July 22, 2009

More aggressive IP/brand enforcement

My most popular blog entries have to do with taggies. Taggies are those square blankets with ribbon loops around all edges. I have received a lot of comments asking what the latest is on the patent and enforcement. I can only repeat what other commenters have stated:

1. The Taggies people are continuing to enforce their patent.
2. The patent enforcement lawyers appear to be going after anyone who has any form of a ribbon loop on a blanket edge, whether it is one ribbon loop or several.
3. No one has taken up the task of challenging the patent.

If Etsy or Ebay receive notice from Taggie's lawyers that the product is a potential infringement, those companies will pull your listing. These companies have little resources to investigate the claims, so legitimate or not the listing will be pulled down. You will not be able to defend yourself. If you list an item in your own store or blog for sale, you will receive a letter directly.

To date, it would appear there is plenty of evidence that the patent can be challenged. Commenters claim they had these style of blankets as children or that they have bought a current home sewing pattern with this style. Patterns and instructions abound on the net as do product listings in various online stores. The Taggies people were the first to obtain a patent and therefore believe they own it despite the evidence that the idea has been around for decades. This only illustrates the problem with the current patent protection system. The system is just complex enough that ordinary people have no idea what patents are being sought and if they should be challenged. The patent bureaucrats and lawyers don't understand the manufacturing processes and how common a folded ribbon loop in a seam is. Who has the time and money to fix the problem? Taggies is expanding into Europe and South America, so despite calls for a boycott the company appears to be growing.

Another aggressive brand enforcement problem has to do with the word onesie. Onesie is a registered trademark brand owned by Gerber. You cannot use that particular word to describe an infant bodysuit or unitard unless it is an actual Gerber branded Onesie. Various acquaintances of mine and online shop owners are receiving threatening letters about their use of this word in their product descriptions. Gerber appears to be ramping up their enforcement of their trademark.

These companies have not technically done anything illegal. They have the right to apply for patent and trademark protection. That protection is only worth as much as they are willing to enforce it. So, IMO, let them waste spend their money on it. The one thing these companies are doing is creating ill will among potential customers and retailers. Customers and retailers have long memories and will think twice about buying or indirectly promoting those products to friends. They may be doing more damage than they know.

Baby and children's apparel products seem to have more patent and trademark protection than other sewn product categories. There are bibs, hand covers, sensory objects, diapers, and so much more that have patent protection. I haven't quite figured out why.

5 comments:

  1. Anonymous9:42 PM

    Maybe the Taggies company has not technically done anything illegal from a purely business standpoint by protecting their product against knock-offs.
    Many designers even feel that it is ridiculous that the patent was given in the first place; since the design was not in fact a new idea but one that had been around since at least the 1970’s. Surely many designers, moms and grandmas put ribbons on blankets even before then.
    I do think we need design protection, but if I design my version of a baby dress that has a ribbon bow at the neck would it be reasonable that I could charge anyone with product infringement, simply because they put a ribbon bow on the neck of a baby dress, blouse, skirt or coat or a blanket or toy. People would think I was crazy. And this is just how ridiculous Taggies claim is. How can they have sole rights to the use of ribbons or ribbon loops on any and all baby items?
    What if the products they have claimed are an infringement, are in fact someone’s original designs? Maybe they had no knowledge of the Taggie Company or Taggie blanket. Maybe they actually figured out for themselves that babies liked soft fabric, satin, ribbons or tags. What if their product clearly doesn't resemble the "Taggie Blanket"? Not in the fabrics used, style, size, construction, color...the only thing that remotely resembles it is the use of a few ribbon loops. Even the manner in which they are attached is different, there are not 20 or 24 ribbons, but only a few and they are not on the edge. I don’t feel their claims would stand up in court, but how many small businesses like mine have the money to challenge the claim?
    My question is this: Why doesn't Taggies have to prove their claims before items are removed from online shops? Should every claim Taggies makes just be accepted and all items be removed because they say so? In what kind of world would that be considered fair?
    I think this has gone on for far too long, pretty soon the only designer or manufacture of baby’s items will be Taggies…because everything not made by them will be an infringement on their patent. Isn’t that called a monopoly?

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  2. Sadly, some companies use frivolous patent and trademark infringement allegations as a means of income. The most well-known is Monster Cable, which makes home theater cables. They regularly sue small cable manufacturers for patent infringement. They pick random product designs and say the competitor's products infringe, even when they have nothing in common. They aren't worried about the competition, they just want licensing fees and an out-of-court settlement. They figure the little guys can't afford a proper defense and will give in without a fight, and they're usually right. The collective internet cheered when Monster made the mistake of suing Blue Jeans Cable, owned by a former litigation lawyer. His response to Monster is found here: http://www.bluejeanscable.com/legal/mcp/response041408.pdf. Some of the more interesting quotes from that letter include "I would remind you that it is is you, not I, who are making claim; and it is you, not I who must substantiate those claims" and "I would rather spend fifty thousand dollars on defense than give you a dollar of unmerited settlement funds."

    They also sue anybody with Monster in their name, including Monster Mini-Golf, monster.com, and Pixar's Monsters, Inc. They get licensing fees on the basis of someone confusing other products as coming from them. Yeah right, like I'm going to think an audio cable manufacturer made a movie.

    I guess I'm just pointing out that you're not anywhere close to alone.

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  3. Anonymous9:08 PM

    Thank you Darryl~
    Your kind words were very encouraging. When this first happened I was very angry, I thought who needs this? I wrote a long letter to Taggies and expressed my shock… In reply, I received 3 brief sentences. None of my questions were answered… I was told to talk to a lawyer. I thought about just giving up. After doing research, and reading everything I could find about this issue especially Esther's other blog posts I began to feel that while they won that battle I am a fighter/designer and I will continue to express my point of view through the things I design. I’ll need some time to bounce back but I will not give up doing what I love.

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  4. Anonymous9:15 PM

    Esther,
    I want to thank you for your very informative posts on this issue. You helped me to get over the anger and think about it logically. I feel a renewed desire to create, and have several ideas that are already on the drawing board.

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  5. You are welcome. While I have never received a Taggies letter, I know that it is a frightening experience. I am glad to hear that you will continue forward with designing children's products. We need your point of view too!

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