked questions, showed screenshots of actual search results. Over 10,000 people in several countries. People often skip over labels without even noticing them; a majority didn’t know what “sponsored” meant.  Even when there’s a pop up. The notion that everyone knows, from this morning, is not true—we don’t have homogeneous consumers in terms of what they know or what they want. 60-66% people couldn’t identify paid and unpaid areas of the search results. People remember labels that have never been there. Highly conditioned to see what they’ve been conditioned to see through graphic context. Context matters more than labels. When it looks like a story, people think it’s a story. Context was a different matter online than offline, and it’s different mobile v. laptop.

1/3 of people say they don’t care; 1/3 say they’d click on something more readily if it was an ad. Protecting the consumer from what? If they want to be entertained by a paid placement and don’t care about differentiating—we found real differences in consumer preferences.

We also tested disclosures/disclaimers. They’re highly context specific and wording dependent.  As a general matter, initial attention is higher to labels at the top and left.  We continue to find consistently, in Europe and the US, deep confusion about paid and unpaid.

Jamie Cole, Creative Director, Red Barn Media Group

We do branded magazines for brands. Leverage content out to social media channels. Product is sometimes presented as solving problems but only when the brand owner wants it.  Magazine is presented as a benefit of being a customer, not a sales or promotion tool. Paper on audience reactions to brand journalism: looked at print journals only.  Looked at product involvement to make sure our variables weren’t affected by previous product involvement.  Four groups presented with four articles. Commercial frame with corporate source quoted, corporate name on magazine all the way to noncommercial. Least commercial frame with peer source quoted rated as the most credible; credibility decreased as commerciality increased. Product involvement was the biggest driving factor for any variable. Relevance: difficulty of recognition was one of the biggest issues in our research. Major limitation—how to make the cues clear enough so that participants understand commercial v. editorial. Only 2/3 recognized visual cues for commerciality despite lab setting and clear instruction. More were able to recognize corporate v. peer source but not near 100%. Likely that consumers can’t do it. Unless explicitly made aware of subtleties, weren’t aware of them at all.

Jeff Johnson, Principal Consultant, UI Wizards

Human visual perception and ad-spotting. High-res only in center 1% of visual field; perception is active, goal directed and attention limited; color discrimination is limited; visual hierarchy indicates connection; common vision problems can affect ad spotting.

Everywhere but center, eye has very low resolution: you are legally blind in the periphery.  Hold out your hand and hold up your thumb: that’s the area where you have high resolution.  At periphery, you perceive 3 dots per foot (compared to 300 dpi at center).  Our eyes jump; while they move, they see nothing; when they stop, they see mainly one word and nothing else.

Strongly goal oriented. Where our eyes move is strongly determined by what we’re trying to do. Things unrelated to goal may not be noticed, like labels on ads.

Optimized to see contrasts: edges and changes, not absolute levels. Content designers shouldn’t rely on color/shade. Use redundantly with other cues. 

Visual hierarchy segments page into different parts. Stronger hierarchy = easier to understand what goes with what. “Sponsored links” can look like a peer item and not an overarching label.

Many common vision problems hinder ability to spot ad.  Looking at mobile outside or high sensitivity to glare, ad markers can disappeared.  Buzzfeed: marks ads with color background/gray labels—but if we have yellowing in lens due to lifetime of exposure to UV (over 45) that may be very hard to see.

Dan Greenberg, Chief Executive Officer, Sharethrough, Co-Chair of Interactive Advertising Bureau’s Native Advertising Taskforce

Mostly people aren’t trying to trick you. Macro shift from obnoxious interruption to meaningful content.  (Can’t you be tricked with meaningful content? I thought that was really the point of the disclosure that it’s an ad.) Sponsored stories on FB, promoted Tweets, and everyone else is catching on.  Our ads always say “advertisement,” “sponsored,” or “promoted,” but we’re not wedded to those words. If research says more is needed we’ll find a way to get that into the placements.

Preliminary results from research: does language used in disclosure have an impact on whether or not consumer perceives a story as being paid for? Visuals and context will matter too but we looked at language. Preliminary data: statistical significance in the differences. One case showed a generalized website, some with no ad.  Even if nothing is paid for on the page, a significant percentage of users will say yes to “is there any item on this page that was paid for by a brand?” Sad state of editorial: people would say that a story about Miley Cyrus was “paid for.” People may not know what a brand was. 

Tested mobile and desktop.  Context has a major impact on perception.  Didn’t test demographics.  Can’t decouple from this data whether they didn’t notice something or whether they didn’t notice it was an ad.  Even when we tested “this is an ad paid for by a brand,” we only got up to 70% recognition that it was paid content—but other terms did a lot worse.  Even with just language there are a lot of questions about where to put it.

Michelle De Mooy, Senior Associate, National Priorities, Consumer Action 

Non-English speakers are rapidly growing US audience and especially vulnerable to things like ID theft. Trust is vital for consumers—source really matters.

Chris Pedigo, Vice President, Government Affairs, Online Publishers Association

Represent 60+ premium publishers, visited by 100% of online population each month. By the end of this year, 90% will offer some form of native advertising.  70% heard no complaints about their native advertising; 20% only had a few.  Our member companies go to great lengths to label/differentiate.  They look at native ads as another way to provide value to the consumer. They know the audience and work with advertiser to produce content that’s appealing.

Moderator: do consumers perceive ads differently?

Franklyn: there are pluralities. Some consumers say it doesn’t matter to them to know more about whether something is paid/unpaid in terms of trust, clicks. 40% say they want more clear and conspicuous differentiation and that they’d click on paid content less, or go back to it less if they knew the difference.  One takeaway: we now have immersed ourselves so much in this commercial world that many consumers don’t care and enjoy it. They (not all) enjoy the hyperstimulation of ads, want to sift through it.

Cole: we did see increased credibility from noncommerciality, but previous experience with brand influences that.  Atlantic/Scientology: credibility would be affected by previous notions about Scientology, and that would be important regardless of visual cues. Perceptions about brand are longlasting and stable; they don’t change much.  From where is consumer drawing this idea of credibility? Is it from the info itself—well-done, helpful? Is it from previous engagement of brand? Is it from mere appearance/look and feel? Is it from credibility of material around the content?

De Mooy: we don’t often talk about the content that’s missing. WebMD has traditionally been unbiased and has started to use native ads. In that case, along with other financial/health, that missing info has real costs.

Moderator: are there reasons to think some ways are more/less effective in distinguishing?

Greenberg: yes, it’s incredibly important to figure out which way to do it.  On FB, people know enough to be annoyed by Sponsored Stories.  Instagram—promoted photos.  Comment threads are all about the fact that these are ads (though many probably saw and didn’t react/didn’t know) but context matters.  Signals used on one site aren’t used on others.

Johnson: Strong visual hierarchies, like container widgets.  You have to show someone that there’s a scope in which the stuff inside is sponsored. Strong v. weak visual hierarchy as example.

Moderator: when an ad is designed to look editorial, are there reasons to believe even clear disclaimers won’t work?

Hoofnagle: even a disclosure in the title left 27% confused in our study. There are underlying issues: 27% is a sufficient number to be considered a reasonable consumer. Are these likely to mislead a reasonable consumer to her detriment? There are large gulfs between how publishers and advertisers are talking about consumers and how consumers perceive these disclosures. We heard publishers say their readers are smart. This is no doubt true but in some sense irrelevant because the question is whether some percentage of reasonable people are confused; even smart people may come to different conclusions about what “sponsored by” means. When he thinks of sponsorship, he thinks of PBS. He does not think that BP told the McNeil-Lehrer hour what stories to run; rather he thinks BP provided underwriting. But this morning he learned that advertisers say that stories should be compatible with their products. That’s a completely opposite mental model.  Finds that totally confusing—if the direction of the story comes from advertiser to publisher, rather than the other way around, that doesn’t seem like “sponsorship.”

Franklyn: there’s been an inversion in the relation between content and advertising; what people might have thought it meant before no longer does. We recently tested pop up disclosures by search engines. Roughly 44% of people thought “sponsored” made them more confused about relationship between paid and unpaid content on the page.

Pedigo: not an attempt to deceive consumers. Our audiences are engaged and will speak up about a change in font. In our survey, 71% of members haven’t heard any complaints because they’re doing a lot around transparency and because it’s attractive content.  (I can’t tell how deliberately he’s not listening to the evidence being presented.)

De Mooy: how do you complain about that? To whom?

Pedigo: Oh, they find a way.

De Mooy: Many lower-income people use low-bandwidth, small devices—perception difficulties are already inherent, then add in language difficulties—many disclosures will be useless.

Franklyn: the winner in terms of clarity was “commercial ads”; others grouped.  Had to be sufficiently large lettering, in the right place. Didn’t win by a ton—13% compared to 6%.  Native ads have come on a platform of monetization of search from ten blue links to up to 70-80% of the page ads, some of which say “ads” and some of which say “sponsored.” People have to find what they want in that soup. When you ask them to disaggregate which signals tell them what’s going on, it’s difficult because they’re already conditioned.

Trust isn’t that important practically/in a business way. What’s important is migration of consumers with the brand through new iterations—you can make a very successful business with very partial trust, and that truth needs to be told. You can’t rely on the promise we kept hearing this morning that “we have to be trustworthy or it would be bad for business.”

Johnson: In studies, many people just didn’t see the labels. Everyone here should sit through a usability study of people asked to do a specific task online. You will be amazed at what they don’t see when their brain is engaged in that task. That’s where a lot of the study noise comes from: people don’t see 90% of what’s on the pages they visit/click on.

Greenberg: historically advertising proclaims itself as advertising through interruption.  No choice but to realize it—if there’s a homepage takeover, or a preroll/interstitial (especially on mobile).  What happens when ads aren’t as obnoxious?

De Mooy: language is practically worthless; not even worth FTC’s time. It’s design, context, and straightforwardness of commercial advertising as interruption. That’s the way to move forward.

We’re used to advertisers paying for the shell; people can understand that they paid for the presentation of the content, but not for the subject matter/the content itself.

Franklyn: we will test if consumers understand/care about who wrote the content.  “Sponsored by,” he thinks, won’t materially increase that sort of awareness.

(someone) no silver bullet for different platforms, kinds of audiences.  Terms work differently for 16-year-old girl than for Home & Garden reader; publishers know their audiences, and can work with advertisers.

Hoofnagle: Many companies that used “sponsored by” used a grey color and a smaller font; this is important. Also think about how people think about “partnership.”  HuffPo Partner Studio: the claim is this clearly discloses to consumers that this is an ad. I wouldn’t think that at all!  Lawyers don’t think that. Partners aren’t at arm’s length, but we had one panelist this morning say “we worked with a partner at arm’s length.” Also, intent doesn’t matter. FTC doesn’t have to prove intent to deceive the public. So you may not be setting out to deceive; the question is whether you are misleading consumers to their detriment.

Franklyn: there is detriment to some people. Who will you choose to protect?

De Mooy: sometimes the issue is what content is missing.  Pharmacos pay for pills, but no one pays to educate consumers about holistic methods.

Q: Use of labels like “what’s this?” to ID native advertising.  Or ads only ID’d by Ad Choices logo—does that work?

Franklyn: only 11% are likely to roll over icon for explanation, and of those 44% were more confused when they did.  Icon rollover is a low baseline for getting attention.

Greenberg: think of conversion funnels. Traditionally 100% of people who saw an interruptive ad realized it because there was no conversion funnel. In a FB feed, you see the ad, then your brain recognizes the story before you recognize it’s an ad; disclosure is maybe needed before I decide to click.  Only 50% read the story they clicked on, if that.  Now you’re down to a much smaller percentage who sees the ad, much less realizes it’s an ad.

Johnson: the icon was never intended to convey meaning to those who didn’t know what it meant. Its intent was to remind you of the function that you already know about—like printing, deleting, whatever; it’s extremely difficult for any graphic artist, no matter how talented, to create an icon that conveys meaning without prior knowledge.

Q: what design techniques might make it more or less clear that something is an ad?

Johnson: strong visual hierarchy, boldness—all they can do is increase probabilities; they can’t guarantee anything. Eyes move semi-randomly according to people’s goals.  Movement will move eyes in the direction of movement (periphery needs to check for danger).

Cole: context—if you’re trying to make content look as much like the content around it, the less you disclose the more effective it will be.

De Mooy: doesn’t that mean you’ve effectively tricked people?

Cole: yep.

Franklyn: if you’re talking about internet search, we found that chopping up the page in a more clear way—ads are only going to be on the right side, algorithmic results only on the left—if you could have architecturally mandated segmentation, then people can learn what things are. How that applies to native advertising is unclear because it’s deliberately mashed together. Architecture is not a solution for that fully paid page.  Pop up warning you’re on a paid page? If the goal is clear differentiation/consumer understanding, that’s very hard because the market has overwhelmingly blurred lines and consumers have accepted it largely because search is free and it’s stimulating. 3- or 4- or 5-sided market; consumer acquiesces in use of personal info for targeted advertising, and as long as that bargain is on it will be very hard to regulate.

De Mooy: some analogy to Do Not Track: bring it out of the shadows.

Pedigo: consumers do have choice. If they feel they’re being duped by native ads, there are a million other websites for any other content. Our members are very sensitive to this. If they lose consumer trust, they lose out completely to Joe Blow blogger down the street.  (I’m with Franklyn on this one. Moralistic and convenient to say, hard to believe.)

Hoofnagle: Homo economicus does not surf the internet. Real people don’t have that perfect option weighing available to them.  There’s not a real market where they can understand the price and incorporate that into their decisions—cf. FTC guidelines on use of the word “free,” which discuss its powerful psychological effects on the listener.

Q: will certain populations have more trouble recognizing native ads?

Answers: seniors; lower socioeconomic status groups; varies based on race.

De Mooy: poorer people have smaller devices, slower download times; unfamiliar language. Spanish language sites are often aggregators of translated information; very unclear where information comes from. Hard to tell even how to figure out where it came from. We know that people in underserved communities are at more financial risk of fraud online. They deserve special consideration in regulation. Financial advice and health impact are special categories.
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Blurred Lines: Advertising or Content? An FTC Workshop on Native Advertising

Blurred Lines: Advertising or Content? An FTC Workshop on Native Advertising

Welcoming Remarks:  Edith Ramirez, Chairwoman, FTC

Advertising integrated into digital content. Recent survey of online publishers: 73% offer native advertising opportunities and 17% considering. 41% of brands and many ad agencies currently use it and more hope to do so. Hope to capitalize on publishers’ reputations.  Critics argue this improperly exploits consumers’ trust or deceives them outright. Proper disclosures can manage this risk.

A Historical FTC Perspective: Advertorials, Infomercials, and Paid Endorsement

Lesley Fair,  Staff Attorney,  Bureau of Consumer Protection, FTC

Settlement: FTC settled with Munsen Specialty Co., in vol. 1 of FTC decisions, 1917—deceptively promoted high tech product through content that didn’t look like ads.  This is not a new phenomenon.

Act or practice is deceptive if it’s likely to mislead consumers acting reasonably under the circumstances and it would be material to a buy/use decision.  Deceptive door openers: salesmen literally got in the door by claiming to be surveyors, but were actually selling encyclopedias. This is an example given in the 1984 deception policy statement: when the first contact is made deceptively, this leads to a violation.  FTC 1968 advisory opinion on ads in news format: e.g., local restaurants with a promotion that interviewed the chef and discussed the specials/prices.  FTC concluded that where the column had the appearance of impartial, independent and unbiased view, but was in fact paid by advertiser, disclosure must be clear and conspicuous.  FTC considered not just what promotion said but impression conveyed to consumers by visuals: examines net impression.  Also deceptive mailings: “Prize Notification Bureau” with “State of California Commisioners of Registration” seal—FTC v. National Awards Service Advisory, 2012—tricked people into paying $20 to claim the alleged prize.  Yellow sticky note post-its that appeared to be handwritten and directed specifically at the recipient, but mailed to millions of consumers—again, FTC action. 

Infomercial formats too.  “Consumer Challenge” compared to 60 Minutes and 20/20; the pitch was given during snippets of the purported show with “investigative reporters” that claimed to investigate “popular” products. Commission did not challenge the underlying product claims, but the false representation of independent investigation when it was really just an ad.  FTC has challenged format as deceptive in both TV ads and alleged radio call-in shows.

Materially falsifying header information in spam email is illegal and even sometimes a crime.  Still fighting websites that appear to be news—“Health 5 beat” or “News 6 News Alert”—allegedly falsely claimed to be reports that appeared in ABC News or even Consumer Reports; reporter sometimes claims to have lost weight herself.  FTC has filed two dozen suits against people selling the pills, the people who put together the fake news sites, and the affiliate networks that use them.

Material connections between advertiser and endorser should be clearly and conspicuously disclosed where the audience wouldn’t expect it, as always. Thus, settlement from 2010 over PR firm that had people post reviews of a game on iTunes on behalf of the game company.

Staff letters sent to search engines on this issue.  Staff recommends sites ensure any paid ranking search results are distinguished from non-paid with clear and conspicuous disclosure; no affirmative statement is made that might mislead consumers about the basis on which the search result is generated.  Reiterated: 2013, paid search results have become less distinguishable, but consumers ordinarily expect that natural results appear from relevance, not based on payment—including a site in whole or in part because of payment is advertising; consumers should be able to distinguish paid and natural.  Specialized search should also be reviewed. Disclosure should keep pace with delivery of information.

The Wall Between Editorial and Advertising: Its Origins and Purpose

Nicholas Lemann, Professor of Journalism  Columbia University Graduate School  of Journalism

Street sales as a business model required timely and attention-getting content.  Advertising became important to revenue in late 19th century (after political sponsorship declined). Large audiences gave papers argument that they could help advertisers sell. As early as the 1870s there were discussions of distinguishing editorial from advertising content. Complaints about “puffs” touting advertisers’ products without revealing connections.  Colliersmagazine published expose about patent medicine industry, including advertising practices.  “The Patent Medicine Conspiracy Against Freedom of the Press”—the standard ad contract between patent medicine companies and newspapers declared it subject to cancellation if any material detrimental to company’s interests is permitted to appear anywhere in the paper. Helped lead to formation of FDA’s predecessor agency.

1912 Newspaper Publicity Act, still on books. Used threat of taking away lower postal rates as leverage, required newspapers and magazines to publish accurate information about ownership, management and circulation and to label ads designed to look like editorial matter. 1913 decision: upheld under First Amendment.  1914: FTC born.  Big publishers wanted to make advertising respectable, and saw advantage compared to small, less reputable local publishers.  Longterm subscriptions were beginning to replace single-copy sales as primary direct source of revenues, at least for affluent/educated audience. Sustained trust was the key to subscription revenue, which meant editorial sobriety and a potentially profitable ad strategy for prestigious brands. This required standards for content/general ickiness for ads. Partly professional pride/vanity and partly self-interest. The value proposition of the publication was trust in editorial content, and that was what they were selling to advertisers.  Vitiating that would hurt themselves.

Codes of Conduct exist against the relentless daily pressure to give advertisers something special for their business, and are generally only produced by established, big institutions, and there isn’t much like that online.  Newspapers/traditional news sources are seeing alarming declines in revenues—Newsweek was sold for $1, while the Washington Post was sold for $250 million, a fraction of former value; the WP building was worth nearly as much. Legacy organizations initially believed that established websites building on their brands would give them nearly as much revenue as before; that’s not true because advertisers can pay lower rates to reach more targeted groups of potential customers, often using sites like Facebook that have more users but produce no editorial content.

In the past, being close to WP editorial content could itself signal trustworthiness, but that world has been blown apart online.  WP thought it could go to the same advertisers with the same cost per thousand readers, but the horrible surprise has been advertisers refusing to do that online.  Why?  Don’t have to buy the whole audience; social media and search sites are competitors, offering very targeted audiences. Also, turns out WP readers online spend 10 seconds per visit as opposed to an hour with the paper; buying less attention.  This creates a sense bordering on desperation in people creating editorial news content. New publications aren’t socialized in church/state division, creating a chaotic situation similar to that when the FTC was created.

Online news organizations have begun a wide variety of advertising practices. Inventions mothered by necessity where fewer than half the entities are operating profitably online (at most).

Panel 1: Sponsored Content in Digital Publications: The forms it takes and how it operates

Moderator:  Laura M. Sullivan, Staff Attorney, Division of Advertising Practices, FTC

Panelists:

Adam Ostrow, Chief Strategy Officer, Mashable, Inc.: think of ourselves as most social media publisher; more than 1/3 of traffic comes from Pinterest, Twitter, etc. and average sharing of item is 2500.  Monetize the site by marrying themes/topics relevant to brands with editorial content that isn’t promotional but aligns with their themes.  AmEx wanted to reach female small business owners, so we created Female Founders series, profiling women in technology, presented by AmEx. Qualcomm makes chips for devices; made a series “What’s Inside,” looking at Nike Fuelband and Google Glass.  Marriott: didn’t write about why to stay at Marriott, but did a series on the future of travel—apps and devices.

Disclosure: branded content that has look and feel of standard Mashable article, but above the article, below the lead image, is the Lenovo logo and text “presented by Lenovo.”  Story stream: generally advertisers do five or more articles, and again there’s a disclosure. Display ads: banner ads for Lenovo surround the content—part of value to advertisers but he thinks it helps disclose further.  On right, below display ad, see “social widget”—promotion for Lenovo’s FB and Twitter accounts—also adds transparency.  On mobile devices, also see Lenovo logo below lead image of article, and bottom of article has display ad.

Tessa Gould, Director of HuffPost Partner Studio, Huffington Post

“Superviral” platform, most shared publisher on FB. Native ads since 2008. Sposnored listicle for Sony: article preview says it’s presented by Sony; article page says “presented by Sony” and explanation within article text.  (And at least three ad units from Sony.)  If you do social share, automatically identifies HuffPost Partner as author.

Another example: Brand blog for L’Oreal: brand/representative creates content, not HuffPost Partner Studio.  Article preview, “presented by L’Oreal.”  Original author (person) directly attributed through name and photo (though not ID’d as from L’Oreal) and we edited and published it.  Article page = “presented by L’Oreal.”  At least 3 L’Oreal ads on the page.

Another example: socialization/social promo.  Listicle for Netflix.  Dedicated HuffPost accounts on FB, Twitter, StumbleUpon, Pinterest: we identify the partner’s social media account/hashtag. When you click to share, the Netflix holiday hashtag appears.  Has to be retweeted so that it is clear that it comes from HuffPost Partner Studios.

Todd R. Haskell, Senior Vice President and Chief Revenue Officer, Hearst Magazines Digital Media, Hearst Corporation

20 magazine brands such as Popular Mechanics, all with a presence on the web. Brands built on reader trust. Harper’s Bazaar did partnership with Nordstrom, asking us to create original content on how to transition from city to country—Harper’s Bazaar widely followed on Pinterest, so we created custom Pinterest boards allowing them to explore Nordstrom/Uggs’ collection—readers could browse through shoes, share them through their own social media; click through to fully functional ecommerce experience. Our readers come to us for what to wear; how to be clear that this comes from advertiser but assist action?  Says Uggs/Nordstrom on every page.

Another advertiser wanted us to curate existing content—Tyson Nudges, a dog treat.  Took Country Living etc. which have high dog owner concentrations; clearly embedded advertising messages as part of the “best of” collection of content relating to dogs.  Same idea as Mashable/HuffPo of taking DNA of why people interact with our editorial but doing it in a way that’s transparent to readers.

Seventeen on mobile: underlying assumption is same, clarity for reader.  Keds: best kicks for back-to-school.  At the bottom, says take a look at new shoes for the season, presented by Keds. Always clearly labeled. Consistent with our values.  Reader feedback has been positive.

Jon Carmen,  Senior Vice President of Operations, Adiant

Native ads are a subset of content-style advertising. Our creation: Newsbullets: resemble a headline and displayed in the content well of news sites (hey, I learned a new term). Work with advertisers like LowerMyBills and AmEx.  Reach: approximately 80-90% of news sites in US.

Lisa LaCour, Vice President of Global Marketing, Outbrain Inc.

Content recommendation platform.  Presented mostly on the bottom of article pages of major web publishers.  “Recommended for you” for online audience—editorial or paid.  We only allow content in our network—strict editorial guidelines.  Reject about 50% of content that comes in. We don’t necessarily claim to do native advertising, but we are natively placed within the consumer environment, in the content well.  “Recommended for You:” Mix of editorial and sponsored content—when they link to the third party site, the site is listed in grey after the black headline.  “From Around the Web” has a mix of publisher and advertiser content, which discloses third-party advertiser.  Third component: “More from [X],” e.g., more from ABC News or whatever site you’re on.  On mobile very similar, same disclosures.

Chris Laird, Marketing Director, Brand Operations, The Procter & Gamble Company

Sponsored content at places like Buzzfeed—Secret Clinical, focused on people who may be overconfident. Brand travels with content through social channels—that’s why we do it. You see “confidence” in the headline.

Pantene partners with Studio One, content producer/distributor. Studio One produced the Style Glossy—associate Pantene with “style” and “getting the look you want.”  Studio One hires arms’-length writers to create and syndicate that content in other publications/media channels.  So the story shows up on Newschannel5.com and carries the bradn with it.  Native advertising is more shareable; huge percent of reach is not from direct access but sharing.

Tide: link branding to current event. Nascar race with an oil spill on track; Tide was used to clean up the oil spill, and we created content around that (15-second TV ad and long tail of content). Pushed that out through syndication.

Steve Rubel, Executive Vice President and Chief Content Strategist, Edelman

World’s largest PR firm.  How does this fit into PR? We now think of sponsored content as it relates to paid amplification. Used to amplify either earned messages we secured (pay for discovery) or to create or cocreate new content that would sit on media company channels.  We do not feel that sponsored content should trump “earned” media and journalists’ own voices; not a replacement. The two complement each other and make sure our clients’ messages/POV is communicated as broadly as possible around themes they want to be known for.

Sullivan: do traditional publishers see new opportunities in digital?

Haskell: we have the ability when we create an experience on behalf of an advertiser, we have much more ability to cross-promote it across multiple brands. Historically, Good Housekeeping couldn’t have traffic driven to it by Women’s Day. Ecosystem now allows cross-promotion into sponsored experiences—allows greater scale.  Partners like Outbrain: 3d parties can drive people from outside our own ecosystem into them. On the opposite side, when they’re created well, readers want to share them; our readers become more important as they share/give their own stamp of approval.

Gould: compared to traditional media, digital is unique around engagement: sharing sponsored content/advertorials was not easy in traditional magazines.  More eyeballs!  Increased sophistication that comes from tech—good idea who opens up your content and whether they really read it. Target to relevant demographic; track who viewed it. Timelines are shorter; brands can participate in more realtime environment.

Sullivan: concerns about transparency.  Why is or isn’t transparency important?

Ostrow: Mashable: transparency is front and center. Our readers are savvy. If we mislabeled we’d lose their trust.  Branded content is the most engaging content on the site. It’s more evergreen; we’re not creating news on behalf of the advertiser but are creating thematically related content.  The units on homepage get higher clickthroughs than display ads, 8-15x in some cases.  People are living in social streams on mobile devices, so clients come to us to be relevant there.

Sullivan: you mean that your readers understand the distinction between advertising and editorial?

Haskell: Incumbent on publisher is exercise of discretion and judgment in who we work with.  Salespeople aren’t known for this, which is why it’s important for organizations think about how to structure that into the sales process. Scientology kerfuffle with the Atlantic—Hearst wants to make sure we partner with the right brands, appropriate context. Ask will the reader feel exploited? Will it be jarring?

Laird: On risks of lack of transparency—if you lose trust with the reader/consumer, you’ll hurt your equity over time.  Transparency is brand building imperative. You want to link your brand to the content, all the way through every channel consumer might consume.  Dawn is a dish detergent, all about grease fighting. Also used to help save birds in oil spills to get grease out of feathers—great brand building because it communicates both efficacy and gentleness. Dawn has beautiful content around this concept, linked to the brand.  (This is an intriguing conflation of “linked to the brand” with “disclosed that it was placed by the brand.”)

Sullivan: what if you’re not as worried about brand equity?

Carmen: comes down to trust of reader, as well as financial aspect. We place our ads on publisher’s website and publisher gets a revenue share. If not stated as ad, clickthrough rates will be higher, but the result on the other end (he seems to mean post-click) is worse than when we do put “ad,” because the user knows they’re clicking on an ad.

LaCour: Outbrain: no links to ads, just links to content, which can be paid.  Audience within the content well is in content consumption mode. If they click on content, their mindset is that they want to read more content.  There are ads that we’ve seen that are not the same as paid content.  The difference between a landing page “buy something” v. another piece of content, whether sponsored or not, is real.  Audience and advertiser and publisher can all be happy. The industry isn’t the only one pushing for sponsored content.  Consumers are asking for it. Consumers want to engage w/brand, get more information—don’t just want brand to sell things to them.

Some discussion: display ads aren’t dead; they’re background/they work in conjunction with sponsored/branded content.  Ostrow says clickthrough on banners next to sponsored content is 2x as high as when it’s just on the site generally.

Rubel (I think, maybe wrong attribution): we think a lot about trust. Transparency plays a role. We hear a lot from publishers, marketers, and people who connect marketers to publishers. We’d like to see the audience have a voice.  They have a voice through clicks.  But less than 1/3 of US population is aware of media’s financial difficulties.  We’d like to see audience to have way to engage.

Haskell: Readers are not shy in reacting to innovation in no uncertain terms.  There has been debate about death of the banner ad; native will not kill display ads, but one supports the other/more complex ecosystem.  Readers who lose trust will move elsewhere, “vote with their fingertips.”  We go in with the idea that readers are smart and know what they’re doing.

Laird: what we love about this version of sponsored content is that we can immediately measure impact on our business result—we are on our owned asset; does she download a coupon, request a sample, post a review, place an order on Amazon.

Sullivan: ok, so you can measure this really well. But we were talking about transparency.  Are you also using that audience feedback to measure whether your readership understands how these new forms of ads work and whether they understand that they are ads?

Gould: we treat transparency as a given.  Our readers are smart and sophisticated and they’ll tell you what they don’t like.  Feedback is more a gauge of the quality of the content than the transparency, since transparency is a given.  (Or you have assumed that it worked …)

Sullivan: so what do you do to make ads transparent?

Haskell: it’s different on each one of our brands. Use advertiser’s logo everywhere. Type slug someplace can be background noise.

Carmen (I think): we have policies on asking to make sure it’s clear.

Sullivan: who makes the decision?

Gould: HuffPost has a one size fits all policy to make things as clear as possible. When we pitch ourselves to brands, we have a rigorous review process with client/team/legal review.

Ostrow: similar.  Stand firm with your policies. Advertisers always ask for exceptions.  Important that we treat branded content as editorial content—as with Qualcomm, where we talk about what’s inside, much of the content was written by our tech reporters.  Need editorial checks and balances.

Carmen: it’s a mix of publisher control—but we always insist that there be some labeling.  If nothing’s said, then we always put “advertisement” or “sponsored links” somewhere visible in the box to make clear it’s a paid ad.

Gould: we’ve been doing this for years but just now starting to talk about best practices. There are people who aren’t doing any disclosure—that’s more important than deciding what labels should be used by the disclosures.  Should distinguish news publishers from aggregators/recommenders—needs vary.

LaCour: we are a guest on a publisher’s site and want to accommodate their look and feel. We are in agreement that disclosure is required but we will talk to publisher about how it should be labeled and how it should look. 

Carmen: we have a self-service ad platform; we receive over 100 ads/day some days.  Wide variety of advertisers—small affiliates and large brands. We reject half of them. We make sure they aren’t trying to do something shady.  Our job as gatekeeper is to be hard-nosed. They can resubmit until it’s right. 

Sullivan: what about on the publisher website: if it has the same look and feel as editorial content, do you work with the publisher?

Carmen: depends on the publisher. Some say “you have to say advertisement,” while some say “don’t get us in trouble.” By default we say “advertisement” or “sponsored link.”

Rubel (I think): one way to look at it is that a common language would be clearest, and there’s a case for that. But competition is a click away. It’s better to have a more open marketplace where all different kinds of ideas around disclosure come to the forefront. Some will be exceedingly transparent.  HuffPo does a lot of testing with headlines.  In the end it’s possible that the most transparent, with the clearest language, will have a competitive advantage with the audience and therefore with the marketers.  Industry innovation/testing.  Good ideas will win out instead of having them all say the same thing. Internationally too, it varies country by country.

Sullivan: what tools are available to advertisers for transparency? Do you rely on publishers?

Laird: different review processes are available, depending on intermediary/publisher.  LaCour says that Outbrain offers publisher/advertiser control. Just like in Google, link copy is approved by brand.  Publisher then gets to determine formatting and what other words or formatting will be on the site to distinguish it as sponsored content.

LaCour: widget/container is up to publisher, then paid links within are controlled by advertiser.

Ostrow: publishers can only do so much to control tweet text, etc. So our main focus is transparency when the reader arrives.  PR agency/media agency/advertiser may buy Outbrain traffic to a Mashable article, but that’s outside our control.

Gould: we can’t control but can suggest/prepopulate tweet text.

The moderator asked a couple of times, but I didn’t hear an answer.  We have some empirical evidence about how users perceive sponsored ads on search engines and how they do or don’t understand the organic versus paid separation.  What evidence is there in publishers’/advertisers’ hands about how users perceive the kind of sponsored content they provide?  Do they know whether consumers know it’s advertising?
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perils of automated recommendation ads

A promotional e-mail from Spotify included the text “Have you heard this song by Lily Allen?  Give it a try.  Fuck You.”  The ASA upheld a complaint against the ad. Though consumers were targeted for the ad because of previous genres they’d listened to, they weren’t targeted because of similar titles, and recipients of email from a general online music service wouldn’t expect swearing.

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AU’s post-argument panel on Lexmark v. Static Control

Oral argument transcript here: Most of the questions seemed to me more favorable to Static Control, though Kennedy said almost nothing.

Steven B. Loy – Stoll Keenon Ogden PLLC, representing Lexmark

Lexmark makes printers and cartridges: position is that primary competitors are HP etc. Aftermarket developed for depleted cartridges, remanufactured/refilled with toner.  Lexmark does that too.  Static Control provides components to remanufacturers.  This case involved every potential IP claim: patent, patent misuse, antitrust, copyright.  Today was Lanham Act day: Lexmark allegedly made actionable statements: (1) told customers that refilling cartridges would infringe Lexmark’s rights; (2) told remanufacturers that refilling cartridges would infringe Lexmark’s rights and that using Static Control’s products would infringe.

First, Second, and Sixth Circuit used reasonable interest test for standing; categorical rule requiring competition in 7th, 9th, and 10th; AGC antitrust test, 3d Cir., 5th, 11th.  They advocated for AGC.

Seth Greenstein – Constantine Cannon LLC, representing Static Control Components, Inc.

Lexmark has a razors/razorblade model, making money off of supplies instead of printers.  Interested in finding different ways to restrict sources of cartridges for remanufacturers. Following patent exhaustion cases, Lexmark adopted “prebate”—advance discount on price, with a label with an alleged patent license/restriction saying that Lexmark could remanufacture it.  Lexmark adopted a technology—a chip with software that talked to printer—so that as the cartridge was used, the printer wrote data onto the chip. If remanufactured cartridge showed up with chip, printer would stop working.  Static Control’s chips mimicked Lexmark’s, allowing remanufactured cartridges to work.

Initial lawsuit: copyright infringement/DMCA violations.  Preliminary injunction against Static Control was reversed in 2004.  Also patent issues.  Static Control counterclaimed for state and federal false advertising/antitrust claims.  Static Control didn’t have antitrust standing federally, per 6th Cir.

Rebecca Tushnet – Georgetown University Law Center, representing amicus curiae, Law Professors

Why should people who are primarily interested in TM care?  Because the statutory language is the same/hard to distinguish.  Historical note: “unfair competition requires competition” and its disappearance from the case law in trademark.  Does trademark have a fundamentally different basis than false advertising law?  The statutory text is virtually identical, especially as to the relevant concepts.  Lurking issues: “commercial advertising or promotion” and its relationship to the standing arguments here.

Marc A. Goldman – Jenner & Block LLP, representing amicus curiae American Intellectual Property Law Association

AIPLA participates in almost every SCt IP case.  Supported a relatively broad test, given a membership that runs the gamut of positions.  Similar to Law Professors: congressional intent should be the key for assessing standing.  Existing tests are somewhat divorced from that. Language is very broad in the Lanham Act.  Don’t depart without really good reason.  At least congressional purpose.  Categorical test can’t explain prohibition on false association claims. AGC sometimes doesn’t even protect direct competitors. Given that, it’s the wrong test, especially the factors that look to speculativeness/duplicative potential for damages; antitrust is a very different kind of law.  Lanham Act provides injunctive relief, not just damages; factors aimed at damages therefore don’t make sense.  Antitrust is generally designed to protect consumers, while Lanham Act is also designed to protect competitors—antitrust is happy if someone sues, but Lanham Act specifically protects competitors who should get to sue.

Mary Massaron Ross – Immediate Past President of DRI – The Voice of the Defense Bar, representing amicus curiae, DRI

DRI has 22,000 members, representing businesses/individuals in civil litigation.  Experience of lawyers in trenches.  Practical approach.  Categorical test: most restrictive.  We believe a rule-like test is better in practice.  Easier to apply and outcome is more predictable and avoids ideological divergence.  (RT: 9th Circuit experience doesn’t really bear that out.)  Protects against unfair competition.  Narrower standing is good for federalism concerns.  Leave areas of state tort law unsubsumed into federal statutory scheme, which is a good thing.  Overenforcement of Lanham Act chills information available in the marketplace.  Reasonable interest isn’t enough for predictability.

Moderated by: Christine Farley – American University Washington College of Law

Farley: asked lawyers for parties to reflect on amici’s arguments.

Loy: DRI is closest to right.  A number of tests exist; AGC has worked well for 30 years in antitrust, and 15 years in the 3rd Circuit.  The alternative is not to go to a rudderless test, but a categorical test. Reasonable interest test is no more than Article III test, and obviously we need more than Article III standing.  Specific statute with specific statutory purpose: AGC test is specific to that.  Reasonable interest test couldn’t be taken at its word—added components to it that weren’t part of the test: purpose is to protect against unfair competition, but consumers universally don’t have standing.  The 2d Circuit adds a heightened showing if plaintiff is noncompetitor; we don’t know what that heightened showing is, but that’s beyond the test itself.  Zone of interest/reasonable interest requires more work, and AGC has already provided a framework, apart from determining any particular set of facts. 

Greenstein: practicing lawyers who specialized in Lanham Act lined up largely to support reasonable interest/commercial interest: false advertising distorts the marketplace, and the statute decided that private parties should vindicate that right.  Trends exist in case law applying the reasonable interest test that provide useful lessons: consumers don’t have standing, competitors do, and others with strong commercial interests can—not adding components, just jurisprudential development. Unfair competition as actual competition between parties: unfair competition is a rubric applied to various things, not just direct competition.  The language of the statute is “any person,” and Congress knows how to require competition if it wants to; it’s done so in other statutes. RT: on predictability of categorical test: 9th Circuit experience doesn’t really bear that out. Risk of overenforcement: direct competitors are the ones most likely to make chilling claims, because they have the most anticompetitive motives; if you’re concerned about overenforcement the standing test is the wrong place to look.  Claims that AGC is working well: Except where it hasn’t worked well at all, as I’ve detailed elsewhere (in the briefand Running the Gamut). AGC circuits are divided for example on how to evaluate duplicativeness of damages, and they deny standing to direct competitors. 2d Circuit is at least as active as the 3d, and no disaster/rudderlessness.  I’d have a harder time counseling someone in the 5th/11thcircuits about the law than the 2d.

Goldman: letting “any person” have standing would also be predictable. In a world where we’re departing from that, we should consider congressional purposes.  2d Circuit has focused on congressional intent, similar to the zone of interest tests as characterized by respondents.  AGC’s rudder doesn’t come from any source within the statute and produces wrong results.

Ross: Breyer asked whether consumers should be able to bring suit; should every other fast food restaurant be able to sue McDonald’s? What about the local health food burger joint?  (Wouldn’t they have standing under the categorical test?  If not, what’s so categorical?)  There’s a wide universe of potential suits and her sense of Justices’ questions was that it was untenable to let everyone in the universe, including consumers, sue; the question then is what’s the test to differentiate those who can sue from those who can’t. Using malleable words like reasonable works well in fact-based tests but that’s not good for a consistent legal determination made to treat similar cases similarly.  Static Control was urging a zone of interest test—even more fluid than many oral arguments in terms of options available to the Court.  Justices might be inclined to develop their own test as opposed to latching on to any one articulated below.

Farley: talk about the argument.

Loy: awe-inspiring. No substitute for preparation for answering questions.  The Justices are debating the issues and you’re there with them.

Greenstein: Surprising that this was the issue in this long-running case that got to the SCt, as opposed to the also interesting DMCA/patent issues.  Static Control argued for a fourth test, the test the Court applies more generally to standing where there’s no specific common law background or statutory standard—zone of interests; see who’s arguably within the zone intended to be protected by Congress. The SCt has the most experience with this, applying it in a number of settings from its birth under the Administrative Procedure Act.  Seemed logical for Lanham Act and potentially any statutory scheme. Wide-ranging conversation about different tests. There were questions about AGC’s flaws and also about the reasonable interest test.  Justice Kagan wanted to know why we didn’t just look at the statute.  Justice Scalia asked what the point of prudential standing was here.  Hypotheticals: any test will pose questions about who’s in and who’s out at the margins.

He thought the court accepted pretty clearly that Static Control had standing for claims made about Static Control’s products themselves, given the 1988 amendments.  But when defendant makes statements about its own products it gets more complicated.  Then-Judge Alito wrote Conte Bros., which should have the same result under reasonable interest test—a class of retailers who didn’t market defendants’ products but claimed injury from statements about defendants’ own products.  But retailers could have standing under some circumstances, he thinks, just as parts suppliers could under some circumstances. Depends on whether the falsity relates to the part supplier’s product.  Statements about Lexmark’s chip is within the zone of interests Static Control has, as chip maker, but not within the zone of interests for the maker of the box that the printer cartridge comes in.

Goldman: most interesting about argument: there were many questions about what prudential standing was doing as a concept.  Congressional intent as touchstone. There’s a real possibility that the Court will look at that. How does that play out?  They do seem to have various prudential concerns—they don’t want everybody to be able to sue, especially not consumers.  It’s fairly straightforward to exclude consumers, he thinks, despite the broad standing provision.

Ross: Justices had this notion about “why do we have the power to set these limits when Congress has spoken?”  Constitutional standing, Article III, is a set test, and it allows standing more readily at the constitutional level than at the prudential level.  When Congress uses broad phrases, it’s a signal but there are always plaintiffs who go too far, and that’s where prudential standing arose from.

RT: you know, why shouldn’t consumers have standing if the statutory language supports it?

Michael Carroll: when plaintiff falsely advertises about its own products, who should have standing, according to the various tests?  Justice Breyer used a hypo about a claim that the chocolate used at a particular shop was poisonous.  Should the shop have standing?

Loy: district courts will have to apply test to given set of facts.  AGC also supports standing for false endorsement cases.  Under reasonable interest test consumers couldhave standing!

Greenstein: ducking the hypothetical shows the flaws in AGC/categorical tests.  One ice cream maker saying a store’s sauce was poisonous—the entity attacked would lack standing even though it’s the most directly harmed. Even under AGC they should get standing when there’s a direct statement maligning their products.

RT: hypos about disparagement don’t really get to the “false advertising about one’s own products” issue.  Congressional purpose: protect consumers and commercial entities; those two aims don’t have to compete.

Goldman: direct competitors have the most plausible story about how false advertising about one’s own products harms the competitor; multiple people might also be harmed, and further down the line can they sue? These are harder questions even as a matter of background common law; there’s some point at which proximate cause is lacking but it may be several steps down the chain. None of the tests have a great way of answering that question in the abstract.

Ross: rules versus standards scholarship: both have benefits and costs.  How clear you want to be versus how much you want to take hypos into account.  Categorical test has the benefit of focusing Lanham Act on direct competition, as is the purpose thereof.  Sure that leaves some people out, but Lanham Act is directed at protecting competition against false statements.  (Except that “competition” hasn’t meant direct competition in the rest of the Lanham Act for 60 years.  If you give me “unfair competition requires competition” in trademark, I’ll accept it in false advertising.)  State tort causes of action remain available.
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A song about big data

Vienna Teng’s Hymn of Acxiom (bonus trademark question included).

leave your life open. you don’t have to hide.
someone is gathering every crumb you drop, these
(mindless decisions and) moments you long forgot.
keep them all.
… is that wrong?
isn’t this what you want?

To go on the playlist with the Pet Shop Boys’ Integral.  If you’ve got nothing to hide, you’ve got nothing to fear.
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Eric Goldman previews Lexmark

At Forbes, here.  As is obvious, Eric and I part ways on several issues, but as always I respect his viewpoint.

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eBay seller loses gray goods case

Bose Corporation v. Ejaz, No. 12-2403 (1st Cir. Oct. 4, 2013) 

Bose won summary judgment on its breach of contract and trademark claims against Ejaz, who sold home theater systems made by Bose for use in the US to other countries, to take advantage of higher retail prices abroad.  Ejaz sold American products in Australia even though he signed an agreement settling a UK case promising not to do so.  (Query why this is infringing conduct under US law.)  The district court found him liable under both claims and the court of appeals affirmed.  Ejaz argued that there was a genuine issue of material fact on likely confusion because differences between the products intended for particular countries were trivial, and his eBay customers would have been aware of them.  And here’s where I suspect the conflict of laws could come in, though I don’t know the relevant Australian law: In a gray market goods case, “a material difference between goods simultaneously sold in the same market under the same name creates a presumption of consumer confusion as a matter of law.”  Bose identified several material differences between its Australian and American products: region coding for DVDs; electrical power requirements; remote control capabilities; warranty durations; and design and functionality of the products’ radio tuners.

Though Ejaz argued that his actual consumers weren’t confused, the court didn’t consider that relevant, since the law requires only “likely” confusion.  Ejaz’s only evidence was his own affidavit asserting that based on his experience, eBay customers are “primarily bargain hunters, and understand that in exchange for significant price savings they are not purchasing from authorized re-sellers or distributors.”  But that just means they wouldn’t be confused about sellers’ identity. “[I]t gives no reason to believe that they would expect the products to function differently from products sold by authorized distributors.” Plus, Bose offered specific evidence of an email thread showing confusion by an actual eBay customer.  Given the presumption plus Bose’s evidence, no reasonable factfinder could conclude that Ejaz met his burden to show confusion unlikely.

Comment: the initial blurb I read about this made it sound like a much broader decision.  If Ejaz had shown that at all times his eBay descriptions clearly disclosed that these were American products and that they wouldn’t work like Australian products, would that be enough?  Would he have to have given every single detail? 
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lawyer who doesn’t mediate lacks standing against mediators

Stahl Law Firm v. Judicate West, 2013 WL 6200245, NO. C13-1668 (Nov. 27, 2013)

Previous ruling on plaintiff’s lack of Article III standing.  Here the court finds that the amended complaint does not address the deficiencies identified earlier, denies defendants’ motions for fees under California’s anti-SLAPP statute for want of jurisdiction, but says it will consider defendants’ Rule 11 motion later.

Stahl’s Lanham Act claim is that defendants misrepresented their qualifications, experience, and reputation as private dispute resolution service providers by failing to disclose a public admonishment of retired judge DiFiglia, one of Judicate West’s mediator/arbitrators.  But Stahl didn’t claim to be a provider of private dispute resolution or mediation services, which meant that there couldn’t be ordinary substitution (which would have been enough for Article III injury).

In this round, Stahl “acknowledged that he: has never sponsored another neutral, aside from himself; has not had any cases where he served as a mediator under the definition provided by the Court … ; and has only been involved in mediations where has represented a client as opposed to acting as a neutral. He represented that he advertises his services as a mediator to individuals over the phone or in person, but has not had any cases come in from the public in this manner.”  This was not enough for Article III injury.

Under TrafficSchool.com, “[i]n a false advertising suit, a plaintiff establishes Article III injury if some consumers who bought the defendant’s product under a mistaken belief fostered by the defendant would have otherwise bought the plaintiff’s product.”  Here, Stahl failed to allege facts to support “at least the inference of competition.”  (Whatever the Supreme Court decides in the Lexmark case next week will bear on this, but it’s not clear to me what Stahl’s injury story would be under any of the offered tests.)

In the Ninth Circuit, a plaintiff can prove injury through “actual market experience and probable market behavior.”  Evidence of direct competition is strong proof of injury.  Without lost sales, testimony and survey evidence could also establish a chain of inferences showing how defendant’s acts could harm plaintiff’s business.  At the motion to dismiss stage, a plaintiff isn’t necessarily expected to prove lost sales or present evidence, but still must allege facts “that plausibly show how he could be injured as a competitor, which might include allegations of injury through probable market behavior or by creating a chain of inferences that show how Defendants’ actions could injure Plaintiff’s business.”  Here, though, Stahl alleged only generally that the parties competed for legal services, that he offered mediation services, and that his ability to compete for mediation services was adversely impacted by defendants’ allegedly false advertising.  These were threadbare allegations, not enough to get beyond bare legal conclusions.  Stahl needed to allege some facts showing how he competed with them in their respective sub-specialties, especially given that he was previously unable or unwilling to give direct answers to the court’s questions about his exact services at a previous hearing.  “Plaintiff acknowledged that he has never sponsored another neutral and has never served as a neutral in a mediation where he did not represent an existing client.” 

Unlike the plaintiff with standing in ALDF, which found that a vegan pate producer had standing to sue a goose liver pate producer, Stahl didn’t allege that he competed with defendants for the specific services they provide; he didn’t present survey data describing the likely marketplace; and he didn’t allege facts sufficient to show that he might be competing for the same pool of potential customers.  He didn’t explain how defendants’ alleged false advertising might siphon customers away from him.  Although he could conceivably compete with defendants in the future, he didn’t allege facts relating to that in the complaint, and without more “such an assertion is the precise type of hypothetical or conjectural – rather than actual or imminent – injury that the standing doctrine seeks to constrain.”

Likewise, Stahl failed to plead a Lanham Act false advertising claim because he didn’t plead more than conclusory statements that he was likely to be injured, either by direct sales diversion or a lessening of goodwill.  Stahl alleged that they competed in the same California market, 20 miles apart, and that both offered mediation services.  But he didn’t allege facts supporting his assertions that he’d suffer sales diversion or lessened goodwill.  Formulaic recitation of the elements was insufficient.
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distributor’s switch to direct sourcing leads to Lanham Act claim

Alpha Pro Tech, Inc. v. VWR Intern. LLC, No. 12–1615, 2013 WL 6179065 (E.D. Pa. Nov. 26, 2013)

One way to tell the story of this complaint: company decides to outsource production of a flagship product to China, gets burned when Chinese company appropriates its trade secrets, is now sad about that. Somehow I bet the Georgia workers who lost their work might have something to say about that.  I’ll skip the trade secret part of the case, but some of the trade secret-based claims do survive.

Plaintiff APT made Critical Cover protective apparel for use in scientific and medical settings; VWR was formerly its exclusive distributor.  Critical Cover’s protective coating was allegedly superior to competitors’, giving it a competitive advantage.  The distributorship agreement, among other things, licensed VWR to use the Critical Cover mark and bound it to identify APT as the manufacturer and warrantor of Critical Cover products.

In 2000, APT moved Critical Cover manufacturing from Georgia to China, where it entered into a relationship with another entity, XXPC, which became the manufacturer.  VWR allegedly induced XXPC to violate APT’s confidentiality restrictions and make similar coated products for VWR, at which point VWR terminated its relationship with APT.

VWR allegedly set out to market its new product lines as replacements for/continuations of Critical Cover product lines.  VWR allegedly got customers to believe that their well-liked Critical Cover products no longer existed and that they were “simply being transitioned into the same or similar products by another name.”  For example, VWR stated that “VWR Advanced and Maximum Protection apparel (the products formerly known under the VWR Critical Cover ComforTech™ and Microbreathe™ brands) will experience a change in raw materials,” but APT alleged that the products weren’t “formerly known” as Critical Cover, and also that this statement falsely led customers to believe that the products came from the same source.  The two types of false/misleading statements alleged were statements that caused consumers to believe that VWR’s products were Critical Cover products under another name (false because the manufacturer and the process had changed in that the process was no longer subject to APT’s quality control and warranties), and statements that misrepresented, at least by implication, that Critical Cover products had been discontinued.

The court first rejected VWR’s argument that APT wasn’t really the manufacturer of Critical Cover products; rather, XXPC was.  (You know what would really assist this discussion?  Dastar’s statement that “origin” can be stretched to the licensor.)  Just because APT partnered with XXPC didn’t mean that APT wasn’t also a manufacturer—the two weren’t mutually exclusive as manufacturers. 

Anyway, that argument missed the mark because APT also alleged that VWR’s statements caused consumers to believe that VWR’s products were Critical Cover products under another name.  Because Critical Cover is a valid mark, “any statements, even if true, that led customers to believe that VWR’s products were CRITICAL COVER® products would be actionable as false advertising.  Unless VWR were to concede it was infringing APT’s CRITICAL COVER® trademark—which, obviously, it does not do—the CRITICAL COVER® products are necessarily different from VWR’s own product line.”   

Also, APT alleged that the manufacturing process changed because APT’s quality controls and warranties were no longer present, and VWR’s trade secret argument seemed to suggest that VWR’s new line didn’t use the particulars of APT’s alleged trade secret.  VWR’s advertising allegedly convinced a substantial number of consumers that VWR’s products were Critical Cover products under a different brand name.  (Dastarprotects the right to copy, which means the right to offer the “same” product under a different brand name; the court is about to recognize this.)

However, the court pointed out, passing a motion to dismiss isn’t a guarantee of success.  “In fact, a large and potentially dispositive issue of fact may be whether VWR’s products were identical, or even superior, to APT’s CRITICAL COVER® products.”  If they were, then the false advertising claim would probably fail because, although VWR products wouldn’t “technically” be not Critical Cover products because APT owned the trademark, they’d in fact be identical.  Also, the difference would likely be immaterial, citing Pernod Ricard and McCarthy.  But for right now, the argument that customers wouldn’t pay APT’s higher prices for identical products and therefore there was no nexus between VWR’s ads and APT’s harm was not appropriate on a motion to dismiss.

For similar reasons, the false designation of origin claim survived, though it had different elements. (But why? This court, like others, says §43(a)(1)(A) and (B) are basically the same, then applies different standards: “Unlike a false advertising claim, a false designation of origin/passing off claim requires not proof of actual confusion, but rather proof of likely confusion,” even though the likelihood language of the statute is identical.)  Passing off can be either express or implied—implied is “when an enterprise uses a competitor’s advertising material, or a sample or photograph of the competitor’s product, to impliedly represent that the product it is selling was produced by the competitor.”  This can occur through initial interest confusion.  Anyway, §43(a) doesn’t have rigid boundaries and the liability test should be adapted to the circumstances at hand.

As a result, the court rejected VWR’s argument that it hadn’t used any designations falsely but rather fairly and referentially.  There was a potential false designation of origin based on the Critical Cover trademark, though that would fail if VWR’s product line was the same as or superior to Critical Cover.  But if the allegations were proven true, that would constitute false designation of origin by likely confusing consumers about whether VWR’s new products were simply Critical Cover products by another name.  Section 43(a) covers this conduct, “because otherwise a defendant could escape liability for passing off simply by using another’s mark—a false designation of origin—to establish the equivalency of the other’s mark and the defendant’s new mark, and then shift to using only its new mark.”  This couldn’t be resolved at the motion to dismiss stage, because the statements from VWR’s marketing materials could be read as misleading.  Likelihood of confusion would require using the multifactor infringement test.  Although APT’s allegations weren’t perfect, it did allege specific statements that could create confusion:

“It is also worth noting that we have not changed the manufacturer, manufacturing location, or the manufacturing process for 95% of the products in our new line. For the majority of the portfolio, only the brand name and part numbers will change, and we will continue to make available the previous line of VWR Critical Cover products for a minimum of 30 days during this transition.”

“VWR Advanced and Maximum Protection apparel (the products formerly known under the VWR Critical Cover ComforTech™ and Microbreathe™ brands) will experience a change in raw materials.”

“As you are aware, VWR is transitioning our VWR Critical Cover® apparel line to our new line of VWR Protection apparel…. [W]e are writing this letter to certify that for 95% of the products involved in this transition, there will be no change in the manufacturer, manufacturing location, or manufacturing process.” and

A table, preceded by the text, “In addition to the above certification, below is a list of VWR Protection apparel products that will not experience a change in raw materials,” in which “Old Brand Name” trademarks were aligned with “New Brand Name” product lines.

These are really interesting statements from a nominative fair use perspective given that VWR waslicensed to use the marks—apparently exclusively—but APT alleged that the products weren’t “formerly known” as Critical Cover.  Here’s an exercise: formulate statements that would be protected by nominative fair use in truthfully disclosing the situation.

VWR argued that buyer sophistication would preclude confusion, and that APT’s harm wasn’t related to the trademark but rather to its failure to retain other distributors.  Those might both be true, but not on a motion to dismiss, even though APT’s allegations seemed to establish that its customers were sophisticated, e.g., allegations that the process of qualifying protective apparel for use can take significant time and resources.  (From what I infer, then, VWR’s statements were designed to minimize any need for requalification.)
Posted in dastar, http://schemas.google.com/blogger/2008/kind#post, trade secrets, trademark | Leave a comment

Publisher can’t maintain Lanham Act claim against satirical blog post

Farah v. Esquire Magazine, No. 12–7055, 2013 WL 6169660, — F.3d – (D.C. Cir. Nov. 26, 2013)

Mark Warren wrote a blog post on Esquire Magazine’s Politics Blog.  The entry was posted one day after the release of Jerome Corsi’s book, Where’s the Birth Certificate? The Case that Barack Obama is not Eligible to Be President.  Corsi’s book was published by Joseph Farah’s WND Books.  Farah’s website, written by Jerome Corsi and published by Joseph Farah’s WND Books. Farah’s website, WorldNetDaily, announced the book launch with the headline, “It’s out! The book that proves Obama’s ineligible: Today’s the day Corsi is unleashed to tell all about that ‘birth certificate.’” However, about three weeks earlier, President Obama had released his long-form birth certificate.

Warren’s post was titled “BREAKING: Jerome Corsi’s Birther Book Pulled from Shelves!”  The contents included: “In a stunning development one day after the release of [the Corsi book], [Farah] has announced plans to recall and pulp the entire 200,000 first printing run of the book, as well as announcing an offer to refund the purchase price to anyone who has already bought … the book.” The post also referred to Corsi’s supposed previous best-sellers, one about John Kerry and one called Capricorn One: NASA, JFK, and the Great “Moon Landing” Cover-Up.  It included a purported quote from Farah:

“I believe with all my heart that Barack Obama is destroying this country, and I will continue to stand against his administration at every turn, but in light of recent events, this book has become problematic, and contains what I now believe to be factual inaccuracies,” he said this morning. “I cannot in good conscience publish it and expect anyone to believe it.”

[Insert requisite commentary about how terrible it is that this kind of quote can only be expected in a satire these days.]

The post also said:

A source at WND, who requested that his name be withheld, said that Farah was “rip-shit” when, on April 27, President Obama took the extraordinary step of personally releasing his “long-form” birth certificate, thus resolving the matter of Obama’s legitimacy for “anybody with a brain.” “He called up Corsi and really tore him a new one,” says the source. “I mean, we’ll do anything to hurt Obama, and erase his memory, but we don’t want to look like fucking idiots, you know? Look, at the end of the day, bullshit is bullshit.”

About an hour and a half later, Esquire published an “update” on its blog “for those who didn’t figure it out yet, and the many on Twitter for whom it took a while”:

We committed satire this morning to point out the problems with selling and marketing a book that has had its core premise and reason to exist gutted by the news cycle, several weeks in advance of publication. Are its author and publisher chastened? Well, no. They double down, and accuse the President of the United States of perpetrating a fraud on the world by having released a forged birth certificate. Not because this claim is in any way based on reality, but to hold their terribly gullible audience captive to their lies, and to sell books. This is despicable, and deserves only ridicule. … Some more serious reporting from us on this whole “birther” phenomenon here, here, and here.

Tags: birther book, jerome corsi, where’s the birth certificate, drudge without context, birthers, wingnuts, humor

That day, Farah called the blog post a “poorly executed parody,” and Warren told The Daily Callerthat he had no regrets about publishing the post and referred to Corsi as an “execrable piece of shit.”

Farah and Corsi then sued for defamation, false light, interference with business relations, invasion of privacy, and violation of the Lanham Act, seeking $120 million in damages.  The district court dismissed the complaint under DC’s anti-SLAPP law and for failure to state a claim.  Plaintiffs’ appeal focused on DC’s anti-SLAPP law.  The court of appeals affirmed for failure to state a claim: the blog post was “fully protected political satire” and the other statements at issue were opinion.

The complaint alleged that immediately after the blog posting, “news organizations, readers of WorldNetDaily, purchasers and distributors of WND Books and others began contacting [ ] Farah for confirmation of the story and comment.” “[C]onsumers began requesting refunds[,] … book supporters began attacking Farah and Corsi[,][and][b]ook stores … began pulling the book from their shelves, or not offering it for sale at all.”  Only after Farah said he was exploring legal options did Esquirepost the update.  Farah and Corsi alleged that they believed at all relevant times that the book was accurate and newsworthy, and never contemplated pulling it or refunding purchases. 

In support of its motions, “[t]o illustrate the political and social context in which its statements were made, Esquire attached to its motions the WorldNetDaily website’s complete archive of articles on President Obama’s ineligibility to serve, including articles by Farah published online from September 2009 through August 2011, as well as samples of Esquire’s satirical publications.”

On a motion to dismiss, the court must accept the complaint’s allegations about the falsity of factual statements and the publisher’s requisite state of mind.  It can also take judicial notice of “publicly available historical articles” such as those Esquire provided.  The First Amendment protects statements that can’t reasonably be interpreted as stating actual facts.  Whether the statements could reasonably be understood as stating or implying actual facts about Farah and Corsi must be assessed in light of the publication as a whole, and the sense in which its intended readers would understand it.  Context “includes not only the immediate context of the disputed statements, but also the type of publication, the genre of writing, and the publication’s history of similar works,” as well as the “broader social context.”  Some types of writing signal opinion, not fact.

As a result, despite its literal falsity, satirical speech is protected by the First Amendment.  What the plaintiff must prove false is not necessarily the literal published phrase, but rather what a reasonable reader would have understood.  And that understanding “is more informed by an assessment of her well-considered view than by her immediate yet transitory reaction,” in order to provide breathing room for imaginative expression and hyperbole. 

Plaintiffs pointed to the inquiries they received, as well as Esquire’s own “update,” as evidence that many actual readers were misled.  “But it is the nature of satire that not everyone ‘gets it’ immediately.  Both Daniel Defoe and Benjamin Franklin published satirical works initially treated as serious.  “Indeed, satire is effective as social commentary precisely because it is often grounded in truth.”  Satire works by distorting the familiar “with the pretense of reality in order to convey an underlying critical message.”  Esquire’s story “conveyed its message by layering fiction upon fact.”  The test isn’t whether actual readers were misled, “but whether the hypothetical reasonable reader could be (after time for reflection).”  (Why isn’t this the standard for trademark law?  Good question!)  Plaintiffs argued that Esquire’s update showed confusion, but “Esquire can hardly be penalized for attempting to set the record straight and avoid confusion by those readers who did not at first ‘get’ the satirical nature of Warren’s article.”  (Well, yes, Esquire can’t be penalized because the court says it can’t be penalized—this isn’t wrong, but that’s some serious disavowal working there.)

In context, a reasonable reader couldn’t understand the post to be “real news” about plaintiffs.  Its primary intended audience, readers of the Politics Blog, would have been familiar with Esquire’s history of publishing satirical stories: recent topics ranged from Osama Bin Laden’s television-watching habits to “Sex Tips from Donald Rumsfeld.”  Followers were also politically informed, and Esquire had previously featured several serious reports on birtherism.  Plaintiffs themselves alleged that they were well-known leaders of the birther movement and admitted that Esquire’s readers would have been familiar with WorldNetDaily and its positions. 

“With that baseline of knowledge, reasonable readers of ‘The Politics Blog’ would recognize the prominent indicia of satire in the Warren article. Most notably, the very substance of the story would alert the reasonable reader to the possibility that the post was satirical.”  It’s “inconceivable” that Farah suddenly and without warning decided to recall Corsi’s book, especially given that Obama released his long-form birth certificate three weeks before the book’s release. 

Also, humorous/outlandish details betrayed the post’s satirical nature, including the attribution to Corsi of an “obviously fictitious” book, Capricorn One: NASA, JFK, and the Great ‘Moon Landing’ Cover-Up. “Of all prominent cover-ups featured in the news in recent years, a moon cover-up—much less ‘the Great “Moon Landing” Cover-Up’—was not among them.”  And the supposed WND source gives quotes “that are highly unorthodox for a real news story, such as Farah was ‘rip-shit,’ ‘bullshit is bullshit,’ and ‘we don’t want to look like fucking idiots, you know?’”  (Although, in the age of The Daily Show and the quote Warren actually did give the Daily Caller, who can really tell?)  Other stylistic elements, such as the exclamatory headline and the post’s use of the “Drudge Siren” symbol “also would indicate to the reasonable reader that the story was not serious news.”  Just as Farah did, a reader familiar with WorldNetDaily would recognize the headline as a parody of WorldNetDaily’s and Drudge’s “sensationalistic” headlines, both sites at which Corsi’s book received substantial publicity, as readers familiar with birtherism would know.  The Drudge Siren symbol “would be understood as an ironic joke.”

Even if none of these factors alone would be enough, taken in context and together they were dispositive, as Farah immediately recognized.  Though the article didn’t generally use the “exaggerated mimicry” typical of parody, satire is a broader concept.  “And poorly executed or not, the reasonable reader would have to suspend virtually all that he or she knew to be true of Farah’s and Corsi’s views on the issue of President Obama’s eligibility to serve in order to conclude the story was reporting true facts.”

So, plaintiffs failed to state a claim based on the blog post.  The update and post-publication comments to the Daily Caller were protected opinion based on the well-known facts underlying the birthers’ claims:

The “update” statement that Farah and Corsi are spreading “lies” is protected opinion because it is based on Esquire’s revealed premise that Farah and Corsi have promoted the Corsi book notwithstanding evidence that its central claim is false. The “update” statement regarding Farah’s and Corsi’s “terribly gullible audience” is also protected opinion, premised on the fact that a sizeable minority of people—by Farah’s estimation, 25% of the American populace—believes in a position that Esquire considers absurd. The statement that Farah and Corsi are not motivated by genuine belief, but rather by a desire to hold their readers “captive” and “to sell books” cannot, in context, be reasonably read to imply special knowledge of their actual motives.

“Any reasonable reader of political blog commentary knows that it often contains conjecture and strong language, particularly where the discussion concerns such a polarizing topic as the President’s birth certificate.”  Reasonable readers would understand these statements as expressions of opinion, and his reference to Corsi as an “execrable piece of shit” didn’t convey any factual assertion at all.

Without defamation, the other tort claims based on the same allegedly defamatory speech, false light and tortious interference, also failed.

Lanham Act §43(a) only applies to commercial speech.  “Every circuit court of appeals to address the scope of these provisions has held that they apply only to commercial speech.”  (Um … okay, for certainvaluesof “address.”  Plaintiffs apparently only cited PAM Media, Inc. v. American Research Corp., 889 F.Supp. 1403 (D. Colo. 1995), involving the title of a talk radio news show.  Again, this result isn’t wrong, but the law isn’t really that consistent.)

The blog post couldn’t plausibly be viewed as commercial speech.  Plaintiffs didn’t allege that Esquire was promoting a competing book.  Instead they alleged that Esquire was “generally” a competitor on political issues surrounding birtherism.  “Of course, writers write and publishers publish political tracts for commercial purposes, and it is possible that the kinds of commercial methods made illegal by the Lanham Act could be applied to such tracts. The actions alleged, however, do not involve such methods.”  Competing in the marketplace of ideas wasn’t enough to trigger the Lanham Act; that kind of competition just reinforces the point that the blog post was political speech.  Trademark can’t be used to suppress uses of a mark to communicate ideas or express points of view.

All this mooted any anti-SLAPP issues.  (Really?  My understanding is that the DC statute allows a fee award, though it doesn’t require it—what happens if Esquire seeks fees?)
Posted in defamation, first amendment, http://schemas.google.com/blogger/2008/kind#post | Leave a comment