Woolworths has apologised to Cape Town business owner Shannon McLaughlin, who accused the big retailer of stealing her baby carrier design.
McLaughlin, the founder of Ubuntu Baba, is the most recent of several people who have accused Woolworths of appropriating their products.
On Monday, she posted in a blog about how, in December, she was alerted to an alleged rip-off of her product by Woolworths. She pointed out the similarities between her baby carrier and the one sold by the retailer.
By Tuesday afternoon Woolworths had quietly removed the baby carriers from its website and would not comment “before chatting with Ubuntu Baba first”.
Following the “chat” on Wednesday, Woolworths released a statement saying it had concluded its investigations and would remove the product from its online and physical stores. It also offered a full refund to customers who want to return the baby carrier.
“While there are differences in our baby carrier, there are striking similarities, which we acknowledge and take responsibility for,” it said. It blamed the situation on a lapse in its design process, which it said was “being addressed internally”.
“We are intensifying and strengthening the training of our people, our suppliers and partners on our values-based approach to the design and sourcing process.”
Ubuntu Baba has been operating since 2015, selling Stage 1 and Stage 2 baby carriers for newborns to three-year-olds.
On December 16 last year, McLaughlin received a WhatsApp message from an employee with a screenshot of a similar baby carrier being sold on the Woolworths website. Its baby carriers were in the same colours and included the labels Stage 1 and Stage 2.
McLaughlin bought a Woolworths carrier to do a side-by-side comparison of the two products. She described the results as a shameless copy of the design and pattern of her baby carrier.
According to her, the most obvious clue that her design could have been stolen was in the waistband.
“That is exact proof and there’s no other way they could have done that without our pattern. If you measure centimetre for centimetre, every piece of the waistband is exactly the same.
“The way the waistband is sewn closed on the back; if you turn the carrier upside down and you see how we put the foam in and secure the waistband shut is extremely unique to our brand. We designed it from scratch. There is no other brand that has a waistband like that,” she said.
McLaughlin found more evidence when she looked through Ubuntu Baba’s online order receipts. She found two of her carriers were ordered by people at Woolworths’ head office. An online search of the recipients showed that the head of sourcing had received the Stage 2 carrier in June 2017 and, in September 2017, the Stage 1 carrier was delivered to Woolworth’s product developer.
“We don’t know if they were just moms buying our products … It could just be coincidence, but quite a large coincidence,” she said.
McLaughlin said she had registered the name of her business but not the names of the carriers or the design.
“When I started the business, I wasn’t thinking about intellectual property. I didn’t even think about the word intellectual property until three weeks ago.”
Intellectual property chair at Stellenbosch University Professor Owen Dean said McLaughlin would not have a claim on patent or design because these trademark rights apply only if a product is registered, however, she could seek remedy using copyright which applies automatically.
“If she can show that her product is so well known to a substantial number of people that when they see the Woolworths product they believe that it is manufactured by her then she may have a claim of passing off under the common law,” said Dean.
Dean said entrepreneurs should take advantage of the protections of intellectual property law by registering their new inventions and designs before their products are on the market.
“As far as trademarks are concerned they should register their brands and the shapes of their products, assuming that they are distinctive, at the earliest opportunities and not wait until potential infringements have taken place,” Dean said adding that they should also keep good records of their operations.
Multi-jurisdictional copyright lawyer Graeme Gilfillan agreed with this adding that courts have described this as “filching of the fruits of another’s skill and labour or reaping [what] the competitor had not sown”.
“It appears that a deeper foray into competition law to misappropriation leads to a much better remedy option, which is a misappropriation of a competitor’s performance or product.”
This is not the first time that Woolworths has been accused of stealing from small businesses. In 2012, the Advertising Standards Authority ruled in favour of Frankies owner Mike Schmidt, who said that the company had imitated the look and flavours of his retro drinks.
In 2013, freelance watercolour artist and designer Euodia Roets accused Woolworths of stealing her hummingbird design for cushions.
Woolworths denied these claims, but it did withdraw the drinks range.
Tebogo Tshwane is an Adamela Trust journalist at the M&G.