Judge declares winner in Tiffany v. eBay lawsuit

On Monday, a federal judge ruled in favor of eBay in its lawsuit with Tiffany over counterfeit items being sold on eBay. According to Judge Richard Sullivan, “Tiffany must ultimately bear the burden of protecting its trademark”. From the San Jose MercuryNews:

Sullivan agreed with estimates that “a significant portion” of Tiffany silver jewelry listed on eBay’s Web site during surveys by Tiffany was counterfeit, but that was largely Tiffany’s problem unless Congress changes the law.

“The court is not unsympathetic to Tiffany and other rights owners who have invested enormous resources in developing their brand, only to see them illicitly and efficiently exploited by others on the Internet,” Sullivan concluded.

“Nevertheless, the law is clear: It is the trademark owner’s burden to police its mark, and companies like eBay cannot be held liable for trademark infringement based solely on their generalized knowledge”

Barring a change in the law, it is clear that - for the time being - trademark owners will have monitor and defend their brands and trademarks on their own. If you, or your company, need expert assistance in Trademark Monitoring, please feel free to contact us.

Parasiteware

Parasiteware is the term used by some members of the Affiliate Marketing Community for Hijackware.

Very often, parasites live in mutually beneficial, and in some cases vitally necessary, relationships with their environment or host-organisms. There is no such benefit to a relationship with hijackers or hijacking, so we prefer the term, Hijackware.

If you need help defending your online advertising program against Hijackware, please review our Services, or contact us.

Compliance Effect Theory

The Compliance Effect Theory states that actively monitoring Affiliate and Internet Marketing programs for compliance has a positive effect, not only on that program, but to a degree, the Internet-at-large as well.

Frequently, non-compliant promotional methods can prevent, or limit, the effectiveness of compliant promotional methods. Monitoring your program and removing non-compliant actors allows:

• Legitimate Affiliates and Partners can now cut-through-the-noise created by non-compliant promotions. Allowing them to more easily reach potential customers and convert them into customers.
• Reallocation of resources towards compliant Affiliates and Partners.
• Increased quality of the transactions delivered.
• Better customer and end-user experiences.
• Confidence to increase payout rates to qualified Affiliates and Partners, who, in turn, will generate additional compliant promotional activity.
• Differentiation with competing programs, as a benefit to recruiting and Business Development.

Marketing Power

Marketing Power is a general term referring to the ability of an individual Affiliate or Internet Marketing Partner to successfully drive business to an Advertiser. As a measure, this is almost always represented, easily enough, by the amount of business (sales/leads) being driven, commissions/payments earned, etc. Due to this, Marketing Power is a raw, but, important and highly visible metric. Those with high Marketing Power are, very frequently, highly intelligent and skilled at Affiliate and Internet Marketing, but it should not be automatically equated with aptitude. It is not always the case, but Affiliates and Partners with low Marketing Power can be ‘better’ at what they do than those with greater Power.

It is extremely important to remember that Affiliates and Partners who promote using non-compliant methods do not have Marketing Power. Any ‘number’ or measure associated with them is suspect and should, frankly, be considered nothing more than an illusion or mirage. The prospect of losing an Affiliate or Partner with an illusionary, but high, Marketing Power can, sometimes, lead to Bartleby’s Boss Syndrome.

Bartleby’s Boss Syndrome

Bartleby’s Boss Syndrome is a form of cognitive dissonance, named after the narrator from Herman Melville’s 1853 short-story, “Bartleby, The Scrivener“. In the story, the narrator hires a man named Bartleby to work in his law-firm. Although things start well, by the end Bartleby is refusing to do any work at all, always responding that he, “would prefer not too”. Throughout the story, the narrator, Bartleby’s Boss, is unable to bring himself to do anything about Bartleby, although it is clear that Bartleby is a detriment to his business. Eventually, the narrator physically moves their entire firm into a new building, thinking that leaving Bartleby behind will ’solve the problem’, which it does not.

When it is determined that an Affiliate or Partner that was perceived to have a high degree of Marketing Power is, unfortunately, not compliant, Bartleby’s Boss Syndrome can, at times, occur - the temporary inability to react to the situation. At those times, it is important to remember that; non-compliance negates all perceived Marketing Power and the Compliance Effect Theory can restore “lost” Marketing Power.

Robin Hood Syndrome

Robin Hood Syndrome is a psychological construct used by perpetrators to justify their non-compliant, fraudulent, or otherwise illegal activity.

“We’re like Robin Hood. We steal from the rich companies and give to the poor, which is us. You know what, that’s not right, actually. Blackhat isn’t ‘theft’, theft is against the law. All we do is manipulate the system in a way that works to our favour. We don’t follow their rules, the real rules are within the system, and we make the system work for us instead of us working for it.”

The quote above was taken from an online forum where Black hatters meet, and is, perhaps, the best summary of Black Hat psychology I’ve found. A study (PDF) on Street Gangs as Complex Adaptive Systems (CAS) coined the term “Robin Hood Syndrome”, finding:

The name Robin Hood Syndrome was chosen to describe the CAS model of street gang behavior for a variety of reasons. First, using the heroic image of Robin Hood underscores the importance of point of view in analysis of CAS. To some, Robin Hood was a brigand, thief, and outlaw. To others he was a rescuer and courageous hero. The same duality of perceptions exists about gang members and their leaders in today’s society.

Zorro Syndrome is an evolution of Robin Hood Syndrome, but is specific to the behavior of non-compliant Affiliate and Internet Marketers.

The Undernet

Just as the real-world has black-markets, illegal activity, etc… an “Underworld”, the Internet has “The Undernet”. Web sites, forums, message boards, blogs, file servers, etc. These are parts of the Internet that Black Hats use to conduct fraudulent activity, and even have discussions about such activity. Most of the actual Undernet exists, hidden from the general population of the Internet, behind password-protected resources that block crawling by search engines. If you are able to locate Undernet resources through standard Internet searching techniques, like an iceberg, what you are able to see makes up a very small portion of what lies beneath-the-surface.

Interestingly, an “Open Source” attitude towards sharing ‘techniques’ is displayed by a minority, but still significant, portion of the Undernet ‘community’.

Traffic Laundering

Also known as: Traffic cleaning, traffic washing, cover-up, masking, screening, filtering, etc.

Traffic laundering describes the methods used by non-compliant affiliates and partners to give their Referring Data and metrics-patterns the appearance of being ‘clean’ and legitimate.  The web works on many different sets of rules. One of the most important rules is the Hypertext Transport Protocol, “HTTP”. One of the basics of HTTP is, when someone browsing a web page clicks on a link that leads to another different web page, certain information - “Referring Data” - will be passed to the web server that receives the click-through.  This information includes: IP Addresses of the person who clicked on the link, the URL - or web address - that contained the link that was clicked, what web browser was being used, etc. This information can be powerful, however there are limits to this power.

Compliance efforts that just rely on metrics and other Referring Data are doomed to only find non-compliant or fraudulent activity from novices. Traffic laundering experts employ tricks to ‘wash’ their Referring Data, as well as artificially raise, or lower, metrics such as Click-Through-Rate, Conversion-Rate, etc.

If you need help defending your online advertising program against Traffic Laundering, please review our Services, or contact us.

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