Imitators and Knock-off Artists: Is My Product Protected?

You are finally seeing progress with your online shop, and one of your unique designs has just been mentioned in a small magazine – winning your store tons of attention. Things are taking off, just as you always hoped they would!Then, while browsing through a retail catalog, you notice something odd: "Is that ... No way!” You see an almost identical copy of your unique product!Companies have been creating copies or “knock-offs” of other companies' products for years. If you have ever exhibited at a trade show, you know that “snooping” – while discouraged – is difficult to police, and many competitors walk the floor after hours looking for ideas and taking pictures.Being online can help your business grow, but having every detail of your work displayed opens you up to having your product copied (especially if you are doing well!). Now that online markets are the hot places for style editors (and subsequently product designers and competitors) to spot trends, finding that you have been copied may be more likely than you might expect.Still, for many creative entrepreneurs, seeing nearly exact copies of their work often comes as a shock.Not To Worry, I Have A Copyright! (Right?)Surprisingly, copyrights and trademarks may not provide complete protection for your work. According to the attorneys we interviewed, copyright law protects some things, but not others.Joy Butler, author of the Cyber Citizen's Guide Through The Legal Jungle explains, “Copyright protects original creative works, including visual artwork and crafts. However, copyright protects only expression. It does not protect concepts or raw ideas. For example, if I create a figurine of a horse, anyone may duplicate my idea of producing a figurine of a horse - even if it is the exact same horse. What another may not do is duplicate the expressive elements I used in my figurine version of the horse. Expressive elements in visual artwork include the selection of lighting, shading, camera angle (for photographs).”"Expression" or expressive elements that are unique to your design are protected, but the law simply isn't black and white. An exact copy of your product would clearly violate copyright law, but when another company is "heavily inspired" by your original idea, it is difficult to prove they are in direct violation of the law.You may find that even if you have a copyright, a savvy imitator may be able to get away with producing a “legal” copy of something uncomfortably close to your work. What is the best thing you can do to protect your original products? Surprisingly, it is not necessarily taking legal action.Use Your Strengths: Your Speed To Market and Brand May Be Your Best DefenseJust as it has been for many years, being copied is often just a part of doing business. Of course, there are legal steps you can (and should) take to proactively protect your rights when bringing a new product to market or putting it in your online store. (Don't miss our upcoming article, “Tips From Legal Pros on Protecting Your Products.”)But, ironically, marketing your brand (yes, drumming up the attention that may have made you a target in the first place) is exactly what you should continue doing to fight imitators.Consumers generally prefer to purchase the “real” item, rather than its imitation, particularly when a product's popularity is at its peak. Phil Marcus, a lawyer for over 35 years specializing in intellectual property law, highlights the importance of leveraging the strengths of a small business:"Get to the market first," he says. “If you go back to the Pet Rock of the 1970s, anyone could have thought of the idea but Gary Dahl did it, and by the time anyone could market "cuddly pebble," for example, he had made his millions. No large company can make and market a great new craft quickly - too many layers of decisions.”Photo courtesy of where are the joneses.

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