Mary Kay and Keyword Advertising

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I raised this issue when Mary Kay Cosmetics first filed a lawsuit against Touch of Pink Cosmetics and its owners, Amy and Scott Weber.  The company has objected because TOP purchased Google keyword advertising which included searches for "mary kay" on Google. 

This is actually a common practice. If you're selling a certain brand name of products, it's normal to actually use that brand name to identify those products.  How else would people know what you're selling if you can't call Mary Kay products by their name?

Of course, Mary Kay turned that identification of products by TOP into something nefarious. They presented it as somehow infringing on their trademarks. In Mary Kay's motion for judgment against TOP:

Ms. Beitler, Mary Kay’s Chief Counsel – U.S., summarized Defendants’ unlawful conduct as follows:

Q. What’s the problem in your mind?

A. The problem here is the manner in which these products are being sold bythe Webers. To start with, the way they are driving people to the site through the purchase of our trademarks and trade names. When people are on the internet looking for Mary Kay, they are diverting traffic to Touch of Pink. . . . They are using our trademarks. Just the site itself is made to look like it’s affiliated with Mary Kay, even down to the color pink.

Is she serious? Use of the color pink is intended to make people think TOP is affiliated with Mary Kay? And TOP was not "purchasing the trademarks" of Mary Kay. They were purchasing keyword advertising that was linked to the search term "Mary Kay."

And so Mary Kay wants to stop TOP from doing that in the future. They write in their motion for judgment that TOP should be prohibited from:

  • purchasing keywords containing Mary Kay’s trademarks except to identify the specific products for sale by name;

But fair is fair, isn't it? Because I think Mary Kay is actually trying to cause confusion for me and my website Pink Truth. As you see in the two graphics below, Mary Kay is purchasing Google keyword advertising that is tied to "pink truth" or "pinktruth." Their purchased advertising is in the right column under "Sponsored Links" and you can see that the only search terms I've entered are "pinktruth" or "pink truth."

I submit that the only reason they're doing this is to confuse people who are searching for a truth that is pink. Those poor unsuspecting people are being unknowingly and deceptively re-routed to Mary Kay's site based upon their wrongful use of Pink Truth in their advertising. Who is going to stop Mary Kay from infringing on Pink Truth??? I say if it's wrong for Touch of Pink, then it should also be wrong for Mary Kay. Fair is fair, isn't it?

Comments (25)
  • 06 Apr 2009 12:47 | julia_tennille

    Wow you do have a point there. I have never noticed that.

    Your right they have purchased the word pink truth. Is that just plain sneaky or what and surely the pot calling the kettle black.

    Well at least they realize you bring the traffic ;)

  • 06 Apr 2009 12:55 | dupedbypinkfriend

    Go get 'em, Tracy! :woohoo:

  • 06 Apr 2009 13:02 | PinkApostate

    Give 'em a dose of their own medicine Tracy. Hit the corpse with a lawsuit!

  • 06 Apr 2009 13:28 | raisinberry

    Ah come on Tracy! What news is this? We all know that next to the Dictionary Listing of HYPOCRISY, there is a picture of Mary Kay Headquarters!

  • 06 Apr 2009 13:52 | adh123

    Mmmmhmmm. And maybe you should present that question to Ms. Beitler, Tracy.(Although I'm certain she'll have a good reason as to why it's OK for Mary Kay.)

    And I don't understand the jury's ruling on this point, anyway. The jury
    instructions state:

    "...the court has already ruled in this case that the purchase of keywords from a search engine is not improper. This is true even if the keywords purchased include another's trademark."

    It is not improper even if they include another's trademark. So how did TOP not at least win this point? And how can Mary Kay prohibit their continued use if the court ruled that it was OK?

    What am I missing?

  • 06 Apr 2009 15:51 | The Scribbler

    Wow, Raisinberry; it really was there, but the pic was a bit different.

    [IMG]http://i188.photobucket.com/albums/z227/sportica/lookitup.jpg[/IMG]

    :whistle:

  • 06 Apr 2009 15:56 | pinkpunch

    :angry: #%@^&*^$%
    ALL THIS HAS ME SPITTING NAILS!!

    Either, Top's attorney was extremely uneducated and misreprestned the Weber's or he did not do a very good job at educating the jury on the differences between affliliation, tradmarks and purchasing of keywords.
    OR
    The jury was a bunch of moranic idiots and just didn't get it. OR -The odds of the majority, of the jurors, being acquaintances of acquaintaces of MKC or MKer's could be high, too.
    OR
    I always go back to "It's not what you know but who you know". I've learned from my own town (battle) that's it's all about money, politics, votes and contributions to their elections!

    I'm sure MKC has their hand in all of the above!!
    ______________________________________

    I'm certainly not a preacher but I have to believe that God will take care of this. I have to believe this because it prevents me from going to here :evil:
    BUT I also believe that we are not meant to sit back and allow things to happen. I feel that we all need to put our heads together, be advocates as well and take "OUR" mission to the next level. I'm so outraged with all of this!! I'm going to buy a pinktruth.com T-shirt and wear it!! And I kid you not, if some MKer says one wrong thing to me, about it, she's going to be needing Pam Shaws blender to sip her meals through a straw for the next 6 weeks!! She'll lose weight alright, just call it The PinkPunch Diet Plan! My slogan: "You should have shut your pie hole!" :whistle: :whistle:
    See, I told you I need to pray!!! :pinch:

    Tracy, do you sell bumper stickers? :evil:

  • 06 Apr 2009 16:09 | The Scribbler

    Jeez, what I just typed made no stinking sense whatsoever. I mean, "The pic of Corporate HQ was there but it was different?" WTH, Scrib? My thought process must be temporarily out of service or something...hold on, I'll check.

    "Ahem. Expound on recruiting practices as taught by higher level leaders in Mary Kay. Pay particular attention to those taught by NSD Pam Shaw. Show your work."

    Yep, it's busted, all right. :lol:

  • 06 Apr 2009 16:27 | TRACY

    Pink Truth bumper stickers are found here:

    [url]http://www.cafepress.com/pinktruth.84760458[/url]

    [img]http://images8.cafepress.com/product/84760458v16_350x350_Front.jpg[/img]

    And other stuff too! LOL

    [img]http://images4.cafepress.com/product/84760454v8_350x350_Front_Color-LightPink.jpg[/img]

    [img]http://images8.cafepress.com/product/115023108v3_350x350_Front.jpg[/img]

  • 06 Apr 2009 19:04 | RubySlippers

    Wow! I just found this on youtube. An NSD with her own website. It isn't the MK website either or the unitnet site. She is advertising the "oppoortunity", is she not? :huh: I hope it is ok that I list this. If not, Tracy can edit it out. Will lawyers go after them? This NSD and GMB? gillianortegansd.com

  • 07 Apr 2009 00:33 | raisinberry

    SCRIBBLER!! Are you the graphic genius of the world??? Dag I wish we could put you up for the CREATIVE GENIUS OF PHOTOSHOP FOR ALL TIME AND NEVER TO BE SEEN IN HUMAN FORM AGAIN, award!

    That tongue one is particularly disturbing...It's like Mary Kay does K.I.S.S.

    Yuck-o

  • 07 Apr 2009 01:38 | Rachel

    Well, the whole purpose of that "Just the FAQs" :X is to cause confusion. There was no such thing before PT. But I don't think you're selling a trademarked product here, Tracy B)

  • 07 Apr 2009 01:54 | vintagegold

    Everyone gets what they deserve. Especially if they use "God" to further their own agenda. You can get even, or you can pray that God will get even for you, and I know from personal experience and reading the Bible that God does a much better job at justice when his children ask Him to avenge them.

  • 07 Apr 2009 03:25 | pinksedition

    After re-reading this article and then the verdict, I believe that there was purposeful confusion in the jury instructions regarding the use of key words and the difference of purchasing trademarks. I can understand how the jurors made their verdict because there was a lot that was not explicit and somewhat misleading.

  • 07 Apr 2009 03:49 | Rachel

    That isn't jury instructions. It's just what Mary Kay is asking for -- language crafted by Mary Kay's lawyers.

  • 07 Apr 2009 08:10 | TRACY

    Although MK may not be running afoul of any trademark laws because I do not hold a trademark at this time, they certainly are infringing on my site name and logo, and are clearly using the Google keyword system in a manner designed to confuse people. :)

  • 07 Apr 2009 08:58 | RubySlippers

    Amen Tracy!!

  • 07 Apr 2009 09:20 | triumph

    mk sucks :evil:

  • 07 Apr 2009 10:50 | TRACY

    Hmm. Mary Kay Sucks. What an awesome name for a website Wonder if anyone ever thought of that? :woohoo:

  • 07 Apr 2009 15:51 | triumph

    :0 :shock: :)
    hmmm what a great name

  • 07 Apr 2009 15:52 | triumph

    Tracy:
    how do I get my avator to show up?

  • 07 Apr 2009 17:09 | raisinberry

    Yea, I checked the instructions and I dont get a My Avatar icon or link after hitting My profile from the discussion board. How's you guys do that?

  • 08 Apr 2009 00:59 | TRACY

    I think you're clicking on the wrong "My Profile." Here are the instructions again. :)

    [url]http://www.pinktruth.com/index.php?option=com_kunena&Itemid=215&func=view&catid=4&id=47015[/url]

  • 08 Apr 2009 05:04 | triumph

    thanks Tracy

  • 10 Apr 2009 12:16 | Queen of Section 2

    Hmmm, re TofP. I wonder if their representation is "limited" because of the (in)ability to buy it.

    The I found this site while researching something else.

    www.eff.org

    I think Touch of Pink needs to get in touch with the Electronic Frontier Foundation. Maybe they would be willing to take on their case pro-bono like they have others.

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