It’s Personal: Yummie Tries Shaming Spanx

The Spanx vs. Yummie Tummie dispute over shapewear design infringements continues. And Yummie’s Heather Thomson is making it personal as she tries shaming Spanx founder Sara Blakely in public.

Yesterday she wrote BODY saying, “Now that Spanx has filed the lawsuit, Yummie Tummie plans to vigorously assert our patents as we have in the past.” And on March 14 she posted an open letter to Sara Blakely on the Yummielife.com web site, summarizing the dispute, expressing disappointment “in you and Spanx,” promising that “Yummie Tummie will not just endure through this lawsuit, we will prevail,“ and closing with the comment, “Sara, I truly expected more of you as a fellow entrepreneur.”

The letter appeared with the hashtag #shameonyouspanx.

Thomson’s open letter and an account of the dispute contained in the lawsuit filed March 5th by Spanx attorneys, make it clear that Yummie was hoping it could quietly and privately get Spanx (among other things) to stop making and selling certain styles of shaping garments, including (according to the Spanx filing) “The Total Taming Tank A226764, also known as The Spanx Total Taming Tank, the Top This Tank, Style 1847 and The Top This Cami, Style 1846.” According to Spanx, Yummie sent the request, along with copies of her patents, to Spanx in mid January.

According to the Spanx filing “Yummie Tummie (through counsel) contacted Spanx by letter, informing Spanx that Yummie Tummie is the owner of the Patents-in-Suit, enclosing a copy of the Patents-in-Suit, and stating that “Spanx is making, offering for sale and selling shapewear products … in the United States that contain Yummie’s patented designs” and that the Spanx products “appear substantially the same as the patented designs from the point of view of an ordinary observer, thereby, constituting design patent infringement.”

The filing also noted that, “On or about February 14, 2013, Spanx (through counsel) responded to Yummie Tummie’s January 18, 2013 letter, describing in detail significant differences between the Accused Products and the Patents-in-Suit and stating, among other things, that it does not believe the Accused Products infringe the Patents-in-Suit.”

There followed discussions between attorneys for both sides which did not reach a resolution.

Spanx followed up with the lawsuit in early March asking the court for three things: “A. For a judicial declaration that Spanx does not infringe any valid claim of U.S. Design Patent Nos. D606,285S, D616,627S, D632,051S, D632,052S, D632,053S, D622,477S, and D623,377S; and B. For an order awarding Spanx its costs, expenses, and reasonable attorneys’ fees as provided by law; and C. For such other and further relief as the Court deems just and proper.”

Two of the style numbers specifically mentioned in the lawsuit, 1846 “Top This Cami” and 1847 “Top This Tank” continued to be offered on the Spanx.com web site as of March 19, both with the further description, “ASSETS Red Hot Label” and both with the same retail price range, $42 to $44. The third style mentioned by name in the suit did not appear to be listed on the site.

Of course the potential for a multi-million outcome is heightened by the fact that in 2011, Times Three Clothier, LLC, owner of the Yummie Tummie brand, received a payment of $6.75 million from Maidenform that settled a legal dispute over patent infringements of its shapewear. Indeed, in the Spanx lawsuit its attorney’s noted that Yummie, in its communications, “referenced patent infringement litigation it recently settled with Maidenform,”

In her note to BODY, Thomson confirmed, “Yummie Tummie owns 11 patents based on my original tank top designs. When we discovered that Spanx was selling tank tops that are similar to our patented designs, we sent them a letter in the hopes of resolving the issue privately. It was made public when Spanx filed a lawsuit asking a court to find that their tops do not infringe our patents.”

In her March 14 open letter to Blakely, which appeared for all to read when they arrived at the home page of Yummielife.com, Thomson declared, “You are knocking off my original tank top, which I invented over 5 years ago to launch the Yummie Tummie brand.” She continued, “Until now I have had only the utmost respect for the growth of your Spanx business. Unfortunately, rather than showing me the same respect, you and Spanx have deliberately and willfully infringed on my patented inventions. We brought this to your attention expecting you to stop. Instead you’ve chosen to sue us, no doubt thinking your massive company could intimidate ours. We have successfully enforced our design patents in the past and will continue to do so. I am very proud of our success at Yummie Tummie built through innovative designs and a business run with great integrity. We will not allow Spanx to bully us and to profit from our patent protected inventions.”

BODY’s request for additional comment from Spanx were not answered as we went to press. One of Spanx’s attorneys, Natasha H. Moffitt, who had been asked about the next legal moves from the company, sent the following e-mail message: “As a matter of policy, we do not comment on client matters involving active litigation. Beyond that statement, I cannot provide any additional information.”