When it comes big beauty, there might not be any player bigger than L'Oreal. But after the recent Federal Circuit Court of Appeals decision against the goliath in favor of Olaplex, a new entrant into the hair product market, it could be poised to fell the giant (at least in the hair "bond-builders" market).
Olaplex created and patented a new product designed to enhance the hair coloring process. According to Olaplex, other manufacturers of hair products have tried to categorize their product as a "bond-builder," but as company founder and CEO Dean Christal claims, Olaplex is in a category all on its own and "could change the world by making women more confident with amazing damage free hair during and after chemical services."
Is Litigating Semantics Worth It?
Arguably, the wording of the patent held by Olaplex left some room for L'Oreal to basically try to copy Olaplex's highly sought after product. Because Olaplex's patent explains that the formula should not contain "hair coloring agents" and L'Oreal included "hair coloring agents" in their alleged copies, the federal district court found that Olaplex could not satisfy the "likelihood of success" requirement to get a preliminary injunction stopping L'Oreal from selling their alleged copies.
Interestingly, although L'Oreal's product contained a "hair coloring agent," it did so in such low concentrations as to be completely ineffective. This begs the question of whether the inclusion of the hair coloring agent wasn't done for the express purpose to get around the patent. But even if so, language in the patent defining the phrase "hair coloring agent" explained that it must have the effect of coloring the hair, and as explained above, L'Oreal's concentration of it wouldn't accomplish that purpose.
Unfortunately for Olaplex, the appellate court could only vacate the denial and remand back to the district court for reconsideration.