Woolies in baby sling boo-boo

Af­ter a blog ac­cused the re­tailer of steal­ing the de­sign, it apol­o­gised and stopped sales

Mail & Guardian - - Business - Te­bogo Tsh­wane

Wool­worths has apol­o­gised to Cape Town busi­ness owner Shan­non Mclaugh­lin, who ac­cused the big re­tailer of steal­ing her baby car­rier de­sign.

Mclaugh­lin, the founder of Ubuntu Baba, is the most re­cent of sev­eral peo­ple who have ac­cused Wool­worths of ap­pro­pri­at­ing their prod­ucts.

On Mon­day, she posted in a blog about how, in De­cem­ber, she was alerted to an al­leged rip-off of her prod­uct by Wool­worths. She pointed out the similarities be­tween her baby car­rier and the one sold by the re­tailer.

By Tuesday af­ter­noon Wool­worths had qui­etly re­moved the baby car­ri­ers from its web­site and would not com­ment “be­fore chat­ting with Ubuntu Baba first”.

Fol­low­ing the “chat” on Wednesday, Wool­worths re­leased a state­ment say­ing it had con­cluded its in­ves­ti­ga­tions and would re­move the prod­uct from its online and phys­i­cal stores. It also of­fered a full re­fund to cus­tomers who want to re­turn the baby car­rier.

“While there are dif­fer­ences in our baby car­rier, there are strik­ing similarities, which we ac­knowl­edge and take re­spon­si­bil­ity for,” it said. It blamed the sit­u­a­tion on a lapse in its de­sign process, which it said was “be­ing ad­dressed in­ter­nally”.

“We are in­ten­si­fy­ing and strength­en­ing the train­ing of our peo­ple, our sup­pli­ers and part­ners on our val­ues­based ap­proach to the de­sign and sourc­ing process.”

Ubuntu Baba has been op­er­at­ing since 2015, sell­ing Stage 1 and Stage 2 baby car­ri­ers for new­borns to three-year-olds.

On De­cem­ber 16 last year, Mclaugh­lin re­ceived a What­sapp mes­sage from an em­ployee with a screen­shot of a sim­i­lar baby car­rier be­ing sold on the Wool­worths web­site. Its baby car­ri­ers were in the same colours and in­cluded the la­bels Stage 1 and Stage 2.

Mclaugh­lin bought a Wool­worths car­rier to do a side-by-side com­par­i­son of the two prod­ucts. She de­scribed the re­sults as a shame­less copy of the de­sign and pat­tern of her baby car­rier.

Ac­cord­ing to her, the most ob­vi­ous clue that her de­sign could have been stolen was in the waist­band.

“That is ex­act proof and there’s no other way they could have done that with­out our pat­tern. If you mea­sure cen­time­tre for cen­time­tre, ev­ery piece of the waist­band is ex­actly the same.

“The way the waist­band is sewn closed on the back; if you turn the car­rier up­side down and you see how we put the foam in and se­cure the waist­band shut is ex­tremely unique to our brand. We de­signed it from scratch. There is no other brand that has a waist­band like that,” she said.

Mclaugh­lin found more ev­i­dence when she looked through Ubuntu Baba’s online or­der re­ceipts. She found two of her car­ri­ers were or­dered by peo­ple at Wool­worths’ head of­fice. An online search of the re­cip­i­ents showed that the head of sourc­ing had re­ceived the Stage 2 car­rier in June 2017 and, in Septem­ber 2017, the Stage 1 car­rier was de­liv­ered to Wool­worth’s prod­uct developer.

“We don’t know if they were just moms buy­ing our prod­ucts … It could just be co­in­ci­dence, but quite a large co­in­ci­dence,” she said.

Mclaugh­lin said she had reg­is­tered the name of her busi­ness but not the names of the car­ri­ers or the de­sign.

“When I started the busi­ness, I wasn’t think­ing about in­tel­lec­tual prop­erty. I didn’t even think about the word in­tel­lec­tual prop­erty un­til three weeks ago.”

In­tel­lec­tual prop­erty chair at Stel­len­bosch Univer­sity Pro­fes­sor Owen Dean said Mclaugh­lin would not have a claim on patent or de­sign be­cause these trade­mark rights ap­ply only if a prod­uct is reg­is­tered, how­ever, she could seek rem­edy us­ing copy­right which ap­plies au­to­mat­i­cally.

“If she can show that her prod­uct is so well known to a sub­stan­tial num­ber of peo­ple that when they see the Wool­worths prod­uct they be­lieve that it is man­u­fac­tured by her then she may have a claim of pass­ing off un­der the com­mon law,” said Dean.

Dean said en­trepreneurs should take ad­van­tage of the pro­tec­tions of in­tel­lec­tual prop­erty law by registering their new in­ven­tions and de­signs be­fore their prod­ucts are on the mar­ket.

“As far as trade­marks are con­cerned they should reg­is­ter their brands and the shapes of their prod­ucts, as­sum­ing that they are dis­tinc­tive, at the ear­li­est op­por­tu­ni­ties and not wait un­til po­ten­tial in­fringe­ments have taken place,” Dean said ad­ding that they should also keep good records of their op­er­a­tions.

Multi-ju­ris­dic­tional copy­right lawyer Graeme Gil­fil­lan agreed with this ad­ding that courts have de­scribed this as “filch­ing of the fruits of an­other’s skill and labour or reap­ing [what] the com­peti­tor had not sown”.

“It ap­pears that a deeper foray into com­pe­ti­tion law to mis­ap­pro­pri­a­tion leads to a much bet­ter rem­edy op­tion, which is a mis­ap­pro­pri­a­tion of a com­peti­tor’s per­for­mance or prod­uct.”

This is not the first time that Wool­worths has been ac­cused of steal­ing from small busi­nesses. In 2012, the Ad­ver­tis­ing Stan­dards Au­thor­ity ruled in favour of Frankies owner Mike Sch­midt, who said that the com­pany had im­i­tated the look and flavours of his retro drinks.

In 2013, free­lance wa­ter­colour artist and de­signer Euo­dia Roets ac­cused Wool­worths of steal­ing her hum­ming­bird de­sign for cush­ions.

Wool­worths de­nied these claims, but it did with­draw the drinks range.

Te­bogo Tsh­wane is an Adamela Trust jour­nal­ist at the M&G

De­sign­ing from scratch: Shan­non Mclaugh­lin, who be­lieves that Wool­worths copied her unique baby car­rier de­sign, keeps busy at her Ubuntu Baba shop in West­lake, Cape Town. Photo: David Har­ri­son

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