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Touch of Pink Lawsuit Marches On

L J — Sun, 22 Mar 2009 22:01:09 +0000

As proceedings continue, the Touch of Pink versus Mary Kay Inc case continues on.

Apparently the jury has been selected because a jury roll now exists in the documents of the case.

There have been numerous documents filed in the last few weeks. Basically it’s a formal rehashing of the same issues, with each side stating their assertions.

As I mentioned earlier, Touch of Pink Cosmetics did score several victories in the case already and this is noted in one of the case documents:

On February 20, 2009, the court granted partial summary judgment for
the defendants on Mary Kay’s claims of tortious interference with contract, tortious
interference with prospective contract, and unjust enrichment. For that reason, Mary
Kay has removed those claims from its list of contested issues of law and fact that will
be a part of the trial of this case. This should not be read, however, as an
abandonment of those claims by Mary Kay. Mary Kay respectfully disagrees with the
order granting these portions of defendants’ motion for summary judgment and
believes that these issues should be presented to the jury.

There are lots of issues still to be determined, naturally, and I’ll keep you up to date as best I can.

I know we’re all eager to see what the outcome of this case will be.

Interesting Opinion and Analysis of Recent Touch of Pink Case Developments

L J — Wed, 04 Mar 2009 22:56:11 +0000

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

Numerous Victories for Touch of Pink Cosmetics

L J — Mon, 02 Mar 2009 19:39:33 +0000

The case between Mary Kay Inc and Touch of Pink Cosmetics continues. Recent court documents filed show that Touch of Pink has been successful in refuting some of the accusations Mary Kay Inc has made against them.

Touch of Pink’s request for summary judgment was partially granted and partially denied.

The Webers were arguing against the inclusion of several different pieces of evidence at trial. Here’s the run down.

1. Heresay: The Webers claimed that emails Mary Kay received from a Touch of Pink Cosmetics customer, complaining about the products that they received. The Webers claimed that these emails were heresay and irrelevant. Mary Kay Inc was trying to prove that the customer thought that they were ordering from Mary Kay instead of Touch of Pink (TOP). The court found these emails relevant.

2. Failure to Timely Disclose Witnesses: The Webers claim that Mary Kay Inc did not disclose the names of two witnesses they intended to call at trial in a timely fashion, as required. The court ruled that there was no failure to disclose.

3. Unreliable Survey: The Webers objected to a survey of 303 consumers conducted by Mary Kay Inc expert witness Kent Van Liere. This survey supposedly shows that consumers are indeed confused about the affiliation of TOP with Mary Kay Inc. The Webers claim there are significant flaws in the survey. The court decided not to bar the results of the survey completely, but it will not consider that forty five percent of those surveyed were confused about TOP’s relationship with Mary Kay Inc.

4. Nancy Pike Contradicts Previous Testimony: Pike is a witness for Mary Kay Inc. and the Webers claim her testimony contradicts her earlier statements. The court decided to allow the testamony and let the jury decide.

5. Interrogatory Answers Not Verified: TOP claims Mary Kay Inc.’s answers to a second set of interrogatories were not verified and therefore inadmissible. The court claims it did not consider these exhibits as part of the summary judgment and therefore the objection is moot and denied.

6. Declaration of Chris Schwegmann is Hearsay: This piece of evidence contained several emails allegedly from customers of TOP complaining of used, damaged or expired products. The court ruled this evidence is inadmissible.

Now, the Webers were asking for a summary judgment and that’s what these items are part of. The summary judgment is a request for dismissal of the charges in favor of the Webers, citing there is not enough evidence for them to go to trial.

There were defenses that the Webers cited as a reason that there request for summary judgment should be granted.

1. The First Sale Doctrine, which states that a distributor who resells trademarked goods is not liable for trademark infringement. The court denied summary judgment on this defense.

2. The Nominative Fair Use Doctrine, which allows the use of another’s mark to “truthfully identify another’s goods or services in order to describe or compare its product to the markholder’s product.” The court ruled that the Webers are not entitled to summary judgment on the grounds that the fair use defense protects their use of the Mary Kay name to advertise their website.

3. Laches: Without going into all the details (which you can read in the attached court document), the court denied this summary judgment defense.

4. Claim of Tortious Interference with an Existing Contract: The court ruled that there was no evidence of tortious interference by the Webers, and thus the court granted the motion for summary judgment on the claim of tortious interference.

5. Claim of Tortious Interference with Prospective Contracts: Once again, the court found no evidence. The court granted the motion for summary judgment on the claim of tortious interference with a prospective contract.

6. Plaintiff’s Claim of Unjust Enrichment: Another victory for the Webers, as the court granted the summary judgment on the claim of unjust enrichment.

So it’s a win some/lose some for the Webers. But there are some significant victories here I think that may auger well for them, especially the rulings that there was no evidence that the Webers were interfering with the prospective new consultant contracts.

Here’s the entire document for your reading enjoyment:

Summary Judgment

Why Didn’t Mary Kay Inc. Warn Liquidators Before Suing?

L J — Tue, 09 Dec 2008 22:40:05 +0000

Why is it that instead of issuing a “cease and desist” order or a similar warning to the people selling on eBay, that Mary Kay Inc. just went ahead and filed lawsuits against these sellers?

Why didn’t they give these people a chance to stop their selling if they wanted to?

Why didn’t Mary Kay Inc. use the VERO program set up by eBay to address the alleged violations of their trademark and copyright? If sellers were violating these guidelines, set up to protect companies, then Mary Kay Inc. can simply file notice with eBay and the offending listings are removed. Apparently what Mary Kay Inc. is alleging is beyond VERO. If sellers aren’t using copyrighted or trademarked material or images in their listings and not trying to sell counterfeit products, then there isn’t much to dispute with eBay.

But instead of giving these sellers a warning, Mary Kay Inc. brought down the hammer.

If Mary Kay Inc. discovers that their active consultants and directors are selling products to those who then sell it on eBay, then what? Do they terminate those consultants and directors? Do those people then become examples, used to scare future recruits into behaving?

And what responsibility do those buying excess inventory for resell have to check out the person selling it to them? If there were an underground counterfeit TimeWise factory, maybe that would be reasonable. But as it is, all they know is that it is someone who was probably at one time in Mary Kay. Why should those sellers be required to find out if that person is active? Mary Kay Inc. can claim that by purchasing inventory from their active consultants that resellers are interfering with their business. But actually…they may be helping MK’s business: after all, with more room on their shelves, these consultants can now buy more merchandise directly from the company and keep the inventory loading machine rolling.

It will be interesting to see how this all plays out, no question.

If You Sell Mary Kay Products on eBay…Beware!

L J — Sat, 06 Dec 2008 16:58:21 +0000

Just wanted to post this to increase the likelihood that resellers and liquidators will see this. I have posted this on eBay as well.

Mary Kay Inc Files Lawsuits Against Numerous eBay Sellers of Mary Kay Products

Dateline: December 4, 2008

If you sell Mary Kay products on eBay…beware! Mary Kay Inc. may be coming after you.

In the last week, several eBay sellers of Mary Kay products have been served with lawsuits.

You may also be aware of the ongoing lawsuit that Mary Kay Inc. filed against Touch of Pinks Cosmetics, and eBay seller who also runs a separate online store selling Mary Kay products.

The Mary Kay consultants who spend their days policing the listings on eBay and turning Mary Kay sellers in to Mary Kay Inc. are surely gloating and celebrating now. Unfortunately, there’s no evidence that these sellers have done anything wrong. And especially given that Mary Kay Inc. has yet to win any judgment against seller Touch of Pink, these additional lawsuits seems a little premature and aggressive.

If you sell Mary Kay products on eBay, I would urge you to make sure you be careful — whatever that may be, I suppose, at this point. Mary Kay Inc. is out for records from these sellers to see if they are purchasing products from active consultants and directors in the company. They assert that this is interfering in their business.

We will have to wait to see how this all plays out, but either way, it is vitally important to anyone liquidating all those excess Mary Kay products on eBay, and for that matter, other sellers of similar products.

MK Inc. Thinks Touch of Pink is Bad? This MK Reseller is Stealing All of Their Copyrighted Pictures!

L J — Fri, 05 Dec 2008 08:58:22 +0000

I’ve been trying to get the word out to resellers of Mary Kay that MK Inc. is filing hundreds of lawsuits against liquidators.

In doing so, I stumbled across this Mary Kay reseller who is advertising on eBay:

http://www.pinkbargains.com/

They have a fancy store that’s much more professional looking than Touch of Pink.

And ALL the photos in their store appear to be Mary Kay Inc.’s copyrighted photos! It looks like they’re stealing them off the Mary Kay website!

Not only that, but ALL the descriptions of the products are copied verbatim from Mary Kay’s website!

Here’s someone who is REALLY violating Mary Kay’s trademark and copyright. Wonder if they’ve gotten slapped with a lawsuit yet?

Latest Documents Filed in the Touch of Pink Lawsuit

L J — Thu, 04 Dec 2008 15:19:00 +0000

Mary Kay Inc. wants to depose (interogate) Amy Weber again, according to documents filed in the Mary Kay Inc. versus Touch of Pink Cosmetics lawsuit.

Amy Weber traveled to Dallas and gave her deposition to Mary Kay Inc. on August, 28, 2008. The main purpose of that interrogation was for Mary Kay Inc. to “learn more about Defendents’ document management practices, the location and storage of their electronic data, and their document collection and production procedures.”

Mary Kay Inc. claims that, “as expected,” they discovered numerous deficiencies in the Defendants’ document production during and after the deposition. They claim the Webers failed to look for and produce many significant documents that Mary Kay Inc. wanted. They also claim that the Webers continued to destroy documents and emails after Mary Kay filed the lawsuit.

Mary Kay Inc. asked the Webers to correct these supposed deficiencies, and the Webers did, providing Mary Kay Inc. with about 70,000 pages of emails and relevant documents.

But the deposition that Amy Weber gave in August was in her “corporate capacity.” Mary Kay Inc. now wants to depose Amy Weber in an individual capacity. The Webers’ attorneys are arguing that such a deposition would be a duplication of the previous deposition, among other things.

In fact, the Webers’ attorneys say in this latest filing, the Webers produced over 140,000 pages of documents after this August deposition and many of those documents are applicable to this second deposition request.

Mary Kay Inc’s lawyers flew to Illinois, where the Webers live, in October and deposed Scott Weber and four employees of the Webers, including Amy Webers mother. At that time, they could have, but didn’t, ask to depose Amy Weber while they were in Illinois.

Noooooooooo.

As the Webers’ attoneys say, coming to Illinois to take depositions, not interviewing Amy, then asking to talk to her a month later is simply Mary Kay Inc. trying to “create a cost burden on the Webers.”

If the court grants Mary Kay Inc’s request for the second deposition of Amy Weber, her lawyers are requesting that Mary Kay Inc. pay her expenses, wherever the deposition takes place.

Stay tuned….we’ll keep you updated on how this case proceeds, as we have done from the start.

Mary Kay Inc. Sues Another Inventory Liquidator!

L J — Tue, 02 Dec 2008 16:18:05 +0000

I received an email from a Mary Kay inventory liquidator that she was served with a notice that she was being sued by Mary Kay Inc.! I guess Touch of Pink Cosmetics has some company now.

This liquidator is a power seller on eBay and has been selling there since 2002.

According to the document this liquidator received,

” Mary Kay seeks to obtain testimony from ***** (which the method of getting the testimony is a request for the court to get my computer!!!) to determine the identity of Independent beauty consultants in order to file suit against them for breach of contract.
Also they seek to obtain such testimony to investigate a potential claim for tortious interference with contractual and business relationships and Texas common law trademarks.”

Apparently MK has now decided to go after the major sellers of all their excess inventory flooding the market. All the products that their former consultants couldn’t sell. All the products that their directors are purchasing month after month to keep their directorship. All the limited-edition products that they promoted that didn’t sell.

I’m no lawyer, but I don’t understand how once a consultant has purchased inventory that Mary Kay can tell them what they can do with it forever.

Regular businesses have overstocks of merchandise all the time. It’s the reality of retail. Ever heard of Big Lots? That’s where all the stuff that didn’t sell in regular stores goes.

If you’re selling Mary Kay products on eBay or an online store…please be aware of what’s going on. If you receive any notices from Mary Kay Inc, please let me know.

You know I’ll keep you posted on this!

Touch of Pink Cosmetics Files Summary Judgment

L J — Sun, 30 Nov 2008 17:44:17 +0000

On November 26th, 2008, defendants Amy and Scott Weber of Touch of Pink Cosmetics filed a Summary Judgment in their continuing proceedings of the lawsuit broungt against them by Mary Kay Inc.

A Summary Judgment is a motion made by one of the parties of a lawsuit before the case goes to trial. In it, the party filing the Summary Judgment puts forth the evidence in their favor and argues that this evidence is so clear that a jury faced with the case could only reach a decision in favor of the party filing the Summary Judgment.

In other words, Touch of Pink is saying that there isn’t a case against them, and the charges Mary Kay Inc. has alleged aren’t valid.

It’s very interesting reading, I think, and makes some interesting points. Now the judge will have to review the document and see whether he agrees. If he does, he will enter a judgment in Touch of Pink’s favor. Case closed.

The information outlined and points made in this summary judgment are critical to other similar Mary Kay inventory liquidators. If Mary Kay’s assertions are dismissed by the judge, Mary Kay Inc. will have to go back to the drawing board. And resellers doing business in a similar fashion as Touch of Pink could potentially be assured that they couldn’t be sued for the types of allegations contained in this lawsuit.

Here’s the entire document for your reading pleasure:

Defendants’ Motion for Summary Judgment

Does This Site Really Look Like Mary Kay Inc?!

L J — Fri, 26 Sep 2008 14:24:08 +0000

I had a good chuckle over a message I received yesterday, and given all the crappy things that are going on in the world lately, I thought we could all use a little laugh on this Friday.

Here’s the message:

Our church is hosting a beauty brunch 12/06/08. I am inquiring if Mary Kay coud donate samples of its line. There are 40 women registered at this time. We would appreciate your interests in this matter.

Seriously…does this site REALLY appear to be MaryKay.com?

You’d be surprised how many messages I’ve received over the years from people thinking that they’re contacting MK Inc. Oh well…

Happy Friday everyone!