Elastic Wristband Maker Sues Walmart For Copyright Infringement
from the elastic-wristbands? dept
You know those silly elastic wristbands that kids wear? Yeah, well, apparently the company BCP Imports makes the (apparently?) popular brand of them called Silly Bandz, and has somehow copyrighted some aspect of the bands.
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Filed Under: copyright, silly bandz, wristbands
Companies: bcp imports, walmart
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The frak?
So they sue Walmart. For selling them.
OK lawyers, do you want a nice Georgian brick wall? Or maybe something in the Brutalist style would be more appropriate?
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Re: The frak?
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Re: Re: The frak?
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If there was any validity to this argument...
Money grab, plain and simple.
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Re: If there was any validity to this argument...
Unless you consider that they're asking for injuctions to stop sales and if you just stop Crimzon Rose, Wal-Mart could still have millions on the market. By adding Wal-Mart to the suit, you get them to act immediately and can drop them once the product has been pulled from the shelf.
For anyone curious or blocked by the registration wall at law.com, I found a copy of the suit:
http://docs.justia.com/cases/federal/district-courts/ohio/ohndce/3:2010cv02412/169802/1/
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Re: Re: If there was any validity to this argument...
Further, the way WalMart's supply chain works, it is likely that WalMart has had a significant say in how the product looks and it packaged.
Finally, of course it's a money grab. These folks are in a business that is a fad. The value of their product is as much in its mark, SillyBandz, as it is in the product itself. In fact, it's likely more in its mark than not.
It is not unreasonable for them to not want a competitor to make money based upon the value of their mark. It is also not unreasonable to try and prevent WalMart from facilitating this trading on SillyBandz's goodwill.
The question is whether this palming off is actually occurring. It may not be.
LEGO spent a long time fighting fights like this and it all ended up for naught. Of course, LEGO abused the patent process in doing so. This case seems to be more about trademark.
As the Brits of yesteryear would say, at least they've got the right writ this time.
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The more surprising thing for me is that these is being brought in copyright rather than trademark---especially the packaging issue.
And it's kind of a non-sequitur to say that competition is good. Yeah, sure, but you're not allowed to compete by appropriating someone else's intellectual property, so if they have a valid copyright claim then this wouldn't be "competition" any more than bootleg DVDs are. You also can't compete by passing yourself off as a competitor, in case there's a consumer confusion trademark issue at play.
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As silly/stupid as it may seem, the actual concept is quite clever. A bracelet that takes the shape of a distinct - usually cartoon - character/shape when taken off. Kids love them. The name and the design together make them recognizable to the consumer.
The idea of patent law is to allow a company a chance to make money from their innovation before a copy-cat behemoth (like Walmart) forces them out of business.
There are all sorts of reasons to hate the copyright/trademark/patent law in the US. I'm not sure that this case is one of them however.
This seems to me be the classic case where it works to protect the small guy from 800lbs gorilla.
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You're saying patent and copyright law exists so that no one sells a product for less money?
Are you serious?
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There are four primary incentives embodied in the patent system: to invent in the first place; to disclose the invention once made; to invest the sums necessary to experiment, produce and market the invention; and to design around and improve upon earlier patents.
....
One effect of modern patent usage is that a small-time inventor can use the exclusive right status to become a licensor. This allows the inventor to accumulate capital from licensing the invention and may allow innovation to occur because he or she may choose to not manage a manufacturing buildup for the invention. Thus the inventor's time and energy can be spent on pure innovation, allowing others to concentrate on manufacturability....
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If the claim is illegitimate, then they're misusing copyright law to go after a competitor, yes. But if there's validity to the claim---for example if the Silly Bandz have particularly interesting designs that the WalMart ones are very close to---then what's being stifled isn't legitimate competition but inappropriate appropriation. I think it's a non-sequitur partly because it ignores whether or not the claim is valid, which seems to be the important factor in whether or not this is actually stifling competition, or in fact promoting competition by forcing the competitor to come up with their own original designs. (Or, in the trademark line of thinking, it would be whether this promotes competition by forcing the new entity to compete on the merits of the designs rather than piggy-backing on goodwill and confusing customers.)
Btw, slight correction that obviously doesn't go to the core of your point---copyright actually comes from the "science" side of that clause in the constitution. "Useful arts" is actually a reference to invention, justifying patent law. Not trying to snark, it's just an interesting point on the old meanings.
@John William Nelson
As with Marcus, fair point that it's possible this is an instance of stifling competition, and that copyright is meant to encourage competition---my use of "non sequitur" perhaps wasn't precise.
I think that comment in the original post annoys me because of how it simply ignores issues like what you're raising. What I take from the comment is that it's a foregone conclusion this is stifling competition, and that it's therefore unabashedly bad. It ignores the questions of exactly what infringements are being claimed, whether those claims have merit, and even if skipping those questions, whether this could actually promote competition in the ways I mentioned in my response to Marcus and which you alluded to in your response to me.
They could certainly have a valid trademark claim, or even a copyright claim depending on whether any of their designs do actually rise above things like simple shapes. In either case, I think the comment does lean more towards being a true non sequitur (then again, I could be misusing the term); if competition is being stifled to protect consumers (trademark) or original designs (copyright), then it's right that competition be stifled in that way. While, yes, we could argue about whether copyright should exist at all, I don't know that the original comment can fairly be read as bringing up such a sweeping challenge. The intent I'm inferring is simply that this one plaintiff is misusing copyright, not that copyright is wrong. Similarly, I don't think the original comment was highlighting the interesting tension of both promoting and hindering competition through the same law; that's an interesting topic, but not really present here.
So to both of you---I may have gone too far in labeling it a non-sequitur, it may not be entirely irrelevant. But I think it overlooks all of the genuinely interesting issues at play in order for a cheap shot about how clearly the plaintiff is being bad. Yes, we like competition, but I think the implication I'm seeing in original post that "competition is good" simply wraps the issue up also goes too far.
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Re: Importance of competition is relevant to copyright questions
The non sequitor "competition is good" is relevant to the question of whether copyright lawsuits are good. Copyright chills competition by providing a monopoly on the expression of an idea or fact. The question is the point at which this monopoly is good for the economy as compared to the point at which it is bad. On one hand, it may encourage new expression. On the other hand, it limits the dissemination of ideas.
Trademark, on the other hand, provides a monopoly on a mark used as a source identifier. This is quite different because the expression itself is not (in theory) monopolized. Rather, it is the identity that is monopolized.
So to say you can't fairly compete by using someone else's copyright begs the question of whether copyright should exist, and whether it provides fair competition to begin with. Conversely, as you pointed out, it isn't really fair trying to pass yourself off as a competitor in order to compete -- you should be required to be honest in your identity.
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I'm shocked.
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Trademark is more appropriate here
That is why Trademark exists -- it is intended to provide customers with a way to identify the source of the products they buy. If I buy a Coke in a Coke bottle with a Coke logo I know it is from the Coca-Cola Bottlers; not some two-bit sugar-water bottling company down the road. I know what to expect (in theory) because Coke's trademark identifies the source of the soft drink.
Here, Silly Bandz has more of a claim to their Trademark being infringed. That's the basis of the too similar package argument references above. Wal-Mart's Silly Bandz competitor is trying to trade it's bands by misleading customers into thinking they are buying Silly Bandz. This is trading on the goodwill of the SillyBandz mark.
Copyright is more questionable. Copyright protects the expression of ideas or facts, it does not protect the idea or facts themselves. Similarly, it does not protect form -- especially if that form is related to its function. (I cannot, for example, design a chair and seek copyright when the chair's purpose is, well, to be a chair.)
The question is what level of expression exists when it comes to Silly Bandz?
Expression can be charted on a spectrum, with the most unique expression having the most clear protection and the least unique expression having the weakest, or 'thinnest,' protection. (See Feist v. Rural Telephone for the U.S. Supreme Court's take on this; it involved the copying of data from a phonebook.)
Exact copying of the band designs would certainly run afoul of Copyright (unless they are purely functional). Non-exact copying is more problematic.
After all, if I draw a stick figure and you draw a stick figure, I am going to have a hard time arguing my expression is so unique that your 'variant' should be found to be a copy and therefore you owe me royalties.
Trademark has less of these problems. SillyBandz, if they win, will prevail most likely in Trademark, not in Copyright.
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When Walmart has close to a monopoly in most markets (look it up) you are unable to compete by better shapes or colors or whatever. Your just gonna get steam rolled.
Rubbermaid went out of business when they didn't bend to Walmarts pricing requirement. http://www.uky.edu/CommInfoStudies/IRJCI/reports/reportswalmart.htm
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So basically you're saying that selling stuff for cheaper is now criminal or something?
Here's the other side of the story: Walmart wanted cheaper stuff, one company offered it, another didn't. The expensive one didn't like losing its market share, so it sued.
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It's not criminal to sell things cheaper - or to create products that can be sold cheaper. It is criminal to take another persons unique creation and claim it as your own - or worse, claim that the item you are selling is the thing you're copying.
Here's another example. I went to Dave's market (a grocery store) and saw that Teddy Gramms were being sold for $1.00/box. GREAT! I'll take them home to my kids. When I got home my wife said "why did you buys these - they're junk" "I thought you let the kids have Teddy Gramms" I replied. "I do, but these are aren't 'Teddy Gramms', they are 'Teddy Bears'".
Someone had duplicated the "Teddy Gramms" packaging, replaced the word "Gramms" with "Bears" and sold a sub-par product at (obviously) a cheap price.
That's not competing, that's basically a bait-n-switch. The consumer thinks he's getting one thing (because he recognized the packaging without paying attention to the actual words) and got something else entirely. And something he probably wouldn't have bought had the difference been more obvious.
Now Dave's is a relatively small chain. But it still has the power to have custom-packaged goods. Extrapolate that to the rubberband story and it's clear why there are laws to protect the consumer and the enterprising business from the predatory practices of large companies like Walmart.
-CF
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When a lawsuit has to cite "plastic bag packaging" and "wavy lines in the logo" as evidence, it's clearly grasping at straws.
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But if they are using the same font, same clear on the bottom, white on the top plastic bag, same style of "wavy lines" - and only the name is different (and conveniently stocked next to each other) then yup. Customers are probably thinking they are buying one thing and only realize the mix-up when their kids bring it to their attention.
-CF
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You can tell the difference in spelling between "Impala" and "Corolla"?
Same for "Bear" and Gramms".
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Even then it is the same car - same factory and the only thing that is different is *maybe* some trim and the badge.
Maybe you mean something more like the Honda Insight vs the Toyota Prius. In this case the design is licensed - and while maybe confusing to the consumer - not illegal.
-CF
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Rubber bands
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Unless WalMart is the manufacturer...
One of the comments in the article puts forward the idea that the claims were filed against WalMart because they may be able to apply pressure to the supplier. If that is the intention in naming WalMart in the suit then I would have a difficult time granting BCP's case any merit. I find that kind of manuevering to be dishonest on BCP's part.
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Gooooooo CHINA!
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A fad
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To me, that sounds like a legitimate claim.
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This is a pure money grab.
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Furthermore the lawsuit is for unfair competition. My guess would be that these knock-offs can only be found in Walmart's. Furthermore they are attempting to have the offending cloned packaging and products removed from the market as to not dilute there branding and ability to continue to be a going concern against such a large corporation.
This is one story you need to edit and provide further facts to either support your statements or not give the impression it's so one sided.
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How about CVS?
This is incredibly deceptive, since the "moron in a hurry" could easily mistake the CVS brand for the real thing, since clearly much effort went into making the CVS packaging look identical to the real thing.
This is done for hundreds of items in the store.
I am surprised this is legal. At the very least, it's insanely underhanded... "ok, sure, we'll sell your product in our store, as long as you don't mind if we sell our own competing product that looks exactly like yours for 10% less right next to it."
And most manufactures go along with it because CVS is the biggest chain.
I'd love to see this practice sued into oblivion.
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Re: How about CVS?
But even that packaging is only generic. Most folks don't confuse CVS adhesive strips for Band-Aid brand bandages.
The question is whether the average consumer would confuse these knock-off SillyBandz for the name-brand SillyBandz.
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Of course the real head-scratcher here is how shaped rubber bands became so popular in the first place.
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So....
Why are they not getting sued too? Why focus on just Walmart?
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walmart got access to original artwork created by BCP - walmart took that original artwork, designed by BCP and created their own packs. Artwork was copyrighted.
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