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Bad Business, When Chi Called a Blog Review Trademark Infringement

UPDATE: On August 21, the PR Manager at Farouk Systems/Chi called me and offered a very sincere apology. She said that a third party contractor is used to send out trademark notices in order to tackle web spam and that bloggers were never intended to be included in those efforts. I let her know that the email appeared to come from in house with their in house counsel’s name on it, and she will look into that. The company intends to address the matter to assure that bloggers are not targeted with these notices. She assured me that Chi loves bloggers (including noting that they pinned my original review) and they are extremely sorry that this happened. She offered to send me products or have me join them at Fashion Week, which is a nice gesture, but I am declining that. I do greatly appreciate the apology though. Even more, I appreciate the assurances that efforts will be taken to prevent other bloggers from receiving these types of notices. My hope is that whoever is in charge of that becomes informed enough about bloggers and marketing goals so that this does not happen to anyone else. My biggest concern with this all along has been that innocent bloggers might get such a notice and be rather intimidated by it. Again, I do appreciate what seems to be to be a very sincere apology from Farouk Systems and Chi.

A bit later the attorney for Farouk also sent me an explanation and apology. He assures me that they have gone back and checked to be sure that no other bloggers received notices in error. I am adding a screen cap of it to the documentation page, with  personal identification blacked out. I appreciate that efforts have been taken to correct this and that the company is responding to the matter.

What Happened: 

 Note: Chi is a registered trademark. Aside from receiving press pitches from their PR firm, I am in no way affiliated with Chi flat ions or endorsed or sponsored by them. My writing here is an editorial news comment on the company’s business practices. All opinions stated here are my own. I do not speak for others in any way, shape, or form. Why did I just state this seemingly obvious stuff? Read on….

Lessons in Bad Marketing: When Chi Flat Irons Accused A Positive Product Review Of Trademark Infringement

NoChiFlatIron thumb Bad Business, When Chi Called a Blog Review Trademark Infringement Photo Credit: Many thanks to Dinah at D.G.S. Beauty for taking a photo of her Chi flat iron for me. I added the circle and slash.

A jaw dropping event occurred for me the other day. I was accused of trademark infringement by Farouk Systems, who is the parent company of Chi flat irons, along with other Chi hair products and Biosilk. Why? Because I published a positive review of an Ultra Chi Flat Iron and used the name of the product in the review and in the title. WTF you say? Well, so did I.

Before I get into details. I have to say this. What I state here are either true facts or personal opinion based on the facts. For example, I think the company is absurd in how they approached this (I’m putting that nicely since calling them donkey dork poo heads, or the worse things that my husband called them, might not go over as well). That is my personal opinion and not a statement of fact. I am just getting that clear in case this company likes to threaten defamation suits too. Where I go overboard on reminding you that it is my opinion, it is a satirical embellishment to drive this point home (not to mention really my own opinion). Oh, and I am also an attorney, and while it is not my primary area of practice, I happen to know some things about trademark law. Being in this field and having spoken on legal topics for bloggers, including a bit on trademark law, I am rather interested in the topic. Now, onto the story!

The Review

It all began in January 2013, with a glowing review of the Ultra Chi flat iron. I either received a reader review of it or commissioned a honest user review of a favorite hair tool on a site I sometimes use for articles (I think the later, but I don’t recall which). The post began with the words “the following is a reader review of the Ultra Chi Flat Iron.” Nowhere did the post suggest any affiliation with Chi or any endorsement of my site by them. A link to buy the product at Ulta was given at the beginning and end. The writer loved the product and wrote glowing things about it. Really glowing things. They seriously loved their Chi flat iron. And that is great, since a large part of my purpose here is to share info on great products. Right? I thought so anyway.

The Accusation and Why it is Absurd

Well, Chi apparently did not appreciate the positive attention, since they recently sent me an impersonal form letter demanding that I remove the review as trademark infringement. But here is the problem:

(1) It Is Not Trademark Infringement.

Trademark infringement is use of a mark in a way that could cause confusion over the ownership of the mark in commerce. Infringement occurs when the use of a trademark is likely to cause consumer confusion as to the source of the item or as to the sponsorship or approval of it. It is not meant to affect free speech. Thus, it excludes use for things such as editorial comments and news reporting. This common exception for news reporting and commentary has been extended by at least one court to bloggers. Outside of extraordinary circumstances, product reviews are not trademark infringement.  By their nature, there is normally nothing to cause consumer confusion. By necessity, the review has to use the product name to make editorial comments in reporting about the item. Indeed, cases involving negative reviews, which companies more understandably, albeit distastefully, have sought to shut down, have been held to not constitute trademark infringement. In my case, the material clearly stated that it was a reader review. It linked to Ulta, who I assume is an authorized retailer, to buy the product. There was nothing there to create consumer confusion. No reasonable reader would be unable to distinguish between myself as the blogger publishing a user’s review and Chi as the brand. Thus, there was no infringement. But further, the move was incredibly stupid (in my opinion). And that leads us to number two.

(2) It Is An Idiotic, Absurd, and Downright Bizarre Business Decision (in my opinion).

Why on earth would a company seek to suppress a positive, glowing review of their product? I am deluged daily with requests from companies to cover their products, and here is the kicker, that includes from Chi themselves! I am on the Chi  PR list. I have pitches in my inbox right now from the PR firm for Chi asking me to cover their products! So let me repeat something I wrote earlier. WTF?

In any event, regardless of the PR list, Why, why, why would a company search for positive mentions of their product on the internet and then seek to remove them? Why would they do this especially with bloggers? I am truly baffled.

In a 2012 survey performed of around 2400 readers by members of the Beauty Blog Coalition, which included readers of my site, 75.6% reported that written product reviews were the reader’s favorite beauty blog posts. 88.5% had purchased a product after reading about it on a blog. 50.5% reported that they sometimes purchased a product after reading about it on a beauty blog and 44.4% said they have often done so. 70.7% have suggested a product to another person after seeing a review or a personal endorsement from a blogger, despite not having tried the product themselves. Those are rather powerful numbers!

To make this point even more clear, 61.1% reported that they utilize Facebook to read blogs. Chi has a Facebook page. At the time of this writing, it has just under 36,000 fans, a number that I find surprisingly small for a major brand, but that is beside the point.  I too have a Facebook page for my blog. At the time of this writing it has around 53,000 fans (our Twitter audiences are fairly similar in size with mine slightly smaller). Wouldn’t the prudent business decision for Chi be to seek bloggers such as myself, with greater Facebook reach, to endorse their products instead of angering them with baseless accusations? Had Chi written to me noting my post and seeking to strike up a partnership for more reviews I might have listened, they might have gotten some good press, people would buy products, and all would be happy. But they took the strange path of seeking to wipe good press off of the Internet.

Again, it seems to me like a bizarre PR decision, but I also suspect that PR and marketing were never asked. In the end, it is (in my opinion, remember), a downright terrible PR and marketing decision. In fact, I am curious to see what Chi’s PR people have to say about this. I feel a bit bad that I will be sending them this link for my coverage. It isn’t their fault and it happens to be a PR firm that I rather like. But given that Chi apparently finds blog coverage to be trademark infringement, I obviously can’t cover them, and it also is a bit baffling why they then have a PR company contracted to pitch to online publications at all.

The Overall Outcome

I gave Chi a chance to change their mind and they did not reply (see the documentation page). So here we are. What do I do now? Well, I removed the supposedly offending article and a positive Biosilk review. They now redirect to this-something that is clearly an editorial commentary and clearly not endorsed by Chi or associated with Chi. There is no trademark infringement in using their name here. I wrote this because I am honestly angry. I view acts such as this as legal bullying, where companies go overboard tossing their weight around in misguided attempts to protect something, whether it be a misguided belief that they are protecting a mark or for some ulterior motive (again, I’m expressing my personal opinion here as I have been throughout). While I appreciate a company’s legitimate efforts to protect a mark, and I note that Chi has successfully cracked down on counterfeiting of their products, something that I applaud, I despise overreaching and won’t sit around taking it quietly. Or, perhaps this was just was very sloppy lawyering instead? I suspect that might be the case, but I really don’t know. Perhaps they confused me with a trademark bidder for paid ads or were just plain confused in general about what they were seeking to protect, although the nature of my blog as a product review and beauty news site is quite clear. Maybe they were just over ambitious about catching any use of their name they could find? Heck, maybe an employee just screwed up. Hard to say. Well, regardless, I despise sloppy practices too. Perhaps even more. How many other bloggers who legitimately covered Chi got this email? How many, unlike me, are not attorneys and were scared or or felt threatened by it? I find the potential for that irresponsible and repulsive.

If this had been a negative review I would have dug my heels in and left it up. Since it was positive, I’ll play along. The company wanted that glowing review removed, well they got it. Now they get negativity instead and they also get it broadcasted to my social media audience that has greater reach the their own. Be careful what you wish for right?

Ultimately, my opinion is that Chi’s marketing department really needs to talk to the legal department. I think their goals are grossly at odds with one another.

Anyway, If you got this far and are not yet bored to tears over stupid corporate legal antics (in my opinion, remember), do you want to know some awesome flat iron alternatives? here are two favorites of mine. I obviously won’t be recommending a Chi product ever again:

Sedu Revolution

Ghd Classic

One final request. Please share this. I think it deserves to be heard. Thanks!

Documentation: I figured this was long enough. For those who want more, here  are screen cap copies of the letter I was sent, my reply, and the original review.

 

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Comments

  1. Jess Scull says:

    Wow. This is the stupidest thing I have ever read. My mind is completely blown that they would treat you like that. bye bye chi!

  2. It’s insane to be even accused of trademark infringement when all you did was to review a product based on your experience. I don’t get these CHI people, are they even aware of what blogging is about? Will they also run after regular consumers who post reviews online? Definitely bad bad bad marketing. Not to be mean, but who owns a CHI anyway ;-)

  3. Jennifer H-K says:

    Well, I guess I know one company I will be avoiding doing business with. Sloppy of them. I always find your reviews interesting and informative. Thanks!

  4. This is so insane of Chi to send what seems like a C&D letter to you. I think you handled this very well. You and I spoke about this off line and I am still shocked that the legal department didn’t even respond to your message. They are the ones that need some serious education on PR and the Law! I will definitely share this with my readers and friends. This kind of legal bullying (My opinion) should not be allowed to go unnoticed!

  5. Even though you told me about this a few days ago, I thought they would have retracted their request by now. Obviously not. I hope that you get a swift apology, Carleen. And that someone is held responsible for this obscenely stupid mistake. Sharing this post on ALL of my social media channels.

  6. Daaaaaaaaaaamn. That’s about all I can muster. Abso-stinking ridiculous on CHI’s part. And I was really starting to love their Iron Guard flat iron spray too :( I’m excited to see how this turns out for you. No doubt someone will be scrambling to clean up the mess in no time.

    You go girl!

  7. I think you handled this brilliantly. I still can’t believe that they handled this in a such a horrible manner, and did not even have the grace to respond to you. Because of this, there is no way I will ever work with Chi or the parent company again.

    Good for you for standing up to these bullies!!

  8. You’re welcome for the picture. And I still can’t believe them. Makes me ashamed to even own their flat iron. My next flat iron will definitely NOT be a Chi.

  9. Brilliant article! I am so glad you addressed this publicly. This is the most utterly ridiculous and absurd situation! I will never look at chi or the other Farouk brands the same way again. Nut jobs!

  10. Wow. Just wow. This is the first time I have ever heard of a company attack a blogger for using their name in a glowing review of one of their products. A review that more than likely netted them a nice, fat, handful of cash. They bit a hand that feeds them. I enjoyed watching you bite back. I’m interested to see how this al shakes out. Who wants to bet that CHI is going to back pedal? Fast?

  11. Chi products are so over-priced that I never consider buying them to begin with. Now, I’ll just pass on this story to others. Gee, that got good press and then they shot themselves in the foot. No good press from me and plenty of other bloggers as well as their readers.

  12. Crazy! You did the right thing. I’ll steer clear. BTW, I don’t even know what a meta tag is??

  13. Thanks for the support everyone! I was rather surprised that I got no response when I replied to their email. I have emailed their PR and posted on their Facebook page, plus did an @ reply to them on twitter.

  14. How absurd. The negative backlash will hopefully result in them coming to their senses. Maybe they’ll even blame it on a poor innocent intern and say it’s all a big fat misunderstanding. The blogging community won’t be quick to forget this.

  15. WOW! I can’t believe they did this. It’s so wrong that I’m almost sure it’s in an error. Let’s face it. Even on technicality they are wrong. It’s not like this is a consumer site and you are passing off obscure items to Chi followers. And secondly, DID THEY EVEN READ THE POST BEFORE SENDING OUT THE LETTER? I feel like they just tracked Chi tags and sent them all this form letter.

  16. This is the most ridiculous thing I have ever heard. I was in the market for a flatiron and was seriously considering Chi. Now I think I will look at ghd instead. Chi’s loss……

  17. Let me get this straight.. they are trying to get you to take down a POSITIVE review that could boost some sales of their product? You weren’t claiming it as you made it. Wow, this is absolutely absurd… I won’t be ever buying a Chi!!!

  18. I still cannot believe this went down. I love my straightener but am very discouraged by how they handled this situation (and that there is even a situation). Thanks for being open and bringing this to everyone’s attention.

  19. This is all about “attack blogs” strategy some brands & companies are doing.

  20. @Sonia Yep, a positive review. Crazy eh?

  21. Wow that was really crazy!! Ridiculous! So basically if you use Chi as a meta tag in your blogpost you’re committing a trademark infringment? Gimme a break Chi! (I read the letter they sent you) Really bad move from their part.

  22. I will add that I kept thinking that maybe they had some overreactive employee or intern and they would see my response to their letter and back off. I could forgive that, things happen. But there was no reply. It came from a generic brand protection labeled address (but in house) so maybe they also are sloppy in reading replies? Who knows? All I know is that I tried for a response and didn’t get one. So, here we are. Even more bad behavior that I didn’t mention: if you send nastygram c&d’s be prepared to answer the resulting email!

  23. This is such a shocking approach! It strikes me as a computer generated form letter, given the generic wording, but that’s a pretty dumb thing to set up.
    Count me as another beauty blogger who won’t be covering Chi products.

  24. Wow, I can’t say I’ve ever heard of Chi before but I know I will be avoiding them if they end up in my inbox. I can not believe they are behaving like this.

  25. I don’t understand how a company could get a positive review and think that’s a bad thing? It’s strange. Their quality control went out the window a few years ago anyway, and I got rid of the two I’d purchased. Had I known, I never would have purchased any. I was so disappointed.

  26. Preach it! It’s obvious to me that there’s no way their legal department checked with PR or Marketing, or they’d have been slapped. It’s not just legal bullying, it’s irresponsible business when your left hand doesn’t talk to your right.

  27. I really appreciate your thoroughness here. And I am appalled at this company’s behavior, it’s ridiculous and baseless. You called it a form of legal bullying, but since your speech is protected and you violated no laws, it strikes me as grossly illegal bullying. But I truly love that you complied, because they’ll hurt significantly for their childish behavior. Many kudos to you for not sitting quietly by.

  28. Note to self, don’t blog about Chi! How odd!

  29. Would love to hear their response to this when it inevitably comes. There’s going to be some major backpedaling going on.

  30. This sounds a lot like that Ciate situation. Google it if you didn’t hear about it. lol Large companies can be so stupid so I’m glad you put this up and are informing your readers and other bloggers. Great legal antics btw. (:

  31. This is such a perfectly prepared and thought out response Carleen. They are messing with the wrong writer. How dare they get away with this?

    No one should be bullied. How many others took down their glowing reviews because they were afraid of the “machine”? That is bullying!

    I will NEVER try or review one of their products again.

  32. Wow, this is terrible. I have never been able to afford Chi anyway, but I won’t be buying them now even if I do get money! They might get me for copyright infringement for owning a “Chi” product! Gosh.

  33. I am seriously speechless!! I’m so glad I made the switch from Chi to GHD years ago because there’s no way I’d use one now.

  34. Glad I never wasted my money on CHI and I never will!!!! Thanks!! I hope they read this post too!!! The more comments the better!!

  35. This is crazy. There wouldn’t be bloggers if whenever we spoke about a product, we would get a letter like this….that’s the point of blogging??? I think they are confused….at least I hope they are.

  36. That is absurd! I was going to be purchasing a new Chi flat iron very soon but I will be looking at other brands now. Way to turn your customers away, Chi.

    And good for you for posting this and making everyone aware of what’s going on.

  37. Ah jeez, there’s no gain on their end. This is by far a stupid business decision.

  38. Great post. Shared it on our company’s Facebook page. Too bad your Facebook details aren’t configured properly, so no description or image is shown!

    Still very much worth sharing though.

  39. As someone who is also bombarded with review requests, this has me shaking my head. And the icing on the cake is that you’re on their pr email list. WTF?

  40. Thanks Bert. I just ran the post through Facbeook’s debugger, so it appears that it will show the image now.

  41. This is insane. I shared it on google plus.

  42. As a marketing professional I am cringing for the poor people who work in their mkt/PR department. As a marketer that works at an IP company, I’m just shaking my head.

    Did someone accidentally put the wrong email address in the To: field? Are they now on vaca so didn’t see your email? That is the only thing I can see making this right. And the CHI folks better get on this stat to mitigate the brand damage. Something like this is definitely going to catch like wildfire. I’ve done my part by tweeting and putting it up in LinkedIn :)

  43. That is absolutely ridiculous. I happen to have a ghd, and I love it very much. It glides smoother and doesn’t snap at some of my hair like my sister’s chi. Some of my hair just pulls and snaps off like a rubber band due to poor design of the chi.

  44. This seriously cracks me up (and not on your behalf) there are so many businesses out their working their butts off to create a better positive image about and for their brand, and then you have assanine companies like this, make these ignorant decisions!

    I can *only* imagine the negative attention they will now receive!

    Since this is clearly not trademark infringement, what made you take it down? Curious.

    Thanks you for writing this people need to be aware of their stupidity!!!

  45. I am utterly dumbfounded by their actions and perhaps even more appalled by their lack of response. Perhaps their next brilliant move will be to send Ulta a C&D for even thinking to carry their product.

  46. Amber, I have no idea what motivated them to send it to me. Whether it was a mistake, or someone not thinking things through, or they really think reviews are infringement. I wish I knew! It came from in house using what appears to be an email specifically set up for sending cease and desist type notices (it started with “brandprotection”) and was signed by their general counsel. I replied on a Thursday and gave them until Monday to respond and I got nothing. So I published on Tuesday evening. I too feel for their PR and marketing, since I can’t imagine that they approve of this. But then again, I have yet to hear from anyone, so who knows? I’ll update if/when I hear anything!

  47. I wonder whether they are using non-lawyers to send out these notices. If you haven’t already, you should share this with The Chilling Effects Clearinghouse at http://www.chillingeffects.org. They collect trademark and copyright notices, perhaps if they make the problem visible enough we can all make a difference together.

  48. Shared everywhere. My mouth seriously hit the floor when I read through all of this. There is really no rational explanation as to why they’d send you or anyone else a letter like that. Might as well tell places like Amazon or Ulta to remove reviews on their product pages as well. They don’t want their loyal customers getting C&D letters. (opinions on this comment are my own blah etc)

    Love this post and your brilliant legal mind ;)

  49. Anya, I took it down because I figured I’ll give them what they asked for and remove their free positive press. I don’t think they deserve it now. If it had been a negative review I would have left it up. I redirected the review to this post.

  50. Wow. no words.

  51. Carleen, that makes sense. I would have likely done the same thing, well maybe not! I am still in awe of the stupidity. And will be checking back for updates if/when/how they choose to respond… I love that Scott Stratten from UnMarketing picked this up! (how I came across this article). Sad part is for years I’ve been telling myself to buy a Chi… well… now… I’ll stick with my ion!!! :)

  52. There is, as I have said so many times, no shortage of stupid in this world.

  53. I recently (excitedly) purchased a CHI (what I thought was the glory of all flat-irons) and I was actually kind of disappointed in it. I thought it was going to be as amazing as my $25 Conair flat-iron that I have been using for years; it does not do half of the work my Conair does. So now, I have an even better reason to get rid of the stupid thing and get my $90 back. Thank you for sharing this and I am sorry that you have had to deal with such stupidity.

  54. I have a Croc Turbo Iron; I love it because its a wet/dry flat iron so I can use it if my hair is still damp. I love the swivel cord on it and that I can control the heat temp. The only thing is sometimes I accidentally hit the buttons while using it. But all in all I find it to be an excellent high end flat iron. I wasn’t all that impressed with the Chi reviews back when I was in the market for one so they fell off my radar pretty quickly. Looks like maybe they are satisfied being mediocre.

  55. Shocking. How To Lose At The Internet, by Chi.

  56. The company has now apologized to me both on the phone and in writing. They assure me that steps are being taken to assure that this does not happen to any other bloggers

  57. Like most everyone else, I am speechless! I can’t even wrap my head around it. Even though they apologized to you I think the damage is done. We’re a pretty tight knit group in the beauty blogging community in my opinion. I know I won’t be purchasing anything “Chi!”
    Kudos to you for writing and sharing.

  58. wow! That is shocking.

  59. Great to see they went back and apologized but wow, it’s a shame it happened to start with. With the ever growing readership in blogs- consumers, like myself rely heavily upon blogger reviews when making a decision for a large purchase (ie, purchases over $50 in my case). I actually JUST bought my sister a new Chi iron for her upcoming birthday this weekend and I’m considering replacing mine (because hers is just so darn awesome looking lol). So when I saw “chi” in my facebook newsfeed, I had to stop- click – and read this!

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