Lip Ink International is a company that makes a brand of lip stain. This past week they did something I personally view as a trademark bullying by sending trademark infringement notices to a number of bloggers for having the term “lip ink” on their sites. In many cases it involved a reference, often in a reader comment, to a Sephora product that once used the term in the name (Sephora has since changed the name of their product to reference “lip stain”). So my guess is that Lip Ink wants to erase any confusion about the Sephora products. OK, fair enough, but in my opinion, there was not any trademark infringement on the part of the bloggers with that, and sending a cease and desist letter was a rather overboard reaction to a mention of a product in an old reader comment. But here is the real kicker. In one case, they sent a cease and desist to Temptalia, probably the most influential beauty blogger in existence, over a mention of Lip Ink’s own product with a link to their own site. Now that is absolutely not trademark infringement at all. Then, they offered up product to review. Huh? Now why would a blogger cover their product if they will turn around and consider a mention of it trademark infringement? In my opinion, it is idiotic. I also wonder what their motivation was with that one. The comment was not entirely positive, and it is not unheard of for companies to try tossing around trademark or defamation claims over negative reviews (see this blog post for more on that). But it wasn’t entirely negative either. Ultimately I have no idea what Lip Ink’s motivation actually was.
Here is the text of the offending comment on Temptalia:
Here is a snippet of the the cease and desist letter sent to various bloggers
It reminded me of when Chi accused me of trademark infringement. If you want a tutorial on why it is not infringement, look there or here is a handy little overview of trademark law. I won’t repeat it all here. The short version is that to be infringement it would have to lead a person to believe that the blog was representing itself as being Lip Ink or sponsored by Lip Ink so as to cause commercial confusion. That wasn’t the case in any of the instances that I saw. To the extent lip ink was seeking to enforce things in relation to Sephora, its best course of action would be against them, although that also appears to be moot since Sephora changed the name of their product.
Anyway, my bigger concern is what is in my opinion an incredibly stupid action to take in regard to marketing. By sending what in my opinion are highly questionable cease and desist letters to bloggers who are well connected, all the company did was assure that many influential voices will want nothing to do with them. Offering products to review on the heels of such a thing doesn’t soften it. Instead it just makes the whole thing even more bizarre.
For example, Pink Sith, who received the letter in regard to a link to another blog on this post
http://www.pinksith.com/2014/02/have-you-been-wondering-about-em.html changed the reference to “lip stain,” and informed the company that she would never work with them and found the offer to send product at the end of their threatening letter completely unprofessional and laughable. That would have been my reaction as well. I have yet to see a blogger who received the letter have any reaction other than stating there is no way in hell they would ever work with this company now.
I get rather angry when companies behave this way. As an attorney, I get panicked emails from bloggers from things like this. To people who are unfamiliar with the law, a cease and desist letter can be a very scary thing. That is why I am writing about it. I don’t want companies to get away with this type of behavior.
What could Lip Ink have done instead? Well, instead of sending cease and desist letters based on what I think were likely incorrect trademark claims, they could have sent a nice letter stating something like this: “Hey, we noticed that you have a comment on your site referring to an old Sephora product with the term “lip ink.” We are trying to clear up confusion between our trademarked product and Sephora’s product. We would really appreciate it if you would edit the reference to something like “lip stain” instead of “lip ink.” We also would love to send some of our products as a thank you for your help.”
Now doesn’t that sound better than the letter shown earlier? What do you imagine the bloggers’ responses would have been to that? I’m pretty sure I for one would not be writing this and recommending that people stay far away from Lip Ink and their products. Instead, now I won’t ever buy this product. I hope that you don’t either.
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