I’ve seen this question in a few of my Facebook business groups not once, but twice today, so I have a sneaky feeling that there’s an internet forum somewhere with a smoldering debate about one of the most popular beauty products to emerge in the last few decades!
Intellectual property is a particular passion of mine and I have a not-so-secret special affinity for the beauty/apothecary space, so this particular query fascinates me. I’m 10 days post-op from my recent surgery, which means I have far too much time on my hands with a laptop in bed as I recover. And this post is how I whiled away one Saturday in recovery.
An understanding of how intellectual property (IP) works is pivotal to your success, no matter what you’re making or where you’re selling. IP is incredibly nuanced and while I’m not an attorney, I’ve navigated many trademark disputes and registrations for my personal companies, with the assistance of a deliciously good IP attorney. And through my work as a business consultant for hundreds of creative brands, I’ve worked with intellectual property issues on a weekly basis for several years. I love geeking out on it!
UPDATE: In the original version of this blog post, I asserted that I believed that the bath bomb process was patented by Lush. I’ve spent several more hours combing thorough the patent database, carefully reviewing each of the fourteen applications I could trace back to Lush and /or Cosmetic Warriors Limited. This updated post reflects my evolved opinion on the bath bomb issue, and it contains some important information on bubble bars as well. If you previously read this post, then I encourage you to read it again!
A QUICK PRIMER ON INTELLECTUAL PROPERTY
Intellectual property within the U.S. is governed by United States Patent and Trademark Office. They review applications for both patents and trademarks and issue official registrations once they’re satisfied that they’re warranted. Passing muster with these peeps isn’t easy, especially when it comes to patents.
Keep the following in mind when reading the rest of this post…
1. Patents protect inventions.
2. Trademarks protect brand names, product names, and taglines.
3. Lush is wholly owned by Cosmetic Warriors, which is a name that’s seen as the applicant on several of the documents I’ll reference. Just remember Cosmetic Warriors Limited = Lush. They’re synonymous.
One more thing: This blog post explores patents and trademarks governing products sold within the United States. Intellectual property laws vary by country and Lush does hold intellectual property registrations in other nations. But the information below applies specifically to the US. If you live outside the US of A, then I encourage you to review the laws and IP registrations of the country in which you do business.
DOES LUSH HAVE A PATENT ON BATH BOMBS?
Lush has an approved, legally-enforceable utility patent for one process of combining baking soda and citric acid to create an effervescent bath product. You can view Lush’s bath bomb patent here. The patent was issued in 2014 and provides Lush protection of their process through as long as 2034.
If you’d like to verify that it’s an approved patent and get word directly from the horse’s mouth, then head over to the USPTO office. Begin the patent search process and then choose to search by “application number” and enter the corresponding number for the Lush application >> US 13/702,511.
This is a utility patent which covers the actual functionality of combining citric and soda to create an molded effervescent bath product. The process is what’s protected, not a specific recipe. Which means that altering their recipe slightly (even if we knew it), wouldn’t negate their patent. Side note: recipes themselves can’t be patented. Unique processes can be patented and Lush claims to have invented this process in 1989.
It’s also NOT a design patent, so it doesn’t address colors, mold, etc. It’s the protection of the core process of creating a bath bomb and it’s legitimately protected.
The saving grace of bath bomb makers everywhere (hooray!) is that it appears that Lush has only secured a patent for a process that involves 2-layered bath bombs. Their application specifies two separate mixtures of baking soda + citric acid, in two different concentrations, where one core bomb is enveloped in another to improve the effervescence. It does not appear to protect bath bombs made + molded with a single mixture of baking soda + citric acid, which is how most of the startup apothecary companies I know are creating them.
BOTTOM LINE: I believe we can legally make and sell bath bombs, so long as they aren’t created via a two-layer process in which there are two mixtures of baking soda + citric acid. Soapmakers rejoice!
DOES LUSH HAVE A TRADEMARK FOR BATH BOMBS?
Lush applied for the trademark of the name BATH BOMB in 1998 but abandoned the effort in 2000. To view the original application, click here and then select the option that reads TRADEMARK STATUS AND DOCUMENT RETRIEVAL and enter this number as the serial number >> 75539567.
All trademark application documents are public record, but the USPTO system is throwing a hissy fit at the moment I’m unable to retrieve the documents to see why the USPTO initially objected, which would likely explain why it was abandoned. I’ll update here as soon as I’m able to see them.
BOTTOM LINE: We can market products under the name BATH BOMB because Lush doesn’t own that name, nor does any other entity of which I’m aware.
DOES LUSH HAVE A TRADEMARK FOR BUBBLE BARS?
Lush does have a federal trademark registration on the name BUBBLE BAR. To view it, visit the USPTO site, then click the button that reads TRADEMARK STATUS AND DOCUMENT RETRIEVAL and enter this number as the serial number >> 78899471.
BOTTOM LINE: I don’t believe that we can legally market bubble bath products as BUBBLE BARS as Lush owns the trademark. Is the very concept of a bubble bar protected? Good question… read on!
DOES LUSH HAVE A PATENT FOR BUBBLE BARS?
Here’s where things get interesting! Yes, they do. I wasn’t aware of that patent when I published my original blog post, but five hours of combing through the patent database for every patent application ever filed by Lush and/or its parent company led me to it.
If you create bubble bars, then we’ve already established that you can’t market the products under that name without treading on Lush’s intellectual property. If you create and sell bubble bars, then I encourage you to click that link above and review the process that Lush has locked down regarding their creation. Unless you’ve developed a novel way of creating them that’s distinctive from the Lush method, then I recommend steering clear.
The language is decidedly challenging and patent applications can be difficult to make sense of, so the assistance of a competent intellectual property attorney will likely prove helpful.
Bottom line: If you make a bubble bar product created through the process that sounds eerily similar to the process described on Lush’s patent, then I recommend consulting a good IP attorney for advice about whether or not it’s wise to continue marketing that product under any name.
WHAT ELSE DID I DISCOVER ABOUT LUSH PATENTS?
I ultimately unearthed fourteen patent applications filed by Lush and/or Cosmetic Warriors Limited. One interesting facet of that research? The pace at which Lush filed patent applications hastened significantly in 2014. Between 2003-2008, they only filed four applications. The year 2012 saw two more filings. Lush filed three applications in 2014 and three more in 2015, so they’ve filed almost as many in the last two years as they did in the previous twelve years. What does that mean? Your guess is as good as mine, but it appears as though Lush is moving to more aggressively lock down their IP. Will they ultimately hasten enforcement action against infringers? Only time will tell.
To view any of the patent applications I reference below, simple visit the patent search portal, select to search by “publication number,” and then cut and paste the number you see below to access the application and review it in detail.
20030157050 >> This application concerned a lotion with cocoa butter. It was filed in 2003 but ultimately abandoned.
20040180017 >> This application concerned a frozen shower gel. It was filed in 2004 but ultimately abandoned.
20040067268 >> This application concerned a henna product. It was filed in 2004 but ultimately abandoned.
20080206273 >> This application concerned a product with a specific seaweed extract. It was filed in 2008 but ultimately abandoned.
Side note: There are a multitude of reasons that might compel a company to abandon trademark and patent applications. I wouldn’t read much into it!
20120040919 >> This application concerned an exfoliant product created by combining baking soda, cream of tartar, and an exfoliant. It was filed in 2012 and ultimately rejected by the USPTO.
SO WHAT DOES LUSH HAVE A PATENT ON?
I unearthed four approved patents. Click through each one to view the patents.
8697621 >> This is the infamous patent for the two-layer bath bomb. It was issued in 2014 and will be valid through 2034, provided that Lush pays the USPTO fees necessary to retain that patent (which I’m inclined to believe they’ll do).
8697037 >> This is the patent for bubble bars. It, too, was issued in 2014 and will be valid through 2034, provided that Lush pays the USPTO fees necessary to retain that patent (which I’m inclined to believe they’ll do).
7670998 >> This is a patent for solid hair conditioner. It was issued in 2006 and will be valid through 2026, provided that Lush maintains the patent registration- see above.
4996006 >> This is a patent for solid shampoo. Fret not- it was issued in 1991 and I believe that it’s now expired.
LUSH HAS FIVE ADDITIONAL PATENTS PENDING
And I think a few of them would be of interest to the indie beauty community. To view any of the patent applications referenced, simply visit the patent search portal, select to search by “publication number,” and then cut and paste the number you see below to access the application and review it in detail.
20140336095 >> This application concerns a household cleaning product in solid form created with baking soda, cream of tartar, glycerin, and sodium lauryl sulfate.
20150037780 >> This application concerns a method for determining someone’s mood and personality. I’m interested to see where they go with this one!
20140360912 >> This application is of particular interest. It concerns a liquid or semi-solid, colored cosmetic for application on the eyes, lips, and/or skin, created from a combination of waxes, oils, pigments and (potentially) perfumes. The catch? It’s poured into pots rather than molded like a lipstick. This one makes me a bit nervous as I’ve seen many products from makers that are potentially infringing.
20150157554 >> This application is pretty cool. It’s a process for creating a paper-like wrap that can be used to wrap products in a retail environment (similar to how Lush products are wrapped in their stores now). This wrap is created from a combination of sugar, soap, and dehydrated fruit fibers. Probably not a threat to anyone reading, but interesting nonetheless.
20150297501 >> This application concerns a solid massage bar which has been aerated to create air bubbles which affect the density and size of the finished massage bar.
BUT WHAT DOES IT ALL MEAN?
If you’ve made it to the bottom of this post, then bless you. I hope you have a glass of wine in-hand by now! In the final equation, the best authority on intellectual property matters isn’t a Facebook group or internet forum. It’s not your best friend or your mom or even me… it’s a competent intellectual property attorney. This area of law is fantastically nuanced and your business deserves competent counsel. If there’s one thing I’ve learned in my thirteen years of entrepreneurship, it’s that a general business attorney won’t suffice for IP matters. I tried that once and it cost me nearly a quarter of a million dollars in legal expenses, but that’s a story for another day!
And I realize that you can probably name at least a half-dozen businesses that you know who are violating these patents and/or trademarks. But that doesn’t let us off the hook as a community! In the same way that some makers don’t properly label, or manufacture, or test their products, some makers won’t honor the intellectual property of another. I assure you that I say this in love: Be ye not so stupid.
Knowingly or unknowingly flaunting intellectual property law is a bit like dancing in the jaws of a bear trap. You might well be fine, but that trap could snap shut at any moment. If a trademark or patent owner comes knocking on an infringer’s door, then that infringer could be subject to series of potential consequences, including: an injunction to prevent the continued sale of the product, being compelled to publicly announce the infringement to your customer base, the disclosure of company financials to the injured party, the seizure of all profits made from the infringing product, and the collection of additional monetary damages as a penalty. Imagine, too, the legal fees for a defense, the stress and loss of sleep, and the decrease in mental momentum for a business. Yikes!
Launching a brand and running a business is no easy task. Many of us come to entrepreneurship from a place of passion… we’re drawn to the “creative” side of things as opposed to the “business” side of the endeavor, but that doesn’t obfuscate our legal responsibilities. We can’t remain ignorant of business principles (and that goes for everything from accounting to managing a team to intellectual property) and expect to build successful, sustainable businesses. Should you be worried that Lush is going to sue you if you’re selling a dozen bubble bars each Saturday at your local Farmer’s Market? Probably not. But the rules are the rules, regardless of the size of your business.
Several dozens of my clients- some of whom are just starting out with wee tiny revenues- have found themselves staring down the barrel of IP infringement woes, and almost every one of them had no idea they were doing anything wrong! Through my work, I hear of IP struggles in the maker community on an almost-weekly basis. I sometimes refer to it as the “dirty little secret” we don’t want to talk about as a community, but there’s no denying how impactful IP concerns are for a small business.
I’m not the intellectual property police and- at the end of the day- each of us will follow our conscious and steer our companies in the direction of our choosing. But I have the great privilege of working with entrepreneurs who are dead-serious about growing their businesses and I wouldn’t want anyone to invest their time, money, and soul into a product collection that they can’t scale… because the production process itself isn’t scale-able, because there’s no profit potential in the product, or because the businessowner has no legal right to make the product. If there’s a bear trap nearby, I want you to know! Whether you walk right into, flirt at its edges, or avoid it altogether is a personal choice, but awareness is critical.
And with that, I do believe it’s time to cede the soapbox. Thanks for reading- I’ll see you in the comments!
Wow. Wonder way they don’t stop the selling of Bath Bombs by other makers? Oddles of books giving instructions on making and marketing Bath Bombs.
One more reason not to make and sell them.
I love using them and dread making them. That’s my reason for not selling them! *wink*
Tammy,
I’ve just amended the original blog post to reflect a slightly different opinion and to explore a few of Lush’s other patents that are likely of interest, so I hope you’ll read it through again! Good to “see” you, by the way. Hope all is well!
Just getting around to catching up on social media and such. You’ve put a lot of research in this Lela. Thank you. I’ve read your updated post, thanks for the clarification.
Happy New Year!
The life of a patent is usually 20 years from the date of application, NOT from the date of issue. So the lush patent expires in 2031. See below, this is from the patent link itself.
Status: Active
2031-06-06: Anticipated expiration
Great Post, Lela! Question though: it seems that while skimming through the patent details, their specific patent looks to be for a bi-layered bath bomb…….where one bomb is packed inside of another bath bomb…….their example of recipe looks like the inner bomb and outer bomb are made with different ingredients and the inner and outer bomb disintegrate at different rates!! Maybe this is WHY Lush doesn’t legally go after our simpler method of one bomb recipe throughout as most of us do?? Thoughts?? (I didn’t read the entire patent details, but enough to try to figure out WTF they were meaning by first effervescent and second effervescent materials!)
Hope you are recovering wonderfully!!
Tricia
Scentability
Hiya Tricia! I agree that it takes soda + citric to create the effervescent and the description of their process does include 2 parts of mix. However, it’s my understanding that single-process systems are protected as well. I’ll see if I can connect with my IP attorney for clarification, but it’s a Saturday night in December, so that process won’t be as swift as I’d like. I’ll report back once I’m able to connect!
Tricia, good news: I do believe you are correct! I’ve just amended the original blog post to reflect a slightly different opinion and to explore a few of Lush’s other patents that are likely of interest, so I hope you’ll read it through again.
Great post and very timely! Two questions for you. 1) It is my understanding that it is the responsibility of Lush to protect their trademarks and patents. They can not pick and choose when or who to go after. Unless they are actively exercising enforcement of all violators then they have risk of abandonment. 2) If there were products in the market and the USPTO was not aware of them at the time a listing was granted, they can be voided by the people in the market before the patent and trademark was issued. Is this also your understanding? Thanks for any follow up!!
Good questions, Debbie.
1. You are correct that the registration holder has an obligation to enforce their rights and it’s my understanding that failing to do so can weaken those rights and be raised as a defense should an infringement action be brought in a court of law. My concern is that small, upstart, one-woman-brands may not have the resources to hire a good IP attorney in case of a dispute. And I imagine that the resources to mount a sizable legal defense against a Goliath like Lush are well out of reach for most of the brands with which I work. But, in spirit, I totally agree that they’re being remiss in the lack of enforcement on a level that likely jeopardizes their rights. As an aside: Lush claims in their marketing materials to have invented the first bath bomb in 1989. Reference >> https://uk.lush.com/article/inventing-bath-bomb
2. I’m less versed in the process of contesting/overturning a patent. However, trademarks can be overturned within the first 5 years but that process is resource-intensive. After five years, they can become incontestable. The “bubble bar” marked owned by Lush was issued on July 31, 2007, so I believe that opportunity has passed.
Debbie,
This seems to be a fairly simple + legitimate overview of the process of challenging a patent >> http://info.legalzoom.com/overturning-patent-21140.html
More resources from the Patent Office here >> http://www.uspto.gov/patents-application-process/patent-trial-and-appeal-board/resources
The problem with overturning registered IP of any kind is that it’s a dreadfully expensive and painfully slow process. So much more cost-effective and swift to catch it at the publication stage than to challenge once it’s through!
Debbie, I stand corrected on one facet of the original post, but it’s an important one! I’ve just amended the original blog post to reflect a slightly different opinion and to explore a few of Lush’s other patents that are likely of interest, so I hope you’ll read it through again.
Annie Sloan owns Chalk Paint and the name Chalk Paint. So others are forced to use the term chalk-like paint. Change the term and Lush can say nothing. And don’t buy Lush products….ever.
There’s always the option of marketing under another name, so long as the product itself doesn’t infringe on a design or utility patent. But trademarks are incredibly nuanced as well, as there has to be a significant degree of differentiation between the names so as to prevent the chance of confusion as to the origination of the goods in the mind of the consumer. That’s the litmus test the USPTO uses to establish differentiation.
For example, if you made Bath Bombs and I made Bath Ballistics, then that liekly wouldn’t be enough differentiation- in the eyes of the USPTO- to ensure that your customers wouldn’t see my Bath Ballistics and wonder if they came from he same company that made Bath Bombs. It gets sticky and I’m surprised that “chalk like” is a sufficient enough distinction.
Curiosity killed the cat. 😉
I did some digging on the Chalk Paint conundrum. This post, in particular, was fascinating. >> http://adventures-in-diy.blogspot.com/2013/12/haven-conference-2013-husbands.html
That post was written 2 years ago. I just checked and Annie Sloan’s CHALK PAINT trademark has yet to be overturned. Again- I’m not an attorney- but my hunch is that “chalk inspired paint” may not actually pass muster, but after the mud she’s been drug through over the issue, she may have accepted that as a compromise and is allowing it to continue because, in a cost/benefit analysis, the better of her 2 options is letting “chalk like paint” pass.
There is an exceptional the patent process: if someone totally independently could come up with the same invention…. It’s a no-brainier in basic chemistry, that citric acid and baking soda react, so I would venture that a lawyer with some basic chemistry hasn’t challenged this. Since Lush hasn’t defended the patent aggressively, I doubt it has been a great financial detriment to them… yet. Patents are sometimes reversed because insufficient evidence was supplied with the original application.
True that, Gillian. Patents also protect “novel processes” and one could reasonably argue that combining citric acid and baking soda in a specific ratio to create effervescence and act as a delivery system for the dispersion of oils and surfactants in the bath is novel. I’m playing a bit of a Devil’s Advocate here, but I think it’s important to be aware of the intricacies and implications of intellectual property registrations.
Gillian,
I’ve just amended the original blog post to reflect a slightly different opinion and to explore a few of Lush’s other patents that are likely of interest, so I hope you’ll read it through again.
Patents are good for 20 years. This was applied for in 1989. Case closed.
Sam, utility patents are valid for 20 years. However, those 20 years start ticking when the patent is granted. This patent was granted on April 15, 2014. Which provides protection until 2034, so long as Lush pays certain fees along the way to keep the patent up-to-date, which I’m inclined to think they’ll do.
“For applications filed on or after June 8, 1995, utility and plant patents are granted for a term which begins with the date of the grant and usually ends 20 years from the date you first applied for the patent subject to the payment of appropriate maintenance fees for a utility patent.”
Reference >> http://www.uspto.gov/learning-and-resources/general-faqs
Wow, so this is an example of the “submarine” patents that the amendment to the statute addressed. 25 yrs. unpublished & pending!
So I just read through the patent filing you linked, and the way I read it, Lush doesn’t have a patent on making bath bombs – they have a patent on making double-layered bath bombs!
In other words, if you are making and selling bath bombs that are homogenous (no layers or anything, just a single mixture pressed together) then you are NOT infringing upon Lush’s patent. Heck, if you could make a three-layer bath bomb you wouldn’t be infringing upon their patent.
Put simply, their patented process is for making a bath bomb with two separate and distinct effervescent materials, where one of them encases the other, and the “inside” material fizzes more quickly than the outside. If what I just wrote doesn’t describe your (or anyone’s) bath bomb, it does not infringe upon Lush’s patent.
Hi Nate! I address that via another blog comment. I’m looking into it with my IP attorney, but I’m not holding out a tremendous amount of hope. I’ll update the blog when I find out!
PS: Your email address made me grin when I saw it in my inbox this evening. 🙂
By George, I think you’re right Nate! I’ve just amended the original blog post to reflect a slightly different opinion and to explore a few of Lush’s other patents that are likely of interest, so I hope you’ll read it through again.
With the ever growing number of small enterprises, home industries and one woman manufacturers I would think it would be way too time consuming (and expensive) for Lush to go afterceach and everyone infringeing on their “rights”. So my point is keep it small, keep yourself safe! Keep at it everyone, you make the world a more beatiful, natural and healthy place.
Hi Janet!
Many thanks for your input. I’ve just amended the original blog post to reflect a slightly different opinion and to explore a few of Lush’s other patents that are likely of interest, so I hope you’ll read it through again.
As for the idea of playing staying small to “play it safe”… I have 2 respectfully-submitted thoughts:
1. I firmly believe that “success” looks different for everyone- my version may not be your version and we should all be pursuing our own unique ideal of success. But I never advise my clients to play small, unless small is their ideal. Most of my clients are ambitious and eager to grow their businesses into full-time endeavors that can support their families (and possibly others) and I don’t want anyone to play it small because of an intellectual property issue.
2. Small isn’t necessarily safe. I absolutely agree that Lush is unlikely to launch a major offensive against the indie bath bomb makers of the world (and even less so, given the new information I unearthed and included in the updated blog post), but I have clients who have as little as $25,000 in annual sales who have been on the receiving end of IP enforcement actions. I vote for playing it safe by just not infringing, but I’m keenly aware of how tricky full compliance can be, especially for small businesses.
Thanks for adding your voice to the conversation!
Thanks for the diligent follow up and not just posting with no further comment. You are a true resource to the industry!!
I appreciate that, Debbie. I want to ensure that whatever I put forth is as accurate as possible and- if it’s not- then I have a responsibility to amend it and I’m happy to do that. This post was a lot of fun to put together and I hope it proves helpful!
Hey I am not sure if anyone else has already commented this but the Bubble Bar Patent is only for The Reusable, Multiuse Bubble bar. That Only contains Washing soda/Soda Ash and excludes Baking Soda
Danielle is correct; the link above does refer to the multi-use Bubble Bar. However, there is reference in the patent document that refers to product WO00/47181, which is “a bubble bath product in the form of a tablet or bar. When required for use, a portion of the solid product may be ‘broken off’ the bar and used.”
I’m not sure if there is a patent on single use bubble bars that we are familiar with; I couldn’t find it.
Sheesh, even the description in my own US pat. 5,336,446 reads on tableted bubble bath compos! Over 50 years ago there was a bubble bath compo marketed in the form of a stick that was to be hung in a cylinder with holes under the bathtub faucet. So you can’t read that broadly, has to be in view of their particular carbonate-bitartrate compo.
This maybe? It appears to be a patent application, not a patent.
https://www.google.com/patents/WO2000047181A1?cl=en
I followed comments on this subject in a FB group and was intriqued, as most here are. I couldn’t help but go look up ingredients in Alka-Seltzer for fun!! 😛
Great post; thank you, Lela, for the research. My opinion is that the increase in patent activity with Lush might stem from a perceived indie threat in the cosmetic industry to them.
That very well may be true, Charlene! If so, nice to see them sitting up and taking notice, eh? 😉
After reading this blog, I have some business concerns. I started selling at the farmer’s markets. And I have gotten great feedback and increased sales for certain products and ideas!
Q: If I have a formula or idea that is picking up traction in sales, should I rush to patent the formula/ideas now?
Q: How/Where do you begin to patent it? Does the Soap Guild have a resource available?
Kammey,
The U.S. has become a “first-to-file” country, along with the rest of the world so many people think they have to rush out and get their idea patented… and a patent attorney will be happy to do that for you! That’s how they get paid! However, a recipe cannot be patented. What is being patented is a process of using the ingredients of the recipe to form a “bath bomb”. Lush invented the process in 1989; the process being to take common ingredients many chemistry majors know about and form them into solid spheres. This patent expired in 2009, hence the explosion of bath bombs ever since.
Now Lush has patented a new process (a double layer bomb) which “claims” (a serious patent term) gives a user a better experience than the “old” way. Keep making your bombs in new and interesting ways (besides using a double layer) and you are safe.
(Of course, I’m not an attorney and anyone may correct me if I’m wrong… I’m just saying that if you go to a patent attorney, they may just sell you the idea that you need to patent something. That’s their job)
Wow, what an amazing blog post Lela! I’ll be linking it for anyone who makes bath bombs or bubble bars to read. I’ve also heard sad stories from my students who were involved in IP battles on both sides and it’s not fun (and very costly). I completely agree with your advice to steer clear and avoid the whole issue. This information, if people read it, should avoid a lot of trouble and money down the drain (LOL). You should have a “donate to me” button at the bottom of this post (I’m kidding, but not). You’ll be saving people a lot of money and headache down the road if they take your advice.
Lela, thank you so much for writing this article! I didn’t realize the consequences of patent infringement, I’m so glad you included this information. I’ve included seeking counsel from a patent lawyer to my start up checklist.
The increased speed of Lush patent applications got me to wondering if there is a way for us to keep up with current patent applications in our field of interest, to monitor and ideally – comment on, to the patent office?
A quick question or ten. First of all, this has been fabulous information. Thank you Lela for all your hard work and reworking of the original article. It shows great dedication to finish and update post in a blog. But IF Lush invented the Bath Bomb (patent) What were those little square things we used as kids that Avon sold in little cubes that fizzed in the tub? Anyone? Does Avon perhaps have a patent on those? I know they’re not exactly the same but they are very similar. Would that void Lush’s patent ?( I guess not since the time has expired?) I would think not, specially if not challenged by Avon. Also, Lush would have to go after EVERY one that sells Bath Bombs correct, to protect their product, not just pick /choose or it would be considered abandoned?
Prior art can always be used to bust a patent in court, but the presumption on an issued patent is that the original examination by the PTO surveyed the prior art sufficiently. So in effect you have the USPTO and the court leaning on the side of the patenter in litigation to bust patent provisions. Still plenty of post-issue voiding of patents in court, though.
It’s not that Lush has to go after all infringers, just that they have to be seen making a good faith effort to do so within the knowledge & capabilities at their disposal. So they can always say, we just never knew about these little guys, and it’s reasonable that they would not have come to our att’n.
Lela, this is HUGELY helpful, as I’m considering starting a small bath products business in the near future. From what I understand in the patent filing, as well as reading through all the comments, as long as you are not creating and selling bath bombs that have 2 distinct effervescing layers, then you are alright.
IOW, if you create a bath bomb that includes only 1 effervescing recipe, but somehow are able to create similar color/product effects of Lush’s bath bombs, then it’s okay. Also, if you create a bath bomb that have other layers that don’t effervesce, or can do other things, then you are okay. Or, as Nate mentioned, create a bath bomb that includes more than 2 effervescing layers.
But some of the wording of the patent filing legality is still fuzzy to me. For example, as far as what they define “different layers,” what each effervescent layer comprises in materials/ingredients, and the order of the effervescence rate in the layers.
Some bath bombs are made with what are called embeds, which are small pieces of colored fizzing tabs that are inserted into the bath bomb material before molding. These tabs are often made with a different recipe than the rest of the bath bomb. Is this considered a different layer since they are separate pieces and not a whole unit inside of another? Also, the patent filing speaks to the ingredients in each layer. If you use a different recipe for each layer, but it still effervesces, is that still legal? Lastly, the patent filing speaks to the order of effervescence rate: “wherein the rate of effervescence of the first effervescent material is greater than the rate of the effervescence of the second effervescent material.” What if the order was reversed where the outer layer effervesced slower than the inner layer?
Sorry to split hairs, but I guess this is what this is all about!
Good info. I see the issued bubble bar patent is on a composition of matter, specifying that it be a solid containing sodium carbonate, cream of tartar, and surfactant. “Solid” I take to mean a bolus or tablet, I.e. solid in the commercial sense, not the physical-chemical sense, because surely the prior art is loaded with examples of granular or powdered toiletries containing those materials. Considering most competing products are made with sodium bicarbonate — sodium sesquicarbonate may or may not be deemed to contain sodium carbonate — and/or another solid source of acid, this is a fairly narrow (weak) patent that leaves most of the field untouched.
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at this website, thanks admin of this site.
My question is: What about embeds? I see on Youtube many people are making Bath Fizzies that have color embeds. Is this an infringement? I do not want to be breaking any laws when it comes to making them. I see that one of the other commenters asked this same question. The sad thing about this is that many home crafters never even consider copyright and trademark infringement…they just think….oh…that’s cool….I think I’ll use that in my product lineup. There is so much to learn when thinking about opening a business…much more than you can imagine, and it’s in your best interest to do the research first…it pays in the long run. So I really need to get an answer about the embed situation before I invest any money or time in making them.
Carol I am pretty sure the embeds is Lush’s trademark for the 2 layered bath bomb. that is exactly what this is. You make an embed (smaller bath bomb) then you layer it with a second bath bomb. People have changed the wording but it all means the same thing.
I am wanting to make shampoo bars. I have read the patent and it mainly looks as though they have a patent on using the sulfate needles, water, and at least one other ingredient pressed in a bar. Do you see that they have a patent on the the shampoo puck shape? I would be using SCI powder, not the needles, but do they own it being a 2.5 inch puck shape?
Lush just came out with the seaweed bath bomb. Maybe they didn’t abandoned but changed the original seaweed patent. LOL Need to step up my game.
Does lush have a seaweed patent for bath bombs?? I need to know because i was thinking about making something.
So i was wondering does this patent protect the bath bomb of 2 layers or is it 2 distinct layers meaning that the layers are of different rates. What if you made a bath bomb with 2 layers but they were the same rate would that still be infringing on lush??
If you did 3 layers arent you still doing 2 plus one isn’t that still an infringement on lushes bath bomb or not I’m confused!
Hi. I was wondering if you have any information on the following European patents/copyrights held by LUSH:
Trademark registration numbers EU001388313 and EU003049467
I’m wondering what would happen if you were to make the bathbombs in a different shape to the cylinder ones described by lush?
In a nutshell what exactly is a two layed bath bomb? And how do you legally make a ‘bath bomb’ in a way that does not step on anyone’s toes?
If you were to make a bath bomb but call it something else and make it into a different shape, make it so it takes a long time to dissolve (use more of one ingredient to make this happen) would that still be infringement?
I would love to see Lush go after some multi-billion dollar companies: Wal-Mart, Bath and Body, Target, Sephora, etc for selling bath bombs…. Just Speakin my mind. Though I think it’s interesting, that a bath bomb can be multi-layered and not infringe on the patent… Then again, I’m not a soap maker.
Merry Christmas from Houston, Texas!
Thank you so much Lela for this invaluable, and information FILLED, post! I make all bath and beauty products, and had NO idea that, some of MY ideas and recipes, that I thought I CREATED, were already discovered, and made before me coming up with something I thought was unique to me. 😪 What a bubble popper (LOL, pun intended). I found this link from a YouTube channel I’ve watched, and have gotten alot of inspiration from. Glad I took the advice, and clicked on this link. Very important information for me, and my 1 woman operation, small business of making artisan products! I do research on how to make, what’s safe through FDA, FDIC, I believe that’s what it’s called, and what’s certified for particular product making. Does make it harder on the “small guys” to come up with a superior product, original, safe and compliant, that hasn’t already been patented. 😠 But it can be done! We, makers, have to just be a bit smarter, and more creative, and be INFORMED correctly of the “rules”. I will be sharing this link. You’ve opened 👀 my eyes, and flooded my brain with helpful information! Thank you so much for your dedication to helping others be informed, and protected, and the amount of YOUR time of research you’ve done! Amazing!
I too found this post from a video on YouTube. I have to say, though, in my reading (not a lawyer or expert) that according to Lush’s patent if you use bicarbonate instead of carbonate you won’t be in violation. Quote from the patent –
“The use of sodium bicarbonate in bath products has long been known. The substitution of this well known product in this type of formulation gives very surprising and positive advantages. The paste, which becomes solid with some sodium carbonate replacing the sodium bicarbonate, does not become infused with carbon dioxide during production enabling the mixture to be shaped and cut efficiently.
The replacement of sodium bicarbonate with sodium carbonate results in a totally different type of product.”
Since they are patenting a process, and can’t patent a recipe, the carbonate is the vital ingredient to the invention/process. Anyone else have any other thoughts on this?
Great article! And great things to consider when starting up. To your eye dies the bath bomb patent cover bathbombs that have embeds or only full layers?
This is very interesting to me even though I would never make and cannot use bath bombs/fizzies due to health issues. I am going to post this in several soap making groups because of the possible legalities with this product. Thank you for your due diligence on this subject. The legal language gave me a headache but I did understand the gist…If you are not absolutely sure, steer clear.
I think you have made a great point, thanks for sharing this information with us. Cheers and very clean article!! I like how you have researched and presented these exact points so clearly.
Change “an” to “a” in this sentence: This is a utility patent which covers the actual functionality of combining citric and soda to create an molded effervescent bath product.
Love,
An Editor
P.S. Loved the article, which I was directed to from Royalty Soaps.
Also, you cannot infringe a patent which hasn’t been granted. Infact if a product is in use before the patent was applied for, and publicly known, one can not obtain a patent on it. There is nothing original.
Yikes. I think they also have a patent on jelly soap, too…but I have a question. The selling of bubble bars and reference to them as such is illegal, but can they be given away? Like as a part of an incentive with orders?
So is the actual end product (a solid bubbling bath bar) made with SLS, sodium carbonate, and cream of tartar protected or the process of making it with those particular ingredients? I read the whole patent and it seems to say they are patenting the process of how the make it with those ingredients but not actually the end product. So technically, does that mean anyone can make a solid bar that bubbles using varying ingredients of surfactants, sodium bicarb and cream of tartar at different concentrations than stated and method?
Hello!
I know you repeatedly mention that a recipe is not what’s patented, but rather the way its made. But I read that one of their layers must contain creme of tartar. So, if I make a 2 layer bomb without using that ingredient, am I safe from violating their patent?
Your discussion of Lush’s bath bomb patent should be amended as follows.
1. The first link isn’t to their patent, it’s to their published patent *application,* which isn’t a *patent*. Thus, an application cannot be used to exclude others from practicing an invention, the way that a patent can be used.
2. The patent that issued (or at least one of them) from that application, US Patent No. 8,697,621; Issue Date: April 15, 2014, DOES covers bath bombs and not just a method. Here’s claim 1 of that patent (emphasis added).
1. A surfactant *product* comprising a first effervescent composition and a second effervescent composition,
wherein each effervescent composition is capable of effervescence on contact with water,
wherein a rate of effervescence of the first effervescent composition is greater than a rate of effervescence of the second effervescent composition,
wherein the first effervescent composition comprises
at least sodium bicarbonate and citric acid,
wherein the second effervescent composition comprises
at least a surfactant, sodium bicarbonate, citric acid and cream of tartar, and
wherein the first and second effervescent compositions are distinct from each other and of [sic] the second effervescent composition entirely envelops the first effervescent compositions.
Intellectual property law is complicated. I know you’re not providing legal advice and neither am I, although I am a retired patent attorney. Thanks!
Hi Mary, I appreciate the further info you’ve provided on this topic. I was wondering if you return to this site if you might considering answering my question below? I’m trying to understand whether any two-layer bath bomb product is covered by this patent, or if the ingredient composition would have to fall within the % ranges specified in the patent.
The patent for the two-layer bath bomb specifically says the inner layer contains cream of tartar at 2 to 6% by weight. I don’t really understand patent law, but wouldn’t that mean that any product not using that specific composition wouldn’t be infringing?
Apologies – it’s the ‘second effervescent material’ that contains 2-6% cream of tartar, and that appears to be the outer layer (though it mentions the two layers can be reversed).
I’m singling out the cream of tartar in my question, because it would be easy to alter the amount of cream of tartar so that it doesn’t fall inside the specified range in the patent, and still create a bath bomb that functions the same way. (Whereas it would be difficult to create a functional bath bomb with sodium bicarbonate or citric acid outside the ranges they specify).
But my general question really is: would any bath bomb using this general two-layer concept be infringing on the patent, or would it only be a problem if the product contains ingredients in amounts that fall in the ranges specified in the patent?