In addition, the Sally Beauty website contained a search engine in which a consumer could type in a product name to find out whether it was sold by Sally Beauty. It was programmed in such a way that when a consumer typed in "mixed chicks," the only results it returned were the Sally Beauty "mixed silk" product line.
The effect, Parker said, was to deceive and confuse the public. In March 2011, Mixed Chicks sued [PDF], alleging Sally Beauty "intentionally, knowingly, and willfully" infringed the Mixed Chicks trademark and trade dress.
Trademark and trade dress suits often don't go to trial, as the parties typically choose to settle. But Etheredge and Levy weren't satisfied with Sally Beauty's offers, and the large retailer continued to sell the products they were convinced infringed. So after an almost two-year battle, the case went before a jury.
During the nine-day trial, Sally Beauty testified that similarities were coincidental. (Sally Beauty's attorneys, Jonathan Gordon and Casondra Ruga of Alston & Bird, could not be reached for comment.) The jury didn't buy it. After deliberating for six hours, the jury decided that Mixed Chicks had suffered $839,535 in actual damages, and found that Sally Beauty had acted willfully and with malice, oppression, or fraud, resulting in a punitive damages award of $7.27 million.
The disposition of the case was finalized last week. "Others will enter the market, but we're not afraid of competition—as long as it's fair competition," Etheredge said. "We knew we were in the right, and we're happy we can now move forward."
Lisa Shuchman writes for Corporate Counsel, an affiliate of the Daily Report.
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