On my way home from dropping my boys at school today, I heard on the radio that today is the 100th anniversary of the Oreo Cookie. Everyone knows the Oreo. But most people don’t know that Hydrox Cookies were the original sandwich cookie. Yep, that’s right. Oreo’s were a knock off. According to internet lore, the story goes like this: In 1908, a little bakery called Sunshine produced the first sandwich cookie and called it the Hydrox. Four years later, Nabisco introduced a similar cookie. They used their size and marketing power to convince the public that the Oreo was the original sandwich cookie. Fast forward, and no one remembers the Hydrox. Or, if they do, they think that the Hydrox is a poor imitation of the Oreo.
Now, normally, I wouldn’t give much thought to cookies, but this story seemed particularly poignant to me in light of some recent going-ons in the mompreneur community. If you read my blog, you are aware that Prince Lionheart recently released a faucet extender very similar in design to a product manufactured by Peachy LLC called the Aquaduck. The design of Prince Lionheart’s product is not only similar to that of the Aquaduck, the company also used Perachy’s photographs in creating the marketing materials for their competing product.
The facts of this story are still unfolding. And I’m sure that there are facts on both sides that will never make it into the public forum until (or if) there is legal action in this case. Publicly, Prince Lionheart has issued several statements on its Facebook page apologizing for the inappropriate use of Peachy’s photographs in creating their images and have apparently taken steps to remedy the situation. They also have been quick to point out that, though the designs of the two products are similar, Peachy did not have a patent on the Aquaduck design, merely a pending application; that a pending application does not grant any intellectual property rights to the applicant; and, therefore, Prince Lionheart did not engaged in any illegal activity with respect to the design of the faucet extender.
According to a recent article, the number of women applying for patents has sky-rocketed in recent years. And I can tell you that the reactions in the mom-inventor circles in which I travel demonstrate that what may be legal under intellectual property laws may not necessarily be, or at least may not seem, fair.
Ponder this. Let’s say that you have a product idea that you’d like to bring to market. You invest the time and money into seeking a patent on your idea. Going this route costs you tens of thousands of dollars and several years. Keep in mind that, as pointed out by Prince Lionheart in this instance, though you’ve filed for a patent, you have no rights until your patent has been officially approved and issued by the Patent and Trademark Office — a process that can take many years from the time of application until the point of approval. That means that during the time that your application is pending, competitors can create a similar (if not identical product) and sell it, perhaps for less than you are, and leave you without any legal recourse during this time. Moreover, even if your patent issues at some point down the road, you’ll still need additional money to fund the litigation necessary to enforce your legal rights. Sounds great, huh?
Alternatively, you skip the patent process and market the hell out of your idea, hoping to be the first to market with sufficient brand identity so that competitors who surface cannot steal a significant share of your market. You hire the best PR that you can afford and invest in widespread advertising, both of which cost tens of thousands of dollars. Then, once a market for your idea has been demonstrated, a larger company swoops in and creates a knock-off of your product that they can manufacture and sell for less (because they are producing their product in much higher volumes that you can afford to do). They also use their existing customer base, marketing channels, and retail outlets to outsell you. You don’t have a patent (remember, you spent all your money on marketing), so you’re basically out of luck. Another winning outcome, right?
Ideally, I suppose you would have the means and the resources to do both: you’d file for a patent and market your product to the nth degree. But in the real world, not many entrepreneurs have the ability to do this. I know that I don’t. And I’m fairly confident that many of the women in my entrepreneurial circles don’t either. So I guess this all leaves me wondering whether there is still room in the marketplace for goods developed and manufactured by small businesses. Can a small start up be successful in an environment where big box retail chains demand huge discounts, penalize with charge backs, and reserve key shelf space for the big boys (even those that are run by women)? Is this all just a matter of fair competition in the open marketplace, as Prince Lionheart alludes to in the statements on their Facebook pages? Perhaps, for small businesses such as Peachy LLC, this is really just the way the cookie crumbles.