Last week, the US Federal Trade Commission issued a decision supporting the patent claims of the Canadian company that makes the popular sex toy the We-Vibe. The decision came after more than two years of legal battle between Standard Innovation and rival sex-toy maker Lelo. It may not register as huge news, but for the adult-toy industry, the decision and the lawsuits leading up to it are indicators of a major shift.
Copying designs is common in the sex-toy world. Some toy makers take entire lines of products and produce cheaper versions of them, complete with identical designs and similar packaging. Nobody likes it, but until now nobody ever did much about it. German toy-maker Fun Factory issues an annual plagiarism award to the company that best rips off one of its designs. It’s their tongue-in-cheek way of saying, ‘We may not be able to stop you from doing this, but we all know who came up with this idea.’
When I toured Fun Factory in 2010, the owner, Dirk Bauer, told our group that he used to let visitors see every aspect of the design and manufacturing process, but now they have a restricted section where any proprietary technology and trade secrets are housed. He said they have had people come in specifically to try and scoop their technology. He knows there is little they can do about copies once the toys hit the shelves, but their hope is to be the first to the market with the technology.
Bruce Murison, inventor of the We-Vibe, seems to have a different perspective. He is an engineer from Ottawa who started developing the toy after he was laid off from his job at Nortel. He was not a part of the sex-toy industry and right from the start everything that his company did ran counter to common practice. One of those things was spending more than four years and $500 000 developing and testing the toy. Another was to register patents on the technology and design. In 2010, when Lelo launched two toys with a similar shape and function to the We-Vibe, Murison did not sit back and take it: he sued. Lelo fought back and has launched a countersuit.
That these two major sex-toy makers would go to such great lengths and expense to hang on to their rights to exclusivity over a design reflects how mainstream and large the toy market has become. Fifteen years ago, nobody could even identify a specific type of toy or the name of it, let alone the company that makes it. Now these companies are major brand names, as recognizable in some circles as Apple and Samsung. What is at stake for Lelo and Standard Innovation is not only a huge amount of money (We-Vibe brought in approximately $35 million last year), but also their position in the growing market of upscale adult products. The FTC has given this round to We-Vibe, but the Canadian suit is still to be decided, and Lelo’s countersuit has only just begun. V
Brenda Kerber is a sexual health educator who has worked with local not-for-profits since 1995. She is the owner of the Edmonton-based, sex-positive adult toy boutique the Traveling Tickle Trunk.