To Patent or Not: What to Learn from Rainbow Loom's Battle

    By Debra Kaye | Small Business

    After a patent battle between makers of a C-clasp that lets kids connect loops of rubber brands to loom bracelets was described in the Wall Street Journal recently, I was again reminded of the big decision inventors have to make about applying for patent protection.

    The founder of Rainbow Loom, a rubber-band jewelry-making kit that’s a hit with the under-12 set, recently sued Zenacon LLC for copyright infringement regarding its clasp system. (It’s crucial to successful rubber-band bracelet crafting because the clasp connects the bands after they’ve been woven together with a loom.)

    Rainbow Loom's creator, Cheong Choon Ng, says he sued because Zenacom’s FunLoom clasp works the same way as Rainbow Loom’s clasp.

    When do you patent your product?

    In our era of 3-D design and printing, affordable manufacturing, and e-commerce, patent infringement is both a legal issue and one of perception. It's fast and easy to tweak an existing design thanks to 3-D printers. Mass production is more accessible thanks to lower manufacturing costs. And e-commerce makes selling products less time- and money-intensive than before.

    So should you patent your invention or not? It really depends. I’ve never patented anything because most of the products I create are in the food and health and beauty aid categories, and they are much too easy to copy. I’m always more concerned with creating a recognizable brand and message--these are things that can’t be patented but which also can’t be easily copied.

    For most inventors, it’s better to put money and energy in creating such a brand rather than putting it into patenting every product and then investing energy in legal battles to protect those patents.

    Use your time and money to prep for the next trend.

    In the case of Rainbow Loom, I predict that by the time the case winds its way through the entire legal process, the passion for looming bracelets out of rubber bands will be over. Trends, especially those popular among young people, tend to be short lived. It would be money better spent if Rainbow Loom built its brand into something distinctive and recognizable, and created a variety of products that would always be consumers' first choice despite the competition.

    Retailers have said they don’t really care about the brands when it comes to stocking rubber band looms and clasps--they just want in on the trend. However, they would care if there were a brand strong enough that kids were interested in it to the exclusion of all others. Since Rainbow Loom hasn’t focused on creating such a message in the marketplace, their product is not discernable in the eyes of consumers or retailers.

    When do you pursue patent protection?

    There are exceptions to this, of course--cases in which a utility patent is decidedly worth pursuing. The pharmaceutical industry, for example, spends a great deal of money on drug R&D, so patent protection for a period of time is critical for the company's ability to recoup its investment and make a profit. Most, but not all, consumer products do not fall within this category, however.

    Todd Greene, the inventor of the HeadBlade, a specialized shaving implement specifically designed to shave heads at the perfect angle, is one such case. The HeadBlade works like a vehicle and "drives" across the head in a smooth motion--it even looks a bit like an ATV or a jet ski.

    Greene has a utility patent for the HeadBlade, which was first sold online. It's now sold at the retail level. Because its mechanism and design (it's in the permanent collection of New York's Museum of Modern Art) is part and parcel of the HeadBlade brand, a patent to protect the look and the mechanics of the product is important. However, something like a simple C-clasp doesn’t fit the criteria that HeadBlade meets.

    When considering whether to patent an invention or product, ask yourself if the product itself is the brand or if the product is part of the message of a larger brand. If the answer is the latter, then you’re better off putting your resources into creating a brand people ask for by name.

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