How Big Brands Bully Newcomers Out of Their Trademarks

This article is about the common practice of large, wealthy brands bullying newcomers and small players out of their perfectly allowable trademarks through the Opposition process in the United States Patent and Trademark Office (“USPTO”) Trademark Trial and Appeal Board (“TTAB”). I am working on just such a case in which The Body Shop alleges that my client Ash Bay Soap Co’s logo is confusingly similar to their logo(s), dilutes their mark and creates a false association between The Body Shop and Ash Bay Soap Co.. Even a cursory examination of each of the trademarks in question reveals the tenuous and near groundless arguments supporting The Body Shop’s claims. Yet this is common practice in the trademark world and the senior trademark owner almost always wins. It all comes down to money. Big brands pay big law firms big legal fees to file these oppositions while the smaller player rarely has the funds to pay attorneys to fight back.

The image above shows one of the Body Shop logos in the subject Opposition next to the Ash Bay Soap Co logo in question.

I will leave a more in depth analysis of the specific likelihood of confusion factors for another post, but in the critical similarity of the marks factor, it’s clear that there is very little, if any similarity. It’s hard to believe that anyone would claim that a consumer would be confused into thinking that goods marked with the Ash Bay Soap Co. logo actually came from The Body Shop. Keep in mind that The Body Shop did not oppose the word mark for Ash Bay Soap Co., just the logo. Also, during examination, the USPTO saw no potential likelihood of confusion between these two logos. This is clearly an attempt by a large multinational brand to bully a small business out of their mark on very shaky legal grounds.

Normally in these circumstances, I might advise a client to abandon their current logo mark and to adopt a new one. That route, especially for a new business, is often much less expensive, onerous and uncertain than defending an opposition. In this case, I went a different way. In the best of circumstances, The Body Shop’s behavior is troublesome, but in the midst of a global pandemic, with many of their stores certainly closed and employees furloughed, they’ve chosen to spend significant dollars trying to scare my client off from using her logo trademark. Sometimes decisions need to be made not just solely on economic grounds, but based on what’s right. We’re going to fight this opposition both in the TTAB and on social media. If you are reading this article and disagree with The Body Shop’s behavior, be sure to let them know on Twitter, Instagram (both @thebodyshop), Facebook, LinkedIn and even email. I’ll continue to bring you updates on the case as I have them.