By  on October 11, 2010

Innerwear giant Maidenform Brands Inc. and Times Three Clothier LLC are suing each other over the design of shapewear that launched last year.

The litigation involves Maidenform’s multimillion-dollar Fat Free Dressing by Flexees line and Yummie Tummie, a contemporary shapewear line from Times Three Clothier that has estimated wholesale sales ranging from more than $8 million to double digits, industry experts said.

Maidenform, a $466 million company, filed its lawsuit in Manhattan federal court in March seeking a declaratory judgment that Flexees Fat Free Dressing Tank does not infringe on a design patent held by Times Three. At the time, Times Three held one design patent for the three-panel Strappy Tank. It now has three more patents for the Yummie Tummie franchise.

Times Three chief executive officer Heather Thomson-Schindler told WWD that she designed the three-panel control tank top for herself when she couldn’t find a shaper to smooth her post-maternity figure. Times Three countersued in September in Manhattan federal court, accusing Maidenform of copyright design patent infringement.

Times Three said in court papers that Thomson-Schindler and her business partner, Eric Rothfeld, met with Maurice Reznik, ceo of Maidenform, on Jan. 29, 2009, to discuss Maidenform’s possible acquisition of Times Three and the Yummie Tummie designs. Reznik indicated that Maidenform had about $40 million available for acquisitions, but Rothfeld said that sum was too low given the popularity of the shapewear and Times Three’s growth potential, according to the suit.

Reznik allegedly expressed continued interest in Times Three. But in July 2009, Times Three executives “became aware of the accused Maidenform garments,” the suit said. After Thomson-Schindler called Reznik, he is said to have offered to arrange another meeting, but it never took place.

Nanci Prado, Maidenform’s general counsel, said the company’s lawsuit “was prompted by Times Three Clothier’s having earlier contacted Maidenform’s customers about that patent in an effort that would potentially harm Maidenform’s business.”

The company “will continue to sell and market its Fat Free collection while vigorously pursuing its claim and defense against Times Three Clothier’s allegations...the design patent on which Maidenform filed suit and the closely related patents which were issued in the same family...are also invalid and unenforceable because they attempt to cover designs which were on the market earlier, and of which the United States Patent & Trademark Office was unaware when it issued those patents,” Prado said.

Maidenform’s applications for design patents on the shapewear are pending, she said.

The Fat Free Dressing shapewear by Flexees as well as other Maidenform shapewear product is carried in stores such as Macy’s, Bon-Ton, Kohl’s, J.C. Penney, Belk and Sears Roebuck and Co. Times Three’s product is sold at Neiman Marcus, Bloomingdale’s, Saks Fifth Avenue, Nordstrom, Dillard’s, and Penney’s, among other stores.

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