A California state judge sent counsel for Brooke Shields back to the drawing board in a fight over an interestingly-named eyebrow pencil. In the case that Shields filed in May, the famed actress and longtime model accused British beauty brand Charlotte Tilbury of running afoul of her right of publicity and “interfering with [her] ability to market a cosmetics line” by naming a specific shade of a $30 eyebrow pencil “Brooke S.” The star’s counsel also named retailers Beautylish, Bergdorf Goodman, Bloomingdale’s, J.C. Penney, Neiman Marcus, Nordstrom, Sephora and Yoox Net-a-Porter as defendants for stocking the eyebrow-raising product.
The problem with Shields’ case, according to the motion to strike that the defendants filed in June and a subsequent decision from Los Angeles Superior Court Judge Yolanda Orozco? The complaint fails to sufficiently show that Shields is actually entitled to the punitive damages she is seeking in addition to monetary damages in an amount to be proven at trial for the “actual damages” that Shields has suffered as a result of the defendants acts.
Shields’ claim for punitive damages is “untethered to sufficient factual allegations,” and instead, relies on “unsupported boilerplate legal conclusions,” the defendants asserted in their June 24 motion to strike. This is particularly true, they allege, in regards to shields’ “generic and unsubstantiated assertion of ‘fraud.’” The motion goes on to request that the court “strike these allegations from [Shields’] complaint, and allow the parties to focus on the substantive claims without needless exaggeration.”
As first reported by Law360, Judge Orozco sided with the defendants on Tuesday, holding that because Shields failed to name any individuals as defendants, she could not seek punitive damages, which require a showing of specific examples of “advance knowledge [of the probable harmful consequences of the corporate defendant’s wrongful act] and conscious disregard, authorization, ratification or act of oppression … on the part of an officer, director, or managing agent of the corporation” from which the damages are being sought.
Tuesday’s ruling is not a total loss for Shields, as Judge Orozco has permitted the star’s counsel to amend the complaint in order to attempt to sufficiently make a claim for punitive damages, which are limited by California state law to cases involving “oppression, fraud, or malice.”
According to Shields’ complaint, Tilbury’s use of her first name and last initial on an eyebrow pencil is an issue, as “from the beginning of her career” – including her early days in Vogue and in Calvin Klein commercials to her film roles, such as in Louis Malle’s Pretty Baby – Shields’ “bold eyebrows have been the trademark of her look and a target for endorsements and collaborations.” In fact, Shields’ counsel alleges that her “eyebrows have been the subject of profiles in media such as Instyle, Elle and Vogue, who even ran a story entitled, 17 Times Brooke Shields’s Eyebrows Were the Best Thing in the Room.”
Such use by the beauty brand is particularly problematic since 53-year old Shields claims that since working with MAC in 2014 as part of “the largest installment to date in MAC’s Icon collection celebrating well-known beauty icons including Shields, Diana Ross, Catherine Deneuve, and Raquel Welch,” she has been “investigating and developing potential opportunities to create her own cosmetics line with an emphasis on eyebrow-enhancing products,” and as a result, avoiding putting her name on any third-party beauty products.
*The case is Brooke Shields v. CHARLOTTE TILBURY BEAUTY INC., et al., 19STCV16029 (Cal. Sup).
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