After a year of legal wrangling, high-end clothier Brooks Brothers has dropped a trademark infringement action against the small Rochester-based distributor of therapeutic soaps used by cancer patients, allowing Bubbles by Brooks to keep the identity it has nurtured for more than 10 years.
“I am very grateful for the way this worked out,” owner Amy Brooks said from her home-based business Thursday.
Brooks was also grateful for the free legal assistance she received from a team of intellectual property lawyers from the Minneapolis firm of Fredrikson & Byron, which picked up the case when Brooks faced legal fees of up to $200,000 to fight the case to the end.
“As a small business without representation, my voice would have never been heard,” Brooks said.
It’s often an uphill and costly battle for small companies to fight for their trademark if it is challenged by a big company.
“It’s really difficult because it costs money. It’s money out the door. You can’t recover it in sales or jack up your prices,” said Kenneth Port, director of the Intellectual Property Institute at William Mitchell College of Law. “Small folks can’t afford it and they just go away.”
The Fredrikson lawyers took up the Bubbles by Brooks case last summer after the company was featured in a Star Tribune article about “trademark bullying,” where companies use their deep pockets to challenge the trademarks of other companies — no matter how remote the connection.
In the Bubbles by Brooks case, attorneys for Brooks Brothers wrote: “Though ‘Brooks’ may be your surname, it does not give you the right to infringe on the Brooks Brothers trademark or otherwise compete with Brooks Brothers.”
“Small companies are definitely at a disadvantage when litigating against a big one,” said Lora Friedemann, one of three Fredrikson & Byron attorneys who worked on the Brooks case. “We moved for summary judgment [dismissal] … and Brooks Brothers caved in the face of the motion.”
“It feels good to be able to help this company,” Friedemann said.
Brooks Brothers spokesman Arthur Wayne said in an e-mail late Thursday: “We do not comment on legal matters.”
The dispute was handled in the U.S. Patent and Trademark Office. Port said the number of smaller companies that prevail in trademark disputes is rising, although those involved in so-called trademark bullying cases prevail just 5.5 percent of the time.
“We don’t know how often the small guys win, but it is with more frequency than you’d expect and the way to win these cases is to go public and get the public to rally around you,” said Port.
The soap and skin care products produced and sold by Bubbles by Brooks are handcrafted and designed to reduce irritation as cancer patients go through therapy.
Brooks, a cancer survivor, operates Bubbles by Brooks out of her home but recently hired a wholesale sales representative who has a showroom for wholesalers in Minnetonka.
“We had our best first quarter ever,” Brooks said. “We moved forward but I always worried that I might have to change my name.”
Brooks said her sales are a little less than $100,000 a year.
“Yeah, this was good for me,” she said of the dismissed trademark dispute. “But the system is still broken. I still want to help other people, too.”