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Litigious eyelash extensions- companies lash out in court

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Eyelashes & Brows
July 27, 2009 Reviewed by admin 0 Comments
When mascara, adhesive lashes, and eyelash growth products fall short, women in pursuit of luscious lashes sometimes resort to an expensive beauty enhancement procedure known as eyelash extensions. This hours-long process entails attaching individual hairs to existing eyelashes to lengthen them. Though the basic technique is the same, eyelash extension companies exert their independence in the marketplace through hairsplitting differences. Two leading eyelash extension manufacturers, Texas-based Xtreme Lashes and California-based Xtended Beauty, are lashing out in court over these differences.

Xtreme and Xtended both sell kits used by beauty professionals to lengthen clients' eyelashes. Since September 10, 2005, Xtreme has used the brand name Xtreme Lashes and the tagline "Extend Your Beauty." These identifying marks appear on the silver packaging of all Xtreme Beauty products, along with a large X formed from the flourish of an eyelash. Xtreme offers training workshops (running from $695 to $900) to professionals such as licensed cosmetologists and makeup artists, who must receive Xtreme's certification before purchasing its products. A "gold" Xtreme Lashes kit costs $529, while a "platinum" kit sells for $949.

Xtended Beauty, on the other hand, has manufactured products under that name since July 26, 2006. Instead of selling directly to beauty professionals, Xtended markets its products to distributors via trade shows, trade publications, and websites. Xtended also requires beauticians to attend training courses (which are typically free) before purchasing its kits, costing around $345. Mirroring the packaging of Xtreme Lashes, Xtended kits come in a silver carrying case emblazoned with a large "X." Both companies' kits display white lettering on a black background and contain eyelash extensions, adhesive, specialized scissors, and other accessories.

Two years ago, Xtreme Lashes scampered to court arguing that Xtended had "infringed and diluted" its trademarks for eyelash extensions. Xtended lashed back, seeking cancellation of the Xtreme's "Extend Your Beauty" mark.  Furthermore, Xtended hired a trademark specialist to conduct a database search, which found that the misspelling of the term "xtreme" is common in the beauty industry.

Likewise, the phrase "extend your beauty" is used by at least 30 companies worldwide to describe or market cosmetics, including eyelash products and services. The District Court concluded that no reasonable person would likely confuse the two parties' marks since they are so dissimilar. Ruling in favor of Xtended, the court also ordered Xtreme's registration of the "Extend Your Beauty" trademark to be cancelled since this phrase is descriptive as a matter of law.

Yet, this decision was hardly the end of the court battle. Without blinking, Xtreme took the case to appeals court, armed with several testimonials proving consumer confusion. The appeals court reversed each of the District Court's conclusions, demonstrating that all factors of potential confusion in the case favor Xtreme Lashes. Additionally, the "Extend Your Beauty" mark was found to be not merely descriptive, but rather a clear exhortation to market eyelash extensions, as opposed to other cosmetically enhanced features. It is thus protectable as a federal trademark.

Though there is no evidence that Xtended Beauty ever intended to capitalize on the success of Xtreme Lashes (which is estimated to dominate up to 65% of the market), there have been clear instances of consumer misunderstanding. Seeing as the two trademarks appear in confusingly similar contexts (in silver kits containing eyelash extension accouterments) and make use of a large X, cosmetologists have been misled to think that Xtended Beauty is a discount product line offered by the makers of Xtreme Lashes. A new trial is expected to take place within a year.

If you were shopping for eyelash extensions, would you be likely to mix up Xtreme Lashes and Xtended Beauty? Both companies use marks similar in sight, sound, and meaning, and both contain the term beauty, as well as some form of the word extend. But are they in danger of blurring the lines that demarcate the two brands? And should all of the products above be subject to the same regulation?

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