Mary Kay v. Weber , 601 F.Supp.2d 839 (2009)

Does the sale of Mary Kay products by a terminated distributer infringe on the company's trademark?


The Court held that, because the products were expired, they were not subject to the first sale doctrine, and consequently infringed on the company's trademark. Weber was unsuccessful as a Mary Kay distributor and stopped purchasing Mary Kay products from the company. To dispose of her excess inventory, she started an EBay store. The store was successful enough that she began purchasing extra Mary Kay products from other unsuccessful distributors. Mary Kay sued, alleging trademark infringement by using the Mary Kay name. Weber claimed that she was protected by the first sale doctrine, which allows the subsequent sale of an unaltered product by the initial purchaser. The court held that the first sale doctrine did not protect Weber because the majority of her products were expired, and expired products could not be considered unaltered for the purpose of the first sale doctrine. Because the products were expired, their use might impair the value of the Mary Kay brand.

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Published In: Civil Procedure Updates, MLM / Direct Sales Updates, MLM Consulting / Network Marketing Updates

Reference Info:Federal, 5th Circuit, Texas | United States

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