Diptyque alleges Italic’s comparative ad amounts to infringement and misleading advertising

Diptyque takes aim at Italic, accusing the rapidly growing retail startup of breaking federal and state law with a new ad campaign that attempts to compare the candles of both parties, but which apparently wouldn’t do it in a way that is either necessary or truthful, and instead, which “includes a series of misrepresentations and representations”, all in pursuit of a quest for the founder’s company tech (and former Thiel Fellow) Jeremy Cai to build on the cult appeal of the 60s – the former Diptyque brand.

According to the lawsuit it filed in federal court in California on Monday, Diptyque claims Italic recently launched an advertising campaign – both online and on billboards in New York and Los Angeles – that represents her unbranded $ 16 candle alongside a $ 68 Diptyque Bais candle. As part of the recently released ‘compare to Diptyque’ campaign, the Paris-based fragrance company claims Italic is trying to ‘bring parity between Diptyque’s scented candles and Italic’s scented candles […] when in fact the two candles compared are not proportional in size, burning rate, content, scent concentration, potency and other variables that make Diptyque candles superior and more desirable.

The italics also reportedly pushed viewers towards its own offers by including the text “A candle that does not smell like burnt money” in bold next to offers from both parties.

Comparative advertising

For comparative advertising to be permitted under federal and state laws, Diptyque asserts that advertising must be “truthful and honest about the products being compared and their respective advantages,” which it says is not the case here. Specifically, Diptyque claims that the Bais candle depicted in Italic’s ad is “not accurate, with respect to its size, burn rate, or price, and the candle’s image has been altered over time. less in size and color “. At the same time, “the comparative candle price in italics is also not accurate, in that it represents the” member price “in italics, which includes an annual fee of $ 60.”

The italics “attempt to reconcile some of these problems in the mouse-printed warnings, which would not be readable by consumers on any billboard”, but Diptyque contends that even these warnings are “inaccurate in burn rate and to the size of the Diptyque candle described in the advertisement. ”

Things are even more against the law, because “comparative advertising also requires that the advertiser not denigrate or tarnish the allegedly competing product”, which Diptyque’s lawyer argues is precisely what Italic is doing here. Italic’s billboard slogan ‘A candle that doesn’t smell of burnt silver’ attacks the main characteristic of Diptyque candles – their scent – to convey baselessly to consumers that high-end candles of Diptyque are, at best, a scam, and at worst, a fraud.

And finally, even if the italicized ads did not contain misinformation, the nearly 4-year-old company would still be wrong, according to Diptyque, because “it was not necessary to [it] to use Diptyque’s instantly recognizable oval design logo; and to manipulate the appearance of Diptyque’s candle and otherwise denigrate the Diptyque ‘brand in the advertising campaign. This is problematic, because “in the context of trademark rights and other intellectual property rights, comparative advertising requires [… ] that the advertiser uses the brand (s) only to the extent that is reasonably necessary to identify the product or service. ”

Instead of limiting its use of Diptyque’s “trademarks and logo copyright”, Italic would have chosen to use them in their entirety “as a means of negotiating on the substantial goodwill of Diptyque and of using the trademarks of Diptyque. well-known trade and copyrights of a market leader to capture attention for its own product – and as a large-scale billboard, ”says the famous candle company. As for the composition of these marks and these copyrights, Diptyque underlines its indisputable federal registrations in the word mark DIPTYQUE, and a word and graphic mark which consists of “34 BOULEVARD SAINT GERMAIN DIPTYQUE PARIS5E, [and which] represents the words inside an oval shape. Diptyque also mentions his consistent use of “scrambled and stacked letters that appear within his oval mark” which is both “striking and very much associated with Diptych.”

The company claims that it has a copyright registration for the specific portrayal of the scrambled BERRIES design inside the oval (although it’s not entirely clear to me how an infringement claim is made. is particularly relevant here), and maintains common law trademark rights for that, too.

Italic’s use of “identical copies and colorable imitations” of Diptyque’s trademarks in advertisements that “promote its substandard products” is likely to cause confusion, or cause errors, or to deceive consumers about Italic’s association with Diptyque when such an affiliation does not exist, argues the candle maker. Further, Diptyque argues that Italic’s conduct “literally and implicitly false or misleading statements to consumers, constituting unfair competition and false advertising in violation of Lanham Law, in the sense that Italic made false statements or necessarily implied, false and misleading which are likely to mislead consumers and prevent them from buying or otherwise using Diptyque’s products and buying Italic’s products instead.

With this in mind, Diptyque sets out the allegations of false advertising, unfair competition, trademark infringement and copyright infringement, and seeks a non-specific sum of damages, as well as an injunction to permanently ban Italic further violate their rights and make false statements. in connection with the Diptyque brand or products, among others.

The big problem

What ultimately appears to be at issue in this case is Italic’s alleged attempt to trade on the appeal of another brand in order to sell its own products. As Diptyque argues in its complaint, Italic’s announcement comes as part of its broader business and marketing strategy, in which it “claims to have ‘eliminated traditional brand and retail brands” , which allows its customers to ‘pay 50 to 80% less for the exact same quality.’ In other words, the model of the budding young company depends (or at least has depended in the past), in large part, on the attractiveness of the offerings of high-end brands.

Interestingly enough, the trial is coming after Italic has undergone what appears to be a shift in the way it presents its products, moving away from a more aggressive attempt to align itself with certain high fashion and luxury brands. As TFL noted in 2018, Italic has long argued that “by removing brands and labels from the equation” it allows “manufacturers to realize significantly higher profits while passing on ‘brand’ savings. on customers ”. Yet it was both making prominent mentions of other brands as part of its own offerings: “Cream made from the same ingredients as La Mer,” reads its website. A bag was advertised elsewhere on its site as being made by suppliers at a factory that “previously produced luxury handbags for Celine.”

Founder and CEO Jeremy Cai noted at the time that his company was, in fact, “a bit controversial in the sense that we say, ‘Here is a handbag made at the same factory as Prada. as part of a larger effort to advertise the brand in the same way that MSCHF, for example, has provoked companies like Hermes, Disney, Nike, etc. )

TFL has already asked if italics is really by removing brands from the equation when he so blatantly mentioned other brands and apparently sought to associate his products directly with those of some of fashion’s most well-known brands. These important mentions were important (in my opinion), as it was not impossible to imagine one of those protective luxury brands arguing that Italic was using their trademark protected names in an attempt to entice consumers to buy their own products.

Chances are that Italic – which has attracted investors like Comcast Ventures, Global Founders Capital, Index Ventures, Ludlow Ventures and Kindred Ventures, among others, and raised at least $ 13 million over four rounds – could have protect through fair use arguments in the event of a dispute over any of these brands. (I haven’t seen any such cases being filed.) Still, the company seems to be playing a little safer now, at least on some fronts. She always informs consumers that her bags, for example, are made in factories that have “old customers” like Miu Miu and Prada; that her glasses come from factories that made glasses for Chanel; and that its outerwear is manufactured by suppliers who count Armani and Max Mara as customers. However, these facts are presented in a much less central and less daring way than in the past.

Nonetheless, while it may have toned down its references to other brands on its site, Italic ruffled Diptyque’s feathers on the advertising front as did the company – which has largely operated on a membership model of this. day – announced that consumers can buy its markup. – free offers without paying for a subscription.

An Italic representative did not immediately respond to a request for comment.

The case is Diptyque SAS, et al v. Italic, Inc., 2: 21-cv-08227 (CDCal.)

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