
December 21, 2007 1:01 AM   Subscribe


On The Sampler's (a company that collects samples of arts & crafts and distributes them to buyers who buy a random box at a time) FAQ, one question goes:
I love the idea of the Sampler! Can I create my own Sampler!?

The crafty community is full of all kinds of swap programs! Certainly you are welcome to create your own sort of swap, but please don't copy the Sampler outright! Using our concept and simply changing the name is still copying! Especially when you say things like "I'm starting my own Sampler" it's SORT OF A TIP-OFF.

The business model of the Sampler is something unique and something I've worked very hard to create, maintain and also very hard to defend! Though the Sampler is wicked fun and super friendly, please remember that it is still a business, and, as such, will be subject to and will appeal to all the laws that are applicable to defend it. The Sampler name, logo and the combination of the two are subject to US trademark laws.
Then in the Craftster forums, someone asks about starting her own Sampler to increase access to sample subscriptions, the original founder shows up and states that doing another Sampler would hurt her feelings as she said she "worked very hard" on the concept.

Does she actually have a right to be the only owner of a Sampler-type business? There are many companies doing gift-sample businesses (and The Sampler has provided gift bags for people like MTV), and there are many different types of fast food, of book stores, of hairdressers, etc etc. All essentially providing the same service. (One poster in that thread argues as such.)

What makes The Sampler different? Is it because it is in a relatively close-knit (excuse the pun) community where the target audience for such a product would be familiar with the original? Does Marie (The Sampler's founder) actually have any right under the law to sue anyone else that does a Sampler-type business? Does she legally have any leg to stand on?

What if I start a Sampler to, say, create and distribute samples for Malaysian crafters. Malaysians can't buy Samplers (they ship to limited countries) and there isn't such a thing here, so I start one. Would Marie be able to sue me considering her Sampler isn't actually in competition to mine?

I just don't see how it's possible for her to claim that The Sampler, nice idea that it is, is totally hers and no one can go and make their own Sampler deal. For one thing, I can't buy her Sampler, so if I want one I'd have to make my own! It also seems ridiculous to put a limitation on expanding the Sampler concept when there are also limits to who can contribute and which countries can purchase.

Have any other companies/industries gone through the same issues in terms of holding claim to business models? How has it been for them?
posted by divabat to Law & Government (26 answers total) 6 users marked this as a favorite
I think the Sampler person is either confused or trying to confuse others. She never actually states that she has a trademark, copyright, or patent on anything in particular; she just mentions the terms and lets her readers connect the dots. It's telling that she throws around all three of these terms, which are quite distinct legally, as if they were interchangeable.

So, no, she probably doesn't have any exclusive right to her business model. There may be other reasons why trying to duplicate it would be a bad idea, but I doubt there's anything legal that couldn't easily be worked around.
posted by xil at 1:14 AM on December 21, 2007 [2 favorites]

IANAL, but methods of doing business may be patented in some locales. Whether Ms. Sampler has actually patented her thing somehow, or just threatens to have hurt feelings, I cannot say (but I suspect she doesn't, and can't). Also, tough for her to have her feelings hurt so easily by perceived competition. Wah.
posted by mumkin at 1:21 AM on December 21, 2007

No. You're getting patent, trademark, and copyright mixed up. You're free to compete with this business as long as you don't adopt their trademarked name, reproduce their copyrighted material, or steal their patented invention. Have at it!
posted by gum at 1:29 AM on December 21, 2007 [2 favorites]

This line is ridiculous: Though the Sampler is wicked fun and super friendly, please remember that it is still a business, and, as such, will be subject to and will appeal to all the laws that are applicable to defend it. She's saying "The Sampler is a thing, and as such there are probably laws that pertain to it. I dunno, though!"

Lady Sampler is being an ass, mostly. She's trying to deter people from starting things that are very similar and that trade on the name and idea of The Sampler. Which is understandable, but her attitude is mostly just jerky.

It's a weird attitude, especially in the crafty community. But I think it speaks to how tenuous a position she's actually in, as merely an aggregator of other people's work. All she really has ownership over is the name so she tries to spook people into thinking that the whole idea is hers. Psh. She "worked very hard" on the concept? It's a grab bag. For crafts. It's not that groundbreaking.

She could have just said:

Can I start my own Sampler?

Of course! Just do us both a favor and find a way to distinguish yourself from the Sampler. Put your own spin on it. Call it something clever (obviously I didn't try too hard and I'm sure you can come up with something better!)!
posted by wemayfreeze at 1:34 AM on December 21, 2007 [4 favorites]

gum: I thought there was some confusion going on there! I'm using her words not mine, but the crafting/indie arts community (and fandom) can often get their legal terms mixed up. Good to know my instincts were right here. Though if mumkin's point is correct, would that complicate things?

One argument I made above was that The Sampler didn't serve everyone (some countries can't purchase or contribute). If The Sampler really did serve everybody (had no limits), would I have less of an argument to do a Sampler business?

(I'm not starting one anytime soon; I just remember reading that Craftster thread ages ago and being extremely bothered by it!)
posted by divabat at 1:38 AM on December 21, 2007

If mumkin's point is correct, would that complicate things?

Sure, if she actually does have a patent on her business model, and you happen to be in a place that recognizes that patent as valid, then it might be a problem. But we've seen no evidence that she DOES have a patent, and a lot suggesting that she has no clue.

The fact that her business "doesn't serve everyone" makes no difference whatsoever.
posted by xil at 1:43 AM on December 21, 2007

You can't patent a "business model." There's nothing remotely patentable here. Seriously, folks, capitalism does not erect the kinds of market entry barriers you're imagining. "Selling assortments of stuff on the Web" is something we all get to do if we feel like it.
posted by gum at 2:29 AM on December 21, 2007 [1 favorite]

In a later posting, she writes:

apparently, for the last 10 years, patents have also been applicable to modes and manners of doing business

...so it's evident she hasn't made any attempt whatsoever to explore the patentability of her idea which, as gum notes, seems to be zero. To be fair, she doesn't even pretend to know what she's talking about:

Creating the Same thing doesn't really seem like inspiration. I think that's why there are laws and such regarding copyrights, patents, trademarks and the like

so unless you're worried about hurting her (ridiculously fragile) feelings, go for it.
posted by game warden to the events rhino at 3:26 AM on December 21, 2007

I like that it'd hurt her feelings.

When you can't scale, then yeah, imitation isn't quite the sincerest form of flattery.

But there are probably better ways to build something like that out.
posted by disillusioned at 3:27 AM on December 21, 2007

I am sure McDonalds' feelings were hurt when Burger King opened. Not being able to stop fast food hamburger competition via intellectual property laws, they just out marketed the competition.
posted by caddis at 4:50 AM on December 21, 2007

Well, it's under new management as of earlier this week, so the policy might change. However, as it stands it still is rather bothersome - it seems like, as xii mentioned, an attempt to confuse others and scare them into not attempting another Sampler. (There have been other crafters that wanted to start another Sampler type thing but were talked out of it using the "it's an original model, it'll hurt her feelings" rhetoric.)

Should I inform the new owner about the problematic policy and language? How do I do so without coming off as an ass or something with an axe to grind? (She/They may think I'm only kicking up a fuss because I want to start my own Sampler, when I have no plans of the sort.)
posted by divabat at 5:01 AM on December 21, 2007

wemayfreeze states that it's a weird attitude in the crafty community, but as someone who's been making and selling things via craft fairs and the like for about three years now, I have to say I don't find it the least bit surprising.

Some of us who are a little more precise in our thinking or understanding of the legal system might not grok it, but a HUGE percentage of the population entertains the idea that laws revolve around what is Fair and that if something seems morally wrong to them then of course it's prohibited and there's some way to deal with it.

I'd suggest that trying to educate this person, new or old, would just degenerate into a wandering circle of claims about copyright/patent/trade secret and what's Right and Wrong. Don't bother.
posted by phearlez at 5:38 AM on December 21, 2007

  1. Do not use any Sampler written, printed or displayed material and you will avoid any copyright problems (this is perhaps the most dangerous aspect as copyrights exist whether you assert them or not).
  2. If she has any patents (highly unlikely), you can find them at the US Patent and Trademark Office. Patents are expensive and in general given only to novel non-obvious inventions. Doesn't seem like she has one of these.
  3. Trademarks must be prominently displayed. In any case, you won't infringe her trademarks because you don't want to use any of her material.
  4. Trade secrets must be diligently protected. Doesn't see like she has one of these either.
  5. If you set up your own version of The Sampler, you will hurt Marie's feelings. If that's worth anything to you, don't do it.

posted by ubiquity at 6:05 AM on December 21, 2007


Yes, in the "anyone can sue anyone for anything" sense. Doesn't mean she'd have a snowball's chance in hell of winning, as long as you stick to ubiquity's limits.


I suppose it couldn't hurt. I don't see why the new owner would have any incentive to change the language though, other than being a good-hearted person. It's not like the owner risks any liability by misleading people into believing that the business model is protected.
posted by DevilsAdvocate at 6:42 AM on December 21, 2007

How ridiculous. There is absolutely nothing to stop you from creating a similar business, as long as you work with your own unique images, font, name, and so on. You could even work with her same suppliers, though that would surely not go over well with her.

What's laughable is that she has put this statement up as though she knows something about business law, which she doesn't. If you'd like to start your own version - I hope, an improved version - do some research. There are plenty of available free resources for small businesspeople who can help you understand the law. One great resource available across the US is your local chapter of SCORE, the Service Corps of Retired Executives. They offer all sorts of free support for small businesses and startups.

If the Sampler founder spent as much time on doing the homework to start a small business as she evidently spends online making totally unsupported statements about business law, she wouldn't have to worry so much about the threat of competition. Doing it best, fastest, or cheapest is the name of the game. Go for it.
posted by Miko at 7:35 AM on December 21, 2007 [1 favorite]

Since you don't have the inclination to run with this yourself, skip talking to the creator or the new owner, you will accomplish nothing. Go straight to talking to some of those artists who wanted to set up their own grab bag art assortment, and encourage them to do so. When someone objects, liberally use the term "horse hooey!"
posted by anaelith at 7:46 AM on December 21, 2007

"doing another Sampler would hurt her feelings"

I'm pretty sure that's not a valid basis for seeking legal relief. In fact, I wonder if the Whitman's Chocolates people had their feelings hurt when someone came along and started selling tchotchkes under the name "sampler."
posted by adamrice at 7:52 AM on December 21, 2007 [1 favorite]

With everyone thinking I'm going to make a new Sampler, I probably should just start one. haha.

The new owner, Alison, responded to the thread. She isn't as scared of competition as her predecessor, but she seems to think that the only reason anyone would want to make a new Sampler is because they had a bad experience with their one. I've responded to her so we'll see how that goes.
posted by divabat at 7:52 AM on December 21, 2007

New response: She's getting legal counsel to help her with the wording on the new site once the transfer's finalized. so there is progress!

Anaelith: haha, not now doesn't mean never! I have been thinking about it (Malaysian crafters could use a Sampleresque thing going on for themselves) but I haven't had the business acumen or time at the moment. For me it was more of a "argh, don't let the BS continue!" feeling, particularly since crafty/artsy/fandommy/creative people seem to be woefully ignorant of copyrights, patents, and trademarks. This seems especially crazy when you consider that many of them are trying to make money off their work, and that The Sampler is an extremely well-respected aspect of this crafting community - any sort of bad word against them could possibly be seen as blasphemy. Kinda like Big Name Fans, really.

Is there some sort of Basic Business Law for the Creative Person guide out there?
posted by divabat at 8:01 AM on December 21, 2007

Here's Amazon.com's patent on their one-click ordering system [pdf]. They sued Barnes & Noble for infringement. I don't understand why some others are saying you can't patent business models, because Amazon.com clearly has. IANAL, though.
posted by desjardins at 9:00 AM on December 21, 2007

Amazon has a (controversial) patent on some software it developed. That does not constitute a "business model" in any legal or practical way.

If business models could be patented, we would have quite a time explaining why there is more than one of any kind of business, wouldn't we?
posted by gum at 9:55 AM on December 21, 2007


Of course she does. Anyone who can pay a lawyer enjoys this right. The lawyer would have to think of something convincing to say to the judge. Since that is lawyers' bread and butter, I'm sure she could dig up a lawyer to mount a plausible case. Whether she would win or not would depend on your lawyer, who would be waving a large flag labeled "Restraint of Trade" and citing the relevant caselaw.
posted by ikkyu2 at 10:30 AM on December 21, 2007

Gum: Not for nothing, but business method patents. I know, model ≠ method, but they clearly overlap. And the USPTO seems to grant patents to just about anything if you can claim to have a new angle on it (eg "patent on selling stuff for money—over the Internet!"). Considering the loose way Sampler Lady was tossing around IP terms, confusion would be inevitable.
posted by adamrice at 10:48 AM on December 21, 2007

gum: "You can't patent a "business model.""

Yes, you can. That's not to say she has, but she could.
posted by Plutor at 10:49 AM on December 21, 2007


Plutor, the document to which you link is incoherent: It uses the phrase "business model" in its title and headline, and then discusses the patentability of various business methods like an investment model or a software application. Like almost every other aspect of this discussion, it proceeds as if words can mean any damn thing at all, and that asserted rights are always prima facie legitimate.

The reason that there is more than one Chinese restaurant is not that the patent on the original Chinese restaurant expired.
posted by gum at 11:07 AM on December 21, 2007 [1 favorite]

IANAL, but considering it was presented to American Intellectual Property Law Association and written by the Deputy Commissioner for Patent Examination Policy, I took it at face value. Apologies.
posted by Plutor at 11:27 AM on December 21, 2007 [1 favorite]

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