Dealing with imitators
After exploring legal avenues, educational consultant innovates and expands to keep ball rolling
Imitation may be the sincerest form of flattery, but educational consultant Melinda Giampietro discovered sometimes it is just copying. She’s learned to deal with the challenges.
You know you’re onto a good thing when copycat businesses start up in your market.
But that imitation feels a whole lot less like flattery when four copycats appear in just one business quarter, and when former employees start up shop next door.
“It’s a real bummer,” Vancouver educational consultant Melinda Giampietro said. “People blatantly have stolen word for word off our website.”
Giampietro started Options Solutions Independent Educational Consultants in 2003 when she saw that high school counsellors were having to spend more and more time on social and mental health issues and sharply less on career counselling. As a former high school principal, school counsellor and teacher, Giampietro saw an opportunity to privately offer one- on- one, post- secondary counselling. She’d provide deeper service than tutors offering application help, and agents paid by universities to place students.
The idea worked. Then in the last two years, others discovered her niche. Perhaps they noted the tough economy, the influx of international students, rising admissions requirements, or Giampietro’s heavily booked schedule; whatever the cause, Giampietro suddenly faced a wall of competition, and some of it was unfair.
Giampietro saw her own web material on other business’ sites, her handouts appeared with others’ logos on them, and a former employee violated a non- compete clause. When Giampietro consulted a lawyer on the latter, she learned she was in the right, but a battle would be finicky and if she lost, she might be liable for her opponent’s lost income and legal costs.
“I spent $ 6,000 and three and a half months just to make the decision ‘ Do we move forward [ legally] or not?’ ” she said.
A business’ brochures, contracts, software, website material and logo are protected by copyright from the moment the work was created, whether copyright was registered or not, said lawyer Bradley Freedman, a partner at Borden Ladner Gervais in Vancouver ( who did not work with Giampietro). Copyright protects expression. Note however, if you hire an independent contractor to create a logo or a website for instance, copyright rests with the contractor unless otherwise assigned in writing. Ask an employee to create work and you own it.
Trademarks protect brands. If someone uses a brand confusingly similar to yours, you have some protection in your geographic business area, even if you haven’t registered the brand. That protection becomes national if you do register the trademark.
But all this protection costs money, as does fighting unfair competition. In practical terms, the best, prudent decision might be to compete in the marketplace rather than in the courts, Freedman said. “Sometimes, a business perceives that what they have is secret sauce and it really isn’t,” Freedman said. “That doesn’t mean the business isn’t special. So many times, it’s not the process or the formula, it’s the execution, the motivation, the service orientation that brings success to a business.”
In court you will need to not only prove misconduct, but establish your loss, Freedman said. A full- fledged intellectual property lawsuit can cost $ 100,000 or more. If your objective is simply to stop someone’s misconduct, small claims court might be a viable option, he said.
Giampietro chose to spend her time and money outside court. “I think integrity wins and so does karma,” she said. “If someone is going to act that unethically, they are also going to be unethical in their business practices and it’s going to come around.”
She decided her best strategy was to up the ante. “You just get better at what you do,” she said. “You innovate.”
Giampietro said she forced herself to not change or question her direction, but to seek to do a better job.
She expanded her services to grow with her clients. About 15 per cent of clients are now returning for help with second degrees such as law school and medical school. Since 40 per cent of students who start university don’t finish, she’s now offering survival skills such as essay writing, study skills and goal setting. She’s introducing a parent workshop to discuss topics such as finances, getting kids up in the morning without help, removing curfews so kids learn to self- regulate and overseeing the application process.
She’s increased professional development for her seven employees, upped her networking with university admissions officers, and expanded community outreach.
And she’s expanded service options. Students needing help with an application can meet a one- on- one consultant, work with a writing coach, attend a writing workshop or email drafts to a “writing dropbox” for “track changes” suggestions and comments by return mail. The result of all this intense effort? Options hasn’t lost any business. “We’re busier than we’ve ever been,” she said.