To kick off the new decade, on Friday, January 8, we are hosting a live panel discussion among Society committee chairs about the critical intangible asset issues we will face in the '10s. Each of our chairs working in a different segment of the intangibles market will share their ideas on the most important issues. Our panel includes Scott Childers, Walt Disney Company; Marc Lucier, Deutsche Bank; David Hetzel, Motorola; Jon Low, Predictiv; Cathy Reese, Fish & Richardson; David Gould, Buchanan Ingersoll; Andy Gibbs, Andy Gibbs; Nigel Page, IAM magazine; and Judy Giordan, Steel City Re.

You too can participate in this special Mission:Intangible Monthly Briefing. You can register for free, and slides will posted on the website in advance of the event. Questions submitted by the audience in advance or during the broadcast will be fielded and addressed.

But we thought we would also reach out to a broader audience in the blogosphere and Twitterdom. We're talking to you. You may not be able to tune in to the Briefing, but you are interested in intangible asset finance. What do you think are the critical intangible asset issues for the coming decade? Please share your thoughts through comments on this post and help us spread the word about the discussion. If communicating by Twitter, please include #IAFS in your tweet. We will share highlights from the comments in the call as well as in follow-up posts on this blog. Or send us your questions directly at questions@iafinance.org.

We look forward to hearing from you and working with you in the coming decade to help spread the word about excellence in intangible asset management and corporate reputation.

And to all, best wishes for a happy, prosperous and new year.

Mary Adams, Moderator, M:I Monthly Briefings
Nir Kossovsky, Executive Secretary, IAFS

Nell Minow, editor and co-founder of the Corporate Library, a provider of corporate governance research, ratings and investment risk analysis, penned a Financial Times op ed piece on 2 October suggesting that going forward, fund managers and analysts will look at four new fundamental elements “that will become as important as cash flow and return on investment.” To no surprise around here, these four comprise intangible asset metrics and business processes. While we do not necessarily agree with Minow's views, her comments are worth noting. This is what she wrote, briefly:

1. Accounting: Investors will demand better information about human and intellectual capital, risk management processes, and sustainability. Our friend, Ken Jarboe of the Athena Alliance, has been delving into this topic for years. You can link to the Athena Alliance here.

2. Boards of Directors: Investors will demand greater competence and selfless engagement from members of the Boards of their companies. They will want from Directors what private equity firms demand of early stage company executives: "skin in the game." This notion compresses to the concept of Governance, about which the Society has organized a Committee chaired by Cathy Reese. Without leaving with us a pound of flesh, you can download her 6 Feb 09 "how to" presentation on this subject from our Events page.

3. Compensation: We read Minow’s comments in this light: executive compensation must better align the interests of senior management with the long-term interests of the firm and its stakeholders. Compensation processes, writes Minow, are a key indicator of risk. While we still see benefits in incentives and material compensation, notwithstanding the growing chant of mobs with pitchforks, we like the part in Minow's piece about processes and risk management. In fact, we like anything that links risk management to overall corporate reputation. This is especially when a company uses financial instruments to signal superior risk management. The Society presented a Mission:Intangible Monthly Briefing on Risk and Reputation Management 10 July 09 that you can download from our Events page.

4. Investors: Going forward, investors will look to see if the existing investors are providing sufficient oversight to ensure that the Board of Directors is providing sufficient oversight to ensure that management is providing sufficient oversight of the firm’s operations. Did you follow that? The business process is oversight; the intangible asset affected is trust. To us, the take home message is this. The greater the trust (a product of transparency), the less oversight burden for all. And how can investors signal trust? According to Minow, investors can signal trust by being "overweight relative to the index." In other words, extra skin in the game. See #2 and #3 above. 

The bottom line is this. Investors will seek companies that have their business processes under better control, can quantify and report the value of these proceses to their stakeholders, can manage their risks, and can signal their material conformance with the preceding  through non-traditional channels. The Society provides a working environment for best-practices discovery for executives seeking to accomplish the above. Won't you join us?

During the 6 February 2009 MISSION:INTANGIBLE Monthly Briefing, Fish & Richardson’s Cathy Reese, who chairs the Society’s IA Corporate Governance Committee, indicated that under Delaware Law, Directors and Officers had a Duty of Care to oversee the management of the business processes that help establish reputation. She noted that absent oversight systems, Members of the Board could be personally liable to shareholders for adverse events that impaired a company’s reputation.

Cathy’s warning of shareholder-driven exposure is just the beginning. Now companies are seeking restitution, too. According to the newspaper Deutsche Welle, after spending nearly 2.5 billion euros to cover legal bills and fines stemming from an international bribery scandal, Munich-based Siemens AG (NYSE:SI) is seeking payments from its former leadership team. Siemens was investigated for paying 1.3 billion euros in kickbacks between 2003 and 2006 to potential buyers in 12 countries, including Italy, Greece, Russia and Nigeria. In Germany and in the United States, the company was found guilty of corruption and ordered to pay combined fines of just over a billion euros. After the 2006 investigation, Siemens then accused some of its former managers of having failed to stop illegal practices and wide-ranging bribery.

It gets more interesting. The Financial Times reports that some of Siemens’ investors have threatened to sue the company if it did not claim damages from its former managers.

The value of risk and reputation management at the board level should be painfully obvious. The consequences of failing to manage a firm’s business processes for ethics, sustainability, innovation, quality, safety, security, etc. – the drivers of reputation – can place officers and directors at great personal peril. Yes, it’s personal.

From IP 360, the legal newswire, we share the following: "Two makers of virtual clothing, sex toys and erotic animations for sale in the online alternative reality game Second Life have slapped the game's maker with putative class action allegations of trademark and copyright infringement, saying the company allows piracy of their products to run rampant in Second Life and even profits from it."

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). 

The objectives of the Intangible Asset Finance Society are to increase the visibility, transparency, and value of intangible assets through education, advocacy, and the promulgation of standards. Leverage is a common instrument of value deployment, and IP as collateral is one of several favorite topics among Society members. Which is why we couldn't pass the opportunity to share this note on an IP secured loan-gone-bad.

Celebrity photographer Annie Leibovitz, who has photographed everyone from the Rolling Stones to Queen Elizabeth II, put her art, intellectual property and even real estate assets up for collateral last year when she consolidated her massive debts into one $24 million loan.  Leibovitz made her creditor an “irrevocable, exclusive agent” in December 2008 in exchange for the loan at a 12 percent interest rate. The collateral specifically included all photographs she has taken or will take.  Last Tuesday was the deadline for repaying the loan or surrendering the collateral - a deadline not met.

Friday, Bloomberg reported that Liebowitz bought back control to her photographs and real estate by renegotiating the terms of a $24 million loan from Art Capital Group. In return, the lender dropped its lawsuit against her.

The Society is pleased to announce the 28 May 2009 launch of the IP Finance Institute and to welcome the Institute into the Society’s global alliance. The Society also congratulates Pier Biga, managing partner of ICM Advisors, who is Executive Director.



The Intellectual Property Finance Institute is the first European research and competence centre focused on IP Economics & Finance. The Institute is a non-profit organization which promotes and develops know-how transfer, research initiatives and projects about the IP as an economic asset and its use in IP-based financing solutions.

The Institute was co-founded by the Innovation Studies Group of the Politecnico di Torino, a leading international technology university, and ICM Advisors, a leading international advisory and research firm specializing in intangible asset valuation and IP-based financing.

This note explores whether a proposed transaction by a $75B beverage company, Pepsi Inc. (NYSE:PEP), is motivated by costs savings, brand enhancement, or reputation protection. Seeing no perceptible movement in the reputation index of either the company or its arch rival, we conclude that notwithstanding which of the three was the initial trigger, the greatest value may be in reputation risk management.

On 20 April 2009, Pepsi proposed buying the outstanding shares it does not own in its two largest bottlers, Pepsi Bottling Group (PBG.N) and PepsiAmericas (PAS.N), in a $6 billion cash and stock deal. Many in the financial press suggested it was a cost-cutting initiative. Jon Baskin, a marketing iconoclast, a keynote speaker at the Society’s 2008 annual conference, and the author of the book, “Branding OnlyWorks on Cattle,” opined that the move represented brilliant, strategic branding. In Jon’s words:

Think about it. New packages and formulations, available at new and different locations, priced and supported in novel ways...all thanks to a holistic approach to the brand, vs. some archaic top-down application that sees it only as image and words. It's these actions, and real investments, that will build sustainable, long-term brand growth.

Cost savings and long-term brand growth are both good things, reflect well on management and enhance reputation. So, with two weeks having now elapsed during which the market has had an opportunity to digest the news, and while the deal is still in the negotiation phase (the bottlers rejected it on Monday), we called on the Steel City Re corporate reputation index to see what impact the news has had on the reputations of Pepsi and its arch rival, The Coca Cola Company (NYSE:KO).

As shown in the charts below, the short answer is “not much.” Pepsi tops the fifteen-member Soft drink sector; Coke is in the 92nd percentile. Volatility is nil. In fact, in the midst of the most tumultuous market since the great depression, these two iconic firms emerge with nearly identical profiles comprising exceedingly stable reputation metrics. With Pepsi and Coke’s market caps at $75B and $100B respectively, are they too big to budge?






Big, yes, but not too big to trip and fall. As we see it, both pay exquisite managerial attention to their reputations. Ethics, quality, safety, security and sustainability are all watchwords. Innovation is alive and well. So the competition between these two is analogous to that of two chess grandmasters. They see all, know all, and understand the implications of every move and its derivatives. The game, therefore, is waiting for one or the other to make a mistake. It is a game where risk management is the winning play. And given the relative values of the physical assets and intangible assets at the two companies, reputation loss arising from a business partner where visibility and control are weaker – supply chain headline risk, if you will – is one of the major risks we believe needs to be managed.

So let us put our own spin on Pepsi’s announced acquisition: from an intangible asset finance management perspective, it is a prudent move to manage reputation risk arising from a third party. While it may not increase Pepsi’s brand value or enhance its reputation, it may prevent the sort of reputation loss that destroyed nearly 14% of Coke’s value 10 years ago.

The past week, Intellectual Asset Management magazine, the official publication partner of the Society, has been hosting a debate on intangible asset valuation. As Joff Wild, editor of IAM magazine describes it,

One subject area that always seems to generate a large number of reader comments is valuation. Witness, for example, the fantastic thread tha developed following a post I wrote back in January entitled Intangible values collapse - the old 70% to 80% claim is now officially dead and buried. Among those taking part in that conversation - indeed the man who indirectly inspired it - was Nir Kossovsky, executive secretary of the Intangible Asset Finance Society and CEO of Steel City Re. Now Nir has written in to question some of the points made by Pat Sullivan and Alexander Wurzer in their IAM article on IP/intangible valuation myths, which I recently previewed on the blog.

The Intangible Asset Finance Society has weighed in on the debate along with our colleagues at the Athena Alliance, with classic language and arguments from the school of American Pragmatism that reflect the financial market principles we support. To follow the debate on the IAM site, click here. To read the comments of Ken Jarboe, President of the Athena Alliance on the Alliance blog, Intangible Economy, click here.

Last Monday, 6 April, the world learned that IBM (NYSE:IBM) was no longer interested in acquiring Sun Microsystems (NASDAQ:JAVA). Speculation as to the reasons for the collapsed deal include price, intellectual property and hubris. Let's look at the intangibles of this deal from the perspective of the Steel City Re  Intangible Asset Finance (corporate reputation) (IA) index.

The charts below shows IBM. As seen in the upper chart, among the 48 companies comprising the Computers and Peripherals sector, IBM has ranked in the top 99th or 100th percentile this past year. In terms of return on equity, it outperforms the median of its peers by 33%. As seen in the lower chart, the volatility of its index score is only two orders of magnitude and is decreasing. This is a company with an exceedingly strong reputation that stakeholders believe they understand, and clearly like.



The charts below shows Sun Microsystems. As seen in the upper chart, among the same 48 companies comprising the Computers and Peripherals Group, Sun (JAVA) has ranked no higher than the 50th percentile a year ago and is now ranking below the 20th percentile. In terms of return on equity, notwithstanding the surge in anticipation of a potential deal, it has underperformed its peers by nearly 20%. As seen in the lower chart, the volatility of its index score is three orders of magnitude and is now increasing. This is a company with a rapidly deteriorating reputation that stakeholders are liking less, and are concerned they no longer know.



The data indicate that since Sun Microsystem's reputation is not going to help IBM, the latter can afford to wait until hubris is humbled and the price stabilizes.

Dear Reader,

Beginning this week and with surprising regularity, the Society will post a quantitative and qualitative analysis of the intangible asset management implications of a current news story involving a publicly traded company. These analyses will draw on IA index data published by Steel City Re. Periodically, the Society will also post announcements to supplement the monthly news alerts, the quarterly newsletter, and the bimonthly publication in IAM magazine.

As always, the Society welcomes your comments and feedback.

Nir Kossovsky
Executive Secretary