Battle of two marketing companies

It isn't often that startup rivals battle in plain view of others, but such is the case with the mobile messaging services provider Postscript, which took to the Twitterverse earlier this month after receiving a cease-and-desist letter from competitor Attentive.

Attentive's letter was in response to a client case study that Postscript had authored and posted on its website about nutrition company BUBS Natural, which said BUBS Natural left Attentive for Postscript after finding its list actually shrinking instead of growing, then battling with the company to move its list off its platform.

Calling out Postscript for "false, misleading and deceptive claims" being made about it in those published materials, Attentive in its letter demanded that Postscript cease posting them.

Asked afterward what's going on between the two outfits, Attentive, through a spokesperson, responded via email that "Unfortunately, Postscript has a history of false claims and deceitful conduct. We've sent multiple cease and desist letters over the years as they've made inaccurate claims about Attentive, which they've acknowledged and corrected. We've also brought a federal lawsuit in January of 2023 against Postscript for ongoing and willful infringement of our multiple patents for our two-tap mobile technology, which revolutionized brands' ability to add customers to their SMS lists in a compliant way." (Attentive shared a copy of the complaint with TechCrunch.)

Some of the "beef" between the two may seem ticky-tacky to outsiders. For example, Attentive's cease-and-desist letter complained about the timeline in Postscript's marketing, which says that former customer BUBS Natural was a customer of Attentive for three years when Attentive says BUBs was a customer for roughly half as long.

In response to Attentive's letter, Postscript's co-founder Alex Beller published an exasperated-sounding tweet, saying Postscript has heard before from Attentive and calling the company a "bully." He also published a "response in full" that attempted to strike a more measured tone.

Look, this isn't the first C&D we've received over the years from Attentive.

But sometimes you gotta stand up to the bully.

Here's our response in full: pic.twitter.com/VbqkTijt2y

-- alex beller (@ringmybeller) April 6, 2023

Reads the response: "Postscript takes your accusations seriously and provides its substantive response below. But it is important also to note the broader context in which Attentive is casting those accusations. Postscript is making gains in the market. It has also recently brought attention to a reprehensible practice engaged in by some SMS platforms in the industry: holding a customer's proprietary SMS list hostage to prevent or interfere with the customer's attempt to change providers. Considering these circumstances, Attentive's assertion of increasingly weak legal claims appears aimed at shoring up recent underperformance in the market and distracting from its own acts of unfair competition."

Russell Weaver, a professor of law at the University of Louisville, spoke to TechCrunch about what avenues Attentive has to defend itself against perceived defamation or slander. One is to sue, which Weaver said is more complex and can often lead to further scrutiny or defense of the company. The other is to try the cease-and-desist route as Attentive has done.

In the meantime, Postscript's tactics seem to be working. In response to one of Beller's tweets on the matter, one Attentive customer said he might change vendors. BGC (@Bryan_Clark_) tweeted, "This makes me want to switch from attentive to Postscript. I wonder what the ROI on this thread will create for you guys."

When asked if it did have an impact, Postscript responded via email that it "doubled its 'win rate' against Attentive in the last quarter."

Meanwhile, TechCrunch talked with TJ Ferrera, co-founder of BUBS Naturals, about not seeing that promised pick-up in subscribers. With regards to making a switch that probably drew more attention than he anticipated it would, he said he has no regrets.

"On one front, it's small players that don't know how to play this," Ferrara said. "On the other front," he said, referring to Attentive, "you have a 400-pound gorilla that is holding people's information hostage."

To that allegation of holding data, when Ferrara requested custom data from his account, Attentive responded with it in six business days, and a subsequent request was answered within an hour." In addition, its "policies with its customers make clear that the customer owns its data. Attentive facilitates the export of subscriber lists upon customer request and strives to provide them in a timely manner in accordance with our contractual agreement."

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