We've been in business for the better part of 10 years. Throughout that time, our company has grown, and more impressively, so has our line of fragrance options. A large portion of the fragrances that we offer are inspired by scents offered by larger companies such as Yankee Candle, Bath & Body Works... and Scentsy.
Recently, we started running into issues when it comes to this line of fragrances. Through our Etsy Shop, we've had all Scentsy listings removed citing copyright or trademark infringement. Unfortunately with Etsy, there is no way to respond to these claims. So, we are out the time taken to list these products for sale, as well as, the cost to place them on the Etsy platform.
Where we feel we are right on the law, we never claimed that these fragrances or their associated products are genuine that these other companies sell. We clearly state the following on all of our Betta Than™ fragrance products:
FRAGRANCE DISCLAIMER
Our Betta Than™ Fragrances are specially formulated to duplicate the scents and aromas of well-known name brand products. You can enjoy these great scents that you love with the excellent quality that you should expect, without the huge price tag all year. All fragrance and brand names (Yankee Candle®, Bath & Body Works®, Scentsy®, National Brands, et al) are trademarks (® Registered or Otherwise ™) of their prospective companies/brands. OverSoyed (A Privia Group Company) is not affiliated with these companies and should not be confused for these brands. Betta Than™ is a trademark of OverSoyed.
Furthermore, there are no such things as blanket trademarks. In order for a company to claim ownership to a trademark, it must be registered for each and every trade class in which they sell products. For example, Yankee can't claim a trademark for another company that sells "Yankee Christmas Trees."
The main issue when it comes to trademarks is confusion for the original. As with Scentsy, yes, we both make wax melts, but ours are made from 100% soy, where theirs are made from paraffin. Our aroma melts come in 6 piece clamshell, where theirs is in a bell shaped container (which would fall under Trade Dress or packaging). And most importantly, we don't use their logo as many other companies on Etsy do, which is in clear violation of trademark law.
Our comparisons are valid under the law. You can use someone else's trademark or trade name to favorably compare your product to theirs as a proper "nominative fair use," provided you include prominent disclaimer that says that your product isn't affiliated with the brand name, and that the brand name is a trademark owned by that company... which we clearly have always done.
Our Betta Than™ fragrance line totally falls under comparative advertising practices. Betta Than™ or "Better Than" would also fall under the legal distinction of "puffery." We feel, as do our customers, that our Betta Than™ fragrances are in many cases better than their originals due to their handmade nature, soy and natural ingredients, and lower price.
Citing similar case law, in Pizza Hut, Inc. v. Papa John's Intern., 80 F. Supp. 2d 600 (N.D. Tex. 2000), the Fifth Circuit concluded that in addition to the “exaggerated, blustering and boasting” definition established by the Third and Ninth Circuits, puffery could best be described as “a general claim of superiority over comparable products that is so vague that it can be understood as nothing more than a mere expression of opinion.” Papa John’s claim, “Better Ingredients. Better Pizza” was found to have epitomized the very type of boasting and exaggeration that companies are almost expected to advance while marketing their products.
Under U.S. law, use of a competitor's trademark in accurate and non-deceptive comparative advertising is legal and does not constitute trademark infringement. In fact, truthful comparative advertisements - even those that display a competitor's trademark, are considered to be informational for consumers and beneficial to competition, provided that the competitor's mark is accurately depicted.