PinkLighthouse.com

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.

Touch of Pink Cosmetics filed their response the the charges alleged by Mary Kay Inc. in their lawsuit filed May 7, 2008.

There aren’t any surprises in the response from owners Amy and Scott Weber. The Webers deny most of the allegations set forth by Mary Kay Inc. or state that they are “without sufficient information to admit or deny the allegations.”

Some Allegations That Touch of Pink Cosmetics Admits To:

1. That Amy Weber was previously a Mary Kay Consultant and that she was terminated by the company on September 17, 2005.

2. Scott and Amy Weber admit they advertise and sell Mary Kay products on the Touch of Pink website, but deny they are required to have the authorization of Mary Kay Inc. to do so.  Read more »

We have obtained the full complaint filed by Mary Kay against Touch of Pink Cosmetics and owners Amy and Scott Weber.

Here is the entire 71 page complaint, in pdf form.

Mary Kay Inc. v Amy L. Weber, Scott J. Weber, and Touch of Pink Cosmetics

Mary Kay Inc claims that Amy Weber sold Mary Kay products on eBay and thus violated her Mary Kay Beauty Consultant Agreement. Mary Kay Inc. issued several “pleas” for Amy Weber to stop selling on eBay and when she didn’t, Mary Kay Inc. terminated her Mary Kay Consultant Agreement. Read more »