Are you working outside the law and ethical boundaries of Google Business functions? Or are competitors passing you by?
Law practice marketing is one of the Internet’s roughest neighborhoods. Google has the tools, but what are the guardrails, and how does Section 230 dictate how far you – or your competitors – can go? Guest Eric Goldman, co-director of the High Tech Law Institute at Santa Clara University, digs deep into this fascinating and confusing field. If you haven’t already, check out Part 1 of our conversation with Dean Goldman.
Plus, news: The new Local Search Rankings Factor report is out (hint, maybe geotracking isn’t all that), and maybe a looming trademark fight between law firms Hello Divorce and Hello Prenup.
And in the 2021 Clio Legal Trends Report, lawyers say tracking revenue is the most crucial factor for measuring business health and growth. But is it?
At the top of the episode, Conrad and Gyi take a moment to share their horror at the tragedy of the November 30th Oxford High School shooting, reflecting on the pain events like this cause not only for the victims, but for their beloved Michigan community at large. The guys, and the producers at Legal Talk Network, invite you to join them in showing your support to the victims of this terrible event by contributing to funds set up for the victims via the links below.
Sponsor music provided by SoundStripe:
Got Me Like by Dr. Delight
Special thanks to our sponsors Alert Communications, LawYaw, and Clio.
Conrad Saam: Before we begin, a quick word from our hosts. As we began the post production on this podcast, news of the Oxford Michigan School shooting hit the airwaves, and it seemed a little tone-deaf to release an episode. Gyi and I both have really serious ties to the State of Michigan. We talked about Michigan football all the time, its fun-silly banter, and then this comes out of the State that we love so much. Four people died, seven more were injured. It hits a little bit hard when you’re a parent. Gyi is a brand-new parent. My kids? Well, my kids are the age of the victims, and of Ethan Crumbley, the boy who pulled the trigger. From what I understand, he was a boy really crying out for help, and he didn’t get it. And now replaying this chapter, again, of America’s unique problem with gun violence.
I don’t know what to do. You should know that Legal Talk Network, the producer of this podcast and many others, is making a donation to the kids’ families. We’re going to put links to those victims’ funds in the show notes. It’s an inadequate token. It’s beyond the typical thoughts and prayers of which I’m tired of hearing, thoughts and prayers. This isn’t a political show. I don’t have the answers. I don’t know what to do. Go check in on your kids. Give them a hug.
We now begin our show as originally recorded.
Gyi Tsakalakis: Hail to the Victor’s valiant, hail to the conquering heroes. Too much? Too much Michigan?
Conrad Saam: No, no, no, not enough. I love it and I love when you sing, and I love Michigan. This is like my Venn diagram of happy right now.
Gyi Tsakalakis: Well, I know that you’re excited.
Conrad Saam: I’m very excited.
Gyi Tsakalakis: Tell everybody what happened this weekend.
Conrad Saam: Well, I will tell you. This is the first time, this is the problem with being a Michigan fan. This is the first time I have gone into a game thinking we were going to lose, ever, in the history of my life, and we finally won. So, I don’t know if that’s a good superstition or not but, the Michigan-Ohio —
Gyi Tsakalakis: Yeah, you’re like the opposite fan of me. I go into every game thinking we’re going to lose, so
Conrad Saam: That’s because you’re a stoic and I’m a —
Gyi Tsakalakis: Yes, it’s preparing for the worst.
Conrad Saam: Totally. No, it’s great. And then, of course, last night the rankings came out and we are now number two, which, by the way, grossly overrated. I don’t want to say that, but it feels like we’re overrated too.
Gyi Tsakalakis: True. Yeah. I think everybody’s overrated except for Georgia.
Conrad Saam: Yeah.
Gyi Tsakalakis: Them dogs.
Conrad Saam: We’ll see what happens, and I think you can take that — oh, I was going to try and make it corollary to lawyers thinking to do a great job at winning prospects that they want to win. It’s the Lake Wobegon, effect where everyone is above-average, but yeah, beware of your own rating system. You’re probably not as good as you think you are.
Gyi Tsakalakis: The funny thing is this is going to go live and Michigan is going to have lost in the Big Ten Championship to Iowa, and everyone is going to be like —
Conrad Saam: Put the stoic away, Gyi, good Lord, you’re killing me. I don’t even want to think about that. I have to live in a world where perpetually Michigan is going to win in my head.
Gyi Tsakalakis: Conrad, in addition to the greatness that is Michigan football, what are we going to be talking about today?
Conrad Saam: We have a quicker view of the news. We’re going to go into the very recently hot-off-the-press-released local rankings factor report from Darren Shaw. And most interesting, we have the conclusion of our amazing conversation with the distinguished dean, Eric Goldman around Google My Business and Section 230, which interestingly is my kind of fantasy-desired, custom vanity license plate, which I do not have.
Gyi Tsakalakis: And my most important question for you is, what makes the world go round?
Male: Welcome to Lunch Hour Legal Marketing, teaching you how to promote, market and make fat stacks for your legal practice, here on Legal Talk Network.
Gyi Tsakalakis: Welcome to Lunch Hour Legal Marketing. Conrad, hit us with that good news.
Conrad Saam: All right, so we’ve got that Google Core Algorithm update that just came out. And there was an interesting article out by Carolyn Elefant, who is a recent friend of the Pod. She came on, I think, two or three sessions ago, and we also had Hello Divorce on the Pod, and those two ran into each other.
Carolyn noticed HelloPrenup, new business called HelloPrenup, which may very reasonably thought and get confused with Hello Divorce. So that was an interesting post that Carolyn put together. We will put that in the show notes to see whether or not we have trade mark infringement issues between HelloPrenup and Hello Divorce. I almost feel like this is comedy.
Gyi Tsakalakis: Hello Custody coming in 2022.
Conrad Saam: Hello Legal Marketing coming brought to you by Gyi and Conrad in 2022.
Gyi Tsakalakis: Totally.
Conrad Saam: HelloPrenup was on Shark Tank. That was what instigated Carolyn to write about it. So, yeah, interesting.
Gyi Tsakalakis: There you go.
Conrad Saam: It seems like someone would have done a trademark search before they did something like this. It seems like you would be aware of this.
Gyi Tsakalakis: Humans, silly humans.
Conrad Saam: I personally can’t throw trademark bombs, but that’s a different conversation.
Gyi Tsakalakis: And now for our Legal Trends Report Minute brought to you by Clio.
Gyi Tsakalakis: From the 2021 Clio Legal Trends Report, lawyers need access to revenue and spending information. Lawyers widely agree that revenue is one of the best metrics for tracking firm performance. Interesting. Eighty-four percent agree that this is the metric they focus on in which to improve in their firms when we asked about this in 2018. To make the right decisions when it comes to planning for the future success of their firms, lawyers need to understand their revenue and their spending above all else. To develop a baseline of how well lawyers understand their revenue, we asked how much they believed it had grown since the same time last year. Fifty-six percent believe it increased in that period, with one quarter of all respondents according to that group by 50% or more. There’s some interesting stuff in here, and we’re going to talk more about this in our next episode. Right, Conrad?
Conrad Saam: Yeah, I mean, the fascinating parts of this to me I think if you just look at the basic numbers, 56% believe revenue increased. That’s like a coin flip. That means 44% of people thought their revenue did not increase. That is not growth for an industry, right? That’s not great. I think what Gyi is foreshadowing here is we want to talk about your revenue objectives and what your marketing looks like in order to get you there. Do you have enough gas in the tank to get you from New York to Florida, or are you going to get stuck in Delaware somewhere?
Gyi Tsakalakis: And is revenue growth really the right metric?
Conrad Saam: Depends on your practice area.
Gyi Tsakalakis: Right. You know, as small business owner ourselves, I think a lot about profitability as well, but we’ll talk about that next time. To learn more about these opportunities and much more for free, download Clio’s Legal Trends Report at clio.com/trends. That’s Clio spelled C-L-I-O, or amazingly, you can just search for it on Google because it will come up number one if you search for Clio Legal Trends Report, go SEO.
Conrad Saam: And they do that really well because they keep putting in Clio Legal Trends Report on the same URL, right? Again, basic SEO 101 stuff; all those links going to that very, very, very, very strong page. That’s how it works, 101.
All right, so, to start our first segment, we mentioned earlier that the Local Rankings Factor Report has come out. This is a report that was originally created by David Mihm. It’s that the baton was passed over to Darren Shaw and Darren finally released this. He was really, really nice to me. He let me do a webinar about this before it actually went public. And so, for some of my clients who we’re actually able to share some of the information in the Local Rankings Factor, I think one of the important things, and by the way, you should read this. It is very, A, local is a really big deal; B, most of you don’t have a fully strong understanding of what it takes to actually rank in local; and C, it changes all the time, right? And it is really evolving. And so I really think this is something that you guys should take the time to read because there’s a lot in there that may be myth busting.
The other thing to note as you’re reading that, Gyi, I think this is important. As attorneys, this does not represent the legal industry; this represents the overall industry. And my bias is that legal is so — it’s so competitive and frankly, it’s so dirty that most of the people who are responding to the Local Rankings Factor Report aren’t dealing with the garbage that Gyi and I deal with on a day-to-day basis. Do you think that’s a fair lens with which to look at the report, Gyi?
Gyi Tsakalakis: Yeah. I mean, look, I think we’ve already acknowledged it, but acknowledge it again. We’re biased about this survey because we contribute to it. But these are, in my opinion, in the last 15 years of this or so, some of the best minds in local marketing, and so don’t take Conrad and I’s word for it. Check out what they have to say.
But to Conrad’s point, I mean, there are folks that work and some other ones, locksmiths that tend to be rough and some other industries, but legal. Yeah, legal is definitely in that corner of the world. If you just go look. I mean, even some of the stuff that we talk about with Dean Goldman in terms of fake reviews and stuff. It’s nasty out there. My thing about this, one of the things I think was interesting to me is I’d love to see the same survey questions asked if we took keyword in the business name field off the table because I think a lot of the survey respondents they think, oh, yeah, GMB. Well, GMB is a factor — business name and title is a huge factor, and so that disproportionately impacts. That’s my opinion of why we see links going down and like links — everybody knows how I feel about links. But they’re trending down in the last couple of years. And so my insight there is I think that’s more of a reflection of people thinking the power of links is being diluted. But again, I got to tell you, show me a competitive local SERP that has three listings that aren’t spam, that aren’t keyword business in the name and don’t have links. I do haven’t seen them. Show me.
Conrad Saam: Gyi will send you $100.
Gyi Tsakalakis: Well, I might send you $100 in Monopoly money, but I’ll take you to lunch if you’re in the same area as me and are willing to be responsible about COVID things.
Conrad Saam: Wow. Good. I like that.
Gyi Tsakalakis: Little science.
Conrad Saam: I think Gyi was talking about the differences. So overall, focus on Google My Business has gone up, and I think you’re right. This is probably a factor of non-legal plumber locksmith respondents answering this question because as we know and as we have whined about, keywords and that business name have an impact, right? In the Google My Business business name, which is now no longer called Google My Business which drives me bananas, but so be it.
Gyi Tsakalakis: I know. I keep doing that too, everyone’s like, “Oh, it’s Google Business Profile.” I’m like, you know what I mean. Like we get it.
Conrad Saam: Are people correcting you? Who’s correcting you?
Gyi Tsakalakis: Yeah. All the time. They’re like, we got you. We got you. I’m like, okay, you did. I’m totally wrong.
Conrad Saam: Is this the SEO gotcha game?
Gyi Tsakalakis: That is. That is what SEO is. It’s ranking updates and FUD and scare everybody to make yourself look like an expert. But turns out you and I were both totally wrong about one thing, and that’s geotagging photos, right?
Conrad Saam: Geotagging photos. Make sure that you send your staff out to take selfies in and around local landmarks near your office and that is going to be the major differentiator that puts you over the top. True or false Gyi?
Gyi Tsakalakis: If you don’t know what we’re talking about, go read the Local Search Ranking Factors. We’re not going to tell you. That’s a teaser to go download or can’t even download. I don’t think it’s a PDF, right? Except for lawyers, who download PDFs?
Conrad Saam: You’re just making me be nice here.
Gyi Tsakalakis: Well, actually, in fairness, lawyers print and fax.
Conrad Saam: Gyi’s point here is that you may have heard from some self-proclaimed legal marketing experts, ninjas and mavens that what you should do is make sure that your geotag your photos and add them to your GMB profile because Google uses that as a ranking factor, and that is one of the three easy steps to dominating the local pack. It’s a bunch of bullshit, and it is sold to you by people who liked to make themselves look smart by telling you bullshit that you haven’t heard elsewhere because it is bullshit. So, don’t do that. There you go. I’ve now just given us the R rating for this — but this annoys me. This is the kind of stuff that annoys me. And the funny thing is, this was the — was this the number one myth or the number two myth?
Gyi Tsakalakis: Number two.
Conrad Saam: Number two myth in the local ranking factor report that the experts are saying don’t work. So, this garbage has propagated around the web from people who don’t know what they’re talking about. It just has. And people like us get annoyed about it, and that’s why it’s showing up in this local ranking factor. So, Gyi, let me ask you a question. What is the thing? What is the driver, in your opinion, not necessarily local ranking factor, what is a driver of success in a highly competitive market like legal?
Gyi Tsakalakis: Name your firm the keywords. All right. Can’t do that. Number two. I mean look, you can make a compelling argument for reviews, right?
Conrad Saam: Yeah.
Gyi Tsakalakis: And because reviews also impact conversion, which is a big thing that we talk about and that Darren highlights in various places. But you can make a strong argument that reviews are more important than maybe links. The other thing that I always do, and I think maybe that other people on the survey don’t think about it this way. All this other stuff, like they list like primary category, and I’m like that’s like table stakes. Come on. And maybe that’s like the curse of knowledge, right? Because I’m like, oh, yeah. Obviously, you put your primary category as descriptive as you can, and some people might choose a general category or get the category wrong or whatever. So, you can make an argument for category, but that stuff is table — filling out the Google Business Profile profile, if that’s thing.
That’s table stakes stuff, like you’re not going to rank in Chicago or New York for personal injury lawyer in the local pack by getting the category right. Like at best, it’s necessary but not sufficient, and if you want to know what you really need beyond table stakes, in my view, it still remains links. End of rant.
Conrad Saam: Let me ask you a question. So, one of the things that came out of this survey that I thought was counterintuitive and interesting was that multiple categories do not necessarily dilute that primary category, that they’re actually additive.
Gyi Tsakalakis: Yup.
Conrad Saam: According to the study, adding diversity in the secondary categories is actually an asset, not a liability, and I found that interesting. I’m curious what you think about that.
Gyi Tsakalakis: Here’s the thing though. Here’s the counterpoint to defend the primary alone category again is that if Google misses. They get it wrong, right? Let’s back up a second. I’m sure we’re going over time of this segment, but let’s say you do primary personal injury attorney, secondary criminal justice attorney, and someone searches personal injury attorney, and Google shows criminal justice attorney. Even if you rank, you’re probably not going to convert because consumer looks at that and says, “Hey, wait, there’s other personal injuries around this listing, there’s criminal justice attorney.” So, that’s the drawback. That’s what I would love to see is a study on what percentage of the time Google gets that wrong, but it does happen, and that’s the counterpoint to multiple categories.
Now, if you just do a more general category as a secondary, right? You just do law firm as a secondary. Here’s the tradeoff there. You’re going to show up for a lot more terms, but you’re probably going to get a lot more calls that are unqualified because people are just seeing law firm and Google’s matching you on law firm. So, you do personal injury work and someone’s searching landlord tenant and Google shows law firm and you get the call. You might be like hooray. I ranked for another term, but not hooray, because now my intake resources are deployed against landlord tenant. But maybe you can refer that out to build a referral relationship so that you scratch their back, they scratch yours. Great way to make friends.
Conrad Saam: Yeah. We do not run anyone with just a generic law firm.
Gyi Tsakalakis: I don’t know if we do to be completely honest with you.
Conrad Saam: That to me, sounds like a nightmare of unqualified at best, and worst, you’re telling the algo that you are — I always use this parallel. You’re a restaurant. You’re not a pizza restaurant. No one knows what kind of restaurant they want. Like people know what they want to go to; they don’t want to go to generic restaurant, right? It’s like you want pizza, you want sushi.
Gyi Tsakalakis: Good point.
Conrad Saam: No one wants to go to restaurant.
Gyi Tsakalakis: Restaurant. Family restaurant.
Conrad Saam: Yes. Not even family restaurant, right? It’s just restaurant. We might not even like families. We might not like children. All right. With that, we’re going to wrap up this segment. Read this. Go. We’ll put it in the show notes. Please take the time to go and read the local rankings factor report, and after the break, Eric Goldman returns to tell you more about Section 230.
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Gyi Tsakalakis: Welcome back, everybody. So, our super loyal listeners will recall that last week we had the distinct pleasure of talking with internet law expert, Dean Eric Goldman, about the intersection of Google Business Profiles, Reviews and Section 230. If you haven’t had a chance to listen to it yet, please do go back and give it a listen and we’ll have a link to that episode in the show notes here. Don’t worry. We’ll wait for you.
Okay. Now that you’re all caught up, we’re going to pick up the rest of the conversation with Dean Goldman, where we talked with him about fake listings, competitive keyword bidding and emojis. Roll it.
Conrad Saam: All right. I’m going to ask you a question. This came out, there’s a blog post by an internet marketing guy named Doug Bradley. He’s a really smart guy. And by the way, Gyi and I have spent lots of our clients’ money trying to deal with fake listings on Google, right? There’s hundreds and hundreds, thousands and thousands of fake law firms, fake locations, cropping up and doing very, very well at winning the SEO game, the local search game and driving a lot of business. And so, we’ve spent a lot of time dealing with these fake listings. Doug Bradley writes that the problem with the fake listing specifically around law firms, and it’s not just law firms, it’s locksmiths or another one that’s says kind of locksmiths and plumbers tend to be big offenders as well, but it’s so bad that it’s harmful to the public. And he says in a blog post, and we’ll put this in the show notes, but this is a plea to the FTC to take action specifically and solely on the regulation of the Google My Business platform and the supporting rationale is based on Google My Business serving as a public utility in place of phone companies and the accompanying FTC regulated phone book directories.
So, Bradley is basically saying from my understanding here is that it’s so bad and people have switched their use of phone books at Google, which like not a surprise. We saw that a while ago. Right? But that the information in the directories is so bad and so inaccurate that it’s actually misleading to the public and therefore should be regulated.
Gyi and I have talked about this ad nauseam and that’s actually when we realized we wanted to have you on the show when we were fighting about this philosophically. So, I’d love your feedback on this.
Eric Goldman: So, my apologies, I haven’t read that blog post so my comments aren’t specific to the blog post. There was an interesting phrase that you mentioned there about public utility and I just want to flag that phrase as one of the ways in which critics of the existing internet ecosystem are trying to exercise control over the content of the system but actually in a way that is completely contrary to the other stated objectives of that blog post. If in fact, a review service is a “public utility,” it might be required to carry all comers, which means that it would be required to potentially carry all legal content, including reviews that the service doesn’t know are fake, it hasn’t been able to determine are fake, they would still be required to carry them, even if they thought they were fake and wanted to remove them.
So, we have to be careful. The sensorial objectives are coming from both angles. Both we want to forge more removal, but there’s also a whole strata of people who are advocating for removing less content, which would be directly contrary to everything discussed. In terms of trying to weed out fake reviews through regulatory initiatives, let’s start with the baseline. Who is the person who is breaking the law here? And it is whoever is uploading the content with a fake information. And so, the question is, what are government regulators doing to manage that level of regulatory activity? Are they going and identifying the people who are engaging in these coordinated inauthentic campaigns and holding them accountable? And if they’re not, why aren’t they? Isn’t that what we pay them to do with our tax dollars?
Now in terms of holding the review services liable, we have to be much more thoughtful about that. This is exactly what Section 230 was designed to do. It does create a different regulatory model than was applicable to yellow page publishers who were liable for the ads that they publish as if they had written them themselves. But Section 230 says the exact opposite. It says that the review services are not liable for that content that comes from third parties. And so, it reaches a completely different result. Though the fix to that, any fix to that is going to get exactly into the reason why we wanted Section 230 in the first place, because of the fact that if we hold liability for taking action against content that is not fit for the audience, then internet services might choose to not do that work whatsoever, or they might say, “We can’t be in this business. It’s not profitable for us.” Remember, the advertisers were paying the publishers in the yellow pages to publish that. There’s enough money to do the legal work. But the review authors aren’t paying Google to publish their reviews. There’s not the same kind of financial liquidity in that market to enable Google to do the work that we would expect from the yellow page publishers.
So, it’s just like an apples and oranges comparison, but I think that by focusing on the review service, we have to also make sure that we’re not taking our eye off the ball. The real problem is these people who are engaged in these coordinated inauthentic attacks and I want to make sure that our regulators are fighting that.
Gyi Tsakalakis: Okay. So, I wanted to shift gears for a second and talk about competitive keyword bidding. So, I know you’ve published a lot on this, so maybe you can set it up for us the issues and describe it so that I’m not doing it. You’re the expert on this stuff. So, I’m a lawyer and I want a bid on the lawyer down the street’s name on Google Ads. Is that okay?
Eric Goldman: In general, my view, the answer is yes, but we had to put an asterisk about that because there are some reasons why that might not be okay.
But just to make sure everyone’s clear, I’m guessing most of your listeners are very familiar with competitive keyword bidding. But as you said, we’ve got services that will accept advertising that will be displayed in response to the keywords that are selected by the advertiser. Google is the most common and the most popular one of that. So you can say, I’m going to buy Jeff Jones, Esq. as the trigger for my advertising so that anytime someone searches for that, my ads will show up as a possible resource to the person doing the search. There have been many legal battles over this and the legal battles have targeted both the seller of the keyword advertising, a site like Google, as well as the buyer of the keyword advertising, the advertiser. With respect to the lawsuits against the sellers of keywords, the courts have essentially uniformly held that the sellers of keywords are not liable for selling the advertising. That’s true both on a trademark front and then we haven’t seen too many publicity rights claims but the publicity rights claims are also not likely to be successful. So basically at this point, Google and the other keyword ad sellers act as if they face no liability for selling the keywords.
Conrad Saam: And their perspective is that like, as long as you don’t pretend to be Coke when you’re Pepsi, it’s okay, right?
Eric Goldman: Well, actually, they don’t get into the actual keywords that are purchased. In terms of the ad copy that’s displayed, each service has their own policies, but Google’s policy basically says that a trademark owner can opt out of having their trademark displayed in the ad copy. So, you mentioned the Coke-Pepsi situation. So, imagine that Pepsi was buying the trademark Coke as a keyword ad, Coke would have the ability to tell Google if Pepsi is showing the word Coke anywhere in that advertisement block it. Now, there might be some limits on that depending on Google’s policy. But in general, the idea is then Pepsi would have to make its marketing claims without reference to the competitor, but it could still have the ad displayed when the competitor’s trademark is used as a search query.
So, from that perspective, what we generally see is advertisements that make comparative claims but without referencing the trademark that they’re comparing to. The ad I use in my internet law class is an ad for Volvo. If you search on the keyword Mercedes, Volvo wanted to show up and they say, switch to Volvo and we’ll give you an incentive for doing so. They never referenced the word Mercedes in the advertisement and yet they’re still making a comparative claim in the ad, they’re just not saying who they’re comparing to.
Conrad Saam: And is that problematic? I mean, we’ve seen some really clever — I would call them clever because I’m a spineless internet marketer, clever approaches to that. So, for example, why pay $49 when you can get it cheaper, right? Or we’ve seen people’s taglines getting taken away. So, there’s you know, in the legal marketing world, you may not even know this, kind of hope you don’t, there’s a whole a hammer, the hammer of the law, right? And those would be a big TV advertiser, right? The Texas Hammer. And the competitive advertisement might be don’t get nailed, right? And so, there’s they’re specifically not referencing them, but they are absolutely referencing that competitor. I’d be curious on your perspective on that.
Eric Goldman: And I do know that example.
Conrad Saam: Oh good. Well, I’m sorry? I think?
Eric Goldman: Well, I’ve never actually seen The Texas Hammer ads on TV. I’ve watched a couple on YouTube and I don’t know what to say. They don’t speak to me, but I don’t think I’m in the target audience. Actually, I’ve used that example, that very example of The Texas Hammer example in class as an exercise for my students to talk about the internet keyword situation because I think it’s a really good example. Because as you say the ads will do some riff on the term hammer which they’re free to use and if you look at the trademark of The Texas Hammer, it’s actually The Texas Hammer. It’s not hammer, and like they couldn’t get a trademark for hammer. They certainly couldn’t control it from being used for other legitimate purposes. So, it’s just a messy situation and those cases are still ongoing and I think, at least one or two of them are now with the fifth circuit. But the question that you’re raising. So, we talked about earlier the liability of the keyword seller. You’re raising the question about what’s the liability of the keyword buyer.
So, this is the trademark owner or the publicity rights owner suing the advertiser for buying their trademark or their publicity rights, if they’re covered under that, and then showing up an ad that might be competitive or comparative in nature. And there’s been a lot of cases on that. Honestly, I don’t have a complete inventory of those. I’m sure it’s over a hundred cases that have hit the courts and of course there’s far more that have been litigated that didn’t reach some opinion, they settled. And some of you may be familiar with the FTC’s intervention in the 1-800 Contacts campaign which got a series of settlements from buyers of keyword ads based on the 1-800 Contacts trademark and the FTC actually did an enforcement action against 1-800 Contacts for this string of settlement. So, we don’t even know how many other settlements there are, we just know about the campaigns that 1-800 Contacts engaged in, but there are surely many more.
And many of those disputes never reached the court because they resolved some other way, in extrajudicial solutions, and I’ll talk about those in a moment.
The short answer is that it’s actually extremely hard for trademark owners and publicity rights owners to establish a valid claim against a competitive keyword buyer, the advertiser, especially if the trademark isn’t mentioned in the ad copy. If it’s not mentioned whatsoever, those cases have almost universally failed. At this point I don’t consider that to be a viable claim. When the trademark is in the ad copy, then we have to look very closely what’s in the ad copy, what kind of deception it might be creating. But we look at the ad copy and we usually have to look at the landing page where the ad copy links to and look at them as a package and say, what are consumers going to get from that package? How likely are they going to get confused of the overall package? And it’s very hard for trademark owners and publicity rights owners to establish the kind of claim that they want.
The other thing I’ll mention is that it’s just not financially tenable in many cases to bring these claims. I have a long list of cases where trademark owners have sued over having their trademark used as the trigger for ads, sometimes showing up in the ad copy, and then we get into court opinions how much damages were actually at issue here. And the numbers are just mock-able in some cases. I remember one case, there were three clicks total that the trademark owner was litigating over. It’s like, really, guys? And there was a couple of cases where literally the defendant was able to show there were zero sales produced in their keyword ad purchases. So like, really, guys? This is what you’re going to litigate over? It’s just not worth it. You’re just forking over money to your trademark lawyers so they can fork it over to the private schools that their kids go to. You’re not solving your problems.
Gyi Tsakalakis: And as we regularly do as a segment on this show, Dear state bar regulators, please go check out Dean Goldman’s blog post on these subjects, especially in Ohio, we are looking at you. Okay, we’re running out of time but I have to, one more thing and this is just for fun, tell us what we need to know about emojis.
Eric Goldman: I’m sorry, how much time do I have? You can’t spring that on me and say, hey, talk about one of your passions, but you only have 90 seconds.
Gyi Tsakalakis: Well, maybe we’ll have to have you back.
Eric Goldman: Emojis are a great topic. I guess the only thing I’m going to say here is that there’s I think a lot of angst in the lawyer community about using emojis either in advertising or in business communications. And definitely there’s an old guard in the legal community, either the Boomer-plus category, maybe the Gen-X category, or just people are really conservative as lawyers who think that using emojis either in advertising or in business communications is inappropriate. And I just feel like that’s almost like an Aegis kind of response. I think that emojis have become part of the lexicon, they’re part of the way we talk to each other, and definitely among the younger community, they’re an integral part of how they talk to each other. So telling people like, “You’re welcome to work at our law firm, but you can’t talk to us in emojis,” it’s basically telling those people we don’t want to speak your language. It’s really harsh response. But emojis in advertising are always at a risk of being misinterpreted because they can have multiple meanings and that is a known risk, but that’s true for a pretty much anything that you put in your ad copy. So you always have to stress test that to make sure you understand how it’s going to be perceived, but if you are able to determine that it’s going to be perceived well, why wouldn’t you use emojis in advertising? Not only is that a way that people are talking to each other, but they’re really cute.
Gyi Tsakalakis: And I’ll tell you from my own personal experience, when we add emojis to subject’s lines and email, wow the open rates and response rates go through the roof. People like them.
Eric Goldman: Use them, embrace them.
Gyi Tsakalakis: Yeah, agreed. Well, Dean Goldman, again, thank you so, so much for joining us and spending some time talking about this. We really appreciate extremely valuable information for all lawyers and anybody really at the intersection of law practice and technology. And are there places you would like to call out that folks should connect with you online?
Eric Goldman: I welcome anyone to follow me on my blog, blog.ericgoldman.org. And also Twitter is another good place to see what I’m thinking about and that’s @EricGoldman.
Gyi Tsakalakis: I remember back to the early days of Avvo, when the legal industry lost their collective minds around lawyers being reviewed. I feel like you were there for that, Conrad.
Conrad Saam: I used to feel the calls. I had the distinct pleasure and I — like this is really twisted. I spent at least a year of my life. I always got the calls when people called in who were angry and there were quite a few of them. I got the ones that got like accelerated up the chain to me and I dealt with lawyers who were super, super angry and a lot of that was around being reviewed online.
How do you know it’s a client? How do you know it’s this? This is blah, blah, blah like, and I learned a lot about Section 230 the hard way that year or not even the hard way, it was actually the good way for me because if you know Section 230, you’ll understand that Avvo was very okay publishing their reviews and the lawyers, Bruce Johnson was our first amendment attorney, he was fantastic. He’s done some work with me in the past. He’s just a great guy. I spent a lot of time with him learning about Section 230 and I just spent 12 months of my life just getting ripped apart for the internet publishing reviews on lawyers. At this point in time it’s mundane. I mean, we started the show talking about it being a local ranking factor, right? And it seems so obvious. It’s just fascinating you know, that was 2007, it’s not that long ago where this was not just revolutionary or evolutionary, but it was like the fury with which people responded to that was interesting and it’s just, it’s accepted at this point in time.
Gyi Tsakalakis: If it can be rated, it will be rated.
Conrad Saam: That was it you know —
Gyi Tsakalakis: Remember who said that?
Conrad Saam: Hold on. See, I’m blanking — Rich Barton.
Gyi Tsakalakis: That’s right. That’s I remember my first Avvo-cating, he was the keynote and I’ll always remember that because he was so right.
Conrad Saam: He was so —
Gyi Tsakalakis: Except not right about buying real estate online.
Conrad Saam: So for background really quickly, Rich Barton started Expedia at Microsoft and then spun that out. Mark Britton, who was the CEO of Avvo, was his GC at Expedia and I had the distinct pleasure of spending a lot of time with Rich talking about these things. He then went on to found Zillow and rated houses and the rating of houses was basically an assessment of how much a house is worth and he does it algorithmically and if you’re a real estate agent you’ll hate him, if you are Joe Public you’ll love him for giving you the ability to see what your house is worth.
Gyi Tsakalakis: No, but as an agent, he generate leads for you.
Conrad Saam: Oh, have you talked to real estate agents about how much they love Zillow?
Gyi Tsakalakis: All right, we’re going off on this show. You know the thing I wanted to reflect upon from this interview with Eric that really kind of levels that you know, we kept talking about consumer harm and fake reviews and impact and lawyers paying for using and all this stuff. But the thing that he mentioned that really kind of brought me back, and I know that some people are going to be unsatisfied with this answer, but remember that before reviews, before online publishing, before the internet, how did you hire a lawyer? You got one review in the form of a word-of-mouth referral and we can debate about the value of this, but the truth is that you know, in many ways the whole idea here is that you have a lot more access to information. Yeah, it’s not perfect information, but here’s the reminder, it wasn’t perfect information back then either.
So thanks again to Dean Goldman. We really, really appreciate you spending the time with us. I think it was super valuable episode and it’ll be very interesting to see how the intersection of lawyer reviews, legal marketing and really Facebook and these other platforms, how things unfold with Congress and whatnot over the next couple of years. So, really great episode, thanks again.
And to you dear listeners, thank you so much for dropping by another episode of Lunch Hour Legal Marketing. Please do remember as we always ask you to do, leave us a review, good or bad or indifferent. Actually, leave an indifferent review. I haven’t seen an indifferent review that’s a great one, speaking of reviews. And if this is your first time catching us do subscribe on your favorite podcasting thingamabob. Until next time, Gyi and Conrad, Lunch Hour Legal Marketing, out.
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Podcast transcription by Tech-Synergy.com