One factor that is highly relevant in trademark infringement litigation is online analytics — that is, the statistics and metrics associated with how many people may have seen and interacted with infringing content. Once one has established that content is indeed infringing, the impact of that infringement as a factor that will affect how seriously a court will consider the harm that may have been done. Damages can be based upon how many people may have seen the infringing use, as well as how much confusion may have been caused in the marketplace.
In some recent lawsuits, the legal concept of “corrective advertising” has been presented to courts as one of the most logical of remedies to infringement. The concept is simple: if you can know how many people may have seen a trademark used in a confusing manner, then one can work to repair that damage by promoting the mark a similar to slightly-greater number of times in the same medium. For instance, if a company used a competitor’s mark improperly on a highway billboard for a certain number of weeks, then a corrective advertising campaign would promote the mark properly in a brand-building campaign a similar to slightly longer period of time. And, the actual cost of the billboard advertising fees for that period of time could be included in the damages award for the infringement litigation. Internet advertising and promotion is often highly measurable, enabling one to discover very precise numbers for how many people may have been exposed to promotional units, so damages based on corrective advertising campaign costs may be calculated very efficiently.
In internet marketing terminology, an “impression” is said to occur when an online consumer is exposed to a discrete promotional unit. Impressions are one common metric for online advertising, and some types of ads are sold on a cost-per-impression basis. However, when an online consumer is exposed to a discrete instance of trademark infringement, it is called a “misimpression“. In trademark infringement lawsuits, misimpressions are the unit that may be accounted in order to determine how many people saw a mark used in an infringing manner, and to thus determine the cost necessary to purchase equivalent numbers of impressions to counteract the confusing or inappropriate usage.
Many websites have installed sophisticated analytics systems, including Google Analytics, in order to collect usage statistics about their websites. These internet analytics can show: how many visitors have been to a website; how many times specific pages have been viewed; visitor referral sources such as how many visits originated from search engine results or social media; locations of website visitors — countries, states and cities; and sometimes limited statistics about what keywords individuals may have used in searching-for and finding the site’s pages.
Social Media Analytics
One of the fastest-growing needs in lawsuits involving the internet is in terms of social media analytics. The larger social media platforms such as Facebook and Twitter have their own unique analytics systems which can show how many people have seen (i.e. “impressions”) particular postings, and how many people have interacted with them in terms of adding comments or sharing/resharing postings. In instances where specific platform analytics are unavailable, it is still possible for many analytics to be deduced from website analytics or directly assessed in other ways.
One of the frontiers of internet marketing analytics is that of statistics associated with videos. YouTube, one of the most popular of video hosting sites, provides a few sophisticated metrics beyond mere views. The numbers of views of a video that contains some sort of infringement would obviously be salient in a lawsuit. However, additional statistics could be associated that might affect visibility or contradict the raw numbers of views. For instance, did you you know that most viewers stop watching videos after the one minute mark? Many viewers drop off after only ten seconds, and 33% of viewers bail out after the first thirty seconds. Other statistics can also be relevant, such as how many views came from embedded videos, and how large a video’s viewing area may be when viewed on various webpages.
Pay-Per-Click (PPC) Analytics
While the larger advertising platforms attempt to limit advertisements that could be infringing, some degree of trademark infringement occurs in PPC ads or in advertising landing pages. As such, the statistics involved in those ads can be important in trademark cases. A lot of trademark infringement can be hidden on ad landing pages, too, since those pages may not be appearing in general search engine results — they could be seen only when one clicks on an ad connected with them. Search advertising and contextual advertising appearing on publisher websites (such as Google AdSense ads) has some unique analytics. One can assess how many times ads could have been seen (impressions), as well as how many times the ad is clicked upon, and what keyword phrases may have been searched upon by internet users that caused ads to be displayed.
Competitive Intelligence Measurement Systems
We have been brought in to assist in a number of occasions when analytics from competitive intelligence providers have greatly exaggerated some type of internet usage. In some cases, such systems can show many thousands or even millions of site visitors when in fact a site may have had fewer than a couple hundred to a few dozen. Some systems can incorrectly show advertisements being targeted to trademark names when they in fact were not. Being thorough, careful, and conservative with internet analytics, and being experienced with various metric providers is vital to presenting an accurate picture of internet metrics to courts.
Obtain Experienced Help from the Online Analytics Expert
Chris Smith has worked closely with internet statistics and various analytics systems for about 20 years. He has personally programmed internet measurement systems, implemented various analytics systems, and directly used a number of the most prominent systems used in internet marketing and commerce. Smith has been consulted on website analytics for a number of Fortune 500 companies, and has a deep understanding of the complexity and limitations of web metric systems.