Mary Kay v. Retailmenot: a Potential Roadblock for Affiliates

On March 13th, Mary Kay filed suit against Retailmenot.  In the complaint filed in the Northern District of Texas, Mary Kay is alleging the fraudulent use of Mary Kay trademarks on the part of Retailmenot.  Mary Kay is seeking injunctive relief against Retailmenot from the use of its trademarks in the future, as well as monetary damages.

While reasonable minds may be able to debate the validity of this claim, there’s no question that this is a threat to the affiliate marketing industry in general.  Most affiliates are not very large companies. Most successful affiliate sites involve a great story from humble beginnings.

Mary Kay v. Retailmenot

Essentially, this complaint places a responsibility on the publisher for the validity of user generated content.  Publishers would, in effect, become responsible for that content.

And many publishers do business with hundreds, if not thousands of advertisers. The claims alleged in the complaint represent a potential burden on publishers – and, particularly publishers of user generated content:  do publishers have an added duty to validate every single coupon and deal on a website? This is a significant and far-reaching question.

If a publisher has a staff of three, is it reasonable to think that such a team could validate the existence of thousands upon thousands of coupons on a daily basis?  It doesn’t seem likely or reasonable that many affiliates would be able to do that.

For years now, I have appreciated the affiliate industry as being a true epicenter of innovation. As advertisers become more cognizant of affiliate practices, I sincerely hope that rules and rulings do not interfere with affiliate innovation on the half of their customers and the customers of top advertisers.  The affiliate industry is truly a home for rags-to-riches stories and a place where industry giants are not necessarily the most successful.  Let’s hope it stays that way.



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