While you can never protect your property 100%, you can take several steps keep knock-off artists at bay
You thought of it, designed it, built it. You created a website to market it and wrote descriptions to sell it. So why is there another just like it on Etsy? Why is there an identical product coming from China, or a competitor’s logo that looks just like yours?
It isn’t possible to lock down your intellectual property, at least not 100%. Competitors find gray areas. Others simply rip you off. Many overseas manufacturers simply don’t seem to care. Still, it’s possible to put your stamp on your own work and, in so doing, to ward off potential infringements.
Here’s how four small businesses are protecting their intellectual property.
1. Register for a “trade dress”so you can file under DMCA
“I'm an inventor with a product called Swiggies, wrist water bottles for adults and kids. Even having a patent on the product didn't stop the counterfeiters from stealing it,” says Julie Austin. “I found out because I Googled ‘wrist water bottle’ and found numerous websites—mostly in Chinese—selling my product.”
Adding insult to injury: “They not only had my product, but they had pictures of me wearing my product. And when I called them they tried to sell me my own patent protected product! When I told them it was mine they suddenly didn't speak English.”
“So as of this week I now have a registered a ‘trade dress’ on the product,” she says. A trade dress offers protection for the visual appearance or packaging of a product.
“This is proving to be much more effective even than a patent, because it falls under the Digital Millennium Copyright Act. There is no debate. Either they have to remove it from the Internet and stop selling it or Google will shut them down,” she says. “A trade dress isn't for everyone. It protects the look of a product. But in my case, it’s worth a lot.”
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2. Hire a patent attorney.
LoopRope inventor Jeff Dahl spent countless hours in his garage to perfect his tie-down system, which eliminates the use of bungee cords and cargo nets. With all that time and effort invested, he decided to take no chances. He hired a patent attorney to search for similar items and to file a patent application. (A patent attorney’s fees may run from $5,000 to $15,000.)
Dahl wanted to patent his work, not just to keep out potential copy-cats. In talking to investors as well as potential retailers, he got clear feedback that a patent would be necessary to secure their backing.
“No investor wants to risk money in something that has an easier chance of getting knocked off,” he says. Neither do retailers. “Having protection goes a long way when it comes to securing cash and shelf space.”
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3. Shut down the copycat’s website.
Sometimes the best patent protection is a stern letter paired with an understanding Internet provider.
Whiner and Diner makes pet beds and other products out of highly finished, decorated used wine crates. Knock-offs show up all the time on craft site Etsy. “It’s terrible, horrible. They copy the product, they re-write all our descriptions and titles. One store just copied and pasted the whole website,” says owner Catherine Simms. “I work on the website myself. It took me years to learn about optimization. But if I optimize my text and then they use that text, they may show up before we do!” (Etsy's copyright and /intellectual property policy, which includes a procedure for reporting infringements, is here. Etsy offers information on protecting one's work here.)
Confronted, most rip-offs will simply deny the violation. “They send a very polite letter saying: We just happen to manufacture the same thing and we’re not using your company name, so it’s okay,” Simms says.
When a cease-and desist letter is not enough to resolve the issue, Simms goes to the offending website’s hosting company with a request to remove the questionable content. Yahoo! has complied twice, as have other hosts. So far, this has proven her best defense. “When it’s obvious, the hosting companies will just shut them down,” she says.
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4. File for a trademark.
Hussein Yahfoufi founded appsplit in 2011. Not long ago, he realized the time had come to secure his firm’s identity, which helps developers raise money for or sell their apps.
“Similar to most companies, we subscribe to Google Alerts for any new web pages that mention our name,” he says. Recently he was surprised to see a company operating under a nearly identical name, and moved quickly to register a trademark. “Since we are already using the name and have been using it for a while, we still have the rights to the name with or without a trademark, but having a trademark registered makes the process a lot easier.”
Securing the name was challenging, but not excruciating. “Filing for a trademark is a pretty simple process when you take the time to read the instructions the [United States Patent and Trademark Office] provides,” he says. “The instructions are very detailed and may seem confusing but after reading them a couple times it will all make sense.”
With the name locked down, Yahfoufi now is working to secure a patent for his technology. His advice to others in the tech trade: “Do not put this on the back burner. It is important. Start the process today.”