Marketing and Legal Liabilities: A look at the cases

In the world of advertising, communications, and marketing, people are very protective of their intellectual property, time, and ideas.  From trademarking logos and slogans, to copyrighting different forms of art and protecting trade secrets, the communications industry is very concerned with the possible legal liabilities that come with working in this business.  Numerous cases can serve as examples or cautionary tales when it comes to these subjects, three of them which especially call to my attention.

In early 2014, a very interesting trademarking case came about when founder and CEO of LRN, Dov Seidman sued Greek yogurt company Chobani and their advertising firm Droga5 for their use of the word “how” in Chobani’s “How Matters” campaign.  Seidman claimed that LRN had trademarked the use of the word “how” that Chobani was implementing for their campaign, which appointed to the ethical way the product was created, just as LRN had done in the past.  Chobani denied they knew about this trademark protection by LRN and asked the court to deny it.  Being that the word “how” falls under the generic word category when it comes to trademarking, the question lies on whether or not LRN should be able to trademark their use of the word.  Since Chobani and LRN are not competitors and do not share market or any of the same industry, is Chobani using the word “how” in this context hurting LRN’s business or confusing their clients?  This case only leads us to think, what else can be trademarked this way?  It all depends on whether or not the company can show that consumers associate the generic word to their specific product or service, and to nothing else.

Another controversial trademark case involves The Walt Disney Company and one of their upcoming Pixar animated movies inspired by the Mexican holiday of “Día de los Muertos.”  Disney is set to release the animated feature later this year, however, when the company tried to trademark the term “Día de los Muertos” to protect any potential movie title, online communities got heated.  After several petitions were filed and communities all around the country put pressure on Disney, they decided to withdraw the trademark filing and change the title of the film.  Trademarking a national holiday’s name and profiting from not permitting its use in its very own country proved to be an insensitive and disrespectful move from The Walt Disney Company to the Latin American community.

Leaving the topic of trademarks and going into another important and relevant matter in the communications world is the significance of partnership agreements.  Everything in communications and marketing revolves around partnership and teamwork, so it is no surprise that this matter is so influential in today’s industry.  A controversial and pertinent case is that of the creation of Facebook.  Mark Zuckerberg, founder and CEO of Facebook, has been part of this dispute for over 10 years.  Since he launched the website in 2004, Zuckerberg has been accused by three former Harvard students of stealing the idea for the website from them.  Zuckerberg’s side states that he was approached about working on a website with Tyler Winklevoss, Cameron Winklevoss, and Divya Narendra, but never had the time to work on it, before he released his (previously though of) idea: The Facebook.  This case states the importance of a partnership agreement and points to what could happen if no actual clauses or contracts have been officially drafted.  As Massachusetts Judge Douglas P. Woodlock stated in this case, “dorm room chit-chat does not make a contract.”  This social network dispute has been going on for over a decade and even though a settlement was reached, there are still many sides to the story from different parties.  This case specifically shows the importance of a well-written contract, even for projects that start out small, such as Facebook started out. 

After researching on these and several other cases pertaining certain liabilities in the industry, my views on legal ramifications have changed.  As a potential business owner, copyrighting and partnership agreements will be some of the many legal liabilities to watch for.  In the marketing and advertising industry researching trademarks and knowing the ins and outs of it will be crucial, all the while maintaining a respectful and compassionate view on the world.  Ultimately, my business in this industry will rely on partnerships and teamwork, which will only be able to function correctly under clear, specific, and fair partnership and employee contracts.  

Negotiation and Deal Making Experts

As the director of the Influence and Negotiation Strategies Executive Program at Stanford Graduate School of Business, Margaret Neale is an expert in negotiation and deal-making.  In her talk titled Negotiation: Getting What You Want, Neale explains how changing the way we view negotiations can help us get better results.  Instead of looking at a negotiation as an adversarial or argumentative process, Neale encourages her viewers to look at negotiations as a collaborative process.  When it comes to planning for a negotiation, Neale splits the process into four phases.  The first one is to asses the situation, or weight the benefits against the cost of negotiating.  Second, Neale explains how we should prepare for the negotiation by clearly defining our positions and interests, and the positions and interests of the other party.  Following this step, she explains how it is important to ask questions and share unique information during a negotiation, and to look at the differences we might have as opportunities to create solutions.  The last piece of the negotiation Neale discusses is the bundling of alternative proposals.  By doing this, the negotiators are creating an opportunity to trade among the issues and to propose solutions and alternatives in packages, instead of negotiating issue by issue. 

Personally, the most significant part of Margaret Neale’s talk is her take on women and negotiation.  This information will surely help me when working in the entertainment industry.  Neale explains how women tend to be uncomfortable with asking for more during a negotiation and how this affects our performance in these situations.  I saw real value in the last section of her talk, where students and colleagues pitch in on how Neale’s research and knowledge on the subject of negotiation has helped them in their personal and professional lives.  They stress the importance of using objective criteria and educating oneself before going in to any negotiation.  They also explain the power of saying “no” in a negotiation, and how it can help you avoid a “bad deal.”  Neale’s talk is inspiring, educational, and helps the viewer understand that negotiations or social situations in general, are an opportunity to create value so that all parties can get what they want.

William Ury is one of the authors of the textbook “Getting to Yes” which we used during this course.  He is a bestselling author and motivational speaker that inspires and educates people to get to YES in all areas of their lives.  In his TED talk titled The Walk from “no” to “yes,” Ury explains the importance of separating the people from the problem in a refreshing and interesting way.  Ury lets his listeners know how, even though negotiations start as difficult situations, stepping back and looking at every situation with fresh eyes will help us come up with solutions.  When dealing with our differences as humans, the secret to keeping peace is simple according to Ury, it is us, the surrounding factors to all conflicts.  Using what he calls the “third side,” Ury urges us to see conflicts and negotiations from the outside so we can see what really is at stake and how any solution can help with the issue.  The “third side” is a place of perspective and unbiased, clear, and objective view, it is the base of separating the people from the problem. 

During his talk, Ury uses his experience visiting different cultures around the world to explain the importance of the “third side” of a negotiation.  He talks about how South African tribes hide their weapons and talk until they have found a solution to their dispute and how this is really the key to peace.  According to Ury, all conflicts can be transformed by us taking the third side.  This allows us to walk on other people’s shoes and see the problem for what it is, instead of attacking whoever is against us.  This way of gaining perspective will help me by seeing situations objectively and without any emotion clouding our judgment.  

Erica Ariel Fox is a New York Time Bestselling author and negotiation lecturer at Harvard Law School.  She has developed many strategies to help people during negotiations and even wrote her Bestselling book Winning from Within: a Breakthrough Method for Leading, Living, and Lasting Change on this subject.  During a 2013 Professional Businesswomen of California (PBWC) talk, Fox explains how negotiations are not necessarily going to be set in a formal environment.  In simple words, Fox defines a negotiation as “every time I am trying to influence you, or you are trying to influence me.”  Even though Fox believes there are many great tools available for people to learn about negotiation, she believes there is a part that is still missing from this method of learning, which is why she developed the “winning from within” method.  With this method, the negotiator figures out what, inside of them, stops them from saying or doing what they know could get them the results they desire.  Fox admits that people normally know what they should do, but don’t necessarily do it, due to what Fox calls the “performance gap.”  This “gap” is the difference between what we know we should do, and what we actually do.  Our goal should always be to thing proactively about what to do, instead of having to look back and wishing we would have done thing differently, states Fox.  

Having noticed I have a performance gap sometimes after a discussion or negotiation, I will take Fox’s advice on stepping back and thinking about what it is that is going on around me.  Fox advices to negotiate with oneself first, before talking to anyone or trying to negotiate with other parties.  The key is to be aware and to not get in my own way when it comes to working on negotiations.

Black Friday Sales and Mobile Devices

It has been almost two weeks of non-stop Black Friday Sales advertising on all media platforms.  From television and radio, to social media and all online websites, companies made sure this year, Thanksgiving and Black Friday shopping would be a success.  As for the way in which consumers would purchase these discounted items, 2014 has been the year of the mobile devices, according to multiple sources.

Back in 2010, less than 10 percent of all Black Friday shopping traffic came from mobile devices, according to The New York Times.  Fast forward four years, 2014 Thanksgiving and Black Friday sales jumped over 25 percent with consumers skipping the Black Friday madness in brick and mortar stores, and getting their holiday shopping started through their mobile devices.

Adobe’s 2014 Digital Online Shopping data study shows that 29 percent of sales made by consumers on Thanksgiving Day happened on smartphones or tablets, while 27 percent of Black Friday purchases were made through mobile devices. These numbers are up an average of 23 percent from the past year alone.  This study is based on “theanalysis of aggregated and anonymous data of more than 350 million visits to4,500 retail websites” according to the Business Wire webpage.

Social media platforms also had to do with these online purchases during 2014’s Thanksgiving and Black Friday sales.  Social media driven orders came from online platforms such as Facebook, Pinterest, and Twitter.  This includes social media advertisement and links to companies’ webpages.  Facebook’s average order value was $114.45, while Pinterest’s was $93.20, and Twitter had a $90.74 average total sale value.  Social media driven orders totaled in $74.6 million during Thanksgiving and Black Friday sales in 2014.

All of these figures add up to the astounding $32 billionthat have been spent online in the days between November 1 and November 28, 2014, a total of 14 percent more than the same date in 2013. With an average online discount of 25.2 percent, consumers got to skip the long lines and crowds of eager and angry shoppers while still taking advantage of these early holiday season sales.  Now, with all these sales done through online websites and mobile devices, how will Cyber Monday’s figures stack up compared to Thanksgiving and Black Friday sales this year?

Mass Design for Individual Users

She calls it "Designing for Humanity," as Facebook’s director of product design, Margaret Gould Stewart has an extremely important task that is crucial for this global brand.  Margaret and her team design digital experiences for Facebook users all around the world.  From company wide concepts to small details such as the Facebook “like” button, the product design team makes sure this mass design is at the same time personalized, a task that is as difficult as it sounds.

In her TED Talk, Margaret Gould Stewart explains how she must keep two things in mind above anything else while she is doing her job.  She must have audacity and humility in order to be able to successfully design at the scale that social media works.  Audacity is needed to realize that what they are designing is something that the entire world wants and needs, and something everyone will see and use.  On the other hand, Margaret makes a point that not everyone in the industry understands, one that I believe is one of the greatest keys to success in the digital marketing and social media world.  She understands that she must always have humility as a designer in order to successfully design for the whole world to see and use.  Humility in this sense means to understand that what the users want and need is far more important than the designers’ portfolios and what they would like to design.  Just as in creating any brand, the design and content Margaret Gould Stewart’s team creates are not meant to be done for themselves, instead it is meant for everyone that will use it all around the world.

The designer goes on to explain how “when you’re designing at scale there’s no such thing as a little detail.” All these details that may seem obvious or trivial to some, take time, energy, and talent to create successfully.  A great example of a small detail that has shaped Facebook members’ communication has been the “like” button.  A miniscule button that took more than 280 hours over several months to redesign in order for it to fit into Facebook’s new general design, this new “like” button is a great example of how mass design can also be personalized.  During this design process, the product design team made sure the button worked in different languages, different devices, and different browsers, all the while they had to work with height and width parameters set by guidelines.  Not an easy task, but the result was a success. 

Margaret Gould Stewart describes her job as director of product design better than I could describe it myself, she says there is a “never-ending thrill of being a part of something that is so big you can hardly get your head around it, and the promise that it just might change the world.”  Take a look at her TED Talk for more on this topic. 

Hello, Ello…?

 Lately the new social media concept Ello has been getting a great deal of publicity as the “Anti-Facebook” social network.  With some words of encouragement in their manifesto, stating their users are “not a product” and their social network is “a tool for empowerment,” Ello has become an overnight sensation in the social media community.  But is this platform really on its way to becoming the next social media trend to take over the world? Does it even have the potential for growth?

As trendy as it sounds to be part of an “invitation-only,”independent and ad-free social network, Ello has a long way to go if they want to compete with top social media networks such as Facebook, Twitter, and Instagram in the longer term.  Ello’s features are similar to the rest of these social networks, yet it became an overnight sensation when they detailed how they are not making money from advertisers, but from a “freemium” app model.  What this means is that Ello will provide the user with basic, core services for free, and additional premium features at a cost.

In theory, this sounds like a plausible business plan, and Ello’s investors seem to agree.  The company raised around $435,000 prior to its recent booming growth, and with about 31,000 requests per hour, who knows what more the company is able to raise?

Personally, I am still debating on my thoughts about this social network.  Sounds like a refreshing and different way to look at media platforms, if they are able to stick around with all the competition they are facing.  What are your thoughts?