BIZ BUDDY: PROTECTING YOUR IDEAS
I want to start this post off by saying that this isn’t a step-by-step guide on how to protect your intellectual property. I don’t know enough on the subject to pen that kind of post. But I received an email last week from someone asking about IP infringement so, despite having a bit of an aversion to the subject (it gives me schpilkas), I thought I’d share what I’ve learned in the last 5 years of running this business, and some of the experiences I’ve dealt with, in case they can be of help to anyone. Here goes:
Call me defeatist or call me psychic but when I made the first batch of SEX, DRUGS & LOBSTER ROLLS shirts almost 4 years ago, I had a feeling that someone, at some point, would copy them. And, unfortunately, I was right.
If I remember correctly, it took about 4 or 5 months after I’d started selling the shirts before someone tagged me in a picture on Instagram of a semi-famous singer in the States wearing one. Except that it wasn’t one of my shirt that the singer was wearing. It was identical - same colours, same font, same layout - but, because I know my shirts well, I could tell from the photo that the kerning (the distance between letters) was a little different. My heart sank as I realized what was going on: someone had copied my shirt.
I’d heard and read about this kind of thing happening to makers. I have friends it’s happened to but this was the first time that someone had stolen one of my ideas. I felt betrayed. I was upset. And angry.
Before I made the first LOBSTER ROLLS shirts, I did what I always do when I have a new idea, which is to extensively google it and research it online, to see if anyone else has thought of it. No one had. Or, if they had, it wasn’t online. So I made the first batch of those shirts.
I thought the phrase SEX DRUGS & LOBSTER ROLLS was funny. I didn’t come up with it, by the way. A friend had written it as a caption on Facebook after I’d posted a picture of a lobster roll back in 2013. I thought it would make a good shirt so I asked if that was OK with him and he said yes. Because I’m sometimes slow on the uptake, I didn’t actually get around to making the shirts until the following summer. And, of course, at the time, I had no idea the shirts, or the phrase, would catch on as it has.
After that first copy, other copycats started popping up onine. i began dreading googling “SEX DRUGS & LOBSTER ROLLS” because, every time I did, there were more people copying the shirt.
About a year after the first copy, I finally got in touch with an intellectual property lawyer in the States because everyone who was copying the shirt was in the States. The lawyer explained that while t-shirt slogans aren’t generally trademark-able, in this case, it could be. I’ll be honest, I still don’t entirely understand how intellectual property laws work, and what you can and can’t have trademarked. And things are different in the States than they are in Canada but, long story short, with my lawyer’s help, I filed an application to the trademark office in the US and, several months later, the application went through. In the States, I own the trademark for the phrase SEX DRUGS & LOBSTER ROLLS.
But here’s where things get tricky, and why it hasn’t been so simple to deal with copycats.
Applying for a trademark isn’t free. It’s several hundred dollars U.S.. At the time, I saw it as an investment in my business. My hope was that, if the copycats stopped selling copies of my shirt, I’d make the money I spent on the trademark application back in sales. A logical enough assumption, right? As it turns out, it’s not that simple.
See, once the trademark was granted, I had to try to get in touch with everyone who was selling copies of the shirt. And that, in and of itself, wasn’t easy. It’s not always clear on websites - especially a lot of these weird websites that seem to make their businesses off of other people’s ideas - who the owners are. And because I’m not an expert on intellectual property laws, or what exactly to write in letters/emails to the owners, I asked my lawyer to do it for me, which she did. But that was VERY expensive, even with the discounted rate she offered me. We’re talking a couple grand U.S. kind of expensive. And I’m going to be honest here, even though it makes me look a little flakey but… I forgot to ask my lawyer beforehand how much contacting the copycats was going to cost. I’d just assumed that I’d pay her for the time it took to draft one email, which I figured would take 2 hours-ish, and then, I figured, she’d copy and paste the email and send it out to the different copycats. But that’s not exactly how it works.
My point (and the lesson I learned) is: these things are tricky and they can be expensive. I own the trademark but, if I want my lawyer to contact everyone who’s making copies of the shirt, I have to pay her. And, quite simply, I don’t have that kind of money, especially since new copycats keep popping up.
So, as it stands now, despite my lawyer’s previous efforts, there are, again, a number of people making and selling SEX DRUGS & LOBSTER ROLLS shirts. Is it frustrating? Absolutely. Is it taking away from my sales? It sure is. But I don’t want to spend all of my time, energy and money trying to stop these people. I also don’t want to live in a space of anger or frustration. I did that for a while (when people first started copying the shirt) and it didn’t feel good. That said, I haven’t giving up on dealing with them and am gearing up for another round of emails to try to get a handle on the situation.
A silver lining, for anyone dealing with this problem, is that we live in the age of social media, where we’re free to publicly call out copycats on Instagram and Facebook. I personally have never done this but I have friends who have, and who’ve managed to successfully stop their copycats.
What I have done in the past, not with regards to the LOBSTER ROLLS situation but to another of my designs that I felt another maker’s work bore a close resemblance to, was to send that maker an email and tell them precisely that.
Unfortunately, I don’t think think there’s one clear way to deal with copycats. Every situation is different, which is what makes things tricky. Sometimes copies are exact replicas of the original maker’s work, and they’re easy to prove. Other times - I’m thinking of a jeweller-friend who shared with me that she has a copycat who’s been consistently using designs that are very similar to hers though not necessarily identical - it’s not so simple.
Another story that’s pertinent to this subject:
A few years back, I found a tutorial online for buoy-shaped pillows. I thought they were cute, and they fit well with my shop, so I made a batch and began selling them at craft shows (though not online because I didn’t want to deal with shipping them). A few months later, I received a message from a maker in the U.S. who had seen my pillows on my Instagram account, and who was quite upset that I was making them. She claimed that she’d had these pillows trademarked and asked me to stop selling them. I never asked to see the trademark papers so I don’t actually know if the idea is trademarked or not but I stopped making them for 2 main reasons:
1- they weren’t a big part of my business, just something that I decided to try on the side, for fun
and
2- my feeling was (and still is) that I’m not interested in pissing people off or stepping on anyone’s creative toes.
Here’s what I’d say to anyone who’s had an idea or design stolen:
if you can (and want to), address the situation as quickly as possible.
If you can’t, let it go. Completely. The anger and frustration will eat you up, and the only person who’ll be negatively affected by those things is you.
In his book It’s Not How Good You are, It’s How Good You Want to Be, author Paul Arden makes this point:
DO NOT COVET YOUR IDEAS.
Give away everything you know, and more will come back to you.
You will remember from school other students preventing you from seeing their answers by placing their arms around their exercise book or exam paper.
It is the same at work, people are secretive with ideas. 'Don't tell them that, they'll take credit for it.'
The problems with hoarding is you end up living off your reserves. Eventually you'll become stale.
If you give away everything you have, you are left with nothing. This forces you to look, to be aware, to replenish.
Somehow the more you give away the more comes back to you.
Ideas are open knowledge. Don't claim ownership.
They're not your ideas anyway, they're someone else's. They are out there floating by on the ether.
You just have to put yourself in a frame of mind to pick them up.
I share this excerpt not to dissuade anyone from addressing issues of IP infringement (on the contrary, I think they should be addressed) but, simply, to remind us that, if we aren’t able to fix these issues, this philosophy might be a helpful way to reframe the situation.
Another line by Samuel Johnson that I like to remind myself of when it comes to this subject is:
”No man was ever great by imitation.”
It’s hard to build a successful business. Period.
And it’ll be even harder for someone who doesn’t have enough original ideas to sustain that business.
I find comfort in my belief that the folks coming up with new, original ideas are the ones whose work and businesses have staying power. And that customers are very perceptive, and can generally feel and sense what’s sincere and authentic and what’s not.
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If you’re looking for more info on intellectual property infringement in the U.S., I highly recommend this site by my IP lawyer.