Elastic Wristband Maker Sues Walmart For Copyright Infringement

from the elastic-wristbands? dept

Thu, Oct 28th 2010 9:39am — Mike Masnick

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.

Anyway, that company is now suing Walmart for selling elastic bands from a different company, claiming that it's copyright infringement. Specifically, they're upset that Walmart is selling elastic bands from a company, Crimzon Rose, that also makes them in similar shapes to Silly Bandz. Beyond the copyright claim, they're also saying that the packaging is too similar. Whatever happened to competition being legal and good for the economy?

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Filed Under: copyright, silly bandz, wristbands
Companies: bcp imports, walmart

39 Comments

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ChurchHatesTucker (profile), 28 Oct 2010 @ 9:50am

The frak?
So the claim is that some other elastic band maker is blah blah copyright blah blah.

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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Bradley, 28 Oct 2010 @ 9:54am

Re: The frak?
Well, yeah. I mean, that knockoff rubber band company is poor enough that they can only sell knockoff rubber bands. Why waste my Entitlement Time (new episodes coming soon!) on someone like them when I could be making bank at [random rich company like Walmart here]'s expense?
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Rachel @ Last Res0rt, 28 Oct 2010 @ 9:56am

If there was any validity to this argument...
... they'd be suing the MANUFACTURER, not the retailer.

Money grab, plain and simple.
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David, 28 Oct 2010 @ 10:13am

If the claim has merit at all, they seem to have it against both companies---manufacturer for reproduction, WalMart for distribution---so I don't see the big deal about them suing WalMart. The fact that WalMart has more money doesn't automatically make lawsuits against them less viable.

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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John William Nelson (profile), 28 Oct 2010 @ 10:14am

Trademark is more appropriate here
Competition is good for the economy -- but not when competition seeks to trick the public into thinking they are buying something they are not.

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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Marcus Carab (profile), 28 Oct 2010 @ 10:19am

Re:
It's not a non-sequiter at all. The stated purpose of copyright law is to promote the progress of useful arts. Basic economics teach us that competition is the most powerful force in promoting said progress. Thus any time copyrights (especially questionable ones, like this - where is the unique expression?) are being used to squash competition in a market that clearly has room for more than one player, they are at odds with their original intent. Highlighting and examining is far from "non-sequiter"
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John William Nelson (profile), 28 Oct 2010 @ 10:21am

Re: Importance of competition is relevant to copyright questions
I agree with your Trademark assessment (see my own comment), but I disagree with your copyright comment regarding the idea of 'competition is good.'

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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Anonymous Coward, 28 Oct 2010 @ 10:25am

Gasp Walmart would never take unfair advantage of a merchant...... Wow Mike I enjoy reading and even commenting but dude someday you have to got to GET OFF YOUR BOX and find out what the other side of the story is. This story is being fought in the name of Copyright infringement but the story is really bigger. Lets see they have a popular (or soon to be) product that they want to sell in as many stores as possible they get an invite to present to Walmart and are told that unless they cut there profit down to mere pennies (which they are told they will make up in volume) they will just find someone else to create a knockoff that's not worried about the environment or what goes into making the product.

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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Anonymous Coward, 28 Oct 2010 @ 10:38am

Re:
Translation: Wahhhhhhh business is hard, so let's sue Wal-Mart over a bogus copyright claim!
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jjmsan (profile), 28 Oct 2010 @ 10:40am

Rubber bands
They are rubberbands cast in different shapes. They are popular with grades school kids and have been bannned from school classrooms because the students trade them during lessons. I have gotten them from Walgreen's CVS and Target.If there is any difference between them I would be suprised. As for who makes them they all say made in China.
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Lance (profile), 28 Oct 2010 @ 10:41am

Unless WalMart is the manufacturer...
I don't see how they are party to either the trademark or the copyright infringements. Does WalMart hold a major stake in the manufacturing company? Did WalMart dictate the packaging design? Reading the article, I cannot find any evidence that BCP actually believes that WalMart is involved in any direct way.

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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Anonymous Coward, 28 Oct 2010 @ 10:44am

Re:
Huh?

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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Revelati, 28 Oct 2010 @ 10:46am

Wallmart has been stealing ideas for popular crap and sending the plans to their sweatshops for years. Sorry sillybands, you came to the attention of the 800 pound gorilla, better cut your losses, rather than rattle its cage. I hear Walmarts legal team likes to use human wave assaults, but hey maybe they will feel sorry for you and just buy out your brand name.
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ChronoFish (profile), 28 Oct 2010 @ 10:59am

Re: Re:
There are very clear laws on deceiving the consumer. You'll probably find that the rubber-band "competition" would not exist without Walmart - and will likely die once Walmart is done with them.

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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Berenerd (profile), 28 Oct 2010 @ 11:00am

Re:
You, AC, are an idiot. Other than being a company getting sued, mike's post is on the absurdity of Walmart (a retailer in all this) getting sued because some other company made something they are selling. Honestly, who cares what walmart did. Thats not what this post is about. Reading comprehension is your friend.
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Anonymous Coward, 28 Oct 2010 @ 11:02am

Are these going to cause kidney failure and interfere with brain development like Wal-Mart necklaces did?

Gooooooo CHINA!
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Chuck Norris' Enemy (deceased) (profile), 28 Oct 2010 @ 11:04am

A fad
By the time the lawsuit is over the fad will be over. My 1st grader (and subsequently his 3-year-old brother) love these things...well getting new ones. Silly Bandz sell for around $4 for 25, the off brands about $1.50 for the same size. They all break in about a weeks wear. Can you copyright packaging? Who has the copyright for a box? They must be rich!
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David, 28 Oct 2010 @ 11:08am

Re: Re:
@Marcus:

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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Ryan Jones, 28 Oct 2010 @ 11:10am

They might actually have a case here. Looking at the 2 products, it seems that if you put them side by side, without the packaging, it would be impossible to tell one product from the other.

To me, that sounds like a legitimate claim.
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Anonymous Coward, 28 Oct 2010 @ 11:14am

Re: Re: Re:
Wow...do you actually believe all of that crap?

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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Mike C. (profile), 28 Oct 2010 @ 11:18am

Re: If there was any validity to this argument...
Yup, total money grab.

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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ChronoFish (profile), 28 Oct 2010 @ 11:20am

Re: Re:
"...So basically you're saying that selling stuff for cheaper is now criminal or something?..."

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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Anonymous Coward, 28 Oct 2010 @ 11:37am

Re:
That might make sense if they were suing the MANUFACTURER for PATENT infringement (if they are in fact patented), but they're selling the RETAILER for COPYRIGHT infringement, which can only be claimed on the packaging of the product in question.

This is a pure money grab.
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ChronoFish (profile), 28 Oct 2010 @ 11:39am

Re: Re: Re: Re:
Via Wikipedia (http://en.wikipedia.org/wiki/Patent):

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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Anonymous Coward, 28 Oct 2010 @ 11:59am

Re: Re: Re:
Oh yes, because clearly Silly Bandz and Crimzon Rose are so similar that customers are obviously getting confused.

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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Joshy, 28 Oct 2010 @ 12:16pm

Wow Mike you screwed the pooch in making a non-story a story. Read the lawsuit. They are claiming that the blatant copying of not only the product, but the shape and material in packaging as well via graphics and text i.e. the plaintiff has both a yellow triangle in corner and a wave pattern on package which is copied on the offending product. The Plaintiff also has names for the shapes of there rubber bands such as princess and rockerz the other party also has princess and rocker named sets of bands. Walmart isn't competing by innovating as you suggest this other company should do. They are competing by blatantly stealing everything the shape and name of product down to the packaging logo and colors of trade dress. I mean princess and Rocker Walmart could have made dolls and army men or stars and shapes but the same shape the same name come on.

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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Anonymous Coward, 28 Oct 2010 @ 12:58pm

Re:
You mean people can't make cars, water bottles, clothes, medicine because someone else is making them?

I'm shocked.
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ChronoFish (profile), 28 Oct 2010 @ 1:24pm

Re: Re: Re: Re:
I don't know. I haven't seen the Crimzon Rose packaging.

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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Anonymous Coward, 28 Oct 2010 @ 1:41pm

Re: Re: Re:
Oh, I see your problem. You can't read.
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Mojo, 28 Oct 2010 @ 3:08pm

How about CVS?
Here in California the #1 "drug store/supermarket" is CVS. When you browse the aisles, say, for band-aids, you find a package of real Band-aids, but RIGHT NEXT TO IT, in packaging designed to look exactly like the Band-Aid packaging are "CVS Brand" medical strips, or whatever you call them. The "CVS brand" is always a bit cheaper.

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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Rekrul, 28 Oct 2010 @ 3:26pm

Local to me is a grocery store called "Aldi", which sells cheap knock-off items. Much of what they sell IS in unique packaging, but there are cereals and all kinds of products in packages that look just like the name brands. They sell a 10-pack of unsweetened drink mix packets for $1, which look just like Kool-Aid.

Of course the real head-scratcher here is how shaped rubber bands became so popular in the first place.
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John William Nelson (profile), 28 Oct 2010 @ 6:27pm

Re: How about CVS?
CVS sells generic goods that look generic. They do not carry the marks of the name-brand product and, at best, imitate it on a packaging level.

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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John William Nelson (profile), 28 Oct 2010 @ 6:35pm

Re: Re: If there was any validity to this argument...
WalMart might be liable for many reasons. If WalMart is knowingly facilitating the sale of trademark-infringing merchandise then it is liable.

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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btrussell (profile), 29 Oct 2010 @ 3:43am

Re: Re: Re:
What is the difference between a Chevy Impala and a Toyota Corolla?

You can tell the difference in spelling between "Impala" and "Corolla"?

Same for "Bear" and Gramms".
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Anonymous Coward, 29 Oct 2010 @ 7:14am

So....
I was out shopping yesterday, and there must be at least 3 other brand look alikes that are sold at ToysRUs, and Party City.

Why are they not getting sued too? Why focus on just Walmart?
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ChronoFish (profile), 29 Oct 2010 @ 1:04pm

Re: Re: Re: Re:
Not everyone can be as perfect as you.
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ChronoFish (profile), 29 Oct 2010 @ 1:13pm

Re: Re: Re: Re:
One isn't trying be passed off as the other. You would have been better off comparing older Nissan to older Toyota or any number of lines of the GM family or ford vs mercury.

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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tax cpe, 31 Oct 2010 @ 8:02pm

Re: Re: The frak?
Hmmm. Good point. Why sue a small company when they could sue a bigger company for bigger dividends... if they win, of course.
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heh, 2 Jul 2016 @ 11:14am

heres the true story.

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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