Morphe vs BECCA Cosmetics: Cease & Desist plus a lawsuit

Saturday, August 18, 2018


Beauty Truth Sleuth, a cosmetic investigative reporter on YouTube, just released the video above. Last month I stated that I suspected (as many others did) that BECCA Cosmetics issued Morphe Brushes a cease and desist over the package design. This led to Morphe pulling the palettes in June on the basis that there were quality control issues.

Well, I was right. BECCA Cosmetics DID issue a cease and desist against Morphe and for a short period of time, Morphe DID pull the palettes. When the palettes launched again on August 14, I suspected that Morphe paid BECCA for use of the design but I was wrong on that. Instead of paying for use of the design, Morphe filed a lawsuit over the design. A lawsuit is a way for a company to continue to sell product while the case makes it way into court and a judge or arbitrator decides on the matter.

I have highly suspected that the palettes sold at ULTA are not "new" palettes or "re-pressed palettes" or even "reformulated" palettes but the actual palettes that were to be sold back in June. You have to understand FDA rules and regulations - while new and unused packaging can be reused, with the appropriate information on it - companies cannot reuse or fix existing product on the market. That would mean those palettes would have to be destroyed and those batch codes could not be reused because it indicates when the products were first made. This is why I seriously doubt, based on known import records, based on photos of the palettes in June, based on photos of palettes sold at ULTA, based on my two own eyes having gone to ULTA to see the palettes... what's sold at ULTA are what were made in April and May and arrived in the US starting in early May.

I do suspect BECCA will turn around and countersue OR outright sue Jaclyn Hill for violating their contract with them as she was under contract with Morphe at the same time she was under contract with BECCA.

EDIT TO ADD THIS STATEMENT I MADE ON REDDIT:

So I have a lot to say on this topic. A lot.

Morphe suing BECCA on the ground of trade dress rights. Basically, they're claiming BECCA does not own the rights to the design and as such they're free to use it.

Now here's where it becomes murky on who will win.

According to past screenshots of Jaclyn's, she was working with Morphe on her palette since 2014. I don't know when she entered a contract with BECCA but there are still videos of her discussing the design of the Champagne Pop collection (three of which are still on BECCA's YouTube channel). In one SnapChat video, back then and no idea if anyone saved it, she did make the statement that the design was to be reminiscent of champagne bubbles in a champagne glass. In one of the BECCA videos she stated that BECCA allowed her to design the packaging with their help. So from her own mouth the design was deliberately made for BECCA.

While the did not trademark the design they did trademark Champagne Pop and since Jac herself stated the design was to go with Champagne Pop then BECCA's point has merit.

That said, here's the other issue. Did Jaclyn go into contract with Morphe then BECCA or was she under contract with BECCA then Morphe? If the former, then BECCA could argue they did not know this and since she was working with a competitor that Jaclyn entered agreements with them to gain trade secrets from them which has helped Morphe in the long run INCLUDING this design. Essentially, they could accuse her of espionage.

Definition of espionage
: the practice of spying or using spies to obtain information about the plans and activities especially of a foreign government or a competing company
industrial espionage

IF her contract with Morphe came AFTER or DURING her contract with BECCA then they can allege she violated their contract with them.

The bottom line is this: SHE is the common denominator between the two companies AND why BOTH products are similar (near identical) in design.

The other issue with her and BECCA vs Morphe, is those Champagne Pop shadow palettes were made in China. Normally, BECCA uses a manufacturer in the US for those shadows (I don't know which). They use Kryolan in Germany for some products and Gotha in Italy for others. Because I didn't pay attention to the (free) import records (at the time) to see if BECCA used Beautydom or a different company that is unknown to me. I'm speculating that BECCA possibly used Beautydom and if so I have to wonder IF Jaclyn told them to knowing that's the same manufacturer Morphe used and still uses to this day. I do have to wonder if Jaclyn knowingly deceived BECCA which caused Sephora to pull those shadows, and knowing Sephora has iron clad contracts to protect them from losses, that in turn caused harm to BECCA which led to BECCA selling for less money than it should have.

Now in regards to the product itself. Import records show that Morphe imported the JH palettes from Beautydom Commodity in late April and May with the first known shipment to have arrived in the US in early May (2) and the last on May 31. Since I use free sites I can't see if they had any shipments from Beautydom of the Vault palettes in July. They did get a shipment in mid-June but it doesn't appear to the be the Vault palettes.

When products are made, most companies will mark the items with a lot number or a batch code. These codes essentially allow the manufacturer and distributors to know when each item was made so in the event of a recall they can recall a specific batch/lot versus the entire thing. Morphe knows exactly which batch code was made and that is why they won't release those codes so no one can verify that the items are indeed the original palettes that supposedly were sent back and destroyed.

Batch codes don't lie.

I've been saying this for a few days now because each palette will have a different batch code. Ring The Alarm's will be different than Dark Magic, etc. There might be multiple codes because they imported products at different times. Example, Ring the Alarm was imported at least four times - showing import dates of May 9, May 16, May 22 and May 27.

Since Morphe refuses to release the batch codes, the only way to verify codes from the so-called "original" Vaults is for those who bought those palettes in Vegas OR who were sent PR to post photos of those codes and for a list to be compiled then cross-referenced to the ones sold at ULTA.

As for the V2 stamped on some but not others. A friend of mine said that it might be possible that Morphe marked some with V2 as a way to make people think it was a new version. This person said to me that one theory could be, "... they decided to start stamping V2 on palettes to make it appear to be a 2nd version…then they ran out of time (or patience) before the shipment had to go to Ulta." But again, batch codes don't lie so while they stamped V2 on some but not others, the original batch codes would be unchanged due to the fact tampering with it would be VERY illegal and get them into a LOT of trouble.

The only problem with the batch codes is there's no way to properly verify those as Morphe refuses to release the records. It might come out in court as the cease and desist from BECCA demanded those palettes to be destroyed and Jaclyn stated on Twitter those palettes were destroyed. I don't think they were and those palettes are what's being sold at ULTA and possibly on Morphe's own website.

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