Mimitens Independent Designer vs. Big Brand

This story came up recently: Toronto designer shocked snowboard company selling no-slip mittens, after employee ordered her design to HQ | CBC News

Where do you think things went wrong? Was it not checking the owner of the email account from the brand? Was it selling product while patent pending? Is the product not really protectable, as the brand says:

“Burton had done nothing wrong as far as patents go,” and that “multiple brands make gloves and mitts with extended cuffs.”

Have you had a similar occurrence yourself?

TL;DR Independent designer of non-slip mittens alleges was ripped off by Burton. What went wrong? Can this be avoided?

Have you had a similar occurrence yourself?

Yes, we have an entire closet in our office jam packed with competitor products. So did every place I worked before. It is common practice to benchmark the competitors everywhere. We actually have anonymous shipping and email-adresses for the purpose of ordering from the competition which I always found overly cautious but understand now that I read this article. I found many details copied from our designs in competitors product’s and we have copied many things from our competitors. So far it has been a give and take, we all stand on the shoulders of giants - I am not talking about straight up rip offs down to the millimeter, more about little details, finishes, features, technical solutions etc.

I can understand her frustration and I think if she has any means to legally get compensation for the taken “inspiration” she should go for it and aggressively act in her own interest. The company would do the same. But honestly I don’t think the company has terribly wronged her. The product itself is very far from a one to one rip-off and they even showed some decency and talked to her, human to human. Most companies would have ghosted her until she came knocking with a lawyer.

Personally I also think she is naive if she believes she can build an entire business on the basis of a tiny little innovation that can be easily copied like this. It’s like building a house on sand. But maybe that’s just the jaded, cynical designer speaking who had too much experience with how companies compete in a free market and what kind of thick skin you need to make an idea/a product - let alone an entire company- work “out there”.
But again - if there is any legal ground for her to ask for compensation she should totally do it. That’s what the law is for.

Sounds to me like she had no actual real invention or chance of anyone buying or licensing her “idea”. Patent pending maybe here can just mean something was filed but if lots of similar things exist would likely have no chance of actual being granted. I’m not a lawyer, mind you.

I’ve been happy knowing the competition has bought my product. It’s par for the course.

I think unfortunately this is a non story with someone who doesn’t understand how the design or legal process works.


Not being a lawyer, not knowing the contents of the patent, and not knowing anything about the case beyond the article (disclaimer) my first thought is to wonder what kind of patent?

If it is a design patent then to my eye I’d say the designs are pretty different. I don’t think there would be any marketplace confusion.

If it is a utility patent, just from the image in the article, the key feature seems to be the extra long cuff. In my experience I wouldn’t think that would be patentable. Unless there is something else in there that is more novel and innovative that I’m just not seeing it seems more like a good idea that every kid glove should have. In that case you really only have first mover advantage. A dozen other glove makers could be reading that article and thinking “hey good idea!”

Again, maybe I’m missing some features. In my experience I haven’t been able to get patents on anything that is a slight modification of, minor improvement to, or combination of two existing things. It typically has to be something bigger to warrant a utility patent.

As an example, the BOOM swimmer Bluetooth speaker that I worked on. We added an opposable tale to basically a nicely designed, water resistant, can shaped Bluetooth speaker. No utility patent. We took something and improved it by adding another something. We did however get design patents on it in multiple countries. Ironically 3-4 companies tried to knock it off nearly line for line and those design patents helped stop them at the port of entry even though they could have easily hired some designers and made it more unique.

I think very few on here will take Mimiten’s side on this one…

It’s a cool idea but I doubt the current legal landscape would allow to protect it. Firstly, I doubt a patent would be granted for it as there surely is prior art on this (never mind other criteria for a utility patent). A design patent would be a start but Burton’s design only shares a small technical feature so I very much doubt Mimiten could enforce it. Actually, good on Burton for not going full Urban Outfitters…

With that said, I think the current IP system is heavily stacked against the small business/inventor.

  1. Good luck going through the hoops and patenting something.
  2. Good luck enforcing your IP if a company several times your size infringes on your work.
    I think the best a small business can do is move fast and build a strong brand around the idea as a way to hedge your bets. GoPro comes to mind here.

On the flip side what if in good faith Burton wanted to send a kick back to Mimiten? There seems to be no easy mechanisms for a company to do this. Entering talks about it gives legal ammunition to the inventor in case the deal doesn’t happen. Asking the inventor for freelance work as a compensation might also fall on the same slope. I guess licensing is part of the answer but that usually works the other way around with the inventor bringing the idea to a company. Collaborative branding could be a way to do it but the brands need to be nicely aligned for this to work…

It is definetly an imperfect system. A friend of mine had a similar case, but in his case it was a pretty close knock off… or “inspiration”. Even their product shot was similar. After reaching out to the much larger brand in question he finally heard back from legal. In an in a meeting with no recording the legal representive said something to the effect of: maybe you have a case and maybe you don’t, but the fact is you are a small brand with limited legal means and we are a large one with very large legal means. There is no way we will settle and so we can excust your entire budget easily and just run the clock out…

that is not the intent of the system.

That’s it. If we look at prior art this product wouldn’t even be eligible to a utility patent. So…I hope she understands now what the I in IP stands for.

We usually strive for radically innovative designs so to be first on the market and gather a customer base around a product that sets itself apart by its quality as well. Without wanting to build fortresses around ‘my’ idea. As the greatest chess players also know, fortresses do not work.

“I made a thing and it’s valuable and I deserve some respect”

this is funny