Mary Kay, Inc. v. Amy L. Weber and Touch of

The Situation

In a case of trademark infringement, false and misleading advertising, and dilution, Touch of, an online cosmetic reseller, claimed it had the right to resell Mary Kay products (including products that were discontinued and expired) under the fair use and first sale doctrines. However, both fair use and first sale doctrines are legitimate defense arguments only when the use of the mark does not cause a likelihood of confusion regarding affiliation or sponsorship.

NERA's Role

NERA experts Dr. Kent D. Van Liere and Sarah Butler assisted Mary Kay in the case and conducted a likelihood of confusion survey.

The Result

The jury ultimately found that Touch of Pink had infringed Mary Kay, Inc.’s trademarks. Mary Kay was awarded a permanent injunction and damages against Touch of