More aggressive intellectual property enforcement by Taggies and Gerber

Taggies

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.

Gerber and the word Onesie

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.

Deciding on whether to file a patent on a new child's product design or not

2019 Note - The amazon affiliate link to the nursing cover above is from a different manufacturer then the one described below. I do not know the current status of the Bebe Aulait patent or protection efforts. Regardless there are dozens of similar ideas on Amazon and other places.

I don't know why, but some baby clothing and accessory designers are under the impression they need to go to extremes to protect their product. This includes patent, trademark, and copyright protection. Maybe it is the inner paranoia of being copied. I don't know. It seems that there are A LOT of baby/child related products that have been patented. Why? Some products are truly patent worthy but most are not. Regardless, patents are only worth as much as the effort used to protect the patent. In other words, it may cost you more to protect your patent than the money you make off it. That isn't true for all products, but for many. For many design entrepreneurs it will be a waste of time and money. There are few processes or ideas that are unique in this industry. Most designs are just reinterpretations or a new combination of existing ideas.

There are three types of patents:
1) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;
2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

In addition:

Even if the subject matter sought to be patented is not exactly shown by the prior art, and involves one or more differences over the most nearly similar thing already known, a patent may still be refused if the differences would be obvious. The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention. For example, the substitution of one color for another, or changes in size, are ordinarily not patentable

I don't know under which of the three types of patents that Bebe Aulait has filed their patent for their Nursing Cover and I am not sure their claim is truly new or novel. (Bebe Aulait purchased the invention from the inventors and have become the new patent asignees). The idea has been around for a long time (one friend claimed she used one 20+ years ago). I think their claim as an invention centers around the addition of boning (stiffener) in the neckline of the apron that helps hold the apron away from the body. One interesting part of the patent is end caps on the boning. I haven't seen end caps for boning before and I could get behind that one small aspect of the patent. Have any of you seen endcaps for boning before?

In any event, there are some problems with the patent and I think it could be challenged. But who has the time and money. The nursing cover is a glorified apron.

Rumor on the street is that Bebe Aulait is enforcing their patent pending product in the same vein as Taggies, which I have blogged about before. It calls into question the value of their patent since it is so easy to copy. Not that I am encouraging copying. If you do, you will receive a threatening "cease and desist" letter from a lawyer.

I don't know what it takes to challenge a patent. I am sure at some point an IP lawyer will have to be employed and they are very expensive.

Trademarks are issued to brand names. Like patents, it creates a property right over a brand name. I will write about a trademark problem with onesies (owned by Gerber) at a later date. The next problem is copyrights. Taggies claims copyright protection on their products. Such a claim is not valid because there is currently no copyright protection on clothing or textile items. Copyright protection can apply to textile designs such as fabric prints. A measure has been in the works to extend copyright to apparel but is apparently stuck in committee. Such an extension of copyright would have a devastating affect on the apparel industry in the US.

What do you think?

Thanks to MyPreciousKid and Trinlayk for bringing this to my attention.

Who puts whom in a corner?

You have probably seen them. Those cute infant-toddler shirts with quotes, phrases, and images inspired by popular culture. You can buy those shirts everywhere from CafePress, on-line retailers, shopping malls, and even street corners. I am sure no one ever thought some of those phrases would be trademarked. If you follow the link, you will find that Lions Gate is going after people who print a quote from their movie on t-shirts. The defendants are producers of baby t-shirts and products.

The case will be difficult to prove. The phrase that can't be said has been "borrowed" by various companies since the movie came out 20 years ago. Lions Gate sells approved merchandise with the phrase that can't be said. But until now, they have failed to adequately defend their own trademark. After 20 years, is the trademark valid? I did a quick search for it at the USPTO and couldn't find it. Was it ever registered?

If Lions Gate wins this case, can you imagine other movie studios going after people for similar things? If you can't say the phrase that can't be said, how many other phrases can't be uttered? Maybe CafePress should be nervous - so many of their baby products are inspired by movie utterances.

Ethics aside, this case illustrates a danger to the freedom of speech. Who knew a common phrase could be trademarked? Should we be concerned when we use the word Apple or ask where the beef is?

Let's take another tack. The movie studios are benefiting from essentially free advertising. Think about all of those babies wearing shirts with the phrase that can't be said. Their parents will remember that movie and perhaps want to see it again through video purchases or rentals. Perhaps movie studios have a right to protect their intellectual property, but at what cost? Are they willing to risk losing free advertising and potential customers? Apparently they are.