Industry News: Kylie Jenner Cosmetics sued over "Born To Sparkle"

Tuesday, October 23, 2018

Kylie Jenner Cosmetics and Seed Beauty are once again being sued for a trademark violation. According to TMZ, Sheree Cosmetics launched a pressed glitter palette in November 2017 called "Born To Sparkle" and according to Sheree Cosmetics, Kylie's brand Kylie's Cosmetics copied her product's name for her own collection.

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"Born To Sparkle" by Sheree Cosmetics.
According to The Fashion Law, a second part of the lawsuit against Kylie is that Sheree Cosmetics is also claiming that the product packaging is similar to her own due to Kylie putting a quote inside the packaging, which other companies have done.

More than merely jacking its trademark, Sheree’s further claims that Kylie Cosmetics has taken to including quotations on the inside of some of its eyeshadow palettes, which Sheree claims infringes its own “inherently distinctive packaging, including the imprinting of quotations in the products.”

Now here's the problem I see with this case.

First, there was no trademark infringement by Kylie Cosmetics or Seed Beauty at the time of product release. Sheree Cosmetics filed for a trademark on "Born To Sparkle" on August 30, 2018, and as of this blog post, it's still pending as a new application. It's also within the period to dispute a trademark so Kylie's brand could potentially file a dispute against the trademark, which I believe they may do in order to get this case thrown out and continue to use the name for her single glitter shadow.

Screenshot from Trademarkia
Second, the lawsuit contends that Kylie Cosmetics stole the name for an entire collection of liquid glitter products when in fact the product line is actually called Glitter Eyes. The name "Born To Sparkle" is for one shade color, not an entire collection.

"Born To Sparkle" from Kylie Jenner Cosmetics Glitter Eyes collection.

Third, the concept of the pressed glitter palette comes from Glitter Injection who first released their pressed glitter palette back in 2016. According to the lawsuit filed by Sheree Cosmetics, their "Born To Sparkle" palette came out November 2017, well over a year after Glitter Injections first released their pressed glitter palette but nine months before Kylie released her shadow for her birthday collection.

Fourth, there are no packaging similarities. MANY companies have, and have for YEARS, put slogans and quotes inside their packaging. Other than using DIFFERENT quotes inside the packaging, in place of a mirror, there is nothing similar about the packaging.

Personally, I don't believe they have a case against Kylie Cosmetics or Seed Beauty as at the time there was no trademark so doing a trademark search on the product name would have yielded no results. The most Sheree Cosmetics could go after is copyright infringement or demand that Kylie discontinue using the name but won't be able to recoup monetary damages because the trademark was filed AFTER the fact and wasn't in place before. To me, there was no trademark infringement or product similarity - as one is a liquid metallic glitter shadow and the other is a pressed glitter palette.

As for trying to claim that Kylie misappropriated her "Born To Sparkle" which would lead to brand confusion, the other problem is that "Born To Sparkle" is a common slogan and if you go to Instagram and type it in as a search you'll find all kinds of products not just Kylie's liquid shadow and no quick find of Sheree Cosmetics' palette.

Lastly, I also noticed on the Sheree Cosmetics site they're claiming trademark to "Born To Be Iconic" except there are no pending trademarks filed for it, as of this blog post. If one has been filed it hasn't been accepted by the US Patent & Trademark Office.

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