MISSION:INTANGIBLE, the blog of the Intangible Asset Finance Society, offers critical comments on intangible asset, corporate reputation, and finance; supplemented by quantitative reputation metrics. Intangible assets include business processes, patents, trademarks; reputations for ethics and integrity; quality, safety, sustainability, security, and resilience; and comprise 70% of the average company's value.
MISSION:INTANGIBLE is a registered trademark of the Intangible Asset Finance Society.
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1. The surveys have several organic challenges
a. They survey consumers, not necessarily investors.
b. Historic return on investment is a factor in their reputation rating; by the time a survey is published, a company may be fairly or even over priced
c. Rather than surveying reputation, which is a going forward expectation that will better correlate with stock price, Harris and others are actually surveying brand affinity. (These "reputation" rankings best correlate with brand recall studies).
2. Rankings do not correlate well. One of the best surveys is published by Barron's. This survey asks money managers to rank firms on the basis of respect. In 2012, the reputation rankings from Harris and the rankings from Barron's showed a 72% correlation. (The rankings from the Reputation Institute and Fortune Magazine's Most Admired companies showed a correlation of 21%.)
3. Reputational value is measurable. But surveys are not the best measurement tool if one is interested in financial reward or risk; i.e., finding stock-picking opportunities or insuring reputational value loss.
Turning to Amazon and the reputational value rankings from Steel City Re, which are based on stakeholder expectations and the behaviors that are expected to create value, the reputational vital signs show consistent top quartile rankings among the 21 companies in the internet retail sector. The historic RVM volatility, a measure of the tightness of the range of stakeholder expectations is great ranking in the 85th percentile. This indicates there were many stakeholders who were going to be surprised by Amazon's performance. The current RVM volatility shows that they are still being surprised, and the resulting ranking, the CRR, is tops. RVM is a non-financial measure of reputational value while CRR is a measure of reputational ranking - call it the reputation premium.
Interestingly, the ROE is not at the top, which reflects the pessimism of some equity investors who, as part of the overall group of stakeholders, are voting with their shares. The other measures shown below indicate an ongoing pattern of high RVM volatility, metrics that place Amazon in the extreme of various measures relative to its peer group, and values that all indicate greater than average risk of a 12-forward month risk of a 7.5% or more fall in market cap.
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The reputation rank is up and climbing; volatility is up but less than peers. Vital signs all look favorable. Reputation value trend directions are positive. Economic returns are significantly up relative to the median return of the peer group. In short, there appears to be an ongoing widespread expectations of better things to come at Yahoo! -- a trend reinforced, but not started, by newly appointed CEO Mayer.
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If there are grounds to doubt the above, they may lie in the words of Ira Goldman, an executive formerly with Kodak since 1969. Writing to the editor of the Financial Times (13 April), Mr. Goldman shares what he believes led to the downfall of one of the most innovative firms of the prior century. “…it was a history of being able to afford multiple investments in new technologies without fully understanding the market needs, and then failing to make careful choices about which investments the company could afford.”
Google invests lavishly, to be sure. And based on recent controversial governance-related changes in the way Google allows its shareholders to influence management, it appears Google wishes to shield itself from the outside and continue to do what most investors agree they do best. Not that everyone agrees.
Nevertheless, right now, the reputational metrics support management. Google's metrics could hardly be better. The firm ranks #1 among the 133 peers in the Internet Software Services sector. The Vital Signs report a historical reputational volatility that is below the median and dropping; a return on equity for the trailing twelve months that is 43% higher than the median return (88th percentile), and a near certain future of reputational stability.
So why worry? Because, to paraphrase Herbert (Pug) Winoker who spoke this past Friday 13 April at the Mission Intangible Monthly Briefing, a firm’s success breeds its next crisis. Investor expectations outgrow a company’s ability to meet them. The data show that expectations could not be much higher.
Back to Kodak, whose obituary Huygens scribed earlier this year. “If the current management team and board of directors had managed the investments to match the cash flow available under realistic business conditions, they would not have proceeded with three large investments simultaneously (in digital printing, only one of which turned profitable after 10 years) and then accepted high cost overruns and failure to meet schedule,” added Mr. Goldman. One can only hope that having isolated its decision-making bodies from outside opinions, Google will nevertheless heed this excellent advice.
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At least one investor is still unhappy. Third Point LLC run by Daniel Loeb wanted to seat three of his own nominees, or absent that, himself. The owner of just under 6% of the firm promised a proxy battle.
Chairman Roy Bostock, whose reputation was tarnished by that encounter, and who announced in February that he will be stepping down, offered the usual platitudes about the benefits of the changes that were made. Stakeholders remain cautiously optimistic. The reputational metrics indicate that major operational changes are not expected in the new environment; rather, they suggest incremental improvements.
The Steel City Re brand of reputational benchmarks indicate that Yahoo's financial performance is at the median level for its peer group comprising 131 firms in the Internet Software and Services sector. Notwithstanding a relatively high reputational ranking of 94th percentile within this group, the firm is not expected to have major reputational changes. All reputational volatility measures are low and going forward stability measures are high. Nevertheless, the indicators show a slow positive change in reputational standing that may reflect optimism over the new CEO and pessimism over the new board and the upcoming proxy fight.
The company, which is a constituent member of the 2012 RepuStars Variety Corporate Reputation Index, is one of only 5 of 38 that have lost value since entering the index.
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According to the Associated Press (8 Sept, Liedtke), “Carol Bartz's firing as Yahoo Inc.'s CEO isn't going to be enough to placate a loudening chorus of shareholders who believe Chairman Roy Bostock and his fellow board members also should be ousted after years of questionable choices that raised doubts about their competence."
Turning to the numbers, the Steel City Re Corporate Reputation Index shows a steady decline in Yahoo’s reputation ranking over the trailing twelve months relative to its 104 peers in the Internet Services and Software sector. On 3 September 2010, Yahoo ranked in the 89th percentile; yesterday they ranked in the 70th percentile. The 19 point decrease has been associated with an increase in Yahoo’s reputational volatility. Over the trailing six months, the exponentially weighted moving average reputational ranking volatility has climbed from around 10% to 49.4%. The trailing twelve week reputational vector and velocities are reading in at -9.4% and -7% respectively. It is therefore not surprising that the company is underperforming the median its peers over the trailing twelve months by 6.64%.
More globally, the entire sector appears to be rising ever so slightly reputationally relative to the broad market. The sector's median ranking has been edging up from the 40th percentile over the trailing 12 months. Within the sector, however, variance is relatively high reading in at 28% on 8 Sept. Last, looking specifically at Yahoo’s intangible asset fraction, it has dropped recently from around 60% to the low to mid 50%; the median fraction among the peer group is in excess of 80%.
Activist investors are taking note. So are long time stakeholders. The AP story quotes Darren Chervitz, co-manager of the Jacob Internet Fund, a longtime Yahoo shareholder, this way: "This board has presided over some of the worst decisions made by any company in recent history." Bartz frames it more colorfully in a profanity laced interview with Fortune magazine. "The board was so spooked by being cast as the worst board in the country. Now they're trying to show that they're not the doofuses that they are."
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Ab actu ad posse valet illatio. We now quote Robert Gates, Defense Secretary, affirming the point with respect to the most ethereal of the intangible assets, security, as described in an NPR story on the Afghan Wikileaks.
"It's amazing how much trust matters, whether it's with governments or with individuals around the world. And it seems to me that as a result of this massive breach of security we have considerable repair work to do in terms of rebuilding trust, because people are going to feel at risk."
And that's why reputation is so valuable. Quod est.
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The Intangible Asset Finance Society takes interest in this IP issue. We are intrigued because virtual sex toys and erotic animations are unambiguous examples of intangible assets and because the alleged millions of dollars at stake comprise a material level of finance.
We quote from the legal blog, Above the Law: "We’re intimately familiar with neither Second Life nor sex toys, but our understanding is that the two go hand in hand. Eros LLC, a virtual sex toy maker, has apparently made a pretty penny selling sex goods in Second Life. But now other Second Life vendors are ripping off its designs and selling knock-offs. Eros’s CEO Kevin Alderman — who goes by Stroker Serpentine in Second Life and built the first in-world sex bed, a digital bed with built-in sex position animations — is filing a class-action suit against Second Life’s creators for enabling this virtual counterfeiting. Alderman, who has been called “the ‘Hugh Heffner’ of the digital millennium,” wants Second Life to shut down its virtual version of Canal Street (counterfeit central in New York). "
The working elements of the Society are its standing committees that address areas of intangible asset finance practice. We asked Darren Cohen, Chair of our Quality & Integrity Asset Management Commitee, and partner in the Intellectual Property Practice Group at Reed Smith, to give us the "inside baseball" view of this case. We also asked David Ruder, Chair of our Trademark Asset Management Committee; VP, Business Development, at RPX; and a founder of Terrier IP Investments, LLC, a private investment firm focused on intellectual property-based investments in firms backed by hedge funds and private equity, for his perspective on asset monetization.
First, Darren's perspective:
At first glance, this case challenges accepted notions of intellectual property infringement. For example, under established trademark law, infringement arises when there is a likelihood of consumer confusion among the relevant purchasing public. On this basis, a plaintiff in a trademark case may likely claim damages based on lost or diverted sales, which seem on its face to be anathematic to the use of trademarks, copyrights or other intellectual property on Second Life.
However, it is undeniable that the Second Life population and the "real" life population overlap, and behavior in one medium can surely have an effect, adverse perhaps in this case, on the other. Indeed, reputation and risk management is just as vital in these nontraditional venues as they are in the ordinary course of trade (the standard for bona fide trademark use in commerce). This type of activity may further prevent one from being able to fully exploit IP rights and build IP equity, in particular brand equity, by weakening, diluting and tarnishing trademark rights or serving as a barrier to potential licensing opportunities and avenues. It should not be lost on any holder of IP rights that real profits are being made in forums like Second Life, and whether or not a rights holder wishes to enter these untraditional and "secondary" markets, they should have the same enforcement and exploitation rights, as well as brand and reputation control, as in any other channel of commerce.
Second, David's perspective:
When I look at trademark rights, the perspective I usually take is a financial one: whether I can acquire the relevant trademark and create licenses across territories and different classes of goods and services and make money. To put this in relief, consider a hypothetical brand licensing campaign by Eros LLC that wants to license out its “SexGen” brand of virtual sex toys to the “real world” in multiple countries or even to a company that wants to sell SexGen sex toys in the Second Life world. If I were a potential licensee one of the questions I would pose to Eros is what trademark rights Eros actually possesses.
To defend its assertion that it owns trademark rights, Eros would point to its US Federal trademark registration 3,483,253 which covers “providing temporary use of non-downloadable software for animating three-dimensional characters.” What is interesting is that in the goods and services there is no mention of “sex toys” at all. In fact, this is in fact a broad description of software. Interestingly, given some recent caselaw this registration may be considered overbroad and thus cancelled if it the statement of use should have been limited to just sex toy software downloads. I have not done research to see if Eros has made non-US trademark applications and in the United States, but Eros did include a specimen of use including a Second Life screenshot to obtain its trademark registration and trademark registrations are presumed to be valid.
From a territorial standpoint one would ask whether Eros has any rights to its trademarks beyond the United States. Again, I don’t know if Eros has secured any non-US trademark registrations. I don’t know if SexGen’s use on servers outside the United States satisfies use requirements to establish rights in other countries. I also don’t know if use is satisfied by consumers on their US computers accessing non-US servers or non-US computers accessing US servers. As a potential licensee, all I have to go on thus far is the US trademark registration and the use on the Second Life game. Based on trademark law as I know it, if the registration is valid, I would think that Eros has the rights for SexGen not only in Second Life, but also any other virtual world that might be created by any software company. I might consider licensing the SexGen trademark for other virtual worlds, but thus far I think I would only have US protection.
From a goods and services standpoint, it seems at first blush that Eros has established no trademark rights at all to any actual real world sex toys as everything so far has been limited to just software as described in the registration. I would not be comfortable as a potential licensee that I should invest resources to create a real world SexGen sexy toy line via license unless there was some concrete evidence that the SexGen brand is used on real life sex toys or that there is actual confusion among consumers of real life sex toys and virtual sex toys as to source. Again I think this trademark really only would cover software.
If I were to challenge the rights of Eros, I would address the question of how “commerce” is established by Eros in the Second Life world and whether it meets the threshold of use in commerce under trademark law. I don’t know if Eros has made any kind of concessions via license agreement or otherwise to Second Life in its ability to log into the Second Life servers and create its virtual sex toys using Second Life software and servers without giving its rights away. What kind of “commerce” is occurring here and how exactly is Eros paid for offering its software services (and who actually pays Eros)? These are very fact-specific determinations that go to the heart of why trademark rights are granted for any kind of product or service.
Assuming Eros can prove that it has direct relationships with end users that knowingly pay Eros money for use of the virtual sex toys or that Second Life knowingly agreed to a mechanism whereby Eros is paid for its virtual sex toys, then I think Eros has a strong case that it has established trademark rights and these likely have value. It would be especially valuable for Eros to prove users have knowledge of the SexGen brand outside of the Second Life world. For instance perhaps rights can be purchased through eBay.
So far I’m leaning in favor of Eros having valid trademark rights but I would not be comfortable licensing the SexGen brand for anything at this point because I think the rights are in flux and a court needs to make a ruling about what rights actually exist at this point, if any. Even if a court affirms that Eros has rights in the Second Life realm, if I were Eros I wouldn’t be hoping for much compensation unless it can somehow enjoin Second Life from selling virtual sex toys (or if it has broader coverage, the Second Life software altogether). Second Life could simply respond by programming away sex in its world altogether (opening a new branch of virtual anti-trust law, I’m sure).
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