Update on the Touch of Pink Cosmetics Lawsuit

Touch of Pink Cosmetics and Amy and Scott Weber have filed an answer to Mary Kay’s lawsuit against them. You can see the answer in its entirety here. I’ll summarize the high points of this answer, and give my comments in italics.

Touch of Pink and the Webers admit some of the most basic things:

  • Amy is a former consultant who was terminated in September 2005
  • The company does advertise and sell Mary Kay products on the internet.
  • The Webers began selling Mary Kay items on eBay with the username “scottw815” in March 2005.
  • Touch of Pink does not get its products directly from Mary Kay.
  • The wording on the TOP website indicates that they buy products for ½ of wholesale value, and that Mary Kay consultants may be eligible to send their products back to MK for a 90% refund.
  • TOP has shipped products to multiple countries.
  • Touch of Pink has purchased internet advertising that was linked to the keywords “mary kay.”

They deny certain critical allegations such as:

  • Touch of Pink is encouraging current Mary Kay consultants and directors to violate their contracts with Mary Kay, or that the company is intentionally interfering with those contracts
  • The company is trying to “confuse and deceive consumers” by wrongfully using the Mary Kay name and trademark. (The laws do allow people/companies to identify the product they’re selling, and saying “Mary Kay” would fall under this. Identifying the product you’re selling isn’t wrongful use of a name or trademark.)
  • Touch of Pink advertises all products as made by or affiliated with Mary Kay. (The website actually just says that the Mary Kay products are authentic, but makes no representation about “all” of the products.)
  • Engaging in “unlawful” advertising (What law prohibits Touch of Pink from saying “your destination for all your favorite Mary Kay Products at 50% – 75% off Retail”? None that I’m aware of.)
  • Soliciting current Independent Beauty Consultants (IBCs) via email.
  • The business strategy of Touch of Pink relies on inducing current consultants to violate their contracts with Mary Kay. (It appears that a substantial portion of the TOP items are acquired from former consultants, not current ones. Even if inventory is from current consultants, I don’t believe TOP has a duty to inquire about the status of their contracts with MK.)
  • TOP “unlawfully” mass markets Mary Kay products around the world. (There’s that “unlawful” word again. What marketing is unlawful?)
  • The business of Touch of Pink deters people from signing beauty consultant agreements with Mary Kay. (People are deterred from signing up with Mary Kay because they’ve done the research and find out the business stinks!)
  • TOP obtains Mary Kay products in an “unlawful” manner. (What laws are they breaking when they buy products from current or former consultants?)
  • Wording on the Touch of Pink website and eBay store was false and misleading and caused confusion about their affiliation with Mary Kay. (In my opinion, TOP actually went out of their way to make it clear that they weren't MK and that they weren't affiliated with MK in any way.)

Touch of Pink also denies that they need “authorization” from Mary Kay to sell MK products on their site or on eBay.

I missed this in the original filing by Mary Kay: “Although most of the more than 1.8 million Mary Kay independent sales force members around the world conduct their independent Mary Kay businesses with honesty and integrity…” How on earth would corporate know this?

In general, Touch of Pink says they’re not infringing on trademarks, they’re not trying to confuse or deceive consumers, and that they’re not trying to get people to violate their contracts with Mary Kay.

Touch of Pink also says that they’re lawfully purchasing and reselling Mary Kay products, and that using the name Mary Kay in selling genuine Mary Kay products is permitted as fair use.

Go Touch of Pink!!! Now get into discovery and get your hands on some information that will prove what a scam Mary Kay is!