Kylie Jenner was hit with a lawsuit earlier this week, filed in the US District Court for the Southern District of New York, for trademark infringement, trade dress infringement, and unfair competition.
Sheree Cosmetics, an Alabama company, claims that it was first to market in October 2017 with a product line called Born to Sparkle, a glitter palette of eyeshadows. Sheree founder Tiffany Herrmann claims that Kylie Jenner copied her idea, and launched Kylie Cosmetics’ Born to Sparkle individual liquid glitter eye shadow in August 2018. Herrmann didn’t file for a trademark with the US Patent and Trademark Office (USPT) until August 30, 2018, several weeks after Kylie launched her glitter shadow as part of her 21st birthday collection.
Is This Trademark Infringement?
Trademark infringement is the unauthorized use of a trademark on or in connection with goods in a manner that is likely to cause confusion, deception, or mistake about the source of the goods. The problem for Herrmann is that she filed for the trademark after Kylie’s product hit the market. Therefore, Herrmann doesn’t have the presumptive right to use Born to Sparkle, to the exclusion of others. But she can still assert that she indeed has the actual right by saying she was first in time to use the term, and that customers are confused by the degree of similarity in the product lines.
This becomes a factual debate in court, and usually involves experts, though most makeup users know the difference between a variety palette of dry eye shadows and an individual tube of liquid eyeshadow. Also, it is highly likely that if anyone is going to benefit from the confusion, it will be Herrmann. Kylie has amassed a $900 million cosmetic empire and her company alone has 16.4 million Twitter followers. Tiffany Herrmann and Sheree Cosmetics probably falls a little short of this.
Kar-Jen IP Lawsuits
People love to sue the Kardashian-Jenner family for intellectual property violations. Perhaps they are notorious IP perpetrators, or perhaps they just have deep pockets. Last year, Sara Pope accused Kylie Jenner of copyright infringement for a photo of neon lips; the case settled out of court. This summer, Kendall Jenner was sued for using the term “Pizza Boyz” for a radio talk show, which also settled out of court. Kylie and Kendall were sued for copying Jim Morrison’s t-shirts in 2017. In fact, this marks the 20th IP matter for Kar-Jen clan, with #19 being Kim Kardashian’s Vibes Perfume as the basis for a lawsuit. Happy 20th, Kar-Jen! Make it a great one!
In all seriousness, though, if you do have a trademark claim, either to bring or to defend, contact a local intellectual property lawyer. Everyone has the right to be able to grow their business, and sometimes lawyers are needed in order to allow that to happen. Contact one today to have the specifics of your case reviewed.