NOMPU SIZIBA: Woolworths announced this afternoon that it is removing a certain baby carrier product from all its stores and online platforms with immediate effect. This follows business woman Shannon McLoughlin protesting on social media about the company copying her baby carrier design to a T.
It was brought to her attention in December last year, when someone sent her a picture of baby carriers that Woolies was selling, which looked almost identical to what she has painstakingly designed over a number of years. Woolworths has since apologised to McLoughlin, and she is said not to have an appetite to go down the legal route. So, what lessons can be drawn from this sorry episode?
I’m joined on the line by Jeremy Sampson, the MD at Brand Finance Africa, and Bastiaan Koster, a patent attorney and trademark specialist at Von Seidels law firm.
Jeremy, this is a big blow for Woolies, and seemingly an admission that indeed some copying did go on, on their part. How could there have been such a lapse, given that, if caught, the reputational harm would be so severe? Could this have been an innocent mistake?
JEREMY SAMPSON: That’s a great question, Nompu, to kick this one off. [Chuckling] How long have you got? As you say, Woolworths has got into difficulties before. As someone else said, it is too big a target to miss if aimed for.
I think a lot of people will be rather disappointed with the way the retailer has handled this. Yes, we know it’s a difficult period from mid-December to mid-January, but, even so, given the size of the organisation, the attention to detail that normally permeates everything it does, the way in which it has responded to this has been disappointing. They are only really playing catch-up now. I’ve briefly seen something that was put out on Twitter. I haven’t seen the full text. Now the company seems to have its act together – something that, quite bluntly, it should have been doing a couple of weeks ago.
NOMPU SIZIBA: Bastiaan, Ms McLoughlin has opted not to sue Woolies, and she has of course got the apology and the product off the Woolies shelves as she demanded. But if she had opted to sue them, what recourse would she have had, and would she have necessarily had to have registered her designs to successfully sue the retailer?
JEREMY SAMPSON: Again, how long do you have? I had one of these when my daughters were younger. The youngest is now 18. I’ll tell you what the law says, and I haven’t looked at the products. I have only looked at them in pictures. For me, it simply shows the power of the social media – but that is another question.
The first thing we must remember is that there is nothing wrong with copying. If I design a product – for example, a baby carrier – and put it out to the market without a registered design or patent, anybody can copy it. So, fundamentally one can be copied.
However, there is a social issue here and a social media issue. I’ve briefly looked at, for example, the Ergo baby carriers. If you go onto Google and search Ergobaby carriers, there are many that look exactly the same to me as the pictures of the Ubuntu and the Woolworths carriers. The idea of a baby carrier that looks very similar to the Ubuntu or the Woolworths one is definitely not new. You can’t register a design after the fact. You have to register it before. So I think that, in this case, the Ubuntu product was not protectable by way of a patent or a design.
So, what other recourses are there? There is something called “copyright”. That also will not work in this instance. There is “passing off” – so Woolworths can’t pass the product off as being an Ubuntu product, for example – but I don’t think that was done. There is “unlawful competition”, which I think is a very difficult thing to prove. And then there is “trademark infringement” – and on the face of it, I don’t see trademark infringement.
Woolworths is not my client but, if it were, my immediate advice, without seeing the products, would have been you are okay in law, but not in social media. Maybe there are other views on this.
NOMPU SIZIBA: Bastiaan, I want to ask you: do you think that their hand was forced because they didn’t want to be unpopular with the South African public considering that social media is so powerful in this country?
BASTIAAN KOSTER: Exactly. Again, I haven’t looked at the products. I don’t know the background. But, just looking at what I have seen in the last few hours when I looked at the pictures on the internet, the concept of a baby carrier is not new. I’ve seen various ones from other companies that look, on the face of it, virtually the same as the Ubuntu and the Woolworths products. So I think that in this case, it might be that social media has been more powerful than the law.
NOMPU SIZIBA: Jeremy, do you think that’s the reason? Why would they decide to withdraw the product? It would have cost them a lot of money to put this product out on the shelves, and now decide to completely discontinue it. Why would they make that decision?
JEREMY SAMPSON: Well, Bastiaan has really touched on it. Let’s take a step back. What did the business register? Is the name Ubuntu Baba and the logo that’s appearing on the product registered? I’m not sure if it has followed those processes.
There has been a vacuum and that vacuum has played into the hands of the social media. As I said, it’s been like a fire storm, call it a lynching mob, call it what you like. It has become incredibly emotive and I think some of that emotiveness was led by the use of words like “shameless”, used by McLoughlin in her rant.
It caught Woolworths off-guard, and this is where social media is potent, quick and agile. Woolworths wasn’t ready for it, which I think is a little bit shocking given, first of all, its size, and how it is [supposedly] very aligned to integrity, and so forth.
I come back then to the Twitter statement I’ve seen, and what I’ve seen –- the tone of voice, the choice of words. Much more professional, much more contrived. I’m not sure how much Woolworths has admitted to, but, as you’ve stated already, it said there were striking similarities, and as a result of that they are going to withdraw from the whole scene.
NOMPU SIZIBA: Yes. The problem then comes that it goes beyond the baby carrier, doesn’t it? Some people now decide to go and shop elsewhere and not at Woolies because they’ve beef with Woolies – and it all starts with that small baby carrier.
JEREMY SAMPSON: You are quite right, and this is where we talk of a brand. It’s not just the trademark, it’s the total experience. When you walk into a Woolworths, it’s the totality, even the lighting, the way it’s set up; all that is geared to make you as consumers think, well, I like this place, I trust it, I’m happy to spend my money here, even through it might not be the most affordable.
NOMPU SIZIBA: Bastiaan, we often talk about entrepreneurs being potential game-changers for innovation and growth in the economy. What’s your advice to people out there who think they’ve a great idea, but will need to sell the idea to a potential funder? How important is it that they secure or register their idea before they share it with people – and is it a costly affair?
BASTIAAN KOSTER: Look, in this case, yes. Possibly there was a design, but I don’t think so. It’s unlikely that there is a patent. But again, to protect this product, the trademark, Ubuntu is probably the best. So, as we said, there is nothing wrong with copying.
I can today go and buy one of the Ubuntu baby carriers, take it apart, and make exactly the same thing. I just can’t call it Ubuntu. So, when you get to protection for innovation and entrepreneurs, there are horses for courses, in some cases patents, in some cases designs, very often trademarks – and sometimes just staying ahead of the market. And in this case I think social media just played into the hands of the Ubuntu product.
But again, as Jeremy said, one should encourage competition. If you want the Ubuntu product, you’ll pay R1200 or R500, and there is something similar much cheaper. And in principle there is nothing wrong with copying a product like that, unless it is protected by a design or a patent.
NOMPU SIZIBA: Jeremy, we’ve had much discussion already but, just to conclude, what lesson can brands and even entrepreneurs learn from this latest example?
JEREMY SAMPSON: I think from the entrepreneurial side it’s often a small organisation, a man or woman who comes up with a great idea, and, as Bastiaan says, they need professional advice. That’s difficult sometimes, because in illustration there are so many facets to it, and that means there is going to be a financial cost as well. But you’ve got to – even if you record and put it into sealed envelopes, I was told once – send a registered mail to your lawyers with the date on, so the ripples can be tracked back. You’ve got to try and do something to protect your IP, your intellectual property.
But then when it comes to the big boys, like a Woolworths, I think, as we all know in business today, if there is one keyword it’s “agile”. You’ve got to be quick, you’ve got to respond. I’m still amazed that from Woolworths’ side we haven’t heard from the chief executive. To me, he should have been out there right away, and in a tone of voice be contrite, saying, we are looking into it, give us time, it’s been the holidays and we’ll be reporting back in 48 hours. But we’ve heard absolutely nothing from him, and I think that’s unforgivable.
NOMPU SIZIBA: My thanks to Jeremy Sampson and Bastiaan Koster.