Mary Kay Sues Yahoo For Inserting Ad Links In Emails

from the trademark-fun dept

Thu, Jul 16th 2009 10:49pm — Mike Masnick

We've seen way too many lawsuits involving companies suing search engines for trademark infringement due to paid search adveritisng, but the latest lawsuit is a bit different. It appears that Mary Kay (who has a long history of being an aggressive enforcer of trademark) has sued Yahoo because of the way it inserts ads in email. Apparently Yahoo employs that incredibly annoying process of hotlinking certain text words to pop up advertisements. I've seen this on various websites (now blocked thanks to No Script) but I didn't realize Yahoo used the same annoying process in email as well. Mary Kay claims that this is confusing, and this actually does raise some interesting legal questions. First of all, I could see how some people might actually be confused by these sorts of ad links. While they usually look a little different than a real hyperlink, unless you're paying attention, you might get confused and think it's a normal link, rather than an ad. But that just speaks to confusion over what the link is. Once you hover over it, it becomes pretty obvious pretty quickly that it's an ad. I have a lot more trouble believing that it would then confuse many users. That said, even if it is confusing, there's a question as to whether or not Yahoo should actually be liable for any confusion. After all, it's just using an automated system to insert these ads. I might argue that it's obnoxious, annoying and unnecessarily intrusive, but it's not clear that it should be illegal.

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Filed Under: ads, email, links, trademark
Companies: mary kay, yahoo

36 Comments

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Anonymous Coward, 16 Jul 2009 @ 11:18pm

This is one of those sideline problems of "FREE!". Yahoo is offering a free email service, while at the same time trying to extract income to pay for it. Illegal? Who knows? One thing for sure, it is getting into the middle of what some might consider private communications.

I guess the question would be: Is Mary Kay using Yahoo to send, or is it the customers who are receiving their emails at yahoo who have the issue?
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Sarah Black, 17 Jul 2009 @ 12:12am

Yahoo! TOS
If you sign up for an account and agree to the terms (legal or not), are you actually accepting all that is written in those terms? ...especially if you are acting on behalf of a "large" company, wouldn't you take the time to read terms before agreeing to them?

...or have yahoo's email terms changed since the original account agreement?
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ReallyEvilCanine, 17 Jul 2009 @ 12:28am

Mary Kay is right.
Clearly demarcated crap ads on the bottom of sent mail aren't confusing. Display ads on the screen surrounding the mail body aren't confusing. Links to ads on actual body text (in a world where an awful lot of people use Rich Text and HTML mail) is VERY confusing and IMO doesn't just cross the line but takes a running jump over it. With a rocket pack strapped on.
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Mike Masnick (profile), 17 Jul 2009 @ 12:38am

Re:
This is one of those sideline problems of "FREE!".

Um, no, not even close. It's a sideline problem of a BAD advertising strategy.

Yahoo is offering a free email service, while at the same time trying to extract income to pay for it.

Right. And there are ways to do that without being intrusive and of questionable legal quality.

That's got nothing to do with "free" and everything to do with the implementation.
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Anonymous Coward, 17 Jul 2009 @ 1:42am

Its just wrong. would you be ok with this if the USPS or Royal Mail had a machine opening your letters, inserting flyers and re-sealing them?

No, I don't think so.
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Anonymous Coward, 17 Jul 2009 @ 2:07am

Re: Re:
It's just another example of what companies are willing to do to offer "FREE!" stuff. As surfers are more and more blind to banner ads, and they rarely scroll down to the end of an email, now they are down to basically tricking them with blind links out of an email body.

FREE! email is one of the oldest net freebies, it is also a good place to see where things have gone too far to try to pay for it.
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Jiminy Cricket (profile), 17 Jul 2009 @ 2:19am

Re:
Sure I would, if it meant that I could get anything I wanted shipped to me for free, and could send all the overnight express delivery packages I wanted, for free, and it was only machines and never people doing the opening, and I AGREED to the service.

Try to make your analogies just a little closer to the realities, thanks.
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Jiminy Cricket (profile), 17 Jul 2009 @ 2:40am

Re: Yahoo! TOS
No. Illegal contracts are unenforceable. Signing up to an email service that sent Jimmy Bones to your house to slap your wife if you didn't click these stupid hyperlinks would get that provider in a bunch of trouble after the very first assault on your Mrs.
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Sarah Black, 17 Jul 2009 @ 3:07am

Re: Re: Yahoo! TOS
Jiminy Cricket, you completely missed my point. By "legal", I did not mean "outrageous".
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John Doe, 17 Jul 2009 @ 4:12am

What is the problem?
If people are stupid enough to use an email client that does annoying crap like that, it is their problem. Yahoo wouldn't do it if they didn't get away with it.

As for it being a problem for Mary Kay, I say to bad. It is a function of the email browser and it is up to me to determine if I can put up with a browser doing that. If I can, then so be it. As far as I am concerned, Mary Kay doesn't have a case.
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Jiminy Cricket (profile), 17 Jul 2009 @ 4:30am

Re: Re: Re: Yahoo! TOS
And you missed mine. ILLEGAL CONTRACTS ARE UNENFORCEABLE. A little bit illegal is like a little bit pregnant. Which means Yahoo could not hide behind the contract if it was illegal, they couldn't even hide behind the contract if it was just enforceable.
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Jiminy Cricket (profile), 17 Jul 2009 @ 4:36am

Re: What is the problem?
If you signed a contract stating it was ok for them to randomly hyperlink to kiddie porn and hate crime inciting propaganda, would they be able to show that contract to a judge and make it all ok?

I am not saying Mary Kay is right, but they are arguing that Yahoo is infringing on THEIR trademark, not YOUR email.
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AJ (profile), 17 Jul 2009 @ 4:55am

Don't cha know
You get what you pay for. You get free email, you get ads. Someone has to eventually pay for 'free'. If Mary Kay doesn't like Yahoo's free email, they should start their own.
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Anonymous Coward, 17 Jul 2009 @ 5:07am

Re: Re: What is the problem?
Personally, I fail to see how Yahoo would be liable for this. They are selling the adspace, and are not the ones that are representing the trademark that is being allegedly infringed upon. Seems this is more akin to those people suing Google because they're following the money.
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Anonymous Coward, 17 Jul 2009 @ 5:34am

Re: Re: Re: What is the problem?
It's a trademark infringement because:
Mary Kay sells a specific product with a specific brand recognition and reputation. When they send out e-mail, their customers expect that any links or ads in the e-mail would be coming from Mary Kay therefore they would be links / ads "endorsed" by Mary Kay and therefore they could trust them. But when Yahoo inserts links into the mail, they infringe on that trust.

It would be like if your friend (that you trust not to send you junk mail) sent you an e-mail that had links to some humorous websites, and knowing you trust your friend, you aren't afraid to click on them. But then Yahoo inserts a link to something questionable, and you click on it thinking it came from your friend and then all of sudden you find it going somewhere else. No you are thinking: "Hey I thought I could trust this person not to send me trash."
Result: Friends reputation tarnished.

And for those of you that think average users should be able to tell the difference between links from the sender and Yahoo need to get out of your caves and interact with some normal people once in a while. 95% of the computer users out there aren't anywhere near that tech savvy.
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Anonymous Coward, 17 Jul 2009 @ 5:54am

Damn took me 15 posts to figure out this wasn't about one of the Olsen twins, guess Mary Kay has a much bigger problem than name yahoo ads.
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hegemon13, 17 Jul 2009 @ 5:58am

Moron in a hurry
The test is whether a moron in a hurry might get confused, not an educated, technologically literate individual. The fact is, a non-technical person could quite easily be confused by an ad-link inserted within an email and assume the link was created by the sender, not Yahoo!. It may seem ridiculous to anyone frequenting this blog, but plenty of people use the internet who have no clue how it works, what hyperlinks really are, or how to tell the difference between a hyperlink and an adword. I don't know whether Mary Kay has a case or not, but confusion certainly could exist.
I can tell you one thing, I won't use an email service that embeds ads inside my emails. What a pain.
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Brooks (profile), 17 Jul 2009 @ 6:33am

First, because there's some confusion about who's sending and where links are being inserted:

Cosmetics giant Mary Kay has sued Yahoo for trademark infringement for allegedly inserting links to unauthorized retailers in personal email messages that Mary Kay sellers send to their consumers.

And you know what? I'm with Mary Kay here, and I think Mike's argument is kind of bogus. The issue isn't whether or not recipients will be able to distinguish between ads and "regular" links. The issue is whether the recipient will think that the ads were sent by the sender of the email.

In this case, not having a lot of friends who send me Yahoo email, I would very likely believe that my Mary Kay rep had resorted to spamming me with ads along side their normal communication unless there was some *very* clear "ads inserted by Yahoo" indication prominently displayed.

In fact, I think that if this case goes very far, discovery will turn up Yahoo documentation that makes it clear that the intent is for recipients to believe the links were intentionally included by the sender.

I've been in too many meetings like that (not at Yahoo!): someone says "well, sure, you're not going to click on an ad for facial cream when you're looking at Yahoo! Finance, but what if your Mary Kay rep sent you a thank you note and 'facial cream' was hyperlinked? Wouldn't you be much more likely to click it then, if you thought the sender meant for it to be there?"

So yeah, Mike's immediate dismissal seems a little odd. I wonder what he'd think of an ISP that inserted ads in email sent via SMTP? Or additional text like "Before you read my email, check this out: _stupid link_" at the top of each email?
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Whisk33, 17 Jul 2009 @ 7:52am

The point?
"After all, it's just using an automated system to insert these ads"

I don't understand what you are saying. The problem is that the advertisements are piggybacking off the reputation of the email sender. Just because the system is automated shouldn't excuse liability for a system that violates laws. You could write a script that would replace the word 'child' with a link to kiddiepron and that could still be automated, but illegal. Perhaps I do understand what you meant by calling out it's automation.

Shouldn't this be more of a class action suit though? Wouldn't all brands/people/companies be affected by this?
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Dante, 17 Jul 2009 @ 7:55am

Users
You, sir, has not dealt with many users, if you really think that in-text ad-links are obvious to everyone. Plenty do not recognize an ad even after clicking, likely they just think "Why the hell did John send me this web page? Does he think I need a russian bride?".
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Anonymous Coward, 17 Jul 2009 @ 8:15am

Why would a company use Yahoo for their company emailings?

To many tech-savvy people, when receiving email regarding a company product... if the company name and the email domain do not match, it is probably phishing or spam.
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Whisk33, 17 Jul 2009 @ 8:25am

Re:
Perhaps because Mary Kay has a business model with which you are unfamiliar. It is a pyramid type scheme that is run by housewives and mothers usually out of their homes. It's more grass roots than a system you are normally experiencing. Mary Kay often blurs the line between personal and business as you are often selling to friends/family.
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Anonymous Coward, 17 Jul 2009 @ 8:34am

Re: Re:
So http://www.marykay.com/ doesn't explain to it's sellers what are practical methods of selling their products? They just give the products to "housewives and mothers" and expect everything else will take care of itself...

...then when it doesn't, they sue the one with the deepest pockets, instead of updating the "housewives and mothers" of new/proper procedures for selling http://www.marykay.com/ products?

How fascinating.
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Anonymous Coward, 17 Jul 2009 @ 9:08am

Bah. If this isn't illegal, they should create a new law just to banish this crap. wtf.
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Anonymous Coward, 17 Jul 2009 @ 9:13am

If Mary Kay is using yahoo for their mail service then they deserve what they get. Any KNOWLEDGEABLE person would NEVER use a huge ad fueled company like Yahoo to send email to their customers. That's just TACKY as hell!

On the other side, I've had experiences with them ad links connected to various words online and it did confuse me until I realized I was being AD INFECTED! If I see that now used by a company I add them to my siteblocker as I refuse to be brainwashed!

Soo.... Good topic but fawk the companies! I hope they both just lose their financial asses to the lawyers. Ching ching
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johhney, 17 Jul 2009 @ 2:11pm

Yahoo has always sucked at anything and everything simply because they are all about the ads & nothing else. I actually feel sorry for people dumb enough to use their so called free 'services'.
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Jesse, 17 Jul 2009 @ 2:16pm

I'd say it has a lot of potential to be confusing, considering the fact that most users wouldn't be able to tell the difference. The average user would certainly think it was an ad delivered by Mary Kay and not Yahoo.
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Stupidscript, 17 Jul 2009 @ 3:33pm

Mary Kay is the Victim
Mary Kay does NOT use Yahoo.

Some Mary Kay CUSTOMERS use Yahoo.

When a Mary Kay rep sends mail from wherever.com to an email at yahoo.com, that email gets ads injected into it when the unsuspecting Yahoo user reads the mail.

A different customer who receives the same message from wherever.com through their mydomain.com address does NOT get the ads injected into the message.

It is YAHOO who is injecting ads into the mail RECEIVED by their users. THAT is the problem.
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Jiminy Cricket (profile), 17 Jul 2009 @ 7:45pm

Re:
Thank you for making no effort whatsoever to understand the issues at hand. Great job with not reading for comprehenson, the article, or the comments. Carry on in anonymity, and ignorance, you excel at both, it seems.
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Jiminy Cricket (profile), 18 Jul 2009 @ 4:57am

Re: Mary Kay is the Victim
If we look at how many people read this article, and that their takeaway was that MARY KAY uses yahoo email, clearly, Mary Kay has the winning hand. Even these morons, who I assume aren't in a hurry, aren't drawing the correct conclusions from what they see before their eyes.
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laura p, 14 Sep 2009 @ 3:54pm

Mary Kay is JUST AWFUL!!!
First off I would like to say that Mary Kay RUINED my life. When i say ruined I mean RUINED. I invested 1000's of dollars at the advise of these commie recruiters and I did "OK"... I was told that they didn't like that I created an independent site because Mary Kay's site that I PAID FOR, received 0 traffic! I was terminated with over 10k$ worth of inventory and 3 kids.
Then when I opened an ebay account to sell what i had to FEED MY FAMILY and pay back the exorbitant credit card bills (FYI Mary Kay COMMIES: the Mtg companies don't TAKE makeup as payment) and they SUE ME!!!! I swear they terminated ME and then when I was selling what I RIGHTFULLY owned almost a year later, I got served with a lawsuit! Can Mary Kay stay OUT OF COURT for even a FEW months? If they're not suing someone they're getting sued. Says a LOT about how big of a fraud Mary Kay is. Mediocre products at ridiculous prices and commie pink nightmares that chase you around until you JOIN the CULT. Go to pinktruth or pinklighthouse and you'll see how they're "enriching" I mean RUINING women's lives. Apparently, after you PAY for products from Mary with YOUR money, Mary Lay can dictate WHERE, WHEN and HOW you can sell products that YOU bought... remember, they GOT their money.
I cannot WAIT for the day that i see an article saying that Mary kay has gone under! TRUE KARMA for ruining women's lives continuously!!!
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MK1, 25 Sep 2009 @ 11:05pm

Re: Mary Kay is JUST AWFUL!!!
I love how ex- consultants like to bash the MaryKay name especially when they don't do any work and obviously have poor money managment. When my sis started she invested no money and worked her buisness and make more money now then she did as a single mom with 3 kids of her own. Just a note for people reading this ridiculous remark you can not get terminated from Marykay if you don't follow the contract and do at least 200 in orders in six months then you may have to reactivate which is 25 dollars people. far as selling product after you are inactive it clearly states in the contract you are not allowed to do so as u are no longer affiliated with marykay so why would they let u keep using there name and products and you can return product and get 90% back on what you pay for inventory. There are a few bad people in MaryKay that are uneducated and give us all a bad rape. So not sure if this lady is a victim of unproper training or just couldn't get it together. plus the website you have to promote like any company duh and thats only 26 a year come on really? MaryKay the lady that started the company was no fraud and apparently is doing great for a company that has been around 45 years. Do your own reasearch instead of these oink truth ext site that are just bitter ex consultants because they wrapped up a bunch of money like idiots and didn't get off there ass and do any work,
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craigD, 22 Oct 2010 @ 9:53am

John Pospisil is the most ugly, most ignorant and most out of it geek on the entire internet. John Pospisil lives in Australia, where he sucks platypus cock. John Pospisil only appears in person in gay parades. John Pospisil can't get a gay boyfriend because he is too ugly. John Pospisil is looking for a blind gay because he knows he is too ugly to date a normal gay. Only a blind gay would take John Pospisil's cock in his mouth. John Pospisil should look in the mirror at is bald pate and ugly, pock-marked face and join a monastery in Australia. There he can live behind a screen where he won't scare little kids.
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rexK, 24 Oct 2010 @ 8:59am

John Pospisil is an Australian geek who is probably the ugliest dude in Australia. Not only is he one ugly gay, he can't spell, write or program the simplest computer. John Pospisil is one huge embarrassment to Australia and shows the tech industry in Australia is 40 years behind the rest of the world. The only thing John Pospisil is noted for in Australia is his fucking of demented persons he finds online. John Pospisil should be re-committed to the mental instition he lived in for 10 years. Why did they let him out?
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james, 24 Nov 2010 @ 6:06pm

oifewoijgoijewwervewvew
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darla leight, 14 Jun 2011 @ 5:24pm

Re: Re:
hi hello mary kay how are you what is your Email mail addressa could i right you a letter on line mary kay
from Darla
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