Tarte vs. Basma: The "Big Stick Energy" Controversy and What It Teaches Us About Trademarks
In the beauty industry, branding is everything. A catchy slogan or a unique product name can define a brand's identity and make a campaign go viral. However, as the recent controversy between Tarte Cosmetics and Basma Beauty over the phrase "Big Stick Energy" shows, failing to protect branding elements with trademarks can lead to disputes.
This situation serves as a key reminder of an essential business principle:
"If it's worth promoting, it's worth protecting®."
The Controversy: What Happened?
Basma Beauty, an independent beauty brand founded by makeup artist Basma Hameed, has been using the phrase "Big Stick Energy" in its branding and marketing since at least September 2024. The phrase aligns with the brand's stick foundation, offering a clever and empowering play on the viral internet phrase "Big D* Energy" (BDE).
However, in early 2025, Tarte Cosmetics, a well-established beauty brand, launched a marketing campaign using the exact same phrase—"Big Stick Energy."
Basma Beauty took to TikTok and other social media platforms to call out Tarte, accusing them of appropriating their campaign slogan without credit or permission. In a now-viral TikTok post, Basma Beauty expressed their frustration over seeing their marketing efforts overshadowed by a much larger competitor.
Tarte's Trademark Filings & Legal Moves
New evidence now shows that Tarte Cosmetics has actively moved to trademark "Big Stick Energy"—filing three separate trademark applications in January and February 2025 for different product categories:
Class 003 – Covering cosmetics and non-medicated skincare preparations.
Class 035 – Covering online retail store services featuring cosmetics and skincare.
Class 021 – Covering cosmetic brushes.
Each of these trademarks is currently LIVE and PENDING with the USPTO, meaning that Tarte is attempting to secure exclusive commercial rights over "Big Stick Energy" across multiple categories of beauty products.
These filings indicate that Tarte is not just using the phrase in marketing—it is actively working to own it.
This raises serious implications for Basma Beauty, which has been using the phrase long before Tarte filed these applications. This brings us to the topic of common law trademarks.
The Role of Common Law Trademarks: Why It's Not Enough
In the U.S., in theory, businesses don't need a Federally registered trademark to have some level of legal protection. A business may be said to have Common law trademarks when the business's brand names, slogans, or logos become widely known to its target audience.
So, again, in theory, Basma Beauty can argue that it has a common law trademark over "Big Stick Energy" because it has been using the phrase in connection with its products before Tarte.
However, there are major challenges with relying on common law trademarks:
1. It Takes Years and Money to Defend a Common Law Trademark
Unlike registered trademarks, which are immediately recognized by the U.S. Patent and Trademark Office (USPTO) and which create a legal presumption of ownership and validity, common law trademarks require a lengthy legal process to prove ownership. It can take years of litigation before a company can successfully enforce its rights.
Filing a lawsuit to defend a common law trademark costs tens, and often hundreds, of thousands of dollars in legal fees. A small brand like Basma Beauty would have to spend significant resources proving that it was the first to use "Big Stick Energy" in commerce.
2. The Issue Isn't Just Who Came Up With It First—It's Who Reached a Broader Audience
Common law trademarks are not just about who used a phrase first—they are about who reached a larger audience and became associated with the phrase in the public's mind.
Even if Basma Beauty used "Big Stick Energy" first, Tarte, as a larger and more widely recognized brand, could argue that consumers associate the phrase with them instead. This is a major risk with common law trademarks because:
If Tarte's campaign reached more consumers, it could weaken Basma Beauty's claim, making it harder to prove that they hold the rightful trademark rights.
Trademark law prioritizes brand recognition and market reach over just being the first to use a phrase—meaning that Basma could still lose the battle, even if they were the original creators.
A court can always find that Basma's marketing reach by the time Tarte started using the same phrase was too limited for Basma to have a legally recognized monopoly over it.
3. Geographic Limitations
Common law trademarks only apply where the brand has already established market recognition. If Basma Beauty has only sold products in limited areas, its trademark rights may not be enforceable nationwide.
4. Burden of Proof Is on the Brand
Unlike registered trademarks, which have clear legal standing, common law trademarks require proof of prior use—such as advertising, sales records, and customer recognition. Without strong documentation, enforcement becomes nearly impossible.
Oh, and you have to prove it every time you try to rely on your common-law trademarks.
5. No Automatic Protection
Cease-and-desist letters based on infringement of a federally registered trademark are typically complied with, at least partially, which significantly reduces the risk of litigation.
Conversely, cease-and-desist letters based on infringement of a common-law trademark are typically ignored for a very simple reason — if the brand owner hadn't bothered to invest a little bit of money to register a trademark, what are the odds they will spend 100 times that amount on litigation with uncertain results!
It means that with a common law trademark, enforcement is far more difficult and time-consuming.
The Bottom Line?
While common law trademarks can provide some level of protection, they are not a substitute for formal trademark registration. If Basma Beauty had registered "Big Stick Energy," their case against Tarte would have been much stronger and easier to enforce.
Lessons in Trademark Protection
The Tarte vs. Basma situation is a wake-up call for small businesses, indie brands, and entrepreneurs. Here are key takeaways:
1. Trademark Early & Proactively
If a slogan, logo, or brand name is central to marketing, secure a federal trademark before heavily investing in it.
The trademark registration process takes over a year in the U.S. But you're not required to wait for the registration to be complete before you can start promoting your brand. Once your application is properly filed, you have your foot in the door.
2. Common Law Trademarks Are a Weak Defense
While common law trademarks offer some protection, they take years to defend, cost massive legal fees, and can still result in a loss if the other party reaches a broader audience.
3. Big Brands Will Borrow from Smaller Ones
Larger companies often monitor indie brands for emerging trends and may adopt successful marketing ideas. A trademark helps prevent unauthorized use.
A great example is Shawne Merriman who trademarked his brand "Lights Out" and was able to successfully go after both Nike and Under Armour, who used it without permission.
4. Social Media Backlash Can Be Powerful, But It's Not a Legal Defense
While public pressure can force brands to backtrack, it does not guarantee a resolution.Legal protection is the only true safeguard.
5. If It's Worth Promoting, It's Worth Protecting®
A brand should not wait until a dispute arises to secure legal protection—by then, it may be too late.
Conclusion
The Tarte vs. Basma Beauty case isn't just about a catchy phrase—it's a lesson in intellectual property, branding strategy, and ethical business practices.
For brands looking to protect their identity, the key takeaway is clear:
