## Facts

- Hard Candy, LLC owned a federally registered HARD CANDY trademark for cosmetics and licensed the mark for cosmetics sales, including through major retailers.
- Anastasia Beverly Hills, Inc. released a limited-edition highlighting palette branded as the “Gleam Glow Kit,” with multiple shade names.
- One shade in the palette was labeled “Hard Candy,” appearing as a shade identifier in the palette and on packaging listing shade names.
- A product developer selected the shade name “Hard Candy” because the shade’s shimmer reminded her of candy.
- Hard Candy sent a cease-and-desist letter; negotiations failed; Anastasia continued selling the palette.
- Hard Candy sued under the Lanham Act seeking injunctive relief, an accounting and disgorgement of Anastasia’s profits, declaratory relief, and attorney’s fees and costs, but did not seek actual damages.
- The district court denied a jury trial, held a bench trial, found no likelihood of confusion, and held Anastasia proved classic descriptive fair use.

## Issues

1. Whether the Seventh Amendment requires a jury trial when a Lanham Act plaintiff seeks an accounting and disgorgement of the defendant’s profits, but not actual damages.
2. Whether using “Hard Candy” as a shade name in the Gleam Glow Kit created a likelihood of consumer confusion with the HARD CANDY trademark.
3. Whether the “Hard Candy” shade name qualified as descriptive fair use under the Lanham Act.

## Decision

- The Eleventh Circuit affirmed the judgment for Anastasia in full.
- The court held there was no Seventh Amendment right to a jury trial because disgorgement/accounting of profits for trademark infringement is an equitable remedy, and Hard Candy sought only equitable relief (including profits) rather than actual damages.
- The court affirmed the finding of no likelihood of confusion, emphasizing the context of use as a shade name within an Anastasia-branded product and the lack of evidence of actual consumer confusion.
- The court affirmed that Anastasia established descriptive fair use because it used “Hard Candy” other than as a mark, descriptively and in good faith, to describe a quality of the shade.

## Legal Principles

- The Seventh Amendment jury-trial right turns on whether the claim and remedy are legal or equitable; an accounting and disgorgement of profits for trademark infringement is historically equitable.
- A plaintiff does not obtain a jury right by labeling profits as a “proxy” for damages when the relief sought is still equitable and actual damages are not claimed.
- Lanham Act infringement requires a likelihood of consumer confusion; use of a term as a non-source-identifying descriptor in a clearly branded product context may support a finding of no confusion.
- Classic descriptive fair use protects use of a term (1) other than as a mark, (2) descriptively and in good faith, (3) to describe the defendant’s goods or their qualities.

## Conclusion

The Eleventh Circuit held that a Lanham Act plaintiff seeking only an accounting and disgorgement of profits and other equitable relief has no Seventh Amendment right to a jury trial, and it affirmed judgment for the defendant because the challenged term functioned as a shade descriptor, did not create a likelihood of confusion, and was protected by descriptive fair use.


Hard Candy, LLC v. Anastasia Beverly Hills, Inc., 921 F.3d 1343 (11th Cir. 2019)