All Those Copycats, and What To Do About Them

This week we shut down 23 26 copycat accounts on social media.

And we forced another company to change the name of their business.

We used the power of trademarks.

Not the first time

I’m not sure why people think they can copy someone else’s ideas and get away with it.

Are they just lazy, or brazen risk takers never thinking anything will happen. Maybe their potential hackers trying to steal your business, or your client’s data. Maybe all of these.

This week wasn’t the first time we’ve had to warn people off. Some big guys had infringed on our trademark too, but big companies generally do the right thing. The reputational risk is too great to them for obvious breaches of powerful law like copyright, and intellectual property.

Trademarks rock!

I learned early the power of trademarks.

In my first startup I had a well-known TV personality copied our business name and a lot of our marketing for a pilot TV program. They even filmed their pilot in the town I had a farm in at the time, and in the same week my tourism business was filming nearby with the national broadcaster. It was a real thumb in the face to us.

The guy behind it was known to be an arrogant s.o.b. and I was a minnow in business against him. But my corporate training had put me in contacts with some good professional advisors and we hastily arranged a trademark application, Fast-tracking the application we got 4 positive results within 9 months. We within the timeframe it takes a pilot TV program to come to air.

I tend to give most people the benefit of the doubt and approached the competitor in a friendly way, suggesting that we’d be open to licensing our trademarks to them and working with them to support their show. My conversation with the CEO of the company was nothing but a big powerplay by them. Call on a hands-free line, complete disregard for our business, or our ideas, until I dropped some magic words. “Passing off”, “trade mark”, “intellectual property” are all powerful words that caught Mr CEO’s attention.

While he refused to acknowledge us and our claims somehow, magically, their TV show was pulled and didn’t proceed.

I learned an important lesson.

Some things in business are more powerful than others. There is a range of techniques and processes you can use to protect your innovations, inventions and intellectual property.

naming and Trademarking ‘nomad stays’

After this early lesson it was only natural that we thought about this when creating Nomad Stays.

Sitting at a camping site near Bundaberg, Queensland many years ago Linda and I were spit-balling business names.

We’d already been around Australia, discovered the problem of accommodation for digital nomads, and the solution that made more money for accommodation suppliers. We’d tested the market and both nomads and suppliers were happy. So, we’d decided to create a business around it.

We wanted a name that made sense, that could also be unique and global.

Each name on our shortlist we’d research for other people using it, domain name availability and competing trademarks. Luckily many countries have online registers of registered trademark, patents and other IP.

We also threw various names past our marketing advisor, Chris Lorang.

Its never a 100% decision

These days when considering global businesses is quite hard to find something 100% unique.

There are always other people doing something similar, usually at a national level. It’s also hard to find a unique name that can go global.

So, you’re decisions tend to me a balance between some good and some harder issues.

Nomad Stays was one of those. While the name was unused in major markets globally, there was some dormant social media handles & the .com domain owned by a fellow Aussie or Kiwi. (We eventually bought a domain from him).

It was also a name that had high chances of being trademarked.

Generic words are the enemy of trademarks

While we often worry about others that might claim a trademark, the bigger risk is that the mark becomes popular and gets considered an everyday word.

This happened to our first trademark, “Mud Maps”. While we got 4 trademarks initially and grew to become a global business the IP office in Australia would not let us add more categories of trademarks. They now considered the name ‘generic’ and ‘in everyday use’, Fancy words for ‘it’s not unique anymore’.

We’ve had a little of this with ‘Nomad Stays’ also, where some regulators have suggested it is too generic but the regulators in our major markets didn’t and so we gained a series of marks.

The Madeira Incubator program

When covid hit the world’s travel destinations started hurting badly.

Little old Madeira, a series of islands off the coast of Africa but a self-governing part of Portugal knew they were in for a rough time.

Tourism was their lifeblood, and they knew they had to do something different to survive.

Very smartly, instead of closing off their island to foreigners (like our home country of Australia) they opened their borders to many. Covid testing at the airport was free, quarantine transport and assistance was free if needed, visa limits were ignored.

They became a haven in Europe for many, including many digital nomads.

Today, their economic resilience based on digital nomads has become legendary. It was only natural that in 2021 the government startup incubator, Startup Madeira would launch a program with high emphasis on digital nomad startups.

Linda, Dakar and I hoofed it to Madeira to join the program.

As we were new to Europe, had been locked down in France for most of covid we’d not had much success in building relationships with investors and partners. We’d also found France quite old fashioned and not a follower of mainstream, global startup philosophies.

While we were part of a French incubator, Le Village by CA, we’d not seen much real startup assistance. In France, the term startup, generally is used to describe any new business and their community is focused on general business support.

As part of our visa requirements we had established a French company, had had also started applying for a series of French trademarks, including some that were being disputed, and spoken with local investors we weren’t getting much traction.

After bad visa experiences with the French we were so ‘over’ France as a base for our startup.

Madeira opened our eyes somewhat though.

Madeira triggered our u.s. company and trademarks

While we didn’t end up applying for Portuguese visas or setting up a company there we did investigate thoroughly, including the startup funding opportunities.

What Madeira did do was spark us into creating a US headquarters. Not only was there a chance we’d find more US investors, but the taxation and accounting issues were so much lower than Europe.

While I’m a trained Chartered Accountant, and former international tax agent, I know I can handle all these accounting and taxation issues. The point is that these matters are largely a waste of time for an early-stage startup. They take you away from the job of helping your customers and growing your business. They starve you of badly needed time and cash to grow your business. They also don’t provide any gains to the administrations either. Startups don’t make any profits usually for a long time. There’s no money for them to gain by putting startups through the ringer. But still they persist.

Help from startfleet.io

In searching around for someone to help us setup our US companies I came across StartFleet.io.

Chatting with Joe on his messaging service I quickly realized he knew his shit. It was an easy decision to get him to setup our US operations.

One of the clinchers for us was that Startfleet including a trademark in their service.

Bingo!

So, sitting there at the coworking space in Ponto do Sol I was on the line constantly with Joe, and his legal team working through the best ways to proceed.

They taught me that the UK was often the best place to get an initial trademark as they have a very efficient system, and it takes less time there than other countries. And while you do get a mark in a large, rich, market you also have evidence that is used by other countries. The UK is a great reference point.

So, we kicked off a UK trademark application, and a US application.

We got a UK mark in a matter of months, but the US was a different kettle of fish.

Our U.S. trademark

Our US trademark actually took 32 months to achieve. We got final listing and certificates this month.

I’m really not sure why the US took so long.

There were some initial thoughts that we might conflict with another trademark or two. As those marks were obsolete or not continuing it took awhile to work through.

One of the points of difference in the US system is that the ‘first to use’ a trademark is usually the one that receives the mark. You do have to prove it, and you need to keep an eye on others that are applying for similar marks so that you can object.

Having good ‘trademark trackers’ is an important lesson in IP protection.

While we were finally approved for our mark back in February 2024 it still took another 6 months to get the paperwork through from the USPTO.

Using the trademarks

Our first uses of our trademarks were with other people trying to register similar marks, company names, or domains in the UK.

Our technique tends to be the same – we kindly reach out and advise them that we don’t approve their use of our mark and invite them to withdraw their application, domain or business. We tend to do this without the lawyers, to keep it friendly (at least initially).

We’ve also had similar in France, where we have a trademark as well.

Often though, we get a mixed or unprofessional response. Our next step is to hand it to the lawyers

The lawyers tend to be more matter-of-fact and often outline that we’ll also be suing for ‘damages’ if they persist.

‘Damages’ claims is the big risk to competitors

Damages from taking someone else’s business, or ‘passing themselves off” as you can be massive. Much more than any government penalty for using a trademark without permission.

Damages tends to get other people’s attention quite quickly.

And these days finding lawyers that will work on success fee is much easier to find. So, it doesn’t cost your startup much cash to pursue damages claims.

DMCA Takedowns

A DMCA Takedown Request is another one of the bigger techniques that is at your disposal.

It’s a US law with the full name of “Digital Millenium Copyright Act”, DMCA for short. This Wikipedia article explains more of the detail.

At the bottom-line internet businesses that operate in the US ‘take down’ material that infringes on someone’s copyrighted materials.

As it turns out the US is home to a lot of the world’s largest social media provider, who take the DMCA seriously. Meta group, TikTok, X for example all have easy to follow submission processes where you, as a trademark owner, can request other unauthorized accounts be taken down from their platforms.

Google’s search results are another one you might want to target but Google isn’t anywhere as organized for DMCA takedowns.

With the major social media platforms you will need to provide them with at least:

• trademark number,
• the country that issued the mark,
• a link to that market
• proof that you are the owner of that mark (often just common email and domain contacts that align with your mark ownership record)

Meta is really fast

The Meta Group are by far the most organized and slick. We found they acted on our DMCA requests within hours.

It wasn’t a 100% acceptance though. Trying to take down a social media account in another country using a US mark is a bit of a stretch though.

We found that applying several times with different trademarks did achieve more than just using the US mark alone.

Part of the argument for rejection is that an offending mark pre-exists your trademark. As it took 2.5 years for our US trademark to arrive our earlier registrations in France and UK had more weight in these cases as they were registered earlier.

Of course, there’s obviously evidence that we created copyrighted materials and names much earlier in the life of our business but this is the sort of stuff that you need a person to interpret. Like in a court situation.

When dealing with the big social media platforms you want to leverage their automated processes as best you can, without requiring them to use much human engagement. Automated processes are just faster. You get your results faster. So, try not to ask for complex matters if results are what your end goal is.

Start with the Meta Brand rights protection tool

With Meta they have a specific area on their business.facebook.com pages where businesses can register their trademarks.

This has the double gain in that once registered Meta now prevents new pages, that conflict with your brand, from being registered.

One you’ve got your trademark’s registered in Meta their DMCA takedown tool should be used. You basically go to the Meta Tool and search for accounts or posts across Instagram and Facebook. From there you can submit a request referencing your already-registered-trademarks.

Then site back and wait. The results will be sent to you in email as well as appearing in the Brand Protection Dashboard.

Where to from here?

I fully expect we’ll continue to have more trademark infringements so expect our protection regime will run for years.

At least now we have a relatively straight forward approach to handling trademark infringements on written sites like social media.

While starving competitors of views and likes on social media sites and search engines will ultimately keep their chances of gaining traffic and customers low, it will be interesting how this translates into the AI world. How long will it take the LLMs to insert trademark violation tools into their own apps?

I’m also yet to explore how to protect using ‘audible’ and ‘video’ based sites, to ensure people don’t talk about competitive businesses in podcasts vlogs etc. Similarly, that other Meta product, WhatsApp, doesn’t yet appear to have a trademark infringement tool. With the growth in impersonal group chats and message on WhatsApp I’m sure this will have to come soon.