When a company comes out with an innovative, landmark product, many other companies will end up incorporating those design features into their own products over time. But at what point does drawing inspiration from a rival's innovations become simple bootlegging? We asked three experts.
Yves Behar, designer of OLPC and Jawbone, and founder of fuseproject design studio in SF
"When a company comes out with an innovative, landmark gadget, many companies incorporate those design features into their own gadgets over time. But at what point does inspiration turn into bootlegging or IP theft?
The last few months, I've experienced a few straight rip-offs of the Jawbone earpiece. Not just copying the design, but copying the language, the packaging, the way we present ourselves. I really don't see it as a form of flattery, I see it as a complete lack of originality. When the #1 in the industry is copying #10, that means something is really lacking in #1. It's unable to establish its own vision and direction. People forget there are 1,000 different ways to deliver, 1,000 different ways to create great design. I'm not sure what there is to be done besides continuing to move forward."
Karen Marie Kitterman, intellectual property lawyer with Fenwick & West LLP, Based in China
"Bootlegging is not a legal term, but there are several legal theories under which innovative companies can stop copycats.
Design patents protect the ornamental design of an object [and] are granted only if the design is novel and not obvious. The patent owner can stop the copycats only if the similarities and differences between the two products create an overall similarity that would deceive the ordinary observer. Often if a copycat copies only enough to call the original to mind, but not enough to confuse consumers that the new product is the real McCoy, then the copycat may pass under the legal nets of design patent and trade dress infringement (assuming the innovative company has design patent and trade dress rights). Copyright protection usually does not cover the design features of products because they usually are not separable from the product itself. If the copycat, however, uses the actual name or logos of the original company, then it can likely be stopped for trademark infringement.
Please note also that the volume of counterfeits, especially out of China, is so large that, even when innovative companies have the legal rights to stop counterfeits, they cannot always stop all of them."
Ravi Chhatpar, Strategy Director for Frog Design, based in Shanghai
"We heard stories of teenagers in third-tier cities in China "adapting" the Nike ID customized shoe concept by acquiring fake Nike shoes, customizing them in Nike ID style with locally created design elements with local fabrics, color patterns from local schools, and selling them. Contrast this to the fake markets in Shanghai and other first-tier cities that sell pure rip-offs of Nike ID shoes. Many at our forum agreed that the former, while in the end involving infringement of Nike's IP and illegal sales of bootleg Nike shoes, could be condoned as it was highly imaginative and locally improvisational in a market that is so unsophisticated. It's reflective of newfound creativity. Meanwhile the latter is clearly an example of ripping off for profit.
Similarly, many innovative consumer electronics are copied (some poorly and/or hilariously) in China (e.g., iPhone knock-offs). It's easy for Westerners to point at these copies as examples of blatant IP infringement, which they are. But some will argue that these cheap knockoffs are bringing high quality design (or more accurately, an attempt at design) to a population that could never afford a real iPhone, thereby building interest in designed products to a market that is currently unsophisticated about it. People in first-tier cities can afford to buy real iPhones and do so. But those in second-tier cities can't, but are intrigued by the iPhone's buzz and buy knock-offs. This is clear bootlegging, but does it serve a larger "good"?
In the end, the main theme that emerged relates to the importance of context. Does the need to build design sensitivity and sophistication in a market that does not yet appreciate it permit what wouldn't be tolerated in more developed markets?"
*Special thanks to Sara Munday from Frog for the story idea.