Building a Legal Moat for Your SEO Castle

About a month ago a year old case of an SEO firm being sued by it's client resurfaced via a tweet from Matt Cutts.

I'd like to add something to this conversation that will be helpful for you as a service provider seeking to avoid that really, really scary issue.

Some quick background information if I may? No specifics are allowed but I've been a party, on both sides, to actual litigation pertaining to SEO contracts (not services rendered, just contractual issues with a third-party).

I've been the plaintiff and the defendant in cases involving contractual disputes and legal obligations so I, much to my dismay, speak from experience.

Suffice to say I'm not a lawyer, don't act on any of this advice without talking it over with your counsel so they can tailor it to your specific needs and state law.

Basic Protections

There are essentially 3 ways to legally protect yourself and/or your company objectively. I say objectively because anyone can sue you for anything and "service" is a subjective term as are "results" unless they are specifically spelled out in your contract.

Objectively speaking, the law gives you 3 broad arenas for protective measures:

  1. Contracts
  2. Entity Selection
  3. Insurance

Contracts

Get a real lawyer, do not use internet "templates" and do not modify any piece of the contract yourself. Make sure your attorney completely understands what you do. A good lawyer will listen to you. Heck, mine now knows who Matt Cutts is and where the Webmaster Guidelines are located and what "anchor text" is :)

Your contracts need to cover the following scenarios:

  • Client services
  • Vendor relationships
  • Employee/Contractor relationships

For standard client agreements you'll want to cover some basic areas:

  • Names of the legal entities partaking in the agreement
  • Duties and nature of services
  • Term and termination (who can cancel and when, what are the ramifications, etc)
  • Fees
  • No exclusive duty (a clause that says you can work with other clients and such)
  • Disclaimer, Limitation of Liability
  • Confidentiality
  • Notices (what is considered legal notice? a letter? certified mail? email?)
  • Governing law
  • Attorney's fees (if you need to enforce the contract make sure you can also collect fees)
  • Relationship of Parties (spell out the relationship; independent entities? partners? joint ventures? spell out exactly what you are and what you are not
  • Scope of Work
  • Signatures (you should sign as you are in your entity; member, president, CEO, etc)

Some important notes are needed to discussion a couple of core areas of the contract:

For Governing law go with your home state if possible. Ideally, I try to get an arbitration clause in there rather than state law so in case there is a dispute it goes to a much less expensive form of resolution.

However, you can make an argument that if your contract is signed with your home state as governing law and your language is strong you are better off doing that instead of arbitration where one person makes a decision and no appeal is available.

For Limit of Liability go broad, real broad. You want to spell out that organic search (or just about any service) is not guaranteed to produce results, no promises were made, Google does not fully publish the algorithim thus you can't be held liable for XYZ that happens.

Also, if your client is asking you to do things against webmaster guidelines, and you decide to do them, you NEED to get that documented. Have them email it to you, record the call, something. Here is the liability clause in my contract:

Client agrees and acknowledges that the internet is an organic, constantly shifting entity, and that Client’s ranking and/or performance in a search engine may change for many reasons and be affected by many factors, including but not limited to any actual or alleged non-compliance by Provider to guidelines set forth by Google related to search engine optimization.

Client agrees that no representation, express or implied, and no warranty or guaranty is provided by Provider with respect to the services to be provided by Provider under this Agreement. Provider’s services may be in the form of rendering consultation which Client may or may not choose to act on. To the maximum extent permitted by law, Client agrees to limit the liability of Provider and its officers, owners, agents, and employees to the sum of Provider’s fees actually received from Client.

This limitation will apply regardless of the cause of action or legal theory pled or asserted. In no event shall Provider be liable for any special, incidental, indirect, or consequential damages arising from or related to this Agreement or the Project. Client agrees, as a material inducement for Provider to enter into this Agreement that the success and/or profitability of Client’s business depends on a variety of factors and conditions beyond the control of Provider and the scope of this Agreement. Provider makes no representations or warranties of any kind regarding the success and/or profitability of Client’s business, or lack thereof, and Provider will not be liable in any manner respecting the same.

Client agrees to indemnify and hold harmless Provider and its officers, owners, agents, and employees from and against any damages, claims, awards, and reasonable legal fees and costs arising from or related to any services provided by Provider, excepting only those directly arising from Provider’s gross negligence or willful misconduct.

For vendor and independent contractor agreements you'll want most of the aforementioned clauses (especially the relationship of parties) in addition to a few more things (for employee stuff, get with your lawyer because states are quite different and a lot of us use remote workers in different states)

  1. Non-Competition and non-interference
  2. Non-Solicitation and non-contact

These clauses essentially prohibit the pursuit of your clientele and employees by a vendor/contractor for a specified period of time.

Legal Entity

Don't be a sole proprietor, ever. If you're a smaller shop you might consider being a single member LLC (just you), an LLC (you and employees), or an S Corp. If you're a larger operation you might want to incorporate and go Inc.

The benefits of the LLC set up are:

  • Your personal assets are generally untouchable (providing you are not co-mingling funds in a bank account)
  • Very easy to administer compared to other options
  • Your liability is limited to company assets (pro tip: clear out your business bank account each month minus some operating margin, move it to personal savings)

Benefits of an S Corp are:

  • Same protections as LLC
  • You save a fair amount on self employment taxes (more below)

With the S Corp there's more paperwork and filings but if you are earning a fair bit of money it may be worth it to you. Here's a good article breaking this all down, and a excerpt:

"If you operate your business as a sole proprietorship or partnership/LLC, you will pay roughly 15.3% in self-employment taxes on your $100,000 of profits. The calculations get a little tricky if you want to be really super-precise but you can think about self-employment tax as roughly a 15% tax. So 15% on $100,000 equals $15,000. Roughly."

"With an S corporation, you split your business profits into two categories: "shareholder wages" and "distributive share." Only the "shareholder wages" get subjected to the 15.3% tax. The leftover "distributive share" is not subject to 15.3% tax."

Be careful here (and I'm not a CPA so don't do anything without consulting with your accountant) not to be absurd with your wages. So, if your net income is 1 million don't take 25k in wages and 975k as a distribution.

Some final thoughts on entities:

  • Most of you will probably fall into the LLC/S S Corp category, get with your attorney and accountant
  • Keep everything separate because if you don't (credit cards, bank accounts, etc) your personal assets might be at risk due to the "piercing of the corporate veil"

Insurance

As you would imagine, insurance policies are few and far between for our industry. You can get general liability for your office, workers comp for your employees, disability for yourself, and so on. However, what you might want to look into is a professional liability policy.

You'll probably end up looking at a miscellaneous one like the one here (marketing consultant?) offered by Travelers. You'll probably have to educate your agent on your business practices to ensure proper coverage.

This might be worth it just due to the legal protection clause; meaning they will pay for a lawyer to defend you. Having the proper entity classification might protect your assets but paying lawyers is expensive to defend even frivolous lawsuits.

Record Keeping

This is a bit out of the "contract" topic but good record keeping is essential. If you use a project management and/or a CRM system you really should make sure you can export when you need it.

Many online CRM applications and project management applications have limited export capabilities especially when it comes to export comments and notes on things like tasks and records. Most have an API that you can have a developer custom code to export your stuff. I'd look into this as well.

Final Thoughts

Get with your attorney and CPA to get your specific situations up to legal snuff if you haven't already. Don't act on my advice as I'm not a lawyer nor a CPA. Contracts and agreements are not fun to negotiate and can be even harder when you work with people you generally trust.

However, when it comes to business dealings and contracts I would save my trust for my lawyer :)

Have We Reached Peak Advertising?

The internet runs on advertising. Google is funded almost entirely by advertising. Facebook , likewise. Digital marketing spends continue to rise:

Internet advertising revenues in the United States totaled $12.1 billion in the fourth quarter of 2013, an increase of 14% from the 2013 third-quarter total of $10.6 billion and an increase of 17% from the 2012 fourth-quarter total of $10.3 billion. 2013 full year internet advertising revenues totaled $42.78 billion, up 17% from the $36.57 billion reported in 2012.

Search advertising spend comes out on top, but that’s starting to change:

Search accounted for 41% of Q4 2013 revenues, down from 44% in Q4 2012, as mobile devices have shifted. Search-related revenues away from the desktop computer. Search revenues totaled $5.0 billion in Q4 2013, up 10% from Q4 2012, when Search totaled $4.6 billion

The growth area for digital advertising lays in mobile:

Mobile revenues totaled 19% of Q4 2013 revenues, or $2.3 billion, up 92% from the $1.2 billion (11% of total) reported in Q4 2012

Prominent venture capitalist, Mary Meeker, recently produced an analysis that also highlights this trend.

So, internet advertising is growing, but web internet adoption is slowing down. Meanwhile, mobile and tablet adoption is increasing fast, yet advertising spend on these mediums is comparatively low. Nice opportunity for mobile, however mobile advertising is proving hard to crack. Not many people are clicking on paid links on mobile. And many mobile ad clicks are accidental, driving down advertiser bids.

This is not just a problem for mobile. There may be a problem with advertising in general. It’s about trust, and lack thereof. This situation also presents a great opportunity for selling SEO.

But first, a little background....

People Know More

Advertising’s golden age was in the 50’s and 60’s.

Most consumers were information poor. At least, they were information poor when it came to getting timely information. This information asymmetry played into the hands of the advertising industry. The advertising agency provided the information that helped match the problems people had with a solution. Of course, they were framing the problem in a way that benefited the advertiser. If there wasn’t a problem, they made one up.

Today, the internet puts real time information about everything in the hands of the consumer. It is easy for people to compare offers, so the basis for advertising - which is essentially biased information provision - is being eroded. Most people see advertising as an intrusion. Just because an advertiser can get in front of a consumer at “the right time” does not necessarily mean people will buy what the advertiser has to offer with great frequency.

Your mobile phone pings. “You’re passing Gordon’s Steak House….come in and enjoy our Mega Feast!” You can compare that offer against a wide range of offers, and they can do so in real time. More than likely, you’ll just resent the intrusion. After all, you may be a happy regular at Susan’s Sushi.

“Knowing things” is not exclusive. Being able to “know things” is a click away. If information is freely available, then people are less likely to opt for whatever is pushed at them by advertisers at that moment. If it’s easy to research, people will do so.

This raises a problem when it comes to the economics of content creation. If advertising becomes less effective for the advertiser, then the advertisers is going to reduce spend, or shift spend elsewhere. If they do, then what becomes of the predominant web content model which is based on advertising?

Free Content Driven By Ads May Be An Unsustainable Model

We’re seeing it in broadcast television, and we’ll see it on the web.

Television is dying and being replaced by the Netflix model. There is a lot of content. There are not enough advertisers paying top dollar as the audience is now highly fragmented. As a result, a lot of broadcast television advertising can be ineffective. However, as we’ve seen with Netflix and Spotify, people are prepared to pay directly for the content they consume in the form of a monthly fee.

The long term trend for advertising engagement on the web is not favourable.

The very first banner advertisement appeared in 1994. The clickthru rate of that banner ad was a staggering 44% It had a novelty value, certainly. The first banner ad also existed in an environment where there wasn’t much information. The web was almost entirely about navigation.

Today, there is no shortage of content. The average Facebook advertisement clickthrough rate is around 0.04%. Advertisers get rather excited if they manage to squeeze 2% or 3% click-thrus rates out of Facebook ads.

Digital advertising is no longer novel, so the click-thru rate has plummeted. Not only do people feel that the advertising isn’t relevant to them, they have learned to ignore advertising even if the ad is talking directly to their needs. 97-98% of the time, people will not click on the ad.

And why should they? Information isn’t hard to come by. So what is the advertiser providing the prospective customer?

Even brand engagement is plummeting on Facebook as the novelty wears off, and Facebook changes policy:

According to a new report from Simply Measured, the total engagement for the top 10 most-followed brands on Facebook has declined 40 percent year-over-year—even as brands have increased the amount of content they’re posting by 20.1 percent.

Is Advertising Already Failing?

Our industry runs on advertising. Much of web publishing runs on advertising.

However, Eric Clemons makes the point that the traditional method of advertising was always bound to fail, mainly because after the novelty wears off, it’s all about interruption, and nobody likes to be interrupted.

But wait! Isn’t the advantage of search that it isn’t interruption advertising? In search, the user requests something. Clemons feels that search results can still be a form of misdirection:

Misdirection, or sending customers to web locations other than the ones for which they are searching. This is Google’s business model. Monetization of misdirection frequently takes the form of charging companies for keywords and threatening to divert their customers to a competitor if they fail to pay adequately for keywords that the customer is likely to use in searches for the companies’ products; that is, misdirection works best when it is threatened rather than actually imposed, and when companies actually do pay the fees demanded for their keywords. Misdirection most frequently takes the form of diverting customers to companies that they do not wish to find, simply because the customer’s preferred company underbid.

He who pays becomes “relevant”:

it is not scalable; it is not possible for every website to earn its revenue from sponsored search and ultimately at least some of them will need to find an alternative revenue model.

The companies that appear high on PPC are the companies who pay. Not every company can be on top, because not every company can pay top dollar. So, what the user sees is not necessarily what the user wants, but the company that has paid the most - along with their quality score - to be there.

But nowadays, the metrics of this channel have changed dramatically, making it impossible or nearly impossible for small and mid-sized business to turn a profit using AdWords. In fact, most small businesses can’t break even using AdWords.This goes for many large businesses as well, but they don’t care. And that is the key difference, and precisely why small brands using AdWords nowadays are being bludgeoned out of existence

Similarly, the organic search results are often dominated by large companies and entities. This is a direct or side-effect of the algorithms. Big entities create a favourable footprint of awareness, engagement and links as a result of PR, existing momentum, brand recognition, and advertising campaigns. It’s a lot harder for small companies to dominate lucrative competitive niches as they can’t create those same footprints.

Certainly when it comes to PPC, the search visitor may be presented with various big player links at the expense of smaller players. Google, like every other advertising driven medium, is beholden to it’s big advertisers. Jacob Nielsen noted in 1998:

Ultimately, those who pay for something control it. Currently, most websites that don't sell things are funded by advertising. Thus, they will be controlled by advertisers and will become less and less useful to the users”

If Interruption Advertising Is Failing, Is Advertising Scalable?

Being informed has changed customer behaviour.

The problem is not the medium, the problem is the message, and the fact that it is not trusted, not wanted, and not needed.

People don’t trust ads. There is a vast literature to support this. Is it all wrong?
People don’t want ads. Again, there is a vast literature to support this. Think about your own behavior, you own channel surfing and fast forwarding and the timing of when you leave the TV to get a snack. Is it during the content or the commercials?
People don’t need ads. There is a vast amount of trusted content on the net. Again, there is literature on this. But think about how you form your opinion of a product, from online ads or online reviews?
There is no shortage of places to put ads. Competition among them will be brutal. Prices will be driven lower and lower, for everyone but Google.

If the advertising is not scaleable, then a lot of content based on advertising will die. Advertising may not be able to support the net:

Now reality is reasserting itself once more, with familiar results. The number of companies that can be sustained by revenues from internet advertising turns out to be much smaller than many people thought, and Silicon Valley seems to be entering another “nuclear winter”

A lot of Adsense publishers are being kicked from the program. Many are terminated, without reason. Google appear to be systematically culling the publisher herd. Why? Shouldn’t web publishing, supported by advertising, be growing?

The continuing plunge in AdSense is in sharp contrast to robust 20% revenue growth in 2012, which outpaced AdWords' growth of 19%.....There are serious issues with online advertising affecting the entire industry. Google has reported declining value from clicks on its ads. And the shift to mobile ads is accelerating the decline, because it produces a fraction of the revenue of desktop ads.
Matt Sanchez, CEO of San Francisco based ad network Say Media, recently warnedthat, "Mobile Is Killing Media."
Digital publishing is headed off a cliff … There's a five fold gap between mobile revenue and desktop revenue… What makes that gap even starker is how quickly it’s happening… On the industry’s current course, that’s a recipe for disaster.

Prices tumble when consumers have near-perfect real time information. Travel. Consumer goods. Anything generic that can be readily compared is experiencing falling prices and shrinking margins. Sales growth in many consumer categories is coming from the premium offerings. For example, beer consumption is falling across the board except in one area: boutique, specialist brews. That market sector is growing as customers become a lot more aware of options that are not just good enough, but great. Boutique breweries offer a more personal relationship, and they offer something the customer perceives as being great, not just “good enough”.

Mass marketing is expensive. Most of the money spent on it is wasted. Products and services that are “just good enough” will be beaten by products and services that are a precise fit for consumers needs. Good enough is no longer good enough, products and services need to be great and precisely targeted unless you've got advertising money to burn.

How Do We Get To These Consumers If They No Longer Trust Paid Advertising?

Consumers will go to information suppliers they trust. There is always demand for a trusted source.

Trip Advisor is a great travel sales channel. It’s a high trust layer over a commodity product. People don’t trust Trip Advisor, per se, they trust the process. Customers talk to each other about the merits, or otherwise, of holiday destinations. It’s transparent. It’s not interruption, misleading or distracting. Consumers seek it out.

Trust models will be one way around the advertising problem. This suits SEOs. If you provide trusted information, especially in a transparent, high-trust form, like Trip Advisor, you will likely win out over those using more direct sales methods. Consumers are getting a lot better at tuning those out.

The trick is to remove the negative experience of advertising by not appearing to be advertising at all. Long term, it’s about developing relationships built on trust, not on interruption and misdirection. It’s a good idea to think about advertising as a relationship process, as opposed to the direct marketing model on which the web is built - which is all about capturing the customer just before point of sale.

Rand Fishkin explained the web purchase process well in this presentation. The process whereby someone becomes a customer, particularly on the web, isn’t all about the late stages of the transaction. We have to think of it in terms of a slow burning relationship developed over time. The consumer comes to us at the end of an information comparison process. Really, it’s an exercise in establishing consumer trust.

Amazon doesn’t rely on advertising. Amazon is a trusted destination. If someone wants to buy something, they often just go direct to Amazon. Amazon’s strategy involves what it calls “the flywheel”, whereby the more things people buy from Amazon, the more they’ll buy from Amazon in future. Amazon builds up a relationship rather than relying on a lot of advertising. Amazon cuts out the middle man and sells direct to customers.

Going viral with content, like Buzzfeed, may be one answer, but it’s likely temporary. It, too, suffers from a trust problem and the novelty will wear off:

Saying “I’m going to make this ad go viral” ignores the fact that the vast majority of viral content is ridiculously stupid. The second strategy, then, is the high-volume approach, same as it ever was. When communications systems wither, more and more of what’s left is the advertising dust. Junk mail at your house, in your email; crappy banner ads on MySpace. Platforms make advertising cheaper and cheaper in a scramble to make up revenue through volume.

It’s not just about supplying content. It could be said newspapers are suffering because bundled news is just another form of interruption and misdirection, mainly because it isn't specifically targeted:

Following The New York Times on Twitter is just like paging through a print newspaper. Each tweet is about something completely unrelated to the tweets before it. And this is the opposite of why people usually follow people and brands online. It's not surprising that The New York Times have a huge problem with engagement. They have nothing that people can connect and engage with

Eventually, the social networks will likely suffer from a trust problem, if they don’t already. Their reliance on advertising makes them spies. There is a growing awareness of data privacy and users are unlikely to tolerate invasions of privacy, especially if they are offered an alternative. Or perhaps the answer is to give users a cut themselves. Lady Gaga might be onto something.

Friends “selling” (recommending) to friends is a high trust environment.

A Good Approach To SEO Involves Building Consumer Trust

The serp is low trust. PPC is low trust. Search keyword plus a site that is littered with ads is low trust. So, one good long term future strategy is to move from low to high trust advertising.

A high trust environment doesn’t really look like advertising. It’s could be characterised as a transparent platform. Amazon and Trip Advisor are good examples. They are honest about what they are, and they provide the good along with the bad. It could be something like Wikipedia. Or an advisory site. There are many examples, but it's fair to say we know it when we see it.

A search on a keyword that finds a specific, relevant site that isn’t an obvious advertisement is high trust. The first visit is the start of a relationship. This is not the time to bombard visitors with your needs. Instead, give the visitor something they can trust. Trip Advisor even spells it out: "Find hotels travelers trust".

Telsla understands the trust relationship. Recently, they’ve made their patents open-source, which, apart from anything else, is a great form of reputation marketing. It’s clear Telsa is more interested in long term relationships and goodwill than pushing their latest model on you at a special price. Their transparency is endearing.

First, you earn trust. Then you sell them something later. If you don’t earn their trust, then you’re just like any other advertiser. People will compare you. People will seek out information. You’re one of many options, unless you have formed a prior relationship. SEO is a brilliant channel to develop a relationship based on trust. If you're selling SEO to clients, think about discussing the trust building potential - and value proposition - of SEO with them.

It's a nice side benefit of SEO. And it's a hedge against the problems associated with other forms of advertising.

The Rigged Search Game

SEO was all about being clever. Still is, really. However, SEO used to reward the clever, too. The little guy could take on the big guys and munch their lunch by outsmarting them.

It was such an appealing idea.

The promise of the internet was that the old power structures would be swept aside, the playing field would be made level again, and those who played the smartest game would prosper.

Sadly, this promise didn’t last long.

Power

The names may have changed, but traditional power structures were soon reasserted. The old gatekeepers were replaced with the new gatekeepers. The new gatekeepers, like Google, grew fat, rich and powerful. They controlled the game and the game was, once again, rigged in favor of those with the most power. That's not a Google-specific criticism, it's just the way commerce works. You get big, you move markets simply by being big and present. In search, we see the power imbalance as a side-effect, namely the way big players are treated in the SERPs compared to small players.

SEO for big, established companies, in terms of strategy, is simple. Make sure the site is crawlable. Run PR campaigns that frequently mention the name of the big, established company - which PR campaigns do anyway - and ensure those mentions include a back link. Talk to a lof of friendly reporters. Publish content, do so often, and make sure the important content is somewhere near the top.

That’s it.

The market reputation of the entity does most of the grunt work when it comes to ranking. So long as their ship is pointed in the right direction, they’re golden.

The main aim of the SEO who works for a big, established entity is to stop the big, established entity doing something stupid. So long as the SEO can prevent the entity doing stupid things - often a difficult task, granted - the big, established entity will likely dominate their niche simply by virtue of established market power.

That didn’t used to be the case.

When SEO started, and for a number of years after, the little guy could dominate niches by being the most relevant. The little guy could become the most relevant by carefully deconstructing the algorithm and giving the search engine what the search engine wanted. If the search engines weren’t careful, they were in very real danger of getting exactly what they asked for!

That temporary inversion of the traditional power structure made SEO a lot of fun. You did some clever stuff. You rose to the top. You collected the rewards. I think it’s grown less fun now because being clever isn’t enough. SEO works, but not quite as well as it used to for small players as the cost/reward equation favors big players.

Do A Lot Of Clever SEO Stuff, Get Nowhere

These days, a glass ceiling exists. SEOBook members can read a detailed post by Aaron outlining the glass ceiling here.

Here’s how it often plays out...

About a 8 months ago we launched one of the most viral pieces of content that we have ever done (particulary for a small site that doesn't have a huge following) ... it was done so well that it was organically referenced/hardcoded into Wikipedia. In addition it was cited on news sites, dozens and dozens of blogs (likely north of 100), a number of colleges, etc. It got like a couple hundred unique linking domains....which effectively doubled the unique linking domains that linked into the parent site. What impact did that have on rankings? Nada.

For link building to work well, the right signals need to exist, too. There needs to have high levels of reach and engagement. Big companies tend to have high levels of reach and engagement due to their market position and wider PR and advertising campaigns. This creates search keyword volume, keyword associations, engagement, and frequent mentions in important places, and all this is difficult to compete with if you have a small budget. The exception appears to be in relatively new niches, and in the regions, where the underlying data concerning engagement, reach and interest is unlikely to be particularly deep and rich.

Yet.

So, the little guy is often fighting a losing battle when it comes to search. Even if they choose a new, fast growing niche, as soon as that niche becomes lucrative enough to attract big players, traditional power will reassert itself. The only long term option for the little guy is to become a big guy, or get bought up by one, or go work for one.

Slavery

Abraham Lincoln thought wage labour was a stage workers pass through, typically in their 20’s or early 30s. Eventually, they become self-employed and keep all the profits of their labour.

Adam Smith maintained markets only work as intended if everyone had enough to participate. They also must have sufficient control over their own means of production. Adam Smith, father of modern capitalism, was not a big fan of corporate capitalism:

Merchants and master manufacturers are . . . the two classes of people who commonly employ the largest capitals, and who by their wealth draw to themselves the greatest share of the public consideration.

A side-effect of big players is they can distort markets. They have more purchasing power and that purchasing power sends a signal about what’s important. To big companies. The result is less diversity.

It’s self evident that power changes the search game. The search results become more about whoever is the most powerful. It seems ironic that Google started as an upstart outsider. The search results are difficult to conquer if you’re an upstart outsider, but pretty easy to do if you’re already a major player. Adwords, quality score being equal, favours those with deep pockets.

What’s happening is the little guy is getting squeezed out of this landscape and many of them will become slaves.

Huh? “Slaves”? By Aristotle's and Lincoln's definition, quite possibly:

If we want to have markets, we have to give everybody an equal chance to get into them, or else they don’t work as a means of social liberation; they operate as a means of enslavement.

Enslavement in the sense that the people with enough power, who can get the market to work on their behalf…

Right — bribing politicians to set up the system so that they accumulate more, and other people end up spending all their time working for them. The difference between selling yourself into slavery and renting yourself into slavery in the ancient world was basically none at all, you know. If Aristotle were here, he’d think most people in a country like England or America were slaves.

What’s happening in search is a microcosm of what is happening elsewhere in society. Markets are dominated and distorted by corporations at the direct expense of the small players. Yes, it’s nothing new, but it hasn’t always been this way in search.

So what is my point?

My point is that if you’re not getting the same business benefits from search as you used to, and the game seems that much harder, then it’s not because you’re not clever. It’s because the game is rigged.

Of course, small companies can prosper. You’ll find many examples of them in the SERPs. But their path to getting there via the search channel is now much longer and doesn't pay as well as it used to. This means fewer SEOs will be hired by small companies because the cost of effective SEO is rising fast whilst the rewards are shrinking. Meanwhile, the big companies are increasing their digital budgets.

Knowing all this, the small operator can change their approach. The small operator has one advantage. They can be nimble, flexible, and change direction quickly. So, looking forward over the not-too-distant horizon, we either need a plan to take advantage of fast emerging markets before the big guys enter them, or we need a plan to scale, or we need to fight differently, such as taking brand/USP centric approaches.

Or go work for one of the big guys.

As a "slave". Dude :) (Just kidding)

What’s In A Name?

Many SEO love keyword-loaded domain names. The theory is that domains that feature a keyword will result in a boost in ranking. It’s still a contentious topic:

I've seen bloggers, webmasters and search aficionados argue the case around the death of EMDs time and time again, despite the evidence staring them in the face: EMDs are still all over the place. What's more, do a simple bulk backlink analysis via Majestic, and you will find tons which rank in the top 10 while surrounded by far more authoritative domains.

No matter what the truth of the matter as to the ranking value of EMDs, most would agree that finding the right language for describing and profiling our business is important.

Terminology Changes

Consider the term “startup”.

This term, which describes a new small business, feels like it has been around forever. Not so. Conduct a search on the time period 1995-1998 and you won’t find results for start-up:

It's a word that has grown up with the web and sounds sexier than just business. Just like the word "consultant" or "boutique" sounds better than "mom and pop" or "1 person business". (You must remember of course when "sanitation engineer" replaced "trash man".) oI just did a search to see the use of the word startup from the period 1995 to 1998 and came up with zilch in terms of relation to business

Start up does sound sexier than “mom n pop” or “one person business”, or “a few stoner mates avoiding getting a job”. A pitch to a VC that described the business as a “mom n pop” may not be taken seriously, whereas calling it a startup will.

If we want to be taken seriously by our audience, then finding the audience's language is important.

SEO or Digital Marketing Or…..?

Has SEO become a dirty word? Has it always been a dirty word?

SEO’s don’t tend to see it that way, even if they are aware of the negative connotations. They see SEO as a description of what they do. It’s always been a bit of a misnomer, as we don’t optimize search engines, but for whatever reason, it stuck.

The term SEO is often associated with spam. The ever-amiable Matt Cutts video's could be accompanied by a stern, animated wagging finger and a "tut tut tut" subtext. The search engines frown on a lot when it comes to SEO. SEO is permanent frown territory. Contrast this with PPC. PPC does not have that negative connotation. There is no reputation issue in saying you’re a PPC provider.

Over the years, this propaganda exercise that has resulted in the "SEO questionable/PPC credible" narrative has been pretty effective. The spammer label, borrowed from the world of email spam, has not been a term the SEO has managed to shrug off. The search engines have even managed to get SEOs to use the term “spammer” as a point of differentiation. “Spam is what the other SEOs do. Not me, of course.” This just goes to show how effective the propaganda has been. Once SEOs used spam to describe their own industry, the fate of the term SEO was sealed. After all, you seldom hear doctors, lawyers and retailers defining what they do against the bad actors in their sector.

As traffic acquisition gets broader, encompassing PR and social media, new titles like Digital Marketer have emerged. These terms have the advantage of not being weighed down by historical baggage. I’m not suggesting people should name themselves one thing or the other. Rather, consider these terms in a strategic sense. What terms best describe who you are and what you do, and cast you in the best possible light to those you wish to serve, at this point in time?

The language moves.

Generic Name Or Brandable?

Keyword loaded names, like business.com, are both valuable and costly. The downside of such names, besides being costly, is they severely limit branding opportunities. The better search engines get, and the more people use social media and other referral channels, the less these generic names will matter.

What matters most in crowded markets is being memorable.

A memorable, unique name is a valuable search commodity. If that name is always associated with you and no one else, then you’ll always be found in the search results. SEMRush, MajesticSEO, and Mo are unlikely to be confused with other companies. “Search Engine Tools”, not so much.

Will the generic name become less valuable because generic names are perhaps only useful at the start of an industry? How mature is your industry? How can you best get differentiation in a crowded market through language alone?

The Strategy Behind Naming

Here are a few points to consider.

1. Start Early

Names are often an afterthought. People construct business plans. They think about how their website looks. They think about their target market. They don’t yet have a name. Try starting with a name and designing everything else around it. The name can set the tone of every other decision you make.

2. Positioning

In mature markets, differentiation is strategically important. Is your proposed name similar to other competitors names? Is it unique enough? If you’re in at the start of a new industry, would a generic, keyword loaded name work best? Is it time for a name change because you’ve got lost in the crowd? Has your business focus changed?

Does your name go beyond mere description and create an emotional connection with your audience? Names that take on their own meaning, like Amazon, are more likely to grow with the business, rather than have the business outgrow the name. Imagine if Amazon.com had called itself Books.com.

3. What Are You All About?

Are you a high-touch consultative company? Or a product based, functional company? Are you on the cutting edge? Or are you catering to a market who like things just the way they are?

Writing down a short paragraph about how you see yourself, how the customers see you, and your position in the market, will help you come up with suitable names. Better yet, write a story.

4. Descriptive Vs Differentiation

Descriptive can be safe. “Internet Search Engine” or “Web Crawler”. There’s no confusing what those businesses do. Compare them with the name Google. Google gives you no idea what the company does, but it’s more iconic, quirky and memorable. There’s no doubt it has grown with the company and become a natural part of their identity in ways that “Internet Search Engine” never could.

Sometimes, mixing descriptions to create something quirky works well. Airbnb is a good example. The juxtaposition of those two words creates something new, whilst at the same time having a ring of the familiar. It’s also nice to know if the domain name is available, and if the name can be trademarked. The more generic the name, the harder it is to trademark, and the less likely the domain name is available.

5. Does Your Name Travel Well?

Hopefully, your name isn’t a swear word in another culture. Nor have negative connotations. Here are a few comical examples where it went wrong:

Nokia’s new smartphone translates in Spanish slang to prostitute, which is unfortunate, but at least the cell phone giant is in good company. The name of international car manufacturer Peugeot translates in southern China to Biao zhi, which means the same thing.

This is not such an issue if your market is local, but if you plan to expand into other markets in future, then it pays to consider this angle.

6. There’s No Right Answer

There is probably no universally good name. At least, when you first come up with a name, you can be assured some people will hate it, some will be indifferent, and some will like it - no matter what name you choose.

This is why it’s important to ground the subjective name-choosing process in something concrete, like your business strategy, or positioning in the market. You name could have come before the business plan. Or it could reflect it. You then test your name with people who will likely buy your product or service. It doesn’t matter what your Mom or your friends think of the name, it’s what you think of the name and what your potential customers think of the name that counts.

7. Diluting Your Name

Does each service line and product in your company need a distinctive name? Maybe, but the risk is that it could dilute the brand. Consider Virgin. They put the exact same name on completely different service lines. That same brand name carries the values and spirit of Virgin to whatever new enterprise they undertake. This also reduces the potential for customer confusion.

Creating a different name for some of your offerings might be a good idea, Say, if you’re predominantly a service-based company, yet you also have one product that you may spin off at some point in future. You may want to clearly differentiate the product from the service so as not to dilute the focus of the service side. Again, this is where strategy comes in. If you’re clear about what your company does, and your position in the market, then it becomes easier to decide how to name new aspects of your business. Or whether you should give them a name at all.

7. Is your name still relevant?

Brands evolve. They can appear outdated if the market moves on. On the other hand, they can built equity through longevity. It seems especially difficult to change internet company names as the inbound linking might be compromised as a result. Transferring the equity of a brand is typically expensive and difficult. All the more reason to place sufficient importance on naming to begin with.

8. More Than A Name

The branding process is more than just a name and identity. It's the language of your company. It’s the language of your customers. It becomes a keyword on which people search. Your customers have got to remember it. You, and your employees, need to be proud of it. It sets you apart.

The language is important. And strategic.


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