Blake it til you make it: a beauty brand trademark showdown

Blake Lively is suing an entrepreneur at the Trademark Trial and Appeal Board over the right to use the name BLAKE in connection with various hair care and cosmetic items. Lively, whose real last name is Brown, filed two US trademark applications in April 2024 and August 2024 for the word mark BLAKE BROWN and BLAKE BROWN & Design on an intent-to-use basis for a plethora of hair care and cosmetic items in Class 3. The Utah entrepreneur filed an intent-to-use application in September 2024 for the mark BEAUTY BY BLAKE for “cosmetic oils; serums for cosmetic purposes.” It’s worth noting that the USPTO did not issue any substantive refusal of registration against the later-filed BEAUTY BY BLAKE application; however, when the application was published, Lively’s legal team first filed an extension of time to oppose and then filed a Notice of Opposition. It’s not clear if they sent a demand letter to her before filing the current opposition.

Lively’s legal team makes these claims in the opposition: that “members of the public will perceive [the BEAUTY BY BLAKE mark to be] in close proximity with the BLAKE BROWN mark and mistakenly assume that Applicant’s Mark emanates from [Lively’ company]. Really? Are you confused? I’m not. They go on to say that the marks so resemble each other that “purchasers likely will assume” that Lively’s company is “somehow affiliated with, licenses or endorses” the Utah entrepreneur’s mark. I looked at Lively’s website, which, in the complaint, her team alleges was “promoting” the application’s goods before they filed their application, and I was not able to corroborate this fact. It’s possible they were “promoting” their goods in some other way. For the record, promoting goods and selling them in commerce are two very different things. Lively’s name and image is all over the website. How in the world could a consumer be confused, especially if she is the face of the brand?

In my opinion, I don’t think there is any likely confusion. Before this case hit the news, did anyone know that Lively’s given surname was Brown? I certainly didn’t. If Lively’s hair care line was branded with her stage name, e.g., BLAKE LIVELY, I would be a bit more sympathetic to her case. I still think she would have had an uphill battle proving her case, but it’s worth noting that “Brown” is the fourth most common surname in the US, which may explain why she doesn’t use that name professionally. More than 1.4 million people have the surname “Brown.” While we don’t know the exact number of Americans who have the first name BLAKE, it is a unisex name, and reports show that in the past five years, the first name BLAKE has ranked among the top 250 first names in the US. Despite the claims in the opposition, this case, in my mind, essentially boils down to the claim that Lively wants exclusive rights to use the name BLAKE in connection with hair care and cosmetic goods.

The Utah entrepreneur decided to hire a lawyer, and her legal team filed their answer last week, noting that there is no confusion in this case and that, in fact, there are a handful of other BLAKE–formative marks being used in connection with hair care and cosmetic items and/or related goods and services. I found a couple more that her legal team did not identify in their answer, and they all predate Lively’s application. One registration has already reached incontestable status.

Where does this leave us? I don’t have that answer today. I’m certain Lively’s legal team did not expect the Utah entrepreneur to hire a lawyer to defend her mark, her business, and this case. I’m not sure this case will go the distance, but in my opinion, there’s room for two more BLAKE–formative marks in the hair care and cosmetics space. Discovery opens in mid-August. Hopefully, the parties will reach a settlement, but that will largely be up to Lively’s legal team. Litigation is hardly ever the answer, especially on these facts. But, sometimes, vastly outspending one party can be an effective strategy.

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