Here’s a new twist on the oft repeated whine of many businesses regarding the use of brand names to trigger online ads. Cosmetics company Mary Kay filed a lawsuit against Yahoo! this week in federal court alleging trademark infringement after they discovered Yahoo was inserting links to unauthorized retailers in personal messages that its sellers send to their consumers.
Prior lawsuits dealing with this issue have mainly revolved around ads in search engines or pop-up ads served by adware companies showing up for certain trademarked keywords. What sets this case apart is that it is the first time that a company has complained about links in personal emails. Some lawyers now say that this distinction may help Mary Kay prove that consumers are easily confused by the ads.
Yahoo seems to have begun inserting this kind of in-email ads earlier this year. Mary Kay became aware of the practice this past spring after some of the company’s consultants and employees tipped them off after noticing them in their emails.
In their filing, Mary Kay argues that the email recipients may “mistakenly believe that the hyperlinks and pop-ups which include ads associated with the Mary Kay marks were affirmatively included or authorized by either Mary Kay or the Independent Beauty Consultant sending the email.”
It sounds like a logical arguement, but it might not be enough. Some point out that although Mary Kay is complaining about unauthorized resellers, people are still typically permitted to sell products without authorization as long as the products have been lawfully purchased.
It is really going to come down to how the court views this, and it will definitely be an interesting case to monitor.
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