Trademarks and the Black Moon Cosmetics Lawsuit Explained

My Beautiful Flaws is a beauty blog where we talk about the latest beauty products, beauty tips, skincare, etc.  I try to stay away from drama, but I’m not afriad to hold brands accountable when they do something wrong. It’s difficult to ignore the latest contraversey that arose between Black Moon Cosmetics and the Jeffree Star / Manny MUA collaboration. If you haven’t heard, Black Moon Cosmetics (hereafter referrred to as BMC) filed a lawsuit against Jeffree Star and Manny MUA (hereafter referred to as JS/MMUA) for using their trademark, which is basically considered theft of intellectual property.  Please note that while I am discussing the allegations made in the lawsuit, they are just that…. allegations. The lawsuit was quickly settled between the involved parties, and the terms of the settlement are confidential. The rest of this is my personal opinion based on my knowledge of the law and the information disclosed prior to the settlement.

After BMC filed their lawsuit, social media went into over-drive with many arm-charm lawyers and judges posting their opinions on the allegations, some of which were level-headed opinions based on law and others that were based purely on emotions and their love of one particular brand involved. There was also plenty of personal attacks launched against people posting their opinions, which is a shame when keyboard warriors hide behind their keyboards and launch attacks upon strangers, throwing all morals and grade school teachings out the window.  It is especially disappointing to see fans solely upset about the issue because it could have resuled in a delay of the upcoming JS/MMUA collaboration, as if a beauty product is more important than an alleged theft of intellectual property…. a crime to be blunt.  That’s a very selfish and superficial stance to take, given the alleged offense.

Before I dive into my opinions and allegations included in the lawsuit, I should say that I do come into this with some legal knowledge and experience in the area of intellectual property. Having many attorneys in my family and a law practice, I grew up with a strong interest in the law. As a business professional with over 20 years of experience at large Fortune 100 corporations, I’ve also studied business law, including copyrights, intellectual property, trademarks, etc. It’s very important to take emotions completely out of the picture when discussing a topic such as this. The law isn’t emotional or personal, and if you find yourself getting upset at either side, stop and question your motives. Let’s dig into some facts.

1. BMC filed a lawsuit claiming they used a logo/trademark design consisting of a holographic crescent moon with their company’s initials in holographic lettering against a black background. This design was used on their products June 2015, prior to Manny MUA ever using such design on any of his products/collaborations. BMC also filed for the legal trademark rights to such logo, which is still pending (approval can take years).
2. While Manny MUA has worn a crescent moon necklace and asknolwdged his affinity for the crescent moon, he did not use a specific logo similar to that owned by BMC before BMC released their products with the design on it. To our knowledge, Manny MUA has not filed any legal papers to trademark such logo/design.
3. By legal standards, BMC owns the use of the before mentioned design. Even though it’s pending trademark approval, they were the first to use this design (as an entire entity, i.e., with the moon being in holographic style on a black background) on beauty products.
4. BMC alleged that Manny MUA wrote them in September 27, 2015, expressing his fondness for the BMC design/packaging and asking for their products to try. They included a screenshot of such communication in their legal filing. If true, this means that Manny MUA was aware that BMC’s trademark existed prior to him using the same type of image.
5. On February 2016, MannyMUA released an image depicting the packaging for his collaboration with Makeup Geek, and it consisted of a holographic moon and holographic lettering on a black background with stars.

I’ve read social media comments such as….

“BMC doesn’t own the crescent moon!”

“BMC doesn’t own holographic writing.”

“BMC doesn’t own a black background!”

Well, that’s not entirely right or wrong when you look at each statement by itself. It’s important to look at the collective design, not at each piece of the design separately. For example…..  McDonalds doesn’t own the letter M by itself.  However, when you see a large M (the big arches), written in that distinctive yellow font (especially when on a red background), literally billions of people around the world automatically associate that mark in its entirety with the McDonald’s brand.

 

 

The company Target obviously doesn’t own every symbol of a target sign. A target sign is a symbol used in many different places and for many different purposes.  However, this particular target symbol when used with this shade of red is protected by intellectual trademark laws and associated with the store Target.

A company can even register a specific pantone color for their brand, ensuring that their brand is associated with a specific packaging color. When you see someone walking down the street carrying a little robin-blue bag, you immediately know that they are a customer of Tiffany & Co.  Pantone shade 1837 is a registered trademark color of Tiffany & Co., and people automatically associate that color with the Tiffany brand.

Black Moon Cosmetics alleged in their lawsuit against JS/MMUA that they own the collective image of a holographic crescent moon and their company’s initials in holographic font over a black background. Therefore, another company can’t infringe upon that trademarked image by using a holographic cresent moon, replacing the BMC initials with their own in holographic writing, and place it on a black background. Doing so could lead to “customer confusion” of the brand in the marketplace.

BMC must prove 2 things in their lawsuit:

1. They own the trademark in question. They have substantial proof showing their owership of this trademark, which they used well before JS or Manny MUA ever did.
2. The image/packaging released by JS/MMUA could cause “customer confusion” in the marketplace. In other words, they must prove that a customer could see the packaging that JS/MMUA released and confuse it with the product/packaging owned by Black Moon Cosmetics. In my opinon, they also met this legal burden after multiple customers took to social media and said that it appeared that JS/MMUA was using BMC’s logo/packaging.

BMC made a third assertion in their lawsuit, specifically pertaining to knowledge and intent. While many trademark violations occur without the offender’s knowledge that the trademark existed (and therefore no willful, harmful intent), Black Moon Cosmetics was able to show that Manny MUA knew that this logo/packaging was property of BMC prior to Manny ever using it.  They proved such by showing the message that Manny sent BMC in 2015, complimeting them on  their design.  One may argue that this shows a willful and malicious breech/theft of BMC’s intellectual property. Although Manny may not have understood the legal consequences of using BMC’s trademark, ignorance of the law is never a defense…. just as it’s not a defense when you break any other law of society.  Proving this point makes the entire situation worse for Manny. It could have resulted in BMC being awarded a substantial amount in punitive damages if the case had gone to trial. In my opinion, this is a situation where a bigger brand (Jeffree Star and Manny MUA) took what they wanted from a smaller indie brand (allegedly), believing that Black Moon Cosmetics wouldn’t have the power and resources necessary to fight back.

I want to address a few other points I’ve seen circulating, including the video from @HereForTheTea where she accused Black Moon Cosmetics of “bullying” JS/ Manny simply for filing a lawsuit before the collaboration was launched. This accusation is mind-boggling and truly ignorant. Filing a lawsuit, in and of itself, is not bullying. HereForTheTEa also said that JS /Manny didn’t have an opportunity to respond to the lawsuit and defend themselves. Yes, they absolutely did. They had the same opportunity as anyone else who is sued to respond and defend themselves. They made a CHOICE not to. Instead they chose to engage in settlement discussions and not file a formal response to the lawsuit in court. As a matter of fact, their attorneys could have filed a legal response in court and still pursued settlement talks on the side. The majority of lawsuits follow that path, and it’s unique that they chose not to make their defense public at all. Judges actually prefer for parties to settle before trial since the court system is over-burdened. This does not, however, stop the involved parties from following the standard legal path until a settlement is reached. It was actually shocking to me to see how quickly JS /Manny settled without filing a response. Perhaps this was done because they lacked a defense. We can only guess at this point.  In my personal opinion, it’s more proof that they recognized their culpability in the matter, and they were willing to dispose of the matter quickly for their own benefit. They certainly weren’t forced to do so.

Accusing BMC of being opportunistic and “shaking JS/MMMUA” down for money, in the timing of their lawsuit filing is pure ignorance of the law and support of intellectual property theft.  Should they have allowed their alleged stolen property to be sold completely unchecked? Some people are asking “Why didn’t they file immediately after the Makeup Geek collab?” I don’t have all the answers to that, but it really doesn’t matter. Perhaps they didn’t have the resources then to pursue a costly lawsuit. Perhaps they felt overwhelmed or bullied themselves by Manny and another larger brand who was using their design. Plain and simple…. it doesn’t matter. As soon as they saw that MannyMUA was willing to continue infringing upon their design (allegedly) with another product launch, they decided enough was enough.  When the JS collaboration packaging was released, BMC could not allow the violation to continue further or else they could have lost the rights to their own trademark. They needed to act swift and fast, before JS /MMUA could profit from the alleged stolen intellectual property (allegedly). The timing of the lawsuit was legally correct and warranted.

Let me be clear…. It is not bullying to protect your own property. It is not bullying to pursue someone who you feel has wronged you in some way. HereForTheTea engaged in VICTIM BLAMING. Let’s look at it another way…. If someone breaks into your home and steals your prized jewelry collection that you’ve spent thousands of dollars on and collected over 20 years (let’s throw in your precious $100k wedding ring), is it considered bullying when you call the cops to report it? No! Let’s say you captured the thief’s photo on your surveillance camera, are you bullying the thief by posting that photo on the news?  Let’s say the thief sets up a store where he plans to sell YOUR entire jewelry collection that he stole. Is it bullying if you file a legal action to stop the sale of your stolen property? Of course not!  Few people with an education beyond 6th grade and any integrity would call that bullying because the thief doesn’t own the rights to your stolen property. Therefore, a thief can’t be permitted to profit from the sale of items he doesn’t own.  It’s a pretty simple concept to understand actually.

Intellectual property such as logos is no different from the examples above, although it’s something that many people don’t seem to recognize or understand equally. Intellectual property is still property, and that property has an owner and an attached value.  It’s not OK to steal.  This is a lesson we all learned in kindergarten. Or so I thought. More importantly, it’s not OK for bigger brands to take what they want from smaller brands, just because they think they are more powerful and popular. This happens every day, where a big corporation or brand stomps over a little company/brand because they know the small company doesn’t have the money and resources to fight back. In this case, I applaud Black Moon Cosmetics for defending their brand. Many people are upset that BMC “settled” the case rather than taking it all the way to a trial. However, that’s the wrong way to look at it. Lawsuits are costly for all involved, including the taxpayers who pay for the judicial resources. The fact is that 90% of lawsuits are settled before reaching court. It’s always a good thing when the parties involved can reach a settlement that is acceptable to both of them. While we will never know what the settlement terms are of this particular lawsuit, rest assured that Black Moon Cosmetics took a stand, and I promise they’re not walking away empty-handed.

Protecting your company’s brand and your intellectual property is important. Fans of Jeffree Star and Manny MUA should put their love for their favorite beauty influencers aside long enough to understand that we cannot make exceptions for anyone where the law is concerned. Allowing one brand to escape the repercussions of trademark infringement endangers all brands. Perhaps this is a subject that many don’t care much about until it affects them personally and they have their own property or designs stolen. However, this is an ethical and legal issue. Where you stand on this issue speaks volumes about your own character. Where and what will you stand for?

Reference:  Complaint filed by Black Moon Cosmetics via their attorney’s website (PDF Format)

Disclaimer: The statements made in this blog are my personal opinions based on information obtained from social media and legal documents. Manny MUA and Jeffree Star have not been found legally, civically or criminally liable for any allegations against them. These are allegations only as presented by Black Moon Cosmetics. The parties have settled out of court under confidential terms. I have no personal knowledgeable of wrong-doing but have only commented and provided my own opinion on the events and allegations.