PPB November 2018

Sha r on Eya l W elcome to the match. In one corner stands the CEO of Oxnard, California-based supplier ETS Express, Sharon Eyal, an Israeli-born entrepreneur who was so bored with high school, he skipped 12th grade and went straight to work. In the other corner is S’well Bottle Company CEO Sarah Kauss, who possesses multiple degrees, including an MBA fromHarvard Business School, and whose company’s headquarters are in Manhattan’s swanky Flatiron District. You might say that’s an unfair match. But, in this battle, S’well has more than met its match with ETS. A Match Made In Manhattan The trademark infringement lawsuit between the promotional product supplier ETS and the retailer S’well—formally known as Can’t Live Without It, LLC dba S’well Bottle Company v. ETS Express, Inc. —went to a jury trial in the Southern District of New York in March 2018. S’well sued ETS for trademark infringement because of the company’s sales of its h2go Force Bottle , which has a similar shape as S’well’s bottle design. “I knew that this bottle was in the market space before S’well opened their doors in 2010,” says Eyal. “This bottle was designed in India back in 2006. We submitted a copy of the Indian patent to S’well during the discovery period.” InMay 2017, when Eyal learned S’well was suing ETS, his first instinct was not to fight but to work it out. “We’ve had patent issues in the past,” Eyal says. “Usually what I do is get on the phone and talk to the owner to see if we can work something out.” That’s what Eyal did in this case. “When we got served by S’well, the first thing I did was call Sarah directly,” Eyal says. “I said, ‘Listen, we are both going to lose if we go to court, no matter who wins. Let’s try to work this out.’ Unfortunately, we couldn’t.” Although the trial lasted only two weeks, preparing for it took nearly a year and required a huge financial outlay in legal expenses. “For me, settling wasn’t an option,” Eyal says. “If we had settled, that would have given the green light for retailers and outsiders to come into our industry and claim something is theirs where it may not be.” Sharon Eyal, CEO Of ETS Express, On The Battle Of The Bottles by Brittany Glenn Drinkware Dynamo 78 | NOVEMBER 2018 | THINK