## Facts

- Cosmetically Sealed Industries, Inc. (CSI) sold cosmetic products, including a lip gloss marketed under the registered trademark “SEALED WITH A KISS” and a registered trade dress featuring bright red lips.
- CSI promoted the gloss as making lipstick “smear proof,” “smudge proof,” and “kiss proof,” and used “Sealed” in names for other products.
- Chesebrough-Pond’s USA Co. and its licensee marketed CUTEX products and introduced “CUTEX COLOR SPLASH” lipstick.
- Chesebrough used a countertop display with trial-size lipsticks and postcards inviting consumers to apply a lipstick imprint to a postcard and mail it.
- The display included a single use of the phrase “Seal it with a Kiss!” in relatively small script near the postcard area and also featured prominent CUTEX and COLOR SPLASH branding in large block letters.
- CSI sued under the Lanham Act for trademark infringement and unfair competition, seeking to enjoin Chesebrough’s use of “Seal it with a Kiss.”
- The district court granted summary judgment for Chesebrough on the ground that the phrase was classic fair use; CSI appealed.

## Issues

1. Whether Chesebrough’s use of “Seal it with a Kiss” on a lipstick promotional display was “otherwise than as a mark,” descriptive of the promotion, and made fairly and in good faith under the Lanham Act’s classic fair use defense.
2. Whether summary judgment was proper where the manner and context of the challenged use were undisputed.

## Decision

- The Second Circuit affirmed summary judgment for Chesebrough and dismissal of CSI’s Lanham Act claims.
- The court held the phrase was used in a descriptive, promotional sense—encouraging consumers to “seal” a postcard with a lipstick “kiss”—rather than as a source identifier.
- Prominent display of CUTEX and COLOR SPLASH supported the conclusion that Chesebrough was using its own marks, not attempting to designate source with the disputed phrase.
- The record showed no triable issue of bad faith.
- The court stated that classic fair use may apply even if some consumer confusion could be shown.

## Legal Principles

- Classic fair use under 15 U.S.C. § 1115(b)(4) protects use of a term “otherwise than as a mark,” used descriptively to describe the user’s goods or their characteristics, and used fairly and in good faith.
- Whether a phrase functions as a mark turns heavily on context, including relative prominence, placement, and the presence of clear source-identifying marks.
- A defendant invoking classic fair use is not required to prove complete absence of consumer confusion; some confusion can coexist with fair use.
- Summary judgment is appropriate on fair use when the relevant facts about the challenged use (appearance, placement, and context) are undisputed and establish non-trademark descriptive use in good faith as a matter of law.

## Conclusion

The court held that “Seal it with a Kiss” on Chesebrough’s CUTEX COLOR SPLASH display was a descriptive instruction tied to the postcard promotion, not a source identifier, and—absent evidence of bad faith—qualified for classic fair use, warranting summary judgment for Chesebrough.


Cosmetically Sealed Indus., Inc. v. Chesebrough-Pond's USA Co., 125 F.3d 28 (2d Cir. 1997)