COPY CAT COMPETITORS & HOW TO HANDLE THEM: UNPACKING THE SEXY SOCKS VS WOOLWORTHS INFRINGEMENT SAGA
Updated: Nov 11
Dave Hutchison, founder and owner of local sock company Sexy Socks South Africa, after a lot of hard work and effort, has established a niche brand in the footwear market in South Africa. Hutchison began his company around five years ago with the idea that there has to be a more human and sustainable way of manufacturing products. His brand today is well-known amongst South Africans who enjoy wearing trendy socks. In July 2019, Hutchinson was shopping in a Woolworths SA store when he stumbled upon, what looked like to him, a copy of one of his most popular original sock designs.
The socks on sale at Woolworths SA were made from bamboo and on sale for well below Hutchison’s asking price. Woolworths SA’s socks were not even close to what Hutchison could ever afford to ask for his original Sexy Socks as such a price will only ever be able to be asked for if the product were made in China. Hutchison then went on to notice that Woolworths SA knocked off designs from not only his brand but from many more sock brands in South Africa.
Competition is usually considered a positive thing for an industry. It forces you to continue to improve and gives your customers more options. Imitation is the most genuine form of flattery, as the old saying goes. But, while that may be true in certain areas of life, it’s hardly encouraging when it happens in the business world. Is it fair for big corporates such as Woolworths SA to keep coping ideas from small enterprises that are locally sourcing material and generating employment? All that imitation says is that someone else, usually a big corporation, is out there trying to latch onto an idea or niche that small enterprises’s spent months or years building.
There are numerous ways in which SMEs may protect their company’s ideas, designs and logos from being stolen. One of the most important ways to do this is by protecting your company legally. The more legal protection you can get for your business and/or products, the better off you will be.
A company needs to protect its intellectual property legally. After all intellectual property is one of a company’s most valuable assets, so be it an intangible one. Intellectual property encompasses Designs, Copyright, Trade marks and Patents.
Patents protect inventions that are new, inventive and capable of being used in trade, industry or agriculture. Whereas, designs protect the shape, pattern, configuration or ornamentation of articles; trademarks protect trading names and brands; and copyright protects works reduced to material form from being copied.
Hutchinson should have protected the design of his socks by way of intellectual property law to stop big corporations from ever being tempted to copy him.
A design may have both aesthetic and functional features, both protected separately. Two of the most important requirements when registering a design is that a design should be new and original in terms of the Design Act.
A design is deemed to be new if it can be distinguished from what has been done before. A crucial consequence of this requirement is that the owner of a new design must be careful not to disclose the design publicly, before filing a design application. The Design Act, however, does provide for a grace period of six months from the first public disclosure of the design, following which it is still possible to obtain valid design protection. Therefore, SMES need to be aware of the opportunity to register their design rights early in the design process to avoid any stumbling blocks down the line.
Internal procedures should be put in place by SMEs to identify opportunities to protect their intellectual property adequately to stop this from happening to them and to prevent bullying from big corporations such as in Hutchison’s case.