Update to Kmart AU copyright infringement

Posted by Maiko Kuzunishi on

I don't enjoy creating this type of post but I feel it's necessary so I'm making myself write it. Few months back I wrote a post on our Facebook page about Kmart Australia copying our fawn clock and selling them for $5 a piece. My purpose for writing that initial post was to inform our customers and fans of our products that we did not sell any rights to Kmart or anyone else. (A former Australian customer came to let me know she saw the clock in the store and was not sure if I had licensed the clock design or not.)

I’m here to tell you now how it all — didn’t go anywhere. (*sigh*)

My designs are copyrighted in the United States. I hired a copyright attorney and she sent cease and desist letter to Kmart Australia. We didn’t hear back from them for few weeks and we finally got a letter. Translating their legal jargon roughly, they said “You haven’t given us anything to proved that you own your design!” So in the 2nd letter, my attorney sent them the record that I have been selling the fawn clock since 2011. It didn’t take too long for them to respond. Interestingly, they started arguing about the technicalities of the US copyright law. That while I may have protection in the US, it is not applicable in Australia. It was something specific, about which category I filed my copyright under and how products are sold. They threw a little charming disclaimer at the end saying “Not that we stole your design or anything.”

We needed someone in Australia to take a look at this case. My attorney knew Australian Council, so she contacted him to get an advice to see if we even have a chance. At this time I also received a bill from my attorney.

It was a reality check to see the bill. Or i should say, it puts a number to the whole incident. I had spent $1000 at this point. Then my attorney got a reply from a council in Australia and if I wanted to pursue further with Australian council, it would cost me additional $2-3k.

What would you have done? I dropped it. I wanted to walk away from it because I cannot see myself spending $3-4K on one legal case when there’s no guarantee that Kmart Australia will stop selling the clocks. Kmart can afford legal attorney to keep arguing about these little technicalities about law. Me? If I had $4k to evaporate into thin air, I’d rather convert it to a down payment toward more dependable car.. you know, the one that doesn’t make funny and scary sounds?  

Unfortunately, infringements happen all the time. What about this Tiger.dk’s DIY clocks? What about all of those replicas of my clocks circulating on Alibaba, AliExpress or Etsy?  While I do time to time send out C+D letters and be successful at taking some listings down, those are usually the small individuals not big corporations.  

My personal feelings aside, IP infringement is a serious problem for small individuals & companies like us selling our hand crafted products on the internet. We need exposures to survive and make our living but that exposure is the double edged sword. While it can bring "success" to our businesses, it can bring "losses" by others imitating or downright ripping off the designs and massively producing them at prices that small batch creators like us cannot beat.

Those who don’t really know what to say to me would make an effort to offer a condolence by saying "Hey, look at it this way. Imitation is the highest (sincerest) form of flattery!” Unfortunately, there’s nothing flattering about downright rip offs. There’s a clear difference between creating imitations vs. creating replicas. Former term is based on respect and admiration. The latter term is exploitation. I’ve worked in the creative business for 15+ years and we all go through phases of trying to emulate someone we admire to broaden our skills, techniques and polishing the level qualities we can inject into our own work. I think that sort of imitation/emulation is necessary for individual growth for artists and designers. Eventually, these creatives will take everything that they’ve learned and drop them all to pursue their own thing thus making their designs/art more unique and authentic. On the other hand, companies or individuals who make blatant copies are not in it to creating values. They are actually there to devalue, degrade, dilute your products and your brand. Their interest is to make a quick bucks and it’s for their own immediate benefits and no one or nothing else. They don’t add anything of a value to the society at large. Their purpose is to take away and leave the world with more “waste” and more crap that we don’t need.

Trust me, i’ve had quite extensive debates in my head for several months. I’ve questioned pretty much everything.. I mean EVERYTHING from “to mass produce or not to mass produce” to “why create? why make products?” to “Should I sell my business?” to “Should i just quit this whole thing and do something else?” But I’m going to have to create another post that.

What I realized is that it’s important to speak up and share my perspectives. Doesn’t mean I’m right or wrong. It’s just that this is MY reality that I live in. You have your own realities and unless I share mine you would have no idea how I see and live the world.

Before I go, I am not bitter or angry or sad about any of these things…anymore. Yes, I was. I went through waves and waves of emotions. Of course it hurts to spend $1000 and have absolutely no result. I could have bought 2 iPads for $1000 (not that I need them. You know, how your mind starts thinking about what else you could have spent $1000 on?) Instead, I paid $1000 for a very unpleasant experience. What I do with that experience is now up to me. Maybe i learned something priceless. Yes. Definitely. I learned something priceless and that is something no one can steal from me. I have a depth of understanding and wisdom. I learned to be at peace.

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  • it saddens me to realise that life is full of thieves and just because they are a big organisation it makes me angry that they feel the need and rights to steal something from someone else. if they had consent to use the design would be a different story but ists downright rude and appauling the lengths some would go to.
    i also think that designers nowadays have to take out ips in every country before putting their work up for customers so as no one rlse rips them off.
    i hope you can one day get this sorted and sue them for thieft as we tell our kids dont steal and shops put up the dont steal signs yet they feel compelled to steal from others its appauling.

    kristie on
  • I’m a lawyer (not in a practice area relevant to your situation, unfortunately), and I’ve admired your designs for years. No platitudes here, just sorry you’ve had a bad experience. The reality is that a big foreign corporation has every advantage when it comes to ripping off a creative individual. My response: I’ll tell everyone I know not to shop at Kmart and why, and as soon as my budget allows, I’ll buy one of your darling clocks for my mentor. (I am a lawyer, doesn’t mean I have any money.). Thank you for your creative work which adds happiness to our world. ~Elspeth

    Elspeth on
  • I have been eyeing this clock from a mom on Instagram and she told me she got it at Kmart Aus. I searched for it in the US and came across yours. at first I was confused wondering why the price would be significantly higher, but then I read more and see now that Kmart stole the design from you. I am still eyeing this clock a few months later, and when I can afford yours, I’m getting it. It’s only right, Kmart should be ashamed of themselves.

    Naomi Pale on

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