Yesterday my wife opened an express letter Fedexed to me from a law office in San Diego – apparently a British marketer has decided the only way he can repair his search engine results is to call out the lawyers, and I have a very strong feeling this is going to backfire.
Pending “reputation management disaster”
Here is what I received:-
This is the first page of the cease & desist.
3 potential jurisdictions though the primary business location of the lawyer’s client is almost certainly the UK & my blog is not set to target any particular regional audience within Google webmaster tools, and in fact hardly ranks in the UK as there is far more negative press from blogs & forums that do target the UK.
The lawyer has trouble distinguishing blogging terminology and differentiating between a “blog post” and the blog itself.
The issue seems to be:-
- Use of trademarks
- Infringing on intellectual property
- Use of copyright material
The name in question certainly wasn’t any kind of registered trademark at the time I wrote my post back in December 2009 – applications happened in March 2010. Trademarks exist from use rather than registration but their primary function is to prevent confusion in trade, not to prevent free speech.
I have searched United States Patent and Trademark Office TESS system, and it appears the US Trademark hasn’t been awarded yet as there is a bunch of information that wasn’t supplied in the original application, thus why a serial number was included (at least that is my understanding)
I have also searched the the UK Intellectual Property Office and a trademark was awarded 2nd July 2010 – that is a few days after this letter was drafted… but the postmark in the Fedex paperwork was 4th July… so the trademark was something they were obviously waiting for…
But trademark has absolutely nothing to do with the content I wrote. It was very clearly a thoroughly researched review & personal opinion. The letter was cleverly (sneakily?) worded suggesting a registered trademark in both territories, when at the time it was drafted their was neither.
Intellectual property becomes complicated…
I included a picture of a full beermat which was being used for marketing purposes. The beer mat included a photo of the gentleman/business who the lawyers represent. Why anyone would include their photo on a beer mat amazes me, because people use them to stub out cigarettes, as makeshift dart boards, to clear up vomit etc. They also get drawn on, just imagine how many times someone has added devils horns to the face on that very same beer mat.
As my review covered the advertising methods used by the person who has set the legal dogs on me, and the source was achnowledged with a followed link, I think I am covered under the UK concept of “Fair Dealing“.
But there were 2 photos I included:-
The first was the same photograph as used on the beermat, and used very frequently within marketing materials. I have similar mug shots out all over the internet – people pick them up, include them on blog posts etc. Lots of people use a similar photo for their avatar on social networking sites and they get syndicated all over the internet.
Plus I have never known a marketer who would require permission to use such a photo, especially on a post which was fairly neutral in tone (it wasn’t totally negative, in fact I have some respect for the guy).
In many ways in this current social media climate, such a photo is more a trademark in many cases than their actual name.
It is like a log… part of a brand, and when referring to that person/brand, especially on a social blotform such as a blog, use of such would be looked on as normal.
Can you seriously imagine not being ridiculed if you sent out a cease and desist because someone included your social media avatar within a blog post that links through to lots of your sites?
I also included a photo from the sales page of a conference held in the UK in 2009. It was being used in a marketing context thus wasn’t a private photo and I did link through to the sales page in question. It was a good photo and showed the subject of the review in a very positive light. My commentary about the conference in my mind was neutral. There are 2 types of internet marketing conferences… Solid content & pitch fests. I couldn’t comment on what kind of conference he held, but I have heard mixed reviews.
My use of these 2 photos is the only part of my original post that might be looked on as copyright infringement under “fair dealing” in the UK. I am not a lawyer, I think the claim is a little tenuous, and it would be interesting to contest that, but those photos have been removed from my post & I don’t intend to ever republish them.
Lets deal with the linking claims after this next cease & desist screenshot.
This lawyer is really struggling with web terminology – no wonder – cookie cutter legal website with 8 links pointing to it. Just the kind of firm I would love to be advising me on online reputation management. Mr Olin, a specialist would have told you this was going to backfire.
In fact most people involved with reputation management especially after the ePerks incident will probably be shocked by my tempered reaction.
“Furthermore you have linked your forums and blogs to other websites, forums & blogs that contain notably patently false statements that [name withheld] and his business practices are a scam and that hi marketing materials are fake and/or fraudulent, or insinuations of the same.”
It is quite possible that the lawyer didn’t actually read every word I wrote, or follow the links.
Most of the links were to [name withheld] owned web properties, his media on sites such as YouTube, and one very complimentary review.
I also linked to 2 other reviews from readers whose opinion I trust, which I believe were fair and balanced.
Absolutely none of the sites I linked to claimed [name removed] was in any way a scam. At times some of the comments weren’t very complimentary, people struggling to get refunds as how to get a refund wasn’t a simple process at the time, and thus people were thanking the writer for providing the information.
As such I dispute this claim 100%, but to be honest I should have updated my post in April 2010 when certain newsworthy events took place that did warrent further commentary.
7th April 2010 ASA Adjudication on [name withheld]
2 of 3 counts upheld
The ASA isn’t “The Law” in the UK – they manage the regulations and advertisers generally listen to them, because whilst they can’t impose fines or stick you in jail, some of the sanctions that can be imposed could make some forms of doing business, especially direct mail or buying ads in newspapers pretty uncomfortable, or unprofitable.
For a direct marketer to ignore the ASA ruling would be business seppuku.
The law that their regulations are based around is The Business Protection from Misleading Marketing Regulations 2008 – SI (Statuary Instrument) 1276 of 2008 – that is the stick used by the Office of Fair Trading.
But I didn’t write anything even though I saw the news, and had already been provided copies of the adverts that were being mailed in November/December.
I can’t imagine that [name withheld] was unaware of the complaints well before the final decision date.
But it was just an ad, ads come before the ASA all the time, it is no big deal.. slap wrist, learn from this mistake.
But then the advert continued appearing in people’s mail boxes.
Someone mailing a misleading advert that the ASA have upheld a decision on is newsworthy.
So there were a number of blog posts complaining about it, and in my personal opinion that was well justified.
SPAM = Sites Positioned Above Me
So these blog posts seem to be disrupting the sales & conversion machine. Wise business people were searching for information about [name withheld] and discovering blog posts of people complaining about advertising practice.
That must have been a big stick stuck in the gears of an otherwise well oiled marketing machine.
What to do about it?
- Ignore it – everyone gets a bit of bad press once in a while and even I tend to admire people who push the limits and test things which might be thought acceptable in other markets
- Make it a learning experience – admit it, even make it a marketing point & lesson freely available. There is a lot to be learnt from the whole process and it can even help open up new traffic sources.
- Build links to positive articles – this is the classic reputation management option – find some positive articles about you and drive lots of links to them. Based upon the marketing materials of [name withheld] he has mentions in all kinds of national press, “As seen in” blah blah blah… the only problem is so far from all the claimed appearances I have only been able to find 2 very dated mentions. Not a lot for a reputation management specialist to work with. To be quite honest even my article might have been a suitable candidate assuming action had been taken to rectify a few of the isues I had found (however no action had been taken that I can find evidence of)
- Build lots of brand domains – this is a fairly poor option unless they really have a purpose in being in the SERPs – if they are obviously just properties owned by the same person full of duplicate marketing articles the average surfer looking for information to base a decision on is just going to dig deeper.
This was one of the actions taken by [name withheld] – either his own initiative or someone he hired – idiots
- Build a social media presense – this is something different than just a brand domain because it could show a more human site to interested customers.. it helps if you update your Facebook once in a while, actually own your own name on Twitter etc.
In this case facebook hasn’t been updated in ages, the Twitter account may have been run by an imposter, at the time of my post back in December it seemed it might be legitimate… though some of the content didn’t seem very typical of the overall marketing message. The Twitter account is now devoid of content.
- Create content – press releases, authority interviews, even some article marketing… do whatever you can to build content that can then have links pointed at them.
- Release a book – even a short one, even a ghost written one based upon a couple of your existing videos – tons of press even if it isn’t very original
So what does a leading authority on marketing who also teaches SEO do?
Yup – he hires a lawyer to send cease & desist notices to a bunch of bloggers who complained about his direct marketing tactics and the upheld decision by the ASA, and his continued mailing.
Someone involved in this is a marketing ignoramus – I don’t know who that is specifically as it is quite possibly [name withheld] isn’t the one pulling the strings on this.
Of course the saga isn’t over yet… whilst it seems lots of people have taken down their content, I think all of them are British and aren’t overly fond of unwarranted litigious tendancies, especially with the letters originating from the US.
Bad News Fills Vaccums
Bad news / Negative press tends to fill the gap in the SERPs a bit like a hydra. It can’t be killed with legal threats easily, especially when some of the coverage is probably justified.
My actions? I have removed the blog post in question, and deleted it from the one place I believe it was syndicated (automatically) – my facebook account.
As far as I am concerned just before my post I hadn’t heard of the guy, and I am quite prepared to impose permanent obscurity (which is what his lawyers seem to want) as far as my own web properties are concerned, assuming no legal action is taken against my readers… then it would be a case of taking legal consultation.
My reasons are fairly simple
I am in the middle of some marketing experiments, and I certainly wouldn’t want to upset my test data with a whole load of untargeted traffic, plus I wouldn’t want it looked on as trying to profit from a poor reputation management decision.
I don’t want the name of the person mentioned in the comments however there is something my readers can help me decide.
You see I haven’t redirected the old post to a new one yet so any potential visitors currently receive a 404 error.
I have narrowed it down to 3 options for the redirect
- To this post (name isn’t mentioned anywhere)
- To the ASA decision on advertising practice (stuffed with the guy’s name/trademark)
- To a popular Rick Astley video
Nothing preculdes any of those to rank on Google, even #1 in the UK for this guy’s name/trademark in the future, without any further action on my part.