• by Bill McCloskey , August 10, 2005

This biggest category of e-mails that we review falls into the area we call "Coupons and Promotions." In a nutshell, the sole purpose of these e-mail offers is to get you to sign up on a list so that additional offers can be sent to you. These e-mails have one basic pitch: Sign up and get something for free.

Sometimes the free thing is generic, such as a $500 coupon for grocery shopping. Sites such as FreeDVDs.com, FreeCDs.com, even FreeCondoms.com exist for this purpose. Other offers are more specific: Win a free Dell Computer, get a $25 Wal-Mart or Home Depot Gift Card, or get a free iPod.

Sometimes these promotions are set up like a contest or survey: "Take the Taste Challenge. Which do you prefer Coke or Pepsi?" Most, although not all, use brand names you would recognize in the body of the e-mail, with logos prominently displayed. The end result is that the e-mails gain legitimacy because of their association with known brands.

Of course the problem is that the brand names featured in e-mails have not given permission for these companies to use the brands. So how do they get away with it? If you read the small print, there is usually a disclaimer to the effect of -- Apple Computers is not affiliated with this promotion. That still doesn't make it legal to use these trademarks for their own purposes. Mostly they get away with it because companies such as Home Depot do not have the time to track them down and sue. It is too small potatoes and too time consuming to go after them. So, the practice continues.

Unfortunately, people reading these e-mails and reporting them as spam do not read the fine print, so companies such as Wal-Mart get branded as spammers instead of the MyFreeWhatHaveYou.coms of the world. With companies like Kraft getting sued for their Gevalia e-mails, these brand-hijacking e-mails could have more serious consequences for marketers than a simple annoyance.

One solution to the problem, a solution that would take the burden off of individual companies, would be to add a prohibition on misusing brand names in the Can Spam laws. This would take the burden of policing off of the backs of individual companies and make a federal or state crime that could be prosecuted as part of the general anti-spam legislation.