Mary Kay Sues Yahoo For Inserting Ad Links In Emails
from the trademark-fun dept
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
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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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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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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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Yahoo! TOS
...or have yahoo's email terms changed since the original account agreement?
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Re: Yahoo! TOS
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Mary Kay is right.
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No, I don't think so.
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Try to make your analogies just a little closer to the realities, thanks.
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What is the problem?
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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Re: What is the problem?
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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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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Don't cha know
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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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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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The point?
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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Users
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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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...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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from Darla
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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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Mary Kay is the Victim
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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Re: Mary Kay is the Victim
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Mary Kay is JUST AWFUL!!!
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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