The Great Flip Flop Robbery

Ever been jacked? I've had a wallet stolen and it's not a pleasant feeling.

Tell you what's worse: when somebody steals one of your ideas. It's the crime that keeps on stealing--especially if the idea makes lots of money. 

People who spend their lives engaged in creative pursuits are stereotypically cavalier if not willfully naive when it comes to business. Call it a clash of Left and Right brains or Optimism versus Cynicism, but quiet wars are waged each day between those whose idea of success is to bring their dreams to life and those who'd rather carry them to the bank.

I have a soft spot for artists and inventors motivated only by the sheer intellectual and creative rewards. I am naturally disgusted by individuals and corporate interests that cannibalize or outright steal ideas solely for profit.

I have great admiration for Edwin Armstrong, who was among the greatest inventors that ever lived. Much of his work is still used in technologies today, though he is best-known as the inventor of frequency modulation (FM radio). Armstrong found himself engaged in a brutal patent war with RCA over FM even though it knew he was the true inventor. With the motive of breaking him financially, RCA beat him down over a twelve-year court battle before finally winning the patent. 

Left destitute and bitter, in 1954 Edwin Armstrong jumped to his death from the thirteenth floor of his NYC apartment building. He didn't live to see the court reverse the decision in his favor.

When I first read that story (which always stuck with me) I was sickened to the core.

 The great Edwin Armstrong. They stole his life but at least he made it on a stamp.

The following tale of robbery and deceit does not aim to draw even the thinnest of comparisons with Armstrong's story, but may serve as a cautionary tale for anyone desirous of bringing ideas to life.  

Obviously, the first concern inventors have other than selling products is protecting their ideas from being knocked-off. Even with a patent, a clever designer can modify an existing idea just enough to get around the restrictions. In my case, I sometimes sought Design Patents, which protect the embodiment of the idea (the artwork, etc) as well as the idea itself, provided it is judged novel enough to merit protection.

Some inventions require a designer's expertise to see them through; a simple great idea, though, can be stolen by anyone, and those are the types I was most cautious about revealing.

Whenever I met with manufacturers I brought along non-disclosure forms, which the clients had to sign to prove they saw my designs on such and such a date. The forms didn’t totally protect me, of course, especially if a company could demonstrate it had similar designs in the works.

Though I had a number of what I felt were truly novel inventions, I had just as many more that were pedestrian and that someone would eventually think to do--if they hadn't already. I didn't freak out when I saw products that were similar to if not exactly like ones I had submitted to manufacturers because it was the nature of the game and what could you do?

To give an example, I submitted this coin/currency ATM bank design to several companies back in the 90's:

Years later, I saw an ATM bank on the market and wondered. Today, there are probably 100 versions of ATM banks like this one:

Did someone steal my original idea? Maybe. Was it obvious enough that anyone might have thought of it? Probably. Here's another example--a giant remote control that you wouldn't be able to lose under the sofa:

Years later, a few versions of oversize remote controls cropped up:

Ideas are inevitable, and even though one might believe his or her precious baby was stolen, it is often just as likely that it wasn't.

Except, dear friends, in this case:

One scorching NYC day, the president of an unnamed company that manufactured summer gear and beach products (fittingly named “Sandy”) asked whether I could design something fun and useful and geared toward women for her catalog. Over the next couple of weeks I pondered what sort of designer crap I could entice female sun-worshipers into purchasing.

Sandy expressed interest in licensing my Fruit Flops, which were flip flops that looked like fruit slices cut in half. I thought it would be cool to package them on paper plates and wrap them in cellophane like fresh fruit from the supermarket. One night I got carried away dreaming up practically every type flip flop imaginable:

Three very frightening things struck me at the initial meeting. First, while I waited in the lobby for my appointment, I noticed two suits (one of whom was an attorney) discussing the best way to slightly modify a beach bag design in order to get around copyright infringement. Not a good sign, but I was glad I heard it.

Second, Sandy quickly downplayed her initial interest in the flips flops.

Third and most frightening of all, she “neglected” to sign my non-disclosure forms at the end of the meeting.

You know how a person you're dating sometimes lets a little fact slip about how they treated an ex that you pretend not to hear because you know it's likely that they will do the same thing to you? That was exactly my thought during a follow-up phone call when Sandy said, “I like the flip flop idea, but that's not something I would need you to be involved with. I mean, I could have one of my people do the artwork.”

Cue ominous music.

Sandy's words made me shudder. You see, anyone can draw a picture of an orange or a lemon slice that could be printed onto sandals. Sandy was telegraphing her position that the idea itself was unimportant and that all she needed to do was print some lemons. Not surprising for someone who worked for a firm that picked apart other people's designs looking for ways to steal them.

What made the Fruit Flops novel was not the artwork but the fact that they were shaped like fruit slices. This, in fact, was how I managed to get a design patent when my first attempt was rejected. The U.S Copyright Office wrote to say that I could not patent sandals, which I understood. Designs have to be judged appropriately novel in order to merit protection. Similarly, no one can copyright or patent an orange or a lemon--only an original drawing or photograph of an orange and a lemon. I told the Copyright Office that I sought to protect neither the artwork nor the sandals, but their embodiment as sliced shapes. 

The clerk called and after a long discussion finally agreed that the shape was novel enough and granted the patent on the rationale that my feet flops were novel foam sculptures.

I was so suspicious of Sandy's motives that I bought a recording gizmo at RadioShack in hopes that I could acquire a taped admission that she'd seen my Fruit Flops. So a week later I called, gizmo running, to ask whether she wanted to move ahead with the sandals. “Well, the flip flops are something we were planning on doing. . .” I interrupted her. “You mean the Fruit Flops?” She stammered and said, “Yeah, the Fruit Flop idea. But. . .we were going to do a flip flop design anyway, you know, so that's not something we're interested in.”

“You mean you were going to do another type of flip flop? Not the fruit slices?” (note my skillful baiting)

“Right. Well, not exactly like that.”

And . . .scene.

Not exactly like that. More like, "We're going to modify the design and steal your idea."

Flash forward to the following spring when I'm cruising through the aisles at the annual Gift Show at the Jacob Javitz Center. I stroll up to Sandy's display booth and from the corner of my eye I see ORANGE and LEMON and APPLE flip flops on display.

The bitch. Stole. My. Flip. Flops.

And the artwork sucked: it looked like Sandy did it herself to avoid paying an artist. I was in such shock that I bolted down the next corridor wondering what to do next.

I might have been trembling.

The first relief was that they were registered and therefore somewhat protected. Second relief: the RadioShack recording. I sneaked to the booth again and grabbed a couple of catalogs. She called them “Feet Flops” and didn't bother with my cool packaging idea. I ordered a pair of Lemon and Orange just to see for myself.

THE CEO FLIP FLOPS

So this supposed expert Intellectual Property Professor and Attorney was charging me two-hundred bucks an hour to send faxes back and forth with Sandy's lawyers. After a month of this insanity she said there was nothing I can do and that sometimes you have to let them win. Whaaaat? So I went the the NYU law library and read up on intellectual property. I went over Sandy's head, called the CEO of her parent company, and told him I was willing to take it to court. 

First sign he was nervous: he agreed to meet with me.

The CEO sat in his big leather chair, nonchalant, and said, “So you think Sandy stole this idea, huh?”

“She signed a non-disclosure on them.”

“They were working on the same idea before you showed it to her.”

So I whipped out my portable cassette player and let him hear the RadioShack conversation. He sat there silent for a moment and said, “Okay, she borrowed your idea. So what? You know how much it'll cost you to fight us in court?”

And with a thought of Edwin Armstrong in my head I said, “I will fight you in court as long as it takes. By the way, I noticed she has a copyright symbol on the packaging. That's interesting because you can only register artwork with the Copyright Office.” (a lot of manufacturers put Trademark and other notices on stuff that isn't protected at all).

“So? You're gonna sue me for stealing lemons and oranges? That's absurd. We've been through all this with your lawyer. We sell plastic plates with oranges on them. We've got beach towels with oranges. Are you gonna tell me you invented fruit slices?"

And then came my Perry Mason moment.

“I'm not going to sue you for stealing oranges. I'm going to sue you for stealing the shape. I've got a design patent and I can sue anyone in the world that sells flip flops or sandals shaped like fruit slices. They're foam sculptures.”

Long pause. Finger to lips.

“So what will make you happy? Flat fee? Royalties?”

AFTERMATH

I decided to take royalties on the flip flops sold to that point plus royalties on future sales and a one-time payment of five grand to offset the useless copyright lawyer fees.

Luckily, they sold several hundred thousand units but hardly enough for any sort of retirement, as if it mattered anyway. I still have a few pairs left as a reminder.

Edwin Armstrong, this one's for you.

"That's not something we would need you to be involved with."