In our research we have not found any instances of a text marketing case that has held up in court regarding this issue. We have been closely monitoring a case involving the New York Times and found that just last week, on August 14, 2013, a judge made a ruling “Helferich can’t assert its patent against the Times Co., CBS Corporation, J.C. Penney Corporation Inc., and other companies that send hyperlinked text messages with breaking news and product alerts.” See the full article on law.com Judge Sides with NY Times Over SMS ‘Patent Troll’.
While the case mentioned above was not directly questioning using a URL in a text message as part of a SMS marketing campaign, the ruling does state that companies sending breaking news and product alerts via hyperlinked text (which is essentially what all of our customers are doing) cannot have the patent asserted against them. We cannot offer legal counsel so if you have further questions about the legality of sending a link via a text marketing platform like ours, please contact a lawyer.
We feel confident that the judge’s ruling is in our favor and that the scare tactics used by other companies saying that anyone that hasn’t paid the licensing fee cannot allow the use of hyperlinks is nothing more than that, scare tactics trying to get you to use their service over another one that may better meet your needs. At TXT180 we are very diligent in following all legal guidelines and regulations set forth by both the CTIA and Mobile Marketing Association (the governing bodies that set forth rules for text message marketing).
More About the Helferich Patent and Litigation
The patent is held by Helferich Patent Licensing LLC and is pertaining to URLs being sent through commercial text messages. Helferich patented this in 1997 and has been launching campaigns of licensing demands, and $1,000,000 infringement lawsuits, since 2008. They have licensed every major phone handset maker in the country – and arguments say that anyone using a mobile device to send hyperlinked text is already covered by those licenses. The highly publicized case against the New York Times, which was just settled with the judge siding with the New York Times, made a ruling on the suspicion of patent exhaustion. Patent exhaustion prevents the patent holder from creating a patent monopoly by gaining double recovery from infringements or selling licenses piece by piece. It has been decided that the licensing deals that Helferich made with the phone makers prevent them from suing third parties, as that license also covers the phone(s) they produce.