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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.

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

Mary Kay Canada Sues Touch of Pink Cosmetics

L J — Tue, 17 Feb 2009 13:22:22 +0000

Mary Kay Cosmetics Ltd., known as Mary Kay Canada, filed suit on February 3, 2009 against Touch of Pink Cosmetics and its owners, Amy and Scott Weber.

According to court documents, Mary Kay Canada filed the lawsuit to “remedy damages caused by Defendants’ unlawful actions in Canada.”

Mary Kay Canada claims it discovered in late 2008 (among other things) that the Defendants were interfering with Mary Kay Canada’s contracts with certain Independent Beauty Consultants (IBCs).

Sound familiar? It’s one of the claims that Mary Kay Inc. is making against the Webers in their lawsuit.

I find it amazing that it took Mary Kay Canada until late 2008 to discover this, given that Mary Kay Inc. had filed a lawsuit against the Webers in May 2008 and had apparently had the Webers on their radar screen well before that.

The Canadian lawsuit is based on trademarks registered in Canada, and therefore requires the interpretation of Canadian law.

The Webers asked for a six month continuance (delay) in their current case with Mary Kay Inc. so that they could have time to defend against both cases. They also argued that the Canadian lawsuit exists ““to intimidate the Webers and increase their cost of defense in an effort to ‘win’ by making it too expensive for the Webers to protect their business.”

The Webers request was denied.

Everything is on track for the Mary Kay Inc. case to go trial in March. We’ll keep you posted.

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.

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

Touch of Pink Cosmetics and Mary Kay Inc Agree to Mediation

L J — Wed, 15 Oct 2008 13:32:09 +0000

Mary Kay Inc and Touch of Pink Cosmetics have agreed to enter into mediation to settle their dispute.

The original court date set for this fall has been moved back to February 2009.

We’ll keep you posted when there is more to tell.

Agreed Protective Order Filed in Mary Kay Lawsuit Against Touch of Pink

L J — Mon, 28 Jul 2008 17:11:37 +0000

An Agreed Protective Order was filed in the Mary Kay Inc. vs Touch of Pink Cosmetics case on 14 July 2008.

What the heck does that mean?

Who did Touch of Pink Cosmetics buy MK products from? We may never know.

Well, the protective order means that both Mary Kay and Touch of Pink may keep certain “trade secrets” and other information about how they run their businesses confidential. This is designed to keep information from falling in the hands of your competition.

Interesting, but not unusual.

But it means you may not get answers to some questions you had. For instance, there has been discussion here recently about whether or not Touch of Pink Cosmetics got some of its inventory from current Mary Kay consultants.

According to item 19 of this protective order:

“The parties agree that the identity of persons selling products to Defendants shall be treated as though designated “CONFIDENTIAL” and may be used in connection with this Lawsuit, including but not limited to deposing, calling, and/or treating such persons as witnesses in this Lawsuit. Notwithstanding anything in this Order to the contrary, the obligations under this Order do not prohibit Plaintiff from contacting, interviewing, negotiating with, terminating its agreement with, filing suit against, or taking any other action Plaintiff deems appropriate regarding any person selling Mary Kay products to Defendants.”

So the identities of just exactly who sold products to Touch of Pink won’t be revealed to inquiring public eyes who want to know.

Touch of Pink Cosmetics Files Response to Mary Kay Inc. (part 2)

L J — Mon, 30 Jun 2008 17:22:14 +0000

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 Files Response to Lawsuit by Mary Kay Inc. (part 1)

L J — Sat, 28 Jun 2008 16:23:51 +0000

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.

3. Scott and Amy Weber admit they advertise and sell Mary Kay products on eBay, but deny they are required to have the authorization of Mary Kay Inc. to do so.

4. They admit that Amy Weber is no longer a Mary Kay Consultant

5. They admit that Touch of Pink Cosmetics does not purchase inventory directly from Mary Kay Inc.

All these admissions don’t add up to much. And I wouldn’t expect them to. The Webers, like any defendent, will only admit to the things in the lawsuit that they know to be absolutely true. Mary Kay Inc. has the burden to prove all the allegations in the lawsuit.

Some Allegations That Touch of Pink Cosmetics Denys:

1. That through the Touch of Pink website and eBay store, the Webers unlawfully mass market Mary Kay products across the globe.

2. That the Webers are required to have the authorization or consent of Mary Kay to use the Mary Kay name to describe the product for sale.

3. The Webers deny Mary Kay Inc.’s assumption that Touch of Pink purchased products from consultants unlawfully by inducind consultants to buy products from Mary Kay Inc. and then sell to Touch of Pink, in violation of the consultant’s Beauty Consultant Agreement.

4. That by advertising Touch of Pink online, the Webers have created the false impression in the consumer’s mind that Touch of Pink Cosmetics is affiliated with Mary Kay Inc.

That’s just a brief list.

But there are some significant allegations that the Webers deny.

Mary Kay’s Lawsuit Against Touch of Pink Cosmetics

L J — Tue, 13 May 2008 14:47:20 +0000

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.

The Webers continued selling Mary Kay products on their website, TouchofPinkCosmetics.com and in their eBay Store.

Mary Kay Inc. is claiming that the Webers caused other Mary Kay Consultants to violated their Consultant Agreement by selling products to Touch of Pink instead of ultimate consumers.

Touch of Pink Cosmetics claims that they can help Consultants “balance your inventory and implement profit making strategies” and Touch of Pink also sent out email newsletters, apparently, soliciting products from current Consultants.

There is much more to this than just the above issue. More to come on this one.