Interesting Opinion and Analysis of Recent Touch of Pink Case Developments
There is an interesting post regarding the recent developments in the Touch of Pink versus Mary Kay Inc case on a blog written by Eric Goldman, Associate Professor of Law at Santa Clara University School of Law. You can read his take on things on his blog:
http://blog.ericgoldman.org/archives/2009/03/online_resale_o_1.htm
Lipstick on 
Ann on 
Brooke on 
Tam on 
the big error in eric’s blog is his stating that an ibc has to order $200 month to maintain her status. all an ibc has to do is order once every 11 months a $200 order to maintain an ibc status. the “active” has no meaning unless there are recruits involved, or if the ibc is going to career conference or seminar. the $200 wholesale is pretty easy to do, even every 4 months, to get the 50% off. that’s where alot of personal use gals come in – order things for yourself, friends, family just to get mary kay half-off. again, the problem i see with e-bay stores and even touch of pink, is that by the time you purchase what you want and pay shipping, you’re not coming away any better than buying from a consultant. i’ve had a few customers that tried buying from e-bay and they were not happy with their purchases; i’m sure there are several people who are – that’s just been my experience.
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Yes, you’re right, of course, about the mistake regarding the $200 minimum order. That’s the problem that occurs when people who haven’t been in or around MK start writing about it.
But I think some of his observations about the case are interesting.
I won’t even comment about the quality of eBay products. Done that too many times. The whole “products on eBay are crappy/unreliable/old” statement perpetuated by MK and directors is nothing more than a scare tactic.
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Hmmm…… guess we’ll have to wait for part 2 of this case. I would like to point out that Touch of Pink does clearly state on their web site that they are not affiiated with Mary Kay, the court does not accept the point made by MK that simply reselling the product is trademark infringement.
Most problematic is the fact that TOP sold expired product…although except for O-T-C drugs MK products don’t list specific expiration dates! One would have to be a current or former member of the sales force to be able to decipher their production datecodes, which are production dastes, not expiration dates, so lets the general public out of the loop there.
As far as whether MK did or did not tell the Webers that changing the name of their web site would “fix” their use of the MK name, I would think that MK shold be required to prove they didn’t say that, of course, somebody pro-MK would probably say the burden of proof lies with the Webers. Doesn’t the burden of proof legsally lie with the party filing the law suit? “innocent until proven guilty”?
I thnk almost anyone who knows anything about MK connects “pink” with MK, which is why PLH gets so many questions from IBC’s thinking we are an ”official” web site. If Mk wins the suit based on the mention of the word “pink” there are a whole lot of other sites, including those who do not sell MK wo could be considered infringing on their trademark. That doesn’t seem right!
I’m still hoping the Webers win their case!
I’d like to see a current IBC sue MK for shipping out of date product to them! We know it has happened and the only plausible explanations are that MK does not purge their own shelves of “expired” product or that they are reshipping product returned by consultants who exercise their 90% buyback option, which to me is a very unscrupulous business practice. How does MK know that the products have been properly stored and that they have not been previously used or otherwise tampered with?
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How does MK know that the products have been properly stored and that they have not been previously used or otherwise tampered with?
They probably go through freeze & thaw testing and light sensitive products (I don’t know if MK has any) are packaged accordingly. I know BeautiControl’s stuff does, and am guessing it’s industry standard. Tampering…I have no clue.
I would like to point out that Touch of Pink does clearly state on their web site that they are not affiiated with Mary Kay
Don’t quote me on this, but I think the front page disclaimer was added after the suit was filed. Prior to that I think it was in the About Us page, which is less visible. If I’m wrong somebody let me know!
I too hope the Webers win their case, and from the looks of it they will win on the majority of the points.
I wonder how most ordinary Texans view MK. Is going to trial really their best option??
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BC, you are correct about the “we’re not affiliated with MK” statemnt on TOp. It was originally under “About Us” and after the suit was filed more prominantly displayed on the Home page.
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Supposedly, MK destroys the product sold back (at least that’s what I was told way back when); however, I was told all kinds of crazy stuff that wasn’t true.
As for selling “expired” product, TOP provides a service to consumers that MK does not. There are many women who want particular cosmetics that are discontinued, and they are unable to get it any other way than through a reseller like TOP. And with MK changing their product line seemingly every other day, there’s A LOT of discontinued products floating about out there that customers want and IBCs don’t know what to do with or how to find the customers who do want it. TOP provides a way to take it off the IBCs hands and get it to the customers who want it. That probably doesn’t have any legal relevance in this case, but from a consumer standpoint, I think TOP and other resellers are providing a relevant service.
And MK essentially created this monster headache by their business practices.
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“L J says:
March 6, 2009 at 11:03 am
The whole “products on eBay are crappy/unreliable/old” statement perpetuated by MK and directors is nothing more than a scare tactic.”
I agree it can be a scare tactic but when you think about it why would you want to by product without knowledge of how it was stored or if it will even be good? It is people who do not listen that cost honest IBC’s money when they are made to honor the money back gurantee that is one of Mary Kays policys. SO while you think it is a scare tactic I think it is smart buisness pratices. If it was your customer services reputation on the line you would want to protect it as much as possible.
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Pink in Austin, you make a valid point, but then, I have received expired products directly from MK, and they are exposed to extreme heat and freezing temps when they are shipped from MK, so I don’t really see the difference!
MK doesn’t ask you to honor the guarantee on products not purchased from you, they ask that you refer the customer to Mary Kay Corp or at least that was the way it was when I was still in MK 1.5 years ago.
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Also, you have no idea how that product was stored, how old it was, etc. even from a consultant. For all you know it sat on her porch in 95 degree heat all day until she got home to unpack it. Or, she’s had it in her closet for 6 years because she bought $3600 worth of stuff and just hasn’t been able to sell through all that yet. And IBCs trade products all the time as well, so they can’t even tell you those things about a product they’ve traded with another consultant. Just being an IBC doesn’t guarantee anything better about the product.
And when I was an IBC, I had to return products all the time that were not bought from me. I don’t know where the customers got them originally, but it didn’t matter because they were still able to return them.
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