nevium inta 2015 san diego internet analytics used for valuation and damages
TRANSCRIPT
Internet Analy+c Tools for Brand Valua+on, Damages and Defama+on
Doug Bania and Brian Buss
INTA 2015 Annual Mee+ng, May 3, 2015
2 INTA 2015 Annual Mee+ng, May 3, 2015
A Financial and Economic Perspec+ve on Internet & Social Media IP Introduc+on
Internet & Social Analysis
Intellectual Property Analysis
Bringing Them
Together
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Internet & Social Media Analysis
Internet & Social Analysis
Intellectual Property Analysis
Bringing Them
Together
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Old Misuse Tradi+onal Media
New Misuse Search & Social
Obvious misuse in television and Print
Internet misuse can be hidden in metadata and keywords
The number of people witnessing the misuse is geographically
constrained
Worldwide audience and the potenGal of misuse going viral
How many customers actually took acGon is not accurate
Data regarding how many customers took acGon
is very accurate
Old World vs. New World Infringement Internet Misuse Can be Accurately Measured and Quan+fied
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Search Appear on first page organic search results for defined
keywords
Op+miza+on Strategically leverage keywords for
first page search results in Search and Social Media
Social Media Build a following.
Create shareable content. Go viral.
Analy+cs Measure and refine op+miza+on
tac+cs to create more website traffic
Key Concepts of Internet Use: Business Owner The Internet is the new corner store and the foot traffic is Search & Social
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Search What is your organic ranking
for specific keywords? How did you get there?
Op+miza+on Keywords, tags, metadata vs. visible content
How, where & why IP is used?
Social Media What is your handle? What is your topic of
conversa+on?
Analy+cs Iden+fy & Quan+fy
site traffic Impact of key words
Key Concepts of Internet Analysis Search + Social + Op+miza+on + Analy+cs = Defensible Tes+mony
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Educa+ng the Trier of Fact Educate first in order to get set the stage for damages
Internet Damage Experts Must Educate the Judge and Jury
Regarding the Basics of Search & Social Prior to Approaching Damages
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Growing importance of the Internet for businesses The Internet is a huge place to promote business Search and How it Works Internet as a huge library with billions of books, Search engines are the tools to find informaGon Importance of First Page Search Results First page is worth the fight Use of Metadata and Op+miza+on First page search results are not an accident Use and Leverage of Google Analy+cs Google provides tools and tacGcs
Educa+ng the Trier of Fact Any Internet valua+on or damages calcula+on starts here
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Two compeGng construcGon supply
companies had operated in non-‐overlapping geographies
Both businesses evolved into online retail &
distribuGon of construcGon supplies and design
concepts
Therefore businesses begin to overlap and compete for customers outside their
home geography
Case Study: Educa+ng the Trier of Fact
Defendant used the Plain+ff’s TM-‐protected company name in search op+miza+on and social media
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First page of organic search results
PlainGff: First organic result
Defendant: Second and Third organic search result
Of the 9 organic search results, over 50% are for the Defendant
Defendant: Social Media sites
PlainGff’s paid result
PlainGff: Ninth organic result
Educa+ng: Importance of Search & Social
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Tac+c Use at SampleCompany.com Likely Result
Use key terms in Title Tag
<Gtle>The Company, Sales and Structure Designs</Gtle>
The Gtle tag “The Company” alerts both the search engines and the user as to the topic of that parGcular page
Use key terms in the URL
h]p://www.sample.com/about-‐the-‐company This URL contains the keywords “The Company” which provides users and search engines more informaGon about the page
Use key terms in the Descrip+on
meta name="descripGon" content=”;The Company has been selling since 1972. Click here to find out more about sales, structure and The Company." />
The descripGon meta tag provides the search engines a summary of what the page is about
Use key terms in the Keywords
<meta name="keywords" content=”sales, structure, the company, green supplies, The Company, Sample Company, samplecompanuy" />
If a search engine finds specific key terms throughout the content of the website and in the keyword meta tags, that website will likely be ranked higher in search results
Educa+ng: Analyze Code to Determine SEO The site’s code can be “read” to inves+gate SEO strategies
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Tac+c Use at SampleCompany.com Likely Result
Use key terms in Anchor Text
<a href="h]p://www.SampleCompany.com/about-‐the-‐company">About The Company</a> <a href=h]p://www.SampleCompany/the-‐company-‐brochure>SampleCompany Brochures</a>
Anchor text are the clickable hyperlinks that users click on to be taken to a different page of a website Using “the-‐company” in the anchor text tells users and search engines that the page is about “The Company”
Label images & graphics using key terms
<img src="/upload/thecompany.jpg" alt="" width="137" height="200" align="leh" border="0" hspace="6" />
Including key terms in the name of an image allows the Google search engine to show the image in Google Image search results
Using IMG ALT tag to label image with keywords
<img src="/upload/thecompany.jpg”><img alt=“The Company”width=”157" height=”220" align="leh" border="0" hspace=“4”/>
IMG ALT Tag provides a clear text alternaGve of the image for screen reader users Anyone searching for the phrase “The Company” may find the photo is a search and click to the website
Links to social media accounts
<a href="h]p://www.facebook.com/the_company" target="_blank"><span style="font-‐family: Trebuchet MS;">The Company on Facebook</span></a> <a href="h]p://www.twi]er.com/the-‐company/" target="_blank">The Company on Twi]er</a>
When a Googlebot crawls a website, it will noGce social links and typically associate the social profiles with you company. Posts and comments placed on those social accounts will likely rank you for specific keywords showing up frequently in your follower’s posts
Use key terms in the page’s text
The phrase “the company” has been also been placed 14 Gmes in the text of the page
Key terms throughout the page should be used so that search engines can determine the content of the page matches the Gtle, descripGon, and URL
The site’s code can be “read” to inves+gate SEO strategies Educa+ng: Analyze Code to Determine SEO
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IP Valua+on & Damages for the Internet
Internet & Social Analysis
Intellectual Property Analysis
Bringing Them
Together
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Important to base new analyses on accepted methodologies
Standard Methodologies Internet IP Methodologies
Cost Approach
Cost to replace or replicate • Relief from pay per click • Value of impressions
Income Approach
Present Value (PV) of future benefits • Discounted cash flows (DCF) • Relief from Royalty • Lost Profits / Unjust Enrichment
PV of • AddiGonal Site Visits / Traffic • AddiGonal online transacGon or
customer inquiries
Market Approach
Study of transacGons • Guideline companies • Guideline transacGons • Industry benchmarks
• Comparable Pay Per Click • HypotheGcal license/transacGon
Analysis of the financial / economic impact of IP Assets on the Internet will employ one or more of these methodologies
IP Valua+on & Damages Methodologies
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IP analysis starts with identifying and understanding the IP assets being used
Understanding the IP Assets
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Types of IP assets ofen misused through Internet-‐based mechanism each have unique implica+ons for valua+on and damages analysis
Assets
Misuse boils down to infringement or defama8on
Analy+cal Considera+ons
Trademark & Brand
• Is the TM used in unseen components of the website? • Is the TM used to drive search results • What was the exposure to defamatory comments or posts?
Copyright • Did the protected content drive traffic? • Was the image or content a contributor to a sale or transacGon?
Name & Likeness • Did the use drive traffic? • Was the use akin to an endorsement?
Domain Names • Is there a website and how much direct traffic does site receive? • How many monthly searches occur using this term?
Understanding the IP Assets
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Mechanisms
Paid Search
Organic Search
Social Media
Squahng
Infringement
Defama+on
Claims Economic Result
Unjust Enrichment: Incremental profits achieved by Defendant due to the misuse
Lost Profits: Incremental profits not achieved by PlainGff due to the misuse
Pay-‐per-‐click relief: Value of cost, effort avoided due to misuse
Decrease in Value of an IP Asset: Impact on value due to misuse
Regardless of the asset type, the claims made in Internet cases typically occur through one or more mechanisms and the economic results can typically be
measured in 4 ways
Internet Damages Matrix
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Explain the mechanism, then quan8fy the impact
Unjust Enrichment Profits: Traffic at Defendant’s Website
Using Google Analy+cs to Support Unjust Enrichment
Monthly visits due to searches using TM 25,000
RaGo: Visitors who purchased 25%
TM search purchases 6,250
Average e-‐commerce purchase $250
Incremental revenue 1,562,500
RaGo: Incremental profit margin 15%
Incremental profit per month 234,375
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Using Social Media Analy+cs to Support Lost Profits
Use Accepted Methodology Lost Profits damages = But-‐for less As-‐is
Use of Social Media Data • “ReacGons” to defamatory posts and tweets • Language from posts seen in customer emails
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Using Google Analy+cs in Name & Likeness Claim
Monthly Pageviews at Defendant’s Website
Search Term Analysis
Top 50 search terms do not include Celebrity’s name
Top 50 search terms yielded 49% of total site visits during the Damages Period
Search terms using Celebrity’s name resulted in a total of 45 visits during the Damages Period, less than (0.004%) Website traffic declined during the
Damages Period
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Google AdWords for Celebrity’s Name
Social Media Presence for 12 Comparable Celebri+es
CELEBRITY’s social media presence was greater than comps
Price was less than Google PPC but equal to Facebook CPC
Using Social Media Data in a Market Approach
Google Facebook & FB Adver+sing Twioer
Google Search Results
Average Monthly Searches (Google)
Average Pay Per Click Rate
($/Click) Likes Size of
Audience
Cost Per Click (CPC)
CPC Suggested
Cost Per Thousand Impressions
CPI / 000 Suggested Tweets Followers
Name 1 10,800,000 27,100 $0.00 2,232,238 620,000 0.51 0.30-‐0.68 0.28 0.05-‐1.36 1 15,434
Name 12 42,700,000 165,000 $1.73 10,410,432 2,800,000 0.49 0.29-‐.0.69 0.09 0.3-‐0.64 94 1,894,518
Average 133,600,000 439,157 $0.90 7,992,695 2,210,286 $0.52 $0.22 9,135 1,851,757
Median 42,700,000 165,000 $0.79 8,573,831 720,000 $0.49 $0.18 1,755 187,591
CELEBRITY 244,000,000 301,000 $1.99 34,714,592 5,400,000 0.75 0.30-‐0.71 0.16 0.04-‐1.11 10,611 7,394,012
Search Terms
Avg. monthly searches CompeGGon Suggested
bid
Celebrity 673,000 Low $0.75
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Value of YouTube and Facebook Impressions
YouTube 4 videos posted on the CELEBRITY’s channel received over 2 million views Total viewership (an acGve response), mulGplied by the Google AdWord rate
Using Social Media Data in a Relief from Pay Per Click
YouTube Ac+vi+es Viewers
CELEBRITY Presents PRODUCT at CES 454,134
CELEBRITY comes to the CNET stage (CNET) 96,462
CELEBRITY Calls Name 1,188,608
CELEBRITY in Las Vegas introduces PRODUCT 372,067
Total YouTube Impressions 2,111,271
$Value / Impression $0.75
Value of YouTube Ac+vi+es 1,583,453
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Value of YouTube and Facebook Impressions
Facebook ReacGons are Likes, Comments and Shares
A ReacGon is an “acGve” response to the Celebrity’s post, and is more valuable than a view
Using Social Media Data in a Relief from Pay Per Click
A Response is more valuable than a view
Likes for CELEBRITY's Facebook page Likes Cost Impression Price ($/1000 impressions) 34,714,592 $0.16 Click Price ($/Click) $0.75 Reac+ons to Posts Involving the Products Likes Comments Shares Visit www.product.com make sure to like! 28,921 7,432 657
CELEBRITY Presents PRODUCT 17,528 1,425 412
CELEBRITY in Vegas Introducing PRODUCT . . . 18,256 312 514
Total 64,705 9,169 1,583
Value of Ac+vity Count Cost Value ($) Net Page Likes 34,649,887 $0.00016 5,544
Post Likes 64,705 $0.75 48,529
Other ReacGons 10,752 $0.75 8,064
Value of Facebook Impressions 62,137
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Bringing Them Together
Internet & Social Analysis
Intellectual Property Analysis
Bringing Them
Together
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What’s known about Search & Op+miza+on • “It’s Google’s algorithm” there are mulGple versions of best pracGces and no pracGGoner
knows exactly how search engines actually select and place websites
Understand the Context of the Calcula+on • Just because a number was calculated, doesn’t mean the number is relevant
• Replacement cost based on pay per click can indicate the value of Gme and effort replaced, but not necessarily the value of brand or TM
• The IP Asset may not be the most important asset for apporGonment
• Don’t fall for: using a 10% industry royalty the TM is worth more than the enGre business
• Visits due to a TM-‐based search indicates number of visits, not necessarily profits
The Data is available, but it may not always support the claims
Challenges for the Expert
Concluding Comments
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• The Internet and Social Media markeGng world requires educaGng the trier of fact before proceeding to the quanGtaGve analysis;
• The Internet MarkeGng World is less understood, but offers many advantages for financial and economic analysis (there is defensible evidence if you know where to look, and how to explain it)
• Using the analyGcal advantages available from Internet & Social Media markeGng allows compelling Expert Analysis (The Proof is available)
• Be aware of the limits of your calculaGons
Internet and social media data analysis provides addi8onal tools for the Art & Science of Valua8on
Our Top Take-‐Aways
Concluding Comments
Thank You
Doug Bania and Brian Buss
INTA 2015 Annual Mee+ng, May 3, 2015
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Addi+onal Slides
A Deeper Look at the Toolkit
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Drivers of Value
Business Value > Value of IP Assets owned by the Business
Appor+onment: IdenGfy the porGon of future benefits derived from use of the IP Assets
Present Value of Expected Future Benefits
Value of Business
Intangible Assets
Tangible Assets
Copyrights
Patents
Intangible Assets Tangible Assets
Trademark
IP depends on other assets and resources in order to generate economic benefits
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• Website Analy+cs • Social Media Analysis • Scoring Analyses • Company Language Analysis • Comparable licensing transacGons (“CUT”) • Excess profits (“CPM”) • Feature count and comparison • MarkeGng Mix Analysis • PromoGonal Use Analysis • Surveys / Interviews /Focus Groups
Tools to Appor+on Economic Benefits
Appor+onment Framework
What is the value of this box?
Always best to use mul8ple tools
Internet Analy+cs as an Appor+onment Tool
Present Value of Expected Future Benefits
Value of Business
Intangible Assets
Tangible Assets
Copyrights
Patents
Intangible Assets Tangible Assets
Trademark
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It boils down to appor8onment
Key Concept: Appor+onment
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Forecas+ng Future Benefits
Asset Remaining Life (Years)
Cash Flow ($)
Asset Value ($)
IP: Remaining Life, Cash Flow & Value
• IP and the products that use IP have life spans
• Companies can expect perpetual growth, IP cannot
• Benefits from the IP will grow, peak and then decline as other IP and other products take their place
Guiding Concepts
Total Contribu+on
Patents
IP: Rela+ve contribu+on
Trademarks & Other Intangibles
Time
Products & Businesses
Business Revenues
Product Life Cycle
IP Remaining Life
Benefit
Today’s Products
Products In-‐development
Future Products