Touch of Pink Cosmetics Files Response to Mary Kay Inc. (part 2)
Written by L J on June 30, 2008 – 1:22 pm -As I said in my last post, Touch of Pink Cosmetics denied many of the allegations put forth by Mary Kay Inc. in the lawsuit.
While some were run of the mill, there were several that were significant:
1. The Webers deny that their conduct in running Touch of Pink Cosmetics contituted, and continues to constitute “passing off.”
Mary Kay Inc. claims that Touch of Pink Cosmetics confused or deceived customers into thinking that they were affiliated with Mary Kay Inc. Basically, “passing off” is an unfair competition theory that says a defendant is representing themselves in a way that the consumer wrongly believes that they are dealing with the plaintiff’s company.
Mary Kay Inc. will have to prove that Touch of Pink represented their business in such a way that consumers may have thought they were purchasing products directly from Mary Kay Inc.
2. The Webers deny that their conduct infringes on the Mary Kay trademark and that these actions were willful.
They are denying that they used, without authorization, registered marks of Mary Kay and did so knowingly and deliberately. This trademark infringement allegation is a biggie and could have implications for others selling Mary Kay products on eBay and their own sites.
3. The Webers deny that their conduct constitutes unfair competition and trademark infringement under Texas law.
Another one to watch closely.
4. The Webers deny that they have willfully and knowingly subverted the Mary Kay direct sales model by improperly obtaining Mary Kay products by interfering with Mary Kay contracts (with the Consultants.)
By soliciting Consultants to sell inventory to them, Mary Kay Inc. claims that Touch of Pink Cosmetics has interfered with their sales structure.
So those are the biggies I’m going to watch. If Mary Kay Inc. can prove these allegations, it will not only make the Webers unhappy, but it will effect other Mary Kay inventory liquidators as well.
Tags: mary kay lawsuit touch of pink cosmetics, Mary Kay products, Touch of Pink Cosmetics, trademark infringement
Posted in Articles & Commentary |
June 30th, 2008 at 4:13 pm
They can use the trademark if it’s to resell the item (just like on eBay). That’s perfectly legal.
Unfair compitition is just Mary Kay saying “Wah wah!” like a big baby. Unfair competition sounds like something from a school yard. Again, the Weber’s are not trying to trick people into thinking they’re Mary Kay nor are they deceiving customers by putting some other makeup in a Mary Kay box.
Finally, it states in the IBC Contract that Mary Kay has no claim on the makeup once you purchase it.
This lawsuit is so laughable that it makes me… well… laugh. Tee-hee!
Go Amy & Scott!
June 30th, 2008 at 11:49 pm
TOP clearly states on the front page of their site that she was a FORMER consultant, that they are NOT affiliated with MK in any way, that their purpose is to help former consultants liquidate their inventory. I don’t see that MK has a leg to stand on …I hope Amy and Scott walk over MKC!!!!
July 1st, 2008 at 11:36 am
TOP does NOT state anything about not being affiliated with MK on their top page. They focus on the AUTHENTIC products they carry.
My thought is that if Mary Kay is such a negative company, find a different product to use. No one is forcing anyone to like it/use it/buy it/sell it.
I hope that TOP loses this case so it will be a sign to everyone - either work with MK or walk away. Don’t try to stand in the middle, smearing the company name while profiting from the sale of products.
July 1st, 2008 at 1:32 pm
It doesn’t have to be on the front page. The About Us section is where the legal stuff is. TOP’s About Us clearly states:
“Disclaimer:
We sell genuine Mary Kay products. This website is not endorsed by or affiliated with Mary Kay Inc.”
What moron would really think that they were on marykay.com anyway?
If you’re selling something, would you focus on the fact that it’s authentic? Would you not bother to mention that a fur coat was real and AUTHENTIC and sell it for $15 or would you prove it was real and sell it for a thousand?
My thought is that if TOP is such a negative company, find a different website to talk about
“No one is forcing anyone to like it/use it/buy it/sell it.” Mary Kay, Inc. is but TOP sure isn’t.
“I hope that TOP loses this case so it will be a sign to everyone - either work with MK or walk away.”
This is America, people can do whatever they choose whether it fits your greedy agenda or not.
“Don’t try to stand in the middle, smearing the company name while profiting from the sale of products.”
Can you give me a good reason why someone shouldn’t? Oh yes, to save your 20th Century Unsuccessful Business Model.
July 5th, 2008 at 12:40 pm
“My thought is that if Mary Kay is such a negative company, find a different product to use. No one is forcing anyone to like it/use it/buy it/sell it. ”
This site is about providing information and letting people make their own decision.
The only negativity I see here on a regular basis is from current Mary Kay Consultants who, more often than not, post rude and angry comments here.
July 13th, 2008 at 1:38 pm
LJ - How true!
I think MKC is mad because someone is making money!
MKC certainly wasn’t upset when IBC’s ordered all this product from them and MKC made $$.
The IBC’s who got stuck with inventory are making some of their $ back, not all of course but at least they get a portion of their investment and rid of unwanted items!
TOP is making $, purchasing the unwanted and selling (at less than MKC retail).
Since MKC already made $ on this deal, what’s the problem? I can see if they want to be sure that only former IBC’s sell so as not to violate the Contract, but again, I think (IMO) they are mad because someone is making $ - somthing that’s not seen too much with MK!
July 26th, 2008 at 1:58 am
i find it hard to believe that all this top product is from “former” consultants. their site always has the latest, just-out products and it seems bizarre that apparently several (for the quantities that top has) consultants/directors have decided within just a week of the product/s coming out, that they wish to deplete themselves of just-purchased inventory.
July 27th, 2008 at 11:49 pm
i find it hard to believe that all this top product is from “former” consultants. their site always has the latest, just-out products and it seems bizarre that apparently several (for the quantities that top has) consultants/directors have decided within just a week of the product/s coming out, that they wish to deplete themselves of just-purchased inventory.
Lisa, to me that just proves that not all those positive, upbeat IBC’s and SD’s are following the
MK way and maybe they aren’t earning cars, Queen of Sales and other awards honestly. If they aren’t abiding by their MK contract then they are in the wrong, not TOP.
However, those who decided to get out of MK and
terminated their agreements are perfectly free to sell MK anywhere and to anyone they want to as they are no longer “under contract”.
July 28th, 2008 at 9:24 am
Lisa, it is entirely possible that current consultants are selling inventory to the Webers. If they are, they’re selling at a loss. I don’t know what the advantage would be to the consultant.
It’s possible that directors who are overloaded on inventory would want to get the cash for their excess, no matter what the price, because they want to stay in the “business” and can’t do that if they were to send it back.
Mary Kay Inc. is going to have to be able to prove this accusation in court, of course. They’re going to have to have evidence that proves the Webers are/were buying from active MK consultants.
August 13th, 2008 at 4:14 pm
TOP and other mary kay liquidators offer a valuable service to Former IBC’s. I myself am looking to liquidate my invintory. When I started I was told that if I every wanted to quit I would recieve 90% of the retail value if I returned my product. I was advised to buy a full store to invest in my buisness and to always have the new items in stock. I took out a loan for my initial inventory and spent several dollers out of my pocket to keep my inventory current every quarter. I spent around 3000 or more all together. Many people work very hard to make it work and it just doesn’t and that was the case with me. I ended up giving much of the product away as gifts for christmas or something just to see it move off my shelves. Now that I have decided to quit the buisness I have found out that to sell your inventory back it has to been bought within the last year. I found out that many things I was told while I was a consultant were lies. So now I am left with a few thousand dollars worth of product on my shelves that I can not get rid of. TOP and other liquidators offer help to those former consultants like me to get some of their investment back. While I will still be loosing out on a lot of money, I will be able to get back some of it to help my family out and get the product out of my house.
It is not TOPs fault if people break their contract to have their items liquidated. It is the IBC’s and they should be the ones punished like it says in the contract. It says that they will not be able to be a consultant anymore.
Mary Kay Inc. is not necisarily a bad company it is just that many people are severly misinformed when they become an IBC. Many people are willing to say anything to get people to become an IBC, they do this because they are too concerned about their own sucess which relies on other people.
August 18th, 2008 at 7:46 pm
I hope marykay loses this deal- it’s the information age, and the internet is making competition bloom.
The industrialized ideas of the past are starting to fail- like marykay trying to control what others do once the mk product leaves their factory. They don’t have the right to stop this Touch of Pink site or any of the others selling OLD mary kay products. They could only win by outspending the defendants on legal costs.
I compare this situation to record companies trying to stop the sharing of music files- it will NEVER happen!!!!
Jeff