Mary Kay, a cosmetics company headquartered in Addison, Texas, has filed a lawsuit in Texas federal court against the digital coupon website RetailMeNot alleging among other things trademark infringement and trademark dilution for the use of its brand name and logo on the RetailMeNot website.

Mary Kay does not offer coupons or sell products directly to consumers at all. The RetailMeNot website, however, advertises that it has the company’s coupons on its website, presumably to increase visits to the website, according to Mary Kay’s complaint. Presently, when one runs a Google search for “Mary Kay coupons,” RetailMeNot’s website still pops up as the No. 1 result.

Responding to the complaint, RetailMeNot asserted a free speech defense. In a statement to the federal court, the company said, “RetailMeNot, Inc. rejects Mary Kay’s attack on the rights of Americans using its websites to freely exchange publicly available information over the Internet. By filing this answer to Mary Kay’s complaint, RetailMeNot believes it is protecting the interests of consumers in a case that could have a negative impact on online content and service providers. Mary Kay’s attempt to use trademark law in a manner that is inconsistent with fundamental principles of free speech should alarm consumers because it would deprive them of access to information about digital offers for their favorite retailers and brands.” The company further responded that it had not received much traffic from its Mary Kay listing.

This lawsuit probably represents another example of a company trying to stop a website from taking advantage of the use of its brand name for clicks. And courts have increasingly allowed companies to protect themselves against such trademark use. But because commercial speech probably entitles a company to less protection than other kinds of speech, it remains to be seen how effective RetailMeNot’s First Amendment defense will be.

Sources: http://bizbeatblog.dallasnews.com/2015/05/82300.html/?hootPostID=3e3784f3380291b7ea4433d39343423d http://www.siliconhillsnews.com/2015/05/22/retailmenot-defends-itself-against-mary-kay-coupon-lawsuit/ http://www.kleinmoynihan.com/mary-kay-files-trademark-lawsuit-against-internet-coupon-giant-retailmenot/

For more information on this topic, please visit our Trademark Protection service page, which is part of our Trademark practice.

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution. 

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