Numerous Victories for Touch of Pink Cosmetics

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

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

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.