For the past 2 months, we've been having a back and forth with L Brands corporate counsel, both internal and outside, representing Bath & Body Works. Their contention was that our Betta Than Fragrance Line violated their "trademarks" as well as created an "unfair competition" in our advertising practices.
After much research and speaking with those specializing in Intellectual Property, we are making the voluntary decision to remove all mention of Bath & Body Works comparisons, as well as all other national and international brands from our website to remove any appearance of impropriety. Fragrances will be rebranded at a later date without mention of any names/similarities to well-known brands. All removals of available products from our website should be complete by June 30, 2020.
While those we’ve spoken to have stated that we appear to be in line with current precedent and recommendations for advertising, the cost of defending such action for a company of our size isn’t logical. Legal expenses aside, we’re tired of dealing with nonsense like this, when at the end of the day, sale of any product currently or in the past hasn’t benefited our company from a financial standpoint.
We do sympathize with Bath & Body Works, though. Running a business is extremely difficult. While we can’t say we understand what it’s like to run a billion dollar corporation, we know that the struggle is real. Small businesses on Main Street are a thing of the past, thanks to big box stores. Now, big box store sales are declining because global titans like Amazon have shifted consumer buying habits.
We’re all changing, seems like daily due to the COVID-19 pandemic. (Kudos again for pursuing this during this time.) As if worrying about catching a deadly virus wasn’t enough, coupled with enormous breaks in the material supply chain, and husband working full-time at a local store to make ends meet, I’ve had the pleasure of spending hours researching case law and interpreting legal precedent.
But I think that’s the crux of this entire thing. Someone in a big office somewhere realized there are changes taking place. To quote Forbes, “Bath & Body Works, like its corporate sister Victoria’s Secret, seems to be stuck in the past. And if L Brands’ past behavior is a predictor of its future behavior, it will be slow to pick up the clues that its gravy train is running out of steam.” (Dec 11, 2019)
So in a last ditch effort before the inevitable bankruptcy, they are seeking the assistance and the resources of a California law firm (1,000+ employees, impressive), to get rid of all online competition. But while you might be able to swat away small companies like ours with threats of endless litigation, there will always be more of us out there. Whether or not we’re the company who stands up against a Goliath like Bath & Body Works is yet to be determined. And while I missed my calling as a litigator, I’d rather just sell my soap without the headaches. It would be interesting to see how a pro se defendant fairs against a high power California law firm in federal court. I know the posting of all this back and forth on our website surely is going to make for some interesting discussions.
Nevertheless, OverSoyed will continue to offer the best quality handcrafted made-to-order products in over 1,500 available fragrances, hopefully, for years to come!
For the full back and forth, please refer to the attached documents:
BBW Inside Counsel To OverSoyed - 04-10-2020
OverSoyed to BBW Inside Counsel - 04-20-2020
Bath & Body Works - Outside Counsel - Cooley to OverSoyed - 06-15-2020
