Tabberone's Hall of Shame

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"The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke

Cosmetics Manufacturers
Group Hall Of Shame Members
Category Added February 4, 2009

Last Updated August 19, 2013

The latest fool we are adding to our list of Cosmetic Clowns is George Pollack of DREMU Cosmetics, web site dremu.com. This clown is a whack job who gets his thrills making false threats to people who are reselling DREMU products. Hey there Georgie, there is nothing illegal about reselling unaltered genuine product regardless of your rants. Grow up, Georgie Boy. More to come.

If L'Oreal actually manufactured an anti-aging cream that really worked, do you suppose L'Oreal would have to spend time and money advertising it? The line at every store would be out the door, down the street and around the block. If Merle Norman manufactured a cream that actually reduced or removed wrinkles, don't you suppose Merle Norman would dominate the beauty cream market? If Maybelline manufactured cosmetics that did make a woman more radiant and more beautiful, don't you suppose the cosmetics counter at stores would be so much smaller because there would be only one product being sold?

Any fool can manufacture and market their line of cosmetics. There are "contract" cosmetic manufacturers available who will package "your brand" and ship it to your location, for a fee of course. So what makes one boutique brand of cosmetics different from another boutique brand? Salesmanship and marketing. That is the difference. Shampoo is shampoo. Kickapoo Kurls adds a little color and a special smell, slaps on their label, and then markets their shampoo exclusively to beauty salons for two reasons. First, the mark-up is obscene and the profit to Kickapoo Kurls and the beauty salon is huge compared to the store brand at Wal-Mart at $1,49 for the same bottle. Second, Kickapoo Kurls cannot find a chain store buyer stupid enough to believe their marketing spiel.

Rolex does not make a better watch than other companies; Rolex makes a more expensive watch than other companies. Mercedes makes a fine automobile but a Honda will get you to your destination just as fast, with better gas mileage and with lower insurance payments. You can buy bottled water and look cool or you can use tap water which costs 100 times less, is often healthier for you and does not require you to recycle all of those over-priced plastic ego-trip bottles.

What is the difference there? Price and ego; that is all. All three cost a lot more and all three present a false positive image to people whom you do not know and who probably do not care if they ever get to know you. That makes all three all ego-driven; nothing more. That brings us to our main subject matter. Consider this: if any cosmetics manufacturer really, really had a better shampoo, or a better conditioner, or a real anti-wrinkle cream, do you think for a moment that they would be selling it exclusively through salons or through Associates? A better product gets greater free publicity because it generates much greater interest.

Greater free publicity coupled with all of that greater interest means better sales which means much greater profits. Those much greater profits come from expanded sales outlets not from limited salon sales. Selling their items exclusively through salons or through Associates is a way to make their mundane products appear to be exotic thereby justifying the higher prices they charge for a product that is no better than the product being sold at your local drug store. If it were better, it would be on the News At Eleven with film! You know it would. And so do they.

What is the primary weapon cosmetic manufacturers use to interfere with internet sales of their products? They lie, and lie and lie. And then they lie some more just to make sure. We don't just accuse, we document them and their lies. One of the cosmetic manufactures' most carefully crafted and shared lies is that of product diversion. They use this as a smokescreen to attempt to cast some form of legitimate cover to their underhanded tactics. And they have done this for years. We have not found a single court case where the court has ruled that reselling genuine, unadulterated product was infringement. Consider the following lawsuits:

Clairol, Inc. v. Cody's Cosmetics, 353 Mass. 385 (1967). Clairol sought to enjoin Cody's Cosmetics from selling at retail to the general public Clairol's products designated "Professional Use Only." The Massachusetts court rejected this attempt except to require Cody's to use a disclaimer warning consumers that the bottles were originally part of a six-pack that was broken open and to include instructions on the use of the cosmetics.

Sebastian Intern., Inc. v. Consumer Contacts (PTY) Ltd.,, 847 F.2d 1093 (3d Cir. 1988). Sebastian entered into an oral contract with Consumer Contacts in which Consumer Contacts agreed to distribute Sebastian beauty products to professional hair styling salons in South Africa, but not elsewhere. A large shipment was sent back to the US by Consumer Contacts and sold without authorization from Sebastian. Sebastian sued for beach of contract and copyright infringement. Lower court granted an injunction but the court of appeals overturned the ruling using the first sale doctrine. Sebastian lost on all counts.

John Paul Mitchell v Pete N Larry's, 862 F.Supp. 1020 (W.D.N.Y. 1994). John Paul Mitchell sues to stop Pete N Larry's et al from reselling John Paul Mitchell Cosmetics claiming that the defendants' unauthorized sales of Paul Mitchell Products constituted trademark infringement, tortious interference with contracts and fraud. John Paul Mitchell lost on all counts except referring back the infringement for reconsideration because the removing of bath codes might have adulterated the product.

Matrix Essentials v. Cosmetic Gallery,, 870 F. Supp. 1237 (D.N.J. 1994). Matrix sued Cosmetic Gallery to stop them from reselling their products. Matrix claimed only salons were allowed to sell their products. The court disagreed citing the first sale doctrine. The court also denied Matrix's tortious interference with contract claim and decided that neither defendants' sale of defaced Matrix products nor its sale of Matrix perms created a likelihood of consumer confusion and entered judgment for defendants on all plaintiff's claims. Matrix lost on all counts.

Sebastian v Longs Drug Stores, 53 F.3d 1073 (9th Cir 1994). Sebastian sued to stop Longs from reselling cosmetics without authorization. 9th Circuit Court of Appeals slapped Sebastian down on the first sale doctrine and accused Sebastian of Trademark Misuse. Sebastian lost on all counts.

Graham Webb Intl v Emporium Drug Mart 916 F.Supp. 909 (E.D. Ark 1995). Graham Webb sells over-priced cosmetics through salons only. Emporium Drug Mart obtained some diverted product with batch codes removed and was selling it cheaper than salons. Graham Webb sued claiming trademark infringement, unfair competition, damage to business reputation, and tortious interference as well as claiming the cosmetics required professional consultation to be used properly. The court ruled that the disclaimer used by Emporium Drug Mart prevented any customer confusion and there was no infringement. Graham Webb lost on all counts.

John Paul Mitchell v Randalls Food Markets, 17 S.W.3d 721 (TX 2000). John Paul Mitchell sought to enjoin Randalls Food Markets from selling at retail to the general public John Paul Mitchell's products designated "Professional Use Only". Batch codes had been removed from some of the products. John Paul Mitchell sought injunctive relief and damages, alleging breach of contract, tortious interference with contract, conspiracy, unfair competition, trademark infringement, and conversion. A jury found for the plaintiff however the judge set aside the verdict as a matter of law. The Texas Court of Appeals upheld the judge on all counts. John Paul Mitchell lost on all counts.

John Paul Mitchell v Quality King, 106 F.Supp.2d 462 (5th Cir 2000). John Paul Mitchell sued to stop Quality King from selling cosmetics that John Paul Mitchell had sold for distribution in China but were diverted from their authorized market and sent back to the United States via Holland. The court ruled that John Paul Mitchell did not show that it will suffer pecuniary injury as a company if its current distribution scheme is replaced by the use of non-salon retail stores. Testimony indicated some salon owners believed John Paul Mitchell participates in diversion practices. John Paul Mitchell lost on all counts.

Matrix Essentials v Quality King, , 522 F.Supp.2d 470 (2007). Matrix (L'Oreal) sued to stop "diversion" of its products. Matrix products sold by Quality King and/or Pro's Choice to retail sales outlets were neither expired, adulterated or anything other than genuine Matrix products. The court ruled that diversion, per se, was not illegal. Additionally, the court criticized L'Oreal for its conduct in the case because L'Oreal had attempted to get federal authorities involved using false accusations of criminal conduct by the defendants. L'Oreal/Matrix lost on all counts.

We think that you will agree with us that these eight court cases all show one thing - collectively cosmetic manufactures are liars and not to be trusted. Not one court has stopped someone from reselling lawfully acquired, unaltered, genuine product. Not one court because it is not illegal! With two minor exceptions as noted above, the cosmetic manufacturers lost on all counts every time. Yet they still harass legitimate resellers of their products. Merle Norman Cosmetics and its counsel goes so far as to perjure themselves by claiming to eBay that reselling unopened Merle Norman Cosmetics violates FDA regulations and eBay's Drug and Drug Paraphernalia Policy. Assisting Merle Norman Cosmetics in this perjury parade is the law firm of Kinsella Weitzman Iser Kump & Aldisert LLP.

There's no denying that cosmetics are a multi-billion dollar business, most of it based upon false advertising and preying upon the hopes of women who believe the fountain of youth is in that plastic bottle on the shelf. Consumers are hammered with promotional advertising on television and in magazines telling them that they need improvement. But really, is there any difference between the costly high-end glop and the every day drug store variety cosmetics? The main difference is price and marketing. Shampoo is shampoo; conditioner is conditioner.
Consider hair products. Hair is dead except at the roots which are under the skin. It is a physical impossibility for hair follicle to absorb anything that will affect the growth from a shampoo or conditioner but one cannot tell that from the marketing. Shampoos are crammed with all sorts of exotic additives to make them appear to be exceptions. Of course these exotic additives also increase the price. Designer cosmetics are another of the trendy items that people just must have because some pop star uses that brand.
An increasing number of cosmetics pushers are using eBay's VeRO Program to interfere with the legitimate resale of their products on the internet. Some, like Merle Norman, have committed perjury by making outlandish and totally fabricated lies. Others just have the auctions terminated and don't bother explaining. Others claim the product being sold is counterfeit when it is not. But it isn't hard to guess why these cosmetic manufacturers lie so much.
The great majority of the cosmetic pushers who are using VeRO are those who sell exclusively through their own outlets, sales representatives, or through beauty salons. These cosmetic manufacturers don't want their products resold on eBay so they tell eBay to shut down the auctions. While many cosmetic companies have exclusive distribution contracts with their sales representatives and the beauty salons, these contracts are not binding upon consumers who have not signed them. If a sales representative or beauty salon is selling overstock or expired items to someone who intends to resell them on eBay, it is a civil issue between the cosmetics company and the person with whom they signed a contract.

We did an analysis of the Heath & Beauty VeRO pages on eBay as of July 2009. We were not surprised that almost every VeRO member made false and over-reaching claims about their rights. One stupid member went as far to claim their "mumbows" were trademarked which meant someone else could not copy their design, except that copying is not a trademark issue and that trademarks designate the source of the product and not the product itself. Trying to contact people like this who do not what they are talking about to point out their mistakes is an exercise in futility; they simply do not care. They have stated their opinions and they will not let the facts get in the way. If ignorance is bliss these VeRO members are on the verge of rapture. We were surprised that the only VeRO member in this category not to state inflated claims about their rights was May Kay Cosmetics.

We receive a number of emails about the following companies and their takedowns. Some have been in The Tabberone Trademark & Copyright Abusers' Hall of Shame for some time. So what do these companies do? They lie to eBay, or the seller, when telling them that the sales of their products violate their intellectual property rights. Some don't bother to reply to the seller's emails. The following cosmetic companies are in The Tabberone Trademark & Copyright Abusers' Hall of Shame because of what we believe are intentional unsupported claims and lies. In alphabetical order:

Bumble and bumble, and their lying corporate lawyer Kenneth A. Plevan, a partner at Skadden, Arps, Slate, Meagher & Flom, LLP, of New York City, for terminating auctions because they, like other cosmetic companies, do not want their products sold on eBay. Added to the The Tabberone Trademark & Copyright Abusers' Hall of Shame on August 30, 2007.

Freeze 24 / 7, for terminating auctions because they, like other cosmetic companies, do not want their products sold on eBay. Added to the The Tabberone Trademark & Copyright Abusers' Hall of Shame on July 4, 2009.

Janson Beckett Cosmeceuticals, and twit Executive Administrative Assistant Malyna Truong, for exercising their "VeRO Right" for genuine Janson Beckett Cosmeceuticals products. It took only two weeks and 21 emails before Executive Administrative Assistant Malyna Truong got off her fat ass and gave the seller an answer. Added to the The Tabberone Trademark & Copyright Abusers' Hall of Shame on April 26, 2008.

L'Oreal Corp for their product Pureology and whack job Nancy Mullins, L'Oreal Investigator. L'Oreal doesn't want their products sold anywhere except at "authorized salons" and has invented a term, "diversion" to back their unethical and immoral approach to intimidation. Added to the The Tabberone Trademark & Copyright Abusers' Hall of Shame on February 4, 2009.

Merle Norman Cosmetics our personal favorites, who, through their perjurous attorney, Jennifer McGrath of Kinsella Weitzman Iser Kump & Aldisert LLP, of Santa Monica, California, claim that reselling unopened and unexpired Merle Norman Cosmetics violates FDA regulations and eBay's Drug and Drug Paraphernalia Policy. Added to the The Tabberone Trademark & Copyright Abusers' Hall of Shame on April 27, 2007.

Ojon Corp. The "people of beautiful hair" and a shitty attitude. These people don't want their fine products being sold on eBay. eBay is beneath their dignity. Cheryl Stewart, who appears to have been sniffing one of the conditioners, stated:, "We are only available in high class salons and retail locations. We do not want our products being bought or auctioned on ebay. " makes us want to run right out and buy some today.

Prive Products, and Laurent Dufourg the sanctimonious fop who owns Prive. Seems Prive simply does not allow their products to be sold on the internet and their jerk CEO Jacqueline Applebaum isn't above lying about the consequences of crossing Prive. Added to the The Tabberone Trademark & Copyright Abusers' Hall of Shame on February 4, 2009.

SalonQuest and Aquage, and its President, Dennis Lubin, and their Cyber Cop, Security Essentials and its pea-brained representative, Patricia L. Urban, and a cast of thousands of other idiots. Patricia Urban, who must have made the class clown seem intelligent, says that just taking a picture of the product is infringing on their copyright. Except copyright law specifically states otherwise. Added to the The Tabberone Trademark & Copyright Abusers' Hall of Shame on June 29, 2007.

Urban Nutrition for Hydroxatone, and their Cyber Cop, OpSec Security, claiming the authentic product was a "counterfeit or unauthorized replica" when it wasn't. Liar, lair, pants on fire? Added to the The Tabberone Trademark & Copyright Abusers' Hall of Shame on February 4, 2009.

Rebuttals
In an effort to provide a balanced view, we make the following offer to anyone who feels they have been wrongly accused on this web site.
If you, or your company, have been referenced on these pages, and you would like the chance to post a rebuttal, we will post your rebuttal (provided it is in good taste) so others can read it. The rebuttal must be submitted in a format that can easily be converted into HTML. We reserve the right to alter the rebuttal to make it more readable. However, we will not alter the content (unless there is offensive material to be removed). We also reserve the right to comment on any rebuttal received. Emails protesting the content of this web site may be treated as rebuttals by us at our discretion.

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