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Like Beauty, These Knockoffs are Only Skin Deep

The Italian word for makeup, "trucco," is the same as the word for trick -- a linguistic connection that always makes putting on foundation, etc. seem cleverly subversive.  The thing is, I prefer to think of a consumer choosing to create an illusion, not being fooled.

A range of new mass market beauty products, however, are imitating more expensive versions sold only at department and specialty stores, essentially free riding on the goodwill generated by the originals.  Compare Hylexin (left) with Nulexin (right).  Obviously, the packaging is similar, with inverse use of the same colors.  On their respective websites, both claim to be "the first product specifically developed to reduce the appearance of serious dark circles" under the eyes.  The marketing for both versions recalls pharmaceutical ads, with identical information about "clinical trials," but without ever actually naming the "functional compound" used in the product.  Both prominently feature the names of their parent laboratories, Bremmen Resarch Labs for Hylexin and Generix Laboratories for Nulexin.  And there's the twist:  the slogan for Generix is "Providing Affordable, Generic Versions of the World's Most Popular Formulations."  Oh, and the other difference?  $95 for Hylexin v. $39.99 for Nulexin.

Can Nulexin get away with copying Hylexin like that?  Well, the question, like so much of trademark and trade dress law, rests on whether the product creates "consumer confusion."  And that can be a tough call.  True, the boxes look alike, but Nulexin makes a point of proclaiming, "Same dark circle ingredients as Hylexin!"  So the design is clearly intended to make the consumer recall Hylexin, but with a disclaimer.

But wait, why can Nulexin use Hylexin's name, given that Hylexin claims trademark protection?   Under U.S. law, a series of cases dating back almost a century to Saxlehner v. Wagner, 216 U.S. 375 (1910), allows a trade name or trademark to be used for purposes of comparison with a competing product.  Copied perfumes have been notorious in this regard.  "If you like [insert Brand Name here], you'll love [Knockoff Name]!"

What about other intellectual property protections?  Isn't there a copyright problem with the identical language on the websites? That might be Hylexin's best argument against Nulexin, even though there are only a limited number of ways to express the same facts, but it won't keep Nulexin off the shelves.  As for patent, it's not clear that Bremmen has applied for one on their "functional compound"; they're certainly not announcing it if they have. 

So "lex" (right, Latin for "law") plays little role in the Hylexin v. Nulexin battle.  Consumers hoping to fight dark circles just have to keep their eyes open.

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Comments

Susan, it may be on my computer screen only, but the depiction of the NULEXIN box is blocking the paragraph which precedes " . . . more expensive versions sold only at . . ." I am loathe to forego any part of your excellent column, so I thought I'd bring it to your attention.

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