A quick look at our log shows which stories visitors viewed most in 2008 on Useful Arts.  I had forgotten how important, and frequently bizarre, this year’s topics were.

Three posts towered above the others: CAN-SPAM, teens behaving badly online, and Tiffany’s contributory infringement case against eBay.

January:
Catherine Douglas started the year off with visionary comments at Thomson CompuMark’s trademark law forum.

“15 years ago, law schools gave trademark law only passing reference. Since then, its become a specialty. Why? Because during those years, companies have come to differentiate themselves based on their brands.”

I spoke during a massive blackout in Miami at Marketing Sherpa’s B2B conference.  Imagine the magical and scary sight of marketers singing Kumbaya to the light of laptops.

February:

Anger at Comcast heated up as they packed a public hearing with paid sleepers.

Concern rose about President Bush’s gutting of a key privacy board, and interest increased as Lawrence Lessig explored a possible congressional run.

March:
Social networking and virtual worlds gained attention for their use by social activists, and I wrote guides to federal CAN-SPAM regulations and state CAN-SPAM “side orders.” Blogging from the Virtual Law Conference was a blast this year, and resulted in a long article on law in virtual worlds.

April:
Poorly parented teens beat a cheerleader and posted the video online. Brandon Lovested discovered that a chip in your tire’s valve stem may be reporting on your driving.

May:
A post using intellectual property records to track competitors’ activities was the month’s top new post. And Boing Boing brilliantly mocked site-use policies that prohibit linking.

June:
I poked fun at the Presidential campaigns’ use of Twitter as a method of debate, and ridiculed Edmund Chung’s suggestion that the Internet would be improved if it had been invented in China.

There was also humble pie to be eaten by a defendant who claimed he innocently used a product called “evidence eliminator” and by a judge who had to call on the Supreme Court Chief Justice to review his own pornographic joke collection.

July:
eBay won a decisive victory over Tiffany. A “maniacal” network engineer held San Francisco’s network hostage. I spoke about Lay Epistemology at PodCamp, and when I spoke at the OMS conference in Boston, an audience member summed up the use of video on the web perfectly: “Reading is for suckers” (a quote I’ve used weekly since then).

August:

Is Obama the Anti-Christ became one of Google’s most frequent campaign-related searches. Copyright propaganda turned up in several comic books published by judges, and Disney. And even in my memory, August’s foolishness eclipses the revelation that The US “Cyber Command” is in shambles, leaving America unable to defend against organized cyber attacks. Guess we should address this in 2009. ;>

Continued

Holiday cards are perhaps the purest opportunity for marketers to put brands on center stage without pesky offers or product data messing getting in the way.  It lets us see pure branding and get some sense of how firms think of their clients and themselves. Here are three examples from internet marketing companies, the very people who are suppposed to be really good at this stuff. Some are better than others.

Brilliant Branding: The Barbarian Group nails their aggressively celebratory tone for their client party so well that even the RSVP thank-you page reinforces their brand.

Good Brand Building: This internet marketing firm does a great job of using their people to be appealing and funny, and to validate why you should want to work with them.

Bad Branding: The banner wishes you a “Happy Holiday,” but unfortunately there’s little in the message to be happy about. From the incongruous photo of what appears to be Russia on the email to the depressing and insincere executive message “we’re still here,” to the ugly historic photo and the fake winter background, little in this greeting works. He even refers to his customers as the “corporate services market.” Both earlier brands are in the same market, but somehow address their clients much more personally.

When Snowflakes Collide: The Email Experience Council has quite the review of how Target, Staples, REI, NIKE and others are drawing their snowflakes.  And how sometimes holiday promotions from different brands can look alike.

Still in the holiday marketng mood? Here’s more online holiday branding which ranges from buy a gift to free shipping, or my favorite: buy our terribly over-priced coffee to keep people from dying in Africa. I think the sentiment is good, but the execution swings the guilt stick pretty hard.

In what could have been a last-second shakedown effort, the RIAA has seen fit to ignore a judge’s order preventing the use of names determined through the discovery phase of Motown Record Company vs. John Doe from being used for anything beyond simple discovery.

“The disclosure of such information is ordered pursuant to 20 U.S.C. §1232g(b)(2)(B) to be used for the sole purpose of obtaining injunctive relief.”

Instead, the RIAA decided to call up all the students and demand settlements. The students are being offered a settlement, ranging between $4,000 and $4,500, to not be named in a subsequent copyright infringement lawsuit.

Is the RIAA truly giving up their thuggery, or just changing tactics?

Software as a Service (SaaS) market leader and service provider Salesforce.com recently hosted a presentation by Bessemer Venture Partners, which has funded many of my favorite SaaS enterprises, including LinkedIn, Postini, Keynote, Eloqua, Skype, Force.com, and PTC.

Since this presentation is locked up in a hard-to-search format, I’m republishing its insights for your enjoyment here, along with links to watch it or download a PDF version.

1. Know your key metrics: Committed Monthly Recurring Revenue, Churn, and Cash flow – “Bookings” is for suckers.
2. Measure Long Term Value (CLTV – CAC).
3. Tune before you scale.
4. Separate “hunters” and “farmers”.
5. Traditional IT channels don’t work in SaaS.
6. Your sales prospects are online; online marketing is core.
7. Stay local – know when to go global.
8. One version of code, in just one instance.
9. The most important part of Software-as-a-Service isn’t “Software” it’s “Service”!
10. Bring funding. Enough to fund 4+ years of runway. Conserve cashflow.
    

Bonus Law: You can ignore one of these, but not more than two. Great companies innovate, but they also pick their battles.

The Wall Street Journal reports that the RIAA has decided to shift an ISP-focused enforcement approach, which would result in prosecution of individual P2P sharers only in extraordinary circumstances.

Since 2003, the recording industry has opened legal proceedings against 35,000 people, including children, single mothers, and a dead person. It’s been a PR nightmare, inspired animosity from fans, driven down revenues and inspired high-level legal opposition.

According to an article in The Register, Google’s Vice President of Search Product and User Experience, Marissa Mayer, observed that editorial judgments may play a key role in Google searches in the near future. Mayer made her comments at the Le Web conference in Paris on December 10th. If this change does materialize, the editorial input would come from Google’s “personalized search” as represented by its new Search Wiki. It would turn the search industry upside-down, and would likely compromise Google’s search objectivity.

Continued

Illustration by Ward Sutton

My take on brands (which I hope someone will just once call “the Wieneke proposition“) is that brands are vessels that hold the good feelings generated by experiences created by staff or products. The implication is that those experiences have to be placed in front of the brand. Brands don’t create their own love; experiences do.

Typical brand doctrine seeks “consistency and repetition to build identity.” Plenty of brands would defend their marks, even against friendly use, to prevent genericization. OK, political brands are transient, but still I expect the engagement that Obama’s malleable brand has generated will be echoed by more established brands.

Indeed, “trademark holders” may benefit by thinking of themselves more as brand managers. If so, the challenge of managing a brand when it’s in the hands of social advocates will require tools and people skills that go way beyond “cease and desist” letters or filing DMCA takedown notices. Nobody wants legal harassment to be associated with their brands except, apparently, for certain parts of the record industry.

OK, on to the cool links.

Ad Age’s Marketer of the Year
In its annual voting by hundreds of brand directors and agency heads, Obama gained 36% of the votes for best branding, besting Apple, which received 27%, Nike’s 9%, and after a few others, McCain at 4.5%.

An Interview with the Designer of the Obama O
Sol Sender is the graphic designer who designed the Obama O logo. The candidate encouraged supporters to start their own websites, to host their own events, to make the campaign their own. Artists, Pumpkin Carvers, even Marching Bands did just that.

They Made it the Hardest-Working Logo
That’s how the New York Times describes the “O” logo in a long post. Like the Apple, the O is fun.

There was a time when enthusiasts loved the Apple Logo beyond recognition. I was part of just such an effort, which incorporated the Apple logo as wings on the Batman movie logo. Our legal department actually printed a disclaimer on the shirt describing its intention at parody speech and explaining the design’s meaning. Back then, the Apple branders grinned and asked for extra copies of the shirts.

Reading Tea Leaves and Campaign Logos
If you enjoyed the illustration at the start of this post, take a look at illustrator Ward Sutton’s thoughts on fifteen recent campaign logos. He stakes out some bold positions with a great eye and editorial tone.

One of my favorite brands has been the Cooper Mini. There’s a great deal of overlap between the values of optimism, unconventionality, and personality between the two. Both certainly inspire their zealots, which is perhaps the highest praise for brands.

The core palette of my firm’s new website has changed to white and a medium soft gray. That sounds pretty light. But these soft elements help create a canvas for the site’s accents: the use of stronger photo elements and the introduction of orange as a highlight color.

Here’s an example of how an image can pop on this kind of page. And thanks to the WayBackMachine, here’s an example of the older format.  I’ve gradually made changes to how we introduce our products. A product grid routes visitors more efficiently and gives them a better view of our work than explanatory text.

Of course, if you need to protect your brand from infringement, research product names, check on the uniqueness of logo designs, or clear titles for creative works, Thomson CompuMark will provide their usual expert services. And now you can check out both their new look and their fine services here.

Tip of the hat to Gamasutra.

A group of students at Redmond, WA-based DigiPen Institute of Technology spent three semesters working on a game that went on to win some awards. Unfortunately, part of the admissions process for this program included signing over the copyright of anything they created for assignments.

The students incorporated and decided to write fresh code to build on the game idea. DigiPen refuses to let them show the previously developed game to investors as a proof of concept.

The school has no ambition to do anything with the game, but they wish to avoid a precedent of allowing students have any claim on their own creations. The school apparently enters games created by students as a marketing vehicle for their game-design program, so they show, but don’t sell, their students’ works.

If this was art school, students would normally own the IP of any paintings or web pages they produce. Yes, instructors help, but they are paid for their help by the students. The school might even help students market their art through events.

If this was biotech, with grad students, the lab would own what the students make. But such students are normally employees. Again, the person who pays usually gets the rights. Here’s an example of such an academic policy.

While I’m not a fan of a university acting in the place of parents for students who have reached majority, claiming rights seems downright adversarial. And requiring that as part of the admissions process seems like a hardball tactic. It would certainly make me consider looking elsewhere for skills training, but perhaps not before anything has even been created.

It seems to me that non-exclusive rights would suffice in this case. Doesn’t it make sense that students be left to assert any rights they might have, regardless of whether they are shared with colleagues? That is, after all, the IP world in which they will create and make their livings in.

And speaking of dinosaurs… Apparently, Godzilla isn’t just a monster; he’s the mascot for Japanese intellectual property lawyers! In a very interesting article in Wired, David Kravets describes the extent the legal team at Toho Co. Ltd will go to protect the name ‘Godzilla.’

Toho has gone after Honda, a Napa Valley vineyard who produced ‘Cabzilla,’ and a stupidly-named rock band. Similarly, Warner Bros had to pay Toho after the release of Pee Wee’s Big Adventure, which contained a couple of scenes using Godzilla as a generic monster. Not generic at all, as it turned out. And, remember that recent Subway commercial about the $5 foot-long subs? It contained a segment using Godzilla-like creature. They got nailed, and have since removed it from the ad.

From the article:

“As a trademark owner, one of the requirements is to police your mark to ensure that it does not become generic, that it does not become a common word for any fire-breathing monster,” says Aaron Moss, a Toho attorney in Los Angeles. “If you don’t, the trademark becomes devalued and hard to enforce.”

Entirely reasonable. However, Toho does seem to be somewhat selective in regards to whom they pursue. For example, the Firefox browser is made by a non-profit organization called Mozilla. So far, Toho has ignored them, probably because Mozilla is not trading on the name ‘Godzilla’ for profit.

So the rule of thumb seems to be don’t mess with Godzilla; he’s 50 storys high, breathes fire, and has incredibly effective IP lawyers at his command. 

Now, where did I put my Mothra-matic Giant Fan?