Mary Kay Files a Lawsuit Against Touch of Pink Cosmetics

Darrell Overcash just sent a voice message to all Mary Kay sales directors. Mary Kay Inc. is filing a lawsuit against Touch of Pink Cosmetics. The company is a known liquidator of Mary Kay products.

They basically help beauty consultants who were frontloaded with tons of product. The company purchases it from the consultant at a discount, and then passes those savings on to consumers. It’s a win for everyone: consultant unloads useless overstock, customer gets a discounted product, and Touch of Pink makes a little money in the process.

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

The entire complaint in the case can be seen here. This is my summary of what the case is about:

Amy is a former Mary Kay consultant. Amy, her husband, and Touch of Pink are accused of encouraging and helping consultants to violate the terms of their contracts with Mary Kay and confusing and deceiving customers through the "wrongful" use of the Mary Kay name and trademark to sell products on their website and on eBay.

Mary Kay says Amy was terminated as a consultant for selling on eBay after numerous warnings. The company says they now solicit consultants to violate their contracts by selling their products to Touch of Pink, "rather than to ultimate consumers for the unauthorized Internet resale of the products." Doing this allegedly "interferes" with Mary Kay's relationships with consultants.

Mary Kay says the use of the Mary Kay name and trademark by Touch of Pink confuses and deceives customers. They say that "...the Weber Defendants' website suggests that all products sold on the website are products manufactured or affiliated with Mary Kay; yet the Weber Defendants sell products on the website that are not affiliated in any way with Mary Kay. The Weber Defendants' dishonest attempt to "pass-off" these products as Mary Kay products is tantamount to unfair and deceptive trade practices and further violates Mary Kay's established rights."

Except here's what I found on the Touch of Pink site:

We carry authentic products that were originally purchased directly from the Mary Kay warehouse. Although, they are not new from the warehouse, they are product from former consultants of Mary Kay.

We sell genuine Mary Kay products. This website is not endorsed by or affiliated with Mary Kay Inc. This company has been established by former Mary Kay Consultants who are assisting consultants to liquidate their inventory. We also provide a place for consultants and customers to locate hard to find retired product or even new Mary Kay items at a great discount!

Neither of these statements seems dishonest or confusing to me, and it sure doesn't sound like they're trying to "pass off" anything! The products were manufactured by Mary Kay and that's what the site says!

And in case you're wondering if the site was changed after the lawsuit was filed yesterday... this wording is from May 4th and May 6th cached copies of the site. The lawsuit also includes printouts of web pages from May 6th that say the exact same thing. What's being claimed in the lawsuit isn't even what's said on the site, per their own copies of the site!

The lawsuit also complains that Weber has purchased Google advertising linked to the keywords "Mary Kay," so that when people searching Google for the phrase "Mary Kay," the Touch of Pink Cosmetics site comes up in the sponsored results.

This is made even more interesting by the fact that Mary Kay itself has been purchasing Google advertising linked to the words "Pink Truth." When people search for the keywords "pink truth," one of the sponsored results is Mary Kay itself. (See my screen shots of this here and here .)

The lawsuit also claims that the Webers say all their products are manufactured by Mary Kay, but that they are now selling sterling silver jewelry and a mineral product called "Sheer Miracle" that aren't made by Mary Kay. I don't see anything on the site saying that ALL their products are manufactured by MK, rather I see that the MK products are said to be genuine and manufactured by MK.

My take on this? Nothing on the Touch of Pink site is confusing to me. It doesn't seem like they're Mary Kay, and any person with a brain is not going to be confused into thinking they're Mary Kay. Sure... they say Mary Kay because they are allowed to identify the products they have for sale... which happen to be Mary Kay brand.

I hope this is not an attempt to just drive them out of business by sticking them with a bunch of legal fees they can't afford...