How to Deal with Knockoffs: Flattery or Flat-out Theft?

in Forum: Protecting Your Ideas
Source of this discusssion: /articles/3782/1/product-knockoffs.asp Page description: Rolex watches and Kate Spade handbags are sold from car trunks – because they're not Rolexes or Spades. Knockoffs are a fact of business for big brands, and they have legal teams to deal with it. But as a startup, you don't. Here’s what you can do if you get knocked off.
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Dec. 15 2007 at 1:21 PM
YveEMD Posted by: YveEMD

It's true that turning the other cheek can lower blood pressure, maintain sanity and sustain primary focus on one's company, but it can also harm you financially.  The entrepreneurs previously profiled are fortunate that success blessed their businesses and that the knockoffs didn't take money from their pockets or inhibit their success.  As a jewelry designer, I have seen my proprietary work show up in print ads for couture designers as well as the websites on which I hoped to sell my work. However, I know of a purse designer whose work is exceptional given her fashion training and years of experience and she was knockedoff by a woman without fashion training whose work was vastly inferior.  The irony is the inferior purses received the right publicity and that company grew and began doing trade shows.  The superior company though tenured in the industry was turned away from trade shows because the work looked too similar to the inferior products.  The lesson is that sometimes it is necessary to stop what you are doing and take legal action - get a large firm that specializes in fashion to help you pro-bono.  The knockoff companies can gain momentum through publicity or celebrity endorsement.  Document your designs with dated rough draft drawings and notes.  Keep a binder of each of your collections that contains dated invoices from suppliers as well as your notes.  Dated invoices, website date codes and dated initial notes and drawings will prove your case in a law suit.  The bottom line is that it is hard to make headway in many industries - particularly the fashion industry - and turning the other cheek can prove to be an act of charity that can put your fledgling company out of business.

Luxurious things should never be rushed. Create what is memorable, not merely desirable. Leave an imprint on humankind and the environment that is benevolent. Empowerment Mineral Designs has been recognized by the Center for Positive Practices for its business model.
Dec. 15 2007 at 1:48 PM
CraigL Posted by: CraigL
I think we have to make a distinction between copying a specific item versus copying the underlying concept.

If someone copies a particular design for a piece of jewelry, that's stealing. But if someone copies the idea of opening a jewelry business and selling jewelry, that's copycatting, in my opinion.

Although I'm not an attorney, I suspect that if the item being copied is both unique, and the explicit result of one person's mind, it would be a legal theft. On the other hand, if the item being copied is "general" or in the public domain, then to copy the process is to help grow the market.
Craig Landes
---
Defining the undefinable. "There are 10 kinds of people in the world---those who understand binary numbers and those who don't." - Unknown

International Society of Curmudgeons
Dec. 15 2007 at 1:48 PM
LiveWise Posted by: LiveWise
I agree that knock-offs take away from the person with the original idea.  I did arts, crafts, and jewelry at one time and I found that even when I charge a reasonable amount, copies showed up.  I can not afford to do arts, crafts and jewelry because of this and also, they look similar whether they're made in China, in the USA or in my garage.  Imported and commercial made items sell for much less.  I have to charge more because I have to cover my expenses for my tools and materials.
People do not want to pay a lot of money for certain things, but keep in mind that knock-offs have happened from the beginning of time.  Imagine the first person to create pants, anybody now can create pants.  I guess, to make a long story short, if you have an original idea, don't put that idea out in public because other people will take great ideas.  Jewelry looks similar, bags looks similar, houses look similar, cars look similar.  If you want to protect your idea, take the legal means to protect it, but sometimes the cost out weigh the benefit.  Realize that some people will always look for the quality and others will only look at the price. 
 
Legal action is very expensive and even the best documented cases don't win.  Then there can be years of appeals.  To me, I think I would want to get in with a company that will pay me for my ideas and then let them take care of the competition. 
 
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Dec. 17 2007 at 9:13 AM
KevDev Posted by: KevDev
All of those creating original works need to remember that although there are steps you can take to protect your work, you are the one responsible for enforcing those rights. In other words, even if you do keep excellent records and copyright each of your works, if you find a knock-off, you are the one who has to pursue the matter through the court system. There are no intellectual property police!


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Dec. 17 2007 at 2:33 PM
CraigL Posted by: CraigL
KevDev wrote: ......if you find a knock-off, you are the one who has to pursue the matter through the court system. There are no intellectual property police!

A really excellent point and post!

Craig Landes
---
Defining the undefinable. "There are 10 kinds of people in the world---those who understand binary numbers and those who don't." - Unknown

International Society of Curmudgeons
Dec. 18 2007 at 2:17 PM
actually, there are intellectual property police - at the u.s. customs dept. James Lindon, Ph.D. Patent Attorney
Lindon & Lindon, LLC
Cleveland, Ohio
Patents, Trademarks, Copyrights, Pharmacy Law, Litigation
[this is not legal advice - provided for discussion only]
Intellectual Property for the Individual and Small Business: Identify, Protect, Enforce, Defend.
"Fools rush in where angels fear to tread."
http://www.LindonLaw.com/
Dec. 18 2007 at 4:57 PM
YveEMD Posted by: YveEMD
Well stated, James!  Yes, creating and building a business is hard work and it is easy to become overwhelmed.  However, your business was worth creating and it is worth protecting.  Yes, you have to create a paper trail to have evidence that your product is your original idea.  Yes, you have to be vigilant and ask friends and acquaintances to look out for you too.  Certainly, the method by which you address a knock off manufacturer is determined by how large the company is.  If small, often they can be persuaded by an attorney written "Cease and Desist" letter.  If the villain is a large corporation - say a discount multi-unit, well, a top-notch law firm specializing in the protection of Intellectual Property is in the best position to recover damages for you .  However, you may avoid knockoffs altogether if you pay for an hour's counsel with an Intellectual Property attorney at the start of your business and become informed as to what safeguards you can build into your product and business. 


Edited by: YveEMD - Dec. 18 2007 at 5:00 PM
Luxurious things should never be rushed. Create what is memorable, not merely desirable. Leave an imprint on humankind and the environment that is benevolent. Empowerment Mineral Designs has been recognized by the Center for Positive Practices for its business model.
Jan. 10 2008 at 11:40 AM
artalacarte Posted by: artalacarte
"Luxurious things should never be rushed. Create what is memorable, not desirable...". I like that!
Our business www.whineranddiner.net, wine crates pet feeders and beds , created in 1997, but only really having been promoted since about a year ago, has suddenly become successful, and with its success, copycats are multiplying...Our name is trademarked, but not the idea...our fault assume! Is there anything that can be done?
Thank you! 
"Simply Eco-Luxurious: Because your Pet deserves the Very Best"
Whiner and Diner Pet Accessories
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