Yummie Tummie’s Heather Thomson Deserves A Spanx ‘ing by Sara Blakely

Many have asked us if we heard about Heather Thomson‘s case, Yummie Tummie [Times Three Clothier] vs Spanx  that subsequently turned into  Spanx vs Yummie Tummie, the answer is: YES. 

As  Tony at IpWatch stated;

Patent stories don’t normally make the evening news or the major outlets unless one of the antagonists is called Apple.

In this case, unless it involves and or your name is Heather Thomson keep on reading to find out why. 

Brief History Of The Case 

On or about in January 18, 2013, , Heather Thomson, the owner of Yummie Tummie [also known as Times Three Clothier]  sent a Cease and Desist to Spanx, founded by Sara Blakely, alleging Spanx, TotalTaming Cami, “Top This Cami”and “Top This Tank” infringed on her patents;

Patent: 606,285  Patent: 616,217 Patent: 622,477  Patent: 623,377  Patent: 632,053  

In the Cease and Desist, Yummie Tummie (through counsel) made it clear;

Yummie vigorously enforces the rights and patents

Yummie Tummie (through counsel) also mentioned;

As you may know, [Yummie] settled a patent infringement litigation with Maidenform paying Yummie $6.75 million dollars

Take a look at the Cease and Desist  for yourself; it’s only two pages 🙂

 

Cease by Yummie Tummie to Spanx

1:10-cv-01661-GBD-HBP Maidenform Brands, Inc. v. Times Three Clothier LLC

Before I continue, let’s talk about Yummie Tumie vs Maidenform 1:10-cv-01661-GBD.  Maidenform has been around since 1922,  they sell undergarments for men and woman among other accessories, you can read more about Maidenform on their Wiki Page here.   In 2010, Heather Thomson, Yummie Tummie aka Three Times Clothier argued that Maidenform‘s  slimming” tank tops and their “Fat Free Dressing Tanks”  infringed on Yummie Tummie’602,285  patent (same patent)  

Yes, Yummie Tummie and Maidenform had settled for $6.75 million.  I had an attorney look at the court documents and he  said it looks like Maidenform just settled because they would spend more money litigating the case.  The attorney also noted (verbatim) in the discussion I had with on the phone; 

 

  • Some documents in this case are sealed.  Usually cases like this all documents are open to the public, it could be one of the parties requested the documents to be sealed. 
  • While Maidenform  could not speak about the case or settlement, it’s interesting to see how Heather did. In other words, this is like saying, “I won, but not really, you can’t defend yourself”
  • Maidenform most likely agreed because they are not loud about issues and their name & reputation speak for themselves.  Cases like this happen daily, however, Heather is using this case to get her name out there.. it appears. ( 
  • It was not much of a victory because because both parties had to pay their own attorney fees.

 

Not only did Heather did talk about “winning” the case; Heather  posted an interview she had with Woman’s Wear Daily [WWD]  which is a restricted website for paid members only.  Heather was sure to post a copy for everyone to see, LOL! You can see a copy of  Heather’s ridiculous interview here. Also, Heather sent out Press Releases, here is an example below;

Yummie Tummie and Maidenform Settle Patent Infringement and Invalidity
                                   Lawsuits

PR Newswire NEW YORK, Aug. 10, 2011 NEW YORK, Aug. 10, 2011 /PRNewswire/ — Times Three Clothier, LLC, the owner of Yummie Tummie shapewear, announced today a settlement agreement with Maidenform of litigation in the Southern District of New York. The settlement ends patent infringement and invalidity lawsuits that the companies had filed against each other. In conjunction with the settlement, Maidenform has paid Yummie Tummie $6.75 million. Maidenform has agreed not to assist any third party that may seek to invalidate or render unenforceable the patents. Heather Thomson, the President of Times Three and the inventor of the Yummie Tummie three panel patented designs, stated that “We are delighted with this settlement and look forward to the continued growth and expansion of our innovative shapewear business based on our patented designs.” SOURCE Times Three Clothier, LLC click here to see original post at Bloomberg 

 

Take a look at Maidenform vs  Yummie Tummie Dismissal with Prejudice

A press release filed in August of 2011 also stated that Maidenform has agreed not to assist any third party that may seek to invalidate or render unenforceable the patents. Heather Thomson, the President of Times Three and the inventor of the Yummie Tummie three panel patented designs, stated that “We are delighted with this settlement and look forward to the continued growth and expansion of our innovative shapewear business based on our patented designs.

So, in Heather’s “victory” there is more than what meets the eye. If all documents were open then we could see what terms Maidenform agreed to.  We assume it was Heather Thomson of  Yummie Tummie aka Times Three Clothier that wanted the documents sealed.

Heather/ Yummie Tummie Brazenly Name Drops In Lawsuits

We mention this because; no where on Spanx  or  Maidenform documents do you see either defendant name dropping or saying, ‘We were featured on the Oprah Winfrey Show” evenRamona Singer on The Real Housewives of New York Season 1 said; “thank god for Spanx”

 

Yummie Name Dropping

 Heather called Maidenform‘s “knock offs” Really? A company that has been around since 1922?

Heather Calls Maidenform Knocks Offs that has been around since 1922

Heather Calls Maidenform Knocks Offs that has been around since 1922

 

Yummie Tummie and Maidenfiorn “tanks”

Yummie-Maiden-Tanks

I just wanted you to see the information about Yummie Tummie and Maidenform  lawsuit so you can see how Heather works then you can draw your own conclusion.

 Yummie Tummie vs Spanx which turned into Spanx  vs Yummie Tummie 

As I said above;  in the Cease and Desist, Yummie Tummie (through counsel) made it clear they enforce their patents etc. So, if you are a company that has been around since the 1990’s or 1920’s and  known as the “Shape-Wear Giant” in this situation

  • You have a new company that sends you a Cease and Desist and is accusing you of infringing their patents
  • You never heard of the company, so you respond with an extension to investigate further
  • When you finally respond; you tell them that you are not doing what they are accusing you of and the other side won’t give up?

You do what Spanx did:  Spanx turned around and filed  Motion for Judgement in Atlanta Ga — their territory.    Spanx is basically asking a judge to step in and decide whether they’ve infringed on any patents of Yummie Tummie’s. Spanx is also asking for Heather [Yummie Tummie, Times Three Clothier] to pay all their costs, expenses and attorneys’ fees should the judge decide in their favor.  It’s hard to not side with Spanx.  For one it gives Spanx the upper right hand because Spanx Headquarters are located in Georgia while Yummie Tummie [Times Three Clothier] omg if I have to type Yummie Tummie [Times Three Clothier] again I am going to scream is located in New York.

 Here is a copy of Spanx, MSJ. It is 87 pages long, however, the first few pages are the most important. Most of it is pictures of the patents and tanks

 

Spanx vs Yummie

After  Spanx filed the MSJ — Heather Thomson went crazy.  I can’t help but think that Heather is not trying to make this a part of her storyline for The Real Housewives Of New York because she continues to distort reality by telling everyone (including the undersigned) that Spanx is “suing” her which is not true.  Spanx is asking a judge to step in.  Heather was interviewed by WWD (same site), Heather  also told other outlets; ” “I hope [Spanx] is ready for war because I will not lie down.”  Here is an excerpt where Heather discusses how she found out Spanx [allegedly] copied/infringed on her designs. 

““I immediately recognized it as my original Yummie Tummie tank. We contacted Spanx by letter [through legal counsel] on Jan. 18 to notify them that they were infringing on my patent ideas and we asked them to cease and desist. Spanx then asked for a [one-month] extension to be able to do their own due diligence .…They responded on Feb. 14 saying they didn’t think there was any patent infringement and requested another extension. source

 

Here is an example or Yummie Tummie’s tank and Spanx tank top.

Photo Credit: Yummie Life and WWD. Using under fair use laws to critique http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/

Photo Credit: Yummie Life and WWD. Using under fair use laws to critique http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/

Heather then tried to start a Twitter #Hashtag  by posting, “ #ShameOnYouSpanx ” on Heather’s website along with the “open letter” to Sara Blakely. 

Photo Credit: Yummie Life, IpDogWatch Used Under Fair Use Act.

Photo Credit: Yummie Life, IpDogWatch Used Under Fair Use Act.

In response to Heather’s failed attempt to start a Twitter Campaign;  I could not have said this better myself, IpWatchDog

So while Yummie Tummie sent the cease and desist letter and was the first to cry patent infringement, Ms. Thomson is now playing the victim and accusing Spanx of being the bully and dragging the issue into court. She concludes by sharing with Sara that she ‘expected more of her as a fellow entrepreneur”.

Are you kidding me Heather? Spanx is asking a judge to step in because Spanx attorneys can’t reason with you through counsel.  You made it clear in your C&D that you’re sue  happy. I also think Heather is mad because Spanx beat her to the punch by filing, now Heather is losing control by this not taking place in her “back yard” so to speak.

Meanwhile, Sara Blakely has handled this case like a lady.  Sara refused to comment when she was interviewed by Forbes. You can read that interview here. Here is an excerpt;

During our time together, Blakely was gracious enough not to say much about these and other upstarts that have edged their way into Spanx’s space in the past few years. She did tell me, however, that she and her legal team have always been unrelenting in their pursuit of patent or trademark copycats.

Sara Blakley of Spanx, eventually did speak out and say;

[Spanx] has been making Cami’s way before [Yummie Tummie] and will continue to do so and plans to settle this in court and not in the public.

 

Heather is still playing the victim.

Here is an extended version here 

Click To See full conversation on twitter

Click To See full conversation on twitter

I could have easily summarized this case by saying; Heather initially sent a C&D to Spanx on the tank. A tank from Spanx  was anonymously sent to Heather, according to  Heather, when Heather saw the Tank, Heather said it looked like her patented product as did her patent litigation attorney. They sent a C&D. Spanx said they needed at least 14 days to research the issue. They came back and listed difference. Heather through counsel responded reiterating C&D. Spanx’s countered with the MSJ by asking a judge to step in, Heather responded with an answer to the suit along with a  PR letter on her company website denouncing Spanx’s actions by bringing attention to the public.  But I wanted to show you all of it.  It’s my understanding that Heather talked about this on the show as well.  I can’t stand a bully like this. Although Spanx is capable of defending themselves, I think the way Heather handled this all was tacky and classless and I hope it bites her in the ass in the end.  To me, it looks like Heather had a plan to get Maidenform  to settle so in the future Heather could use this (as Heather is now) as a muscle by telling Spanx  (and future cases) she won before and will win again.  But did Heather really win with Maidenform? By getting control to shut Maidenform up? I’m sure Heather was hoping Spanx will give in.  Heather’s own #shameonyouspanx spoke volumes.  What did Heather expect? IpWatchDog

Those of us in the patent world know that all of the bluster and pandering to the media on this issue will likely be much ado about nothing since there is a high likelihood that Spanx and Yummie Tummie will quietly settle their differences out of court. In the mean time it has been fun watching the popular press and fashion world make a big deal out of something relatively common place and minor in the world of patent litigation.

I can’t help also to point out; all of a sudden, you have two companies: Spanx and Maidenform  that were around way before  Yummie Tummie , you have the owner of Yummie Tummie,  Heather Thomson  accusing them of copying off of  her designs. You saw the Tanks  (above).  I will now leave you with Heather’s response to the lawsuit. I will update this with new court docs and put all the documents on a separate page. Yummie vs Spanx

update:
I just realized Heather’s last name is: Thomson, not Thompson.

Why all difficult names? “Times Three Clothier” “Yummie Tummie”