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Both Mediapost and TheDomains have stories today about the trademark infringement filed by Mary Kay Cosmetics against Yahoo. See Mary Kay Inc. v. Yahoo! Inc., Case No. 09-cv-01278 (N.D. Tex. July 6, 2009).

The crux of the complaint is over the ?Yahoo Shortcut? feature of Yahoo?s e-mail services whereby certain keywords in a particular user?s yahoo e-mail are highlighted and by scrolling the cursor over the text of the keywords a pop-up window appears which contains the search results generated by that particular term as searched through various types of integrated searches including Yahoo?s basic web search, HowStuffWorks.com, Wikipedia, and, as was apparently the case case here, ?Shopping Offers.?

From Mary Kay?s perspective, an e-mail sent by an authorized May Kay representative to a customer using Yahoo?s e-mail is being ?hijacked and manipulated by Yahoo and provide an unfair advantage for the unauthorized re-sellers and other competitors.? [Comment: hijacking and manipulating might be a little strong.]

One interesting point is the argument that e-mail recipients might "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." Of course, isn?t this only true for a short period of time during which yahoo e-mail users learn about the function and after which, they will clearly recognize it for what it is ? a quicklink for Yahoo search engine results? After all, is there anybody out there who is truly confused anymore by the Google search engine results that appear at the top in the highlighted area that reads ?Sponsored Links?? And don?t most internet users today recognize after typing (or mistyping) a particular domain name thinking that it is the website for the brand they are looking for only to find the standard landing page with click-through links that the page is simply not the page they were looking for and then simply brings up a new web browser page to use one of the major search engines to find the brand for which they were looking?

Of course, Mary Kay?s action suffers the same uphill battle as any of the ?Google adword? trademark infringement cases. Indeed, Yahoo?s popup function appears to be nothing more than an interface that allows a user to see certain search engine results (Yahoo?s or otherwise) for a particular term in a pop-up screen. So is having the link in the e-mail what is really bothering Mary Kay ? or is it the search results themselves? And as noted in one of the articles, while Mary Kay complains about ?unauthorized resellers,? some of the products being sold may be authorized products that were properly purchased and being resold (in which case the use of the Mary Kay name in reselling them is not trademark infringement).

So let the Yahoo Shortcut based trademark infringement lawsuits begin. Can a ?Yahoo E-mail Shortcut? class action lawsuit be far behind? Anything can happen in Texas!!!

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