In an exclusive report, Counselor has learned that a jury has sided unanimously in favor of Top 40 supplier ETS Express (asi/51197) regarding a trademark infringement lawsuit brought on by S’well Bottle Company.

Podcast

Michele Bell, head of ASI’s Editorial department, interviews Sharon Eyal, CEO of Counselor Top 40 supplier ETS Express, on the company’s recent win in a trademark infringement case against S’well, and its implications for the industry.

After two long weeks in federal court in the Southern District of New York, a jury has decided that ETS Express is not liable on all counts. Bottles like the h2go Force – the bottle in question – have existed since long before S’well launched its product in 2010, argued Sharon Eyal, CEO of ETS Express. The h2go Force bottle is currently sold by many resellers in the promotional products markets. “A company can’t take an existing design, put their name on it and claim it’s theirs,” Eyal told Counselor.

After sending a cease-and-desist letter to ETS in 2014, S’well served the Southern California supplier last May. ETS filed a counterclaim for cancellation of S’well’s bottle design trademark registration, moving for a summary judgment.

ETS argued that S’well’s bottle was not distinctive because dozens of manufactures made similar cola-shape bottles. “I feel vindicated that the jury ruled in ETS’s favor, and that we were able to deliver a win for the industry,” Eyal said.