Raw Social Media Data for Defensible Litigation Evidence

Introduction

Global Business Experts (GBX) works with law firms and expert witnesses to provide consulting and litigation support. Their core areas of focus include marketing and consumer behavior, competitiveness, antitrust, intellectual property, valuation and damages, trademark infringement, as well as banking and financial services. After being in business for four years, the company has identified a new “start-up” opportunity related to their central business. Voluble: Insights for Litigation will provide a service to transform raw social media data into defensible evidence, specifically designed for complex commercial litigation. This company will not only be integrated into GBX’s fundamental practices, but can also be sold as a stand-alone service.

In 2016, it was projected that 185 million people within the United States used social media. This projection is expected to exceed 200 million people by the year 2020 (Statista, 2017). As social media use continues to grow, social media content has become increasingly valuable to brands as it provides a public platform for customers to voice their opinions, both positive and negative about the products and services that they provide. By analyzing what people are saying related to a topic, brand, or product, an organization can gauge consumer sentiment towards a company and trends in the conversation. For example, with tools provided by social monitoring companies such as Crimson Hexagon, marketers can track social conversations after launching new campaigns to gauge consumers’ views and public relation teams use social media to understand public opinions about their clients to better manage their reputations (Crimson Hexagon, 2017).

In trademark infringement cases, litigants can prove consumer confusion via expert testimony, visual trademark comparisons and consumer survey reports (Bird & Steckel, 2012).  By surveying consumers, litigants can provide consumers’ perceptions and show that consumers either are or are not confused by the trademarks at hand, which is actual evidence that an expert witness or visual comparisons can simply not provide. Social media data allows Voluble to capture consumers’ actual comments regarding issues of interest in the relevant timeframe, as opposed to collecting consumers’ opinion triggered by surveys prepared after the fact and solely for litigation purposes.  Voluble’s approach towards synthesizing data can be used as both qualitative and quantitative evidence and serve as a supplement to survey and other data evidence for litigation claims.  One use of Voluble is to provide concurrent evidence to support or refute survey data and other evidence presented by the opposing side.

Background

According to the United States Patent and Trademark Office (USPTO), trademark infringement is defined as “the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services” (USPTO, 2017). The owner of trademarks can file civil lawsuits and sue for infringement in federal court under the Lanham Act (15 U.S.C. §§ 1051). By proving infringement, courts can order the defendant to stop using the mark, the forfeiture of infringing articles, monetary compensations, and pay for the plaintiffs’ attorney fees (15 U.S.C. §§1114, 1116-1118).

A trademark infringement claim requires the plaintiff to prove that they hold a valid and senior trademark and that the defendant’s mark is likely to cause confusion in the mind of consumers. The court considers evidence to determine likelihood of confusion among consumers such as degree of similarity between marks, where the products or services are marketed and sold, the strength of the mark, as well as evidence of actual confusion. The quality of the evidence provided provides different weights to the factors addressed (USPTO, 2017). These factors are known as the Sleekcraft Factors and will be discussed in more detail in Part II of this report.

Dilution is a joint claim associated with likelihood of confusion. The owner of a trademark can assert that their mark is famous and others’ use of the mark weakens the mark’s value by blurring (15 U.S.C. § 1125(c)(2)(B)) or by tarnishment in which the reputation of the mark’s image is harmed (15 U.S.C. § 1125(c)(2)(C)). Dilution is evaluated under the Federal Trademark Dilution Act (FTDA) and is based on factors such as degree of similarity of the marks, the famous marks’ “acquired distinctiveness”, the exclusive use of the mark, as well as degree of recognition by the public (15 U.S.C. § 1125(c)).

In order to prove likelihood on confusion, plaintiffs provide evidence in the form of expert witness testimonies, visual comparisons of the mark, and consumer surveys. Expert witnesses can be called to testify their opinions regarding potential consumer confusion. Therefore, consumer surveys are constructed to detect opinions regarding products, services, and brands. The data can be gathered via online surveys and focus groups which involves showing respondents products and marks and collecting their perceptions (Bird & Steckel, 2012). While surveys and expert testimonies are standard practice and carry heavy influence in trademark cases, the data can be interpreted to favor the hiring party.

Research Objective

Expert witness consulting firms often compete for clients based on price and service. According to an IBISWorld industry report from January 2017, when dealing with litigation trials, there is very little room for error or mistakes in expert witness reports and testimonies.  Due to the importance of quality control, consulting firms often find success when they serve a niche market. Most clients are obtained through referrals and repeat business which require a reputation for quality and efficient work.

 As competition within the industry continues to rise, it is important for GBX to differentiate themselves. In 2016, there were approximately 2,000 enterprises within the industry which is a substantial increase from the approximate 1,800 in 2013 (IBISWorld, 2017).  Competition arises from large law firms and consulting firms with in-house expertise. While some expert witnesses testify at trial, a lot of their work is done in the analysis during the pre-trial stages.  Expert witness firms and consultants often specialize in subjects that commonly occur in litigation, such as quantification of business costs and lost wages.

GBX plans on standing out from their competitors by launching a new product and service, Voluble: Insights for Litigation. Voluble will become a marketing asset for GBX to land new business and expand service offerings with current clients. GBX cannot fully develop and launch Voluble until research has been completed on how social media can be integrated into electronic evidence in United States litigation cases. This research will help shape the creation of Voluble as a service and a brand.

Research was conducted to achieve an understanding of the legal environment surrounding social media. Case law was analyzed to gain knowledge on the admissibility and authentication of electronic evidence in U.S. litigation cases, focusing on intellectual property and Lanham Act cases. By discovering past precedents of when social media evidence has both succeeded and failed, Voluble can specialize in areas of practice with the most success, such as providing evidence for claims of actual confusion or secondary meaning.

Industry reports were analyzed to ascertain how consumers speak with brands via social media. Consumers use social media to gather news, stay current on industry trends, socialize with friends, as well as influence their purchasing decisions. A Deloitte study noted that nearly one in three U.S. consumers are influenced by social media in their purchases (Deloitte, 2015). By understanding the various uses, the Voluble algorithm will be able to better analyze what individuals are saying related to a topic, brand, or product and decipher trends within the conversation.

While there are other social listening services available on the market, Voluble will provide a service specifically intended for commercial litigation. To successfully tailor the software to consumer needs and demand, the competitive landscape and target audience were. Through an industry analysis, Voluble gained a better understanding of the internal and external factors shaping the both the social media analytics and expert witness consulting industries. By realizing how the industries currently function and where they are heading, Voluble is being developed to overlap both industries and stand out from their competition.  This research will ensure that Voluble is developed to succeed in both markets and better serve the needs of their clients.