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Retargeting Keyword Ads for Potential New Uses
At a recent Practising Law Institute presentation, attended by a solid sampling of intellectual property attorneys, many of whom acknowledged representing major brand-name companies, the author sought a show of hands of those who would recommend that a client bring suit against a third party buying keyword ads based on one of those brands. Only one wavering hand said “maybe.” Not one hand endorsed such action hands down. Despite a great body of precedents and an even greater body of commentary, the heads present, who undoubtedly knew more than most about the subject, seemed more inclined simply to throw up their hands than take up arms. Indeed, in more than a decade since the first decision in Playboy Ent., Inc. v. Netscape Commun's Corp., 55 F. Supp. 2d 1070, 1086-88 (C.D. Cal. 1999), rev'd, 354 F. 3d Cir. 1020 (9th Cir. 2004), there have been at most a small handful of final decisions giving meaningful guidance as to when or if keyword ads are permitted or precluded. Playboy itself was simply a reversal and remand of a decision granting summary judgment dismissing the plaintiff's infringement claim.
Keyword advertising should be seen as simply one band on the spectrum of online advertising by franchisors and others to promote their brands. Much of that spectrum is now occupied by various types of behavioral advertising, in which advertisers can track conduct of users on the Internet to deliver advertising targeted to a user profile or recent Internet activity. Viewed in this light, a perhaps greater concern to brand owners than the types of sponsored links served by search engines are new opportunities for use of keywords to retarget advertising based on behavioral patterns of Internet users and in manners almost impossible to monitor. For instance, one recent article reports on a retargeting service that can track users' online activity; if that activity reveals an interest in a particular branded product or service (say Toyota), it is not only possible to retarget to the user advertising for that brand but also to retarget advertising for a competing brand based on the use of keywords tied to the first brand. See Magnetic Brings Search Re-Targeting to the Masses, http://searchengineland.com/magnetic-brings-search-re-targeting-to-the-masses-38535 (Mar. 22, 2010).
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
Law Firms are Reducing Redundant Real Estate by Bringing Support Services Back to the Office
A trend analysis of the benefits and challenges of bringing back administrative, word processing and billing services to law offices.
Bit Parts
Summary Judgment Denied Defendant in Declaratory Action by Producer of To Kill a Mockingbird Broadway Play Seeking Amateur Theatrical Rights
Risks of “Baseball Arbitration” in Resolving Real Estate Disputes
“Baseball arbitration” refers to the process used in Major League Baseball in which if an eligible player's representative and the club ownership cannot reach a compensation agreement through negotiation, each party enters a final submission and during a formal hearing each side — player and management — presents its case and then the designated panel of arbitrators chooses one of the salary bids with no other result being allowed. This method has become increasingly popular even beyond the sport of baseball.
One Overlooked Element of Executive Safety: Data Privacy
Executives have access to some of the company's most sensitive information, and they're increasingly being targeted by hackers looking to steal company secrets or to perpetrate cybercrimes.