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Many businesses have felt the panic and frustration of being sued for violating the Telephone Consumer Protection Act (“TCPA”) in situations where they had no idea how complainants were receiving calls or text messages from them. Sometimes, it seems, these unknown calls and texts come from the less scrupulous in the industry trying to capitalize on an advertiser’s name without permission. Faced with a similar situation recently, Marriott decided to fight back. In a federal court case in Virginia, Marriott sued ten telemarketers who allegedly attempted to use the Marriott name (without permission) to sell resort packages and other promotions. Among other telemarketing law violations, Marriott claims that these telemarketers used the hotel’s trademarks without permission to sell unrelated resort packages. Marriott’s telemarketing case could serve as a new avenue for advertisers to travel in an effort to combat unauthorized telemarketing.

What are the details of the Marriott telemarketing deal?

Marriott has learned that many consumers are receiving spam calls from telemarketers trying to sell vacation packages. These telemarketers used the Marriott name (without permission) in an attempt to deceive consumers into believing that the packages were from Marriott. To combat this potentially fraudulent behavior, Marriott conducted an investigation to find the companies making these unauthorized calls and improperly using its brands.

When it uncovered ten such companies, Marriott sued in federal court, seeking damages and an injunction to stop conduct it claimed violated trademark law, fraudulent telemarketing and Federal Trade Commission regulations (including the telemarketing sales rule). If Marriott were successful in court, its claims could amount to tens or even hundreds of thousands of dollars in damages, not to mention any indemnification obligations triggered by these misleading calls. Although the case is in its early stages, it may nonetheless represent a bold new strategy to combat unauthorized telemarketing calls through the use of trademark law.

Why is the Marriott telemarketing case important to your business?

Like many industries, the telemarketing industry includes a certain percentage of companies that choose to do business outside of legal lines. Telemarketers and advertisers should be wary of others marketing their name and goodwill. The larger the brand, the more likely malicious actors are to try to use that brand to sell products or hide behind the brand to avoid liability or detection.

So the question this case poses is, how do you protect your business from a situation like the one Marriott faces in this proceeding? No one can completely avoid ending up like Marriott. However, there are several steps you can take to minimize this risk, including:

  • Perform thorough due diligence on all providers who make calls or send text messages on your behalf;

  • Track telemarketing complaints and investigate suspicious activity in a timely manner; and

  • Update your contracts to include strong indemnification and liability protections so that all providers who outsource their call duties are responsible for their agents.

Hire experienced telemarketing lawyers.

Overhauling contractual protections, developing investigative protocols, and performing due diligence are crucial, but time-consuming tasks. Telemarketers also need to think about how to fight liability for any calls that violate federal and state telemarketing laws. Hiring experienced telemarketing attorneys can help protect your business. Klein Moynihan Turco LLP (“KMT”) attorneys have years of experience in all things telemarketing law and can help your business maintain compliance. KMT can also help you update your telemarketing practices to protect your business from unscrupulous behavior.

Similar blog posts:

Violations of robocalls, VoIP providers and FTC

Oklahoma’s new Mini-TCPA takes effect

TCPA Fax Exception: Save Your Business from Liability

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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