Website Analytics: Internet IP Infringement Damages

Website Analytics: Internet IP Infringement Damages

In modern business, the new corner store is located on our laptops and smartphones. In 2014, e-commerce transactions totaled $638 billion and mobile commerce (“m-commerce”) totaled $204 billion. Today’s business advisors and counsel need to understand the value of a company’s Internet and social media assets to better assist their clients in a wide range of transactions and disputes.

In business transactions, well managed websites and social media accounts add value to the overall business. Understanding how business websites and social media accounts contribute to value is a critical component in licensing, M&A and partnership transaction negotiations.

In an infringement and litigation context, Internet and social media analytical tools provide the data to support legal arguments and expert opinions related to Internet damages and online defamation. Today’s business attorneys and litigators need to understand how the tools are used to analyze website traffic and social media use and how the data can be leveraged to quantify economic damages and loss of value.

Whether dealing with defamatory statements appearing on first page search results, or copyright, trademark and rights of publicity infringement; understanding the tools and methodologies available for calculating Internet damages is critical in litigating today’s Internet and social media disputes.

Please view our CLE on Damages and Valuation for Internet IP Infringement and Defamation.

Nevium professionals use web analytics as one of the tools for apportioning profits related to Internet IP infringement damages calculations and to opine on web-based marketing best practices.

Using our search engine optimization (“SEO”) and web analytics expertise, we are able to identify and analyze the keywords and phrases that drive traffic to a website. This knowledge allows us to opine on:

  • Impact of Social Media accounts such as Twitter, Facebook and YouTube;
  • html code used in search engine optimization marketing;
  • SEO tactics used by the website owner to attract visitors to the site;
  • Flow of visitor traffic through the website, including number of visitors who made purchase decisions based on allegedly infringing IP;
  • Use of trademark protected terms and phrases on the website; and
  • Impact of copyright protected materials in e-commerce and purchase decisions.

Website Traffic Decline Due to Damages

For expert testimony, website and social media analytics can be extremely useful for calculating Internet IP infringement damages in cases involving trademark infringement, copyright infringement, or unauthorized use of name and likeness.

Through SEO, website & social media analytics we are able to identify the revenues related to an exact keyword, phrase or image, and measure the impact of brand-related marketing to calculate a return on marketing investment (“ROMI”).

We can provide opinions and testimony regarding the portion of profits due specifically to the disputed intellectual property, and the effectiveness of web and social media marketing activities.

SEO and Web Analytics Definitions used in Internet IP Infringement Damages Assignments

SEO: The process of coding a website in order to use key words and phrases that brings up the website when using web search engines (such as Google, Bing, Yahoo!, etc.)

Web Analytics: The measurement and collection of data to understand web usage within a specific website

Google Analytics: The measurement and collection of data collected by Google’s website analytics service to understand web usage within a specific website.

Nevium’s professionals have incorporated data and analysis from Google Analytics, YouTube Analytics, Google PageRank, Google Pay Per Click, and Alexa in our expert opinions.

Internet IP Infringement Damages Experience

In IP litigation, we have applied SEO and Website Analytics to provide the following opinions:

  • That search result-derived website traffic did not rely on a disputed trademark;
  • Calculated the proportion of YouTube partner revenues resulting from use of certain disputed brands and trade names;
  • Calculated the contribution of copyright-protected website content to a business’ overall revenues and profitability;
  • Profit and brand value contribution that resulted from a website contest advertising campaign;
  • Calculated the historical impact on e-commerce revenue and profits due to an unauthorized use of name and likeness in a website’s metatags [SIC];
  • Apportionment of revenue and profits to use of specific paid keywords and phrases in Google Pay Per Click (PPC) campaigns;
  • Identified changes in the website owner’s SEO traffic strategy through use of the WayBackMachine to analyze the html code of archived websites;
  • Used website visitor landing pates, bounce rates and return visits to measure visitor behavior including exposure to copyright-protected website content; and
  • Determined YouTube channel optimization structures and detailed traffic analysis using YouTube analytics, and