Should You Call Out Your Copycat on Social Media?

April 20, 2020 7 min read

This story appears in the April 2020 issue of Entrepreneur. Subscribe »

First there was Chillhouse. Then there was Chillology. And then things were not chill. It started with Cyndi Ramirez-Fulton, founder and CEO of Chillhouse, which is a Manhattan-based “new-age spa.” The company has attracted more than 100,000 Instagram followers who love its modern aesthetic and self-care ethos. In October, one of those followers alerted Ramirez-Fulton to another brand’s account — and it looked eerily similar to Chillhouse’s.

This other account was for a different self-care destination, called Chillology. It copied specific Chillhouse posts and captions; its products, services, and packaging showed alarming overlap; and the marketing for a Chillhouse pop-up at Miami Beach’s Art Basel was being used to promote Chillology in New York, the only tweak being the variation in brand name and a lower quality in execution.

“It wasn’t just that they were taking our brand that we’ve put time, energy, and creative juices into, but it was that they were making it look worse, and kind of dragging it through the mud,” Ramirez-Fulton says. “I just felt like I had to take matters into my own hands.”

What’s an entrepreneur to do? Increasingly, the answer seems to be: Blast the copycat on social media.

There are plenty of high-profile examples. In 2018, Outdoor Voices founder Tyler Haney took to Instagram when she felt the design of her brand’s leggings was being copied by competitor Bandier. (Outdoor Voices fans rallied around Haney, though Bandier ultimately defended its product.) In 2019, Shhhowercap founder and CEO Jacquelyn De Jesu Center posted stories that suggested hair-care brand Ouidad had copied her product’s patented design. (Ouidad posted a half-hearted apology and said it would pull the product.) Also last year, a journalist took to Facebook accusing the Crime Junkie podcast of plagiarizing her work (a pile-on ensued and the podcast deleted several episodes), and in February of this year, podcast host Rich Roll tweeted that his audio had been inappropriately used on the WeCrashed podcast. (The episode was reedited, and Wondery, which published the podcast, publicly apologized.)

These kinds of success stories sound encouraging, but they’re not always so simple, says Joseph Gioconda, an IP litigator and the founder of Gioconda Law Group in New York. Although it’s tempting to call someone out on social media, he says the move is virtually useless unless an entrepreneur has filed for the relevant trademark protection, patents, and copyrights. “Because I can guarantee you: Success will breed people who copy you,” he says. And if you’re not protected, then all the tweets in the world can’t save you.

“The law does not recognize a public outcry as a legally sufficient action [to defend IP protections],” Gioconda says. “And if you’re too strident in your complaints, the other party theoretically could turn around and sue you for defamation or disparagement. You’ve got to be able to back that up.”

Sarah Larson Levey learned some of this the hard way. In 2013, she launched a hip-hop-focused yoga studio called Y7 — and she thought little about how to protect it. “We didn’t trademark until the beginning of 2015, when we saw other studios start to have a ‘beat-bumpin’, candlelit’ class, sometimes taking our exact class descriptions and adding them to their schedules,” she says.

She moved quickly after that, with the assistance of a lawyer. Then, once she was buttoned up, she turned to social media — but not to call people out.

“It’s the best resource [for finding copycats],” she says. “We do a sweep of hashtags probably every other month. It’s hard to do otherwise — we wouldn’t know about [an infringement] outside New York or L.A.”

When she finds people ripping her off, her lawyers go after them. It all stays out of public view. “Every time you see any sort of infringement, you have to protect your trademark and send a cease-and-desist letter, because if you have a history of not defending your trademark, that can come back to bite you,” she says. (It’s a prudent point, Gioconda says: “If you sleep on your rights, you’ve let the other side take them.”)

Jacquelyn De Jesu Center, the Shhhowercap founder, has taken more of a two-pronged approach to defending her brand.

She launched her modern, fashion-forward shower cap in 2015 and prioritized all legal protections. “One of the first calls I made was to a random patent attorney to learn how to protect this,” she says. “I have a design patent, a utility patent, Shhhowercap’s logo mark and word mark — two different things — and the phrase ‘The shower cap reinvented.’ ”

Still, when she saw another brand copying her last year, she felt like social media could help. If she got enough attention online, she figured she could make her competitor stop—and it would be cheaper than going through any costly litigation. She consulted with her lawyers, who said it would be fine so long as she stuck to the facts.

“I posted on Instagram, and it went buck wild,” she says. “I have 10.8 thousand followers. That’s 10.8 thousand cheerleaders. Those voices are loud, and they’re pissed for you.”

But this raises another important point: Not all social media accounts are created equal. “The question is, how rabid is your customer base?” Gioconda says. “If you have tens of thousands of followers who live and die by your brand, [speaking out] is going to resonate. But if you’re just starting out, and you don’t have a strong identity and following, it may come across as though you’re being petty, and that will just drag you down.”

That certainly occurred to Ramirez-Fulton, the Chillhouse founder, when she was thinking about how to respond to Chillology. She didn’t want to drag her company’s Instagram page into the fight, but she had a good backup: Her own personal account has 50,000-plus passionate, engaged fans.

So she took to Instagram. She posted a series of stories to her personal account, detailing what had happened with Chillology and backing it up with side-by-side documentation of the two brands’ online representation. Chillhouse’s fans got vocal in defense of Ramirez-Fulton’s business, and the founder of Chillology, Dacia Thompson, issued an apology, claiming that the employee overseeing their design and marketing acted independently and was subsequently let go. (This was reiterated in a statement made to Entrepreneur by Thompson.)

Ramirez-Fulton was happy with the result, but that doesn’t mean she’ll be quick to do it again. “Pick and choose your battles,” she says. “There have been other instances where I have seen things from brands that feel similar to us, but I’ve never really taken it public.” After all, the question isn’t about making a splash in public. It’s about how best to protect the brand, no matter what.

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This article is from Entrepreneur.com