What Would You Do?

Here’s the scoop.

Chilldils originally got $540 in startup money. By the time Kickstarter and Amazon Payments took their cut, I was left with around $470. After buying materials, paying my manufacturers, getting the .com, and buying packaging samples, I have around $250 left. To even consult with a patent-specific lawyer (just discussion, no action), it would cost me $225 on the low end…and he is relaying to me that a search for a patent (meaning ensuring there isn’t another product I’d be conflicting with) will cost upwards of $500 and will likely be necessary. This $500-$900 search would not be necessary if Xhale glass were to give me the number of the alleged patent they have repeatedly stated that they are in possession of without elaborating beyond vague statements. Please read the whole insane story below and cast your vote as to what my next move should be.

***

Adam Burns, of Xhale Glass, has sent me several communications indicating that I was potentially infringing upon his/Xhales/someone’s copyright for…something. No details were given about what the alleged patent entailed or included, be it design, concept, materials, colors, names, or anything else. Why do I say alleged? Well, because despite repeated requests for the patent number, and in fact despite Mr. Burns himself stating that his legal department would send it, it has been over a week now, and my inbox is still missing that easily-emailed little number.

***

The Emails

While later emails from Xhale/Mr. Burns have suddenly gained a large and intimidating several-paragraph block of confidentiality legalese, the emails referenced below did not, and I am able to share these excerpts to help narrate my end of things.

Mr. Burns, on March 23rd: …I will have our legal department prepare a licensing package for you which will reference both the design and utility patent registrations, along with the associated fee schedules.

Myself, on March 23rd: …If you have a patent number, that will be sufficient for our purposes. I’m planning large moves ahead in the next few days and, if it would indeed conflict with a patent, I’d just as soon halt them now than proceed and further complicate things. The only thing in question is if you actually hold a patent, which can be verified easily enough with a simple number – no packages needed. Send the number ASAP, and we can put this whole business to rest.

Mr. Burns, on March 23rd: …I have forwarded this to legal and you should be receiving your requested information shortly.

***

A Matter of Tone

Furthermore, I’d like to explain why I am so puzzled by Mr. Burns’ claims that he has “… never threatened anyone with business…” Read the quotes below and tell me if you would classify the tone and content of this communication as in harmony with statements like “…my intentions were nothing but good…” and “…I was just trying to help someone achieve their goals faster…”

It has been recently brought to our attention that you are currently marketing a product which appears to be infringing on our US Intellectual property rights.
The product may be seen below:
(Note: Here, a link was placed for an AVN archive blurb from 4 years ago, which listed the product as patent pending, not patented. This item did not show up in my exhaustive pre-Chilldils-launch searches for generic terms regarding hot/cold sex toy pouches, else I wouldn’t be dealing with this drama.)

If you are interested in licensing the product from us, we would gladly provide you with an estimate.
Please respond within 10 business days to avoid a possible cease and desist should the legal department deem it appropriate. If you are interested in a license, we may be willing to work with you. We typically require an advancement of royalties equal to 25,000 units for most our products.

Kind Regards,

Adam Burns
President
XHale Enterprises, LLC

as well as this comment, which he attempted to leave at my blog, along with a link to his own retail site where he had put the item up for sale:

“We have been very understanding and graciously offered you opportunities to license our product on two separate occasions. You have failed to acknowledge our correspondence. The product you claim to have created is a knockoff of XHale’s protected intellectual property. XHale began marketing this item back in 2005. The dated AVN review can be viewed here. You will be issued a legal cease and desist immediately. We were willing to work with you on your upstart venture, but your lack of correspondence is beyond unprofessional. I am posting the link here so the rest of the contributors can see.”

***

What Would You Do?

While I am the first to admit that I’m protective of my own project “baby”, I’m unwilling to believe the numerous folks I’ve bounced this off are ALL overreacting along with me. Mr. Burns and I both have something at stake here – the big difference is that I’m doing my best to be as transparent as possible. I’ve even explained to Mr. Burns what my product is made of (materials), the method of use, and even pointed out the differences I see that make our products fundamentally different – all information I offered in an attempt to settle the matter amicably. Mr. Burns has definitely not offered me the same sort of information, nor has yet given me any proof that he even holds a patent, despite my repeated requests. Mr. Burns has said that he is losing sleep over this – well, so am I. I want the matter settled, and I can’t do that until I make a choice either way. Help me with your opinion, won’t you?

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16 Responses to “What Would You Do?”

  1. Sarah Says:

    I’d consult with the lawyer and see if they can send him a formal request for the patent number. He legally doesn’t have to give it to you, but it would be nice if he did. It kind of seems like he’s just trying to stall you out/cost you more money/make it so frustrating you give up.

  2. Nobilis Reed Says:

    Move forward.

    Tell him you’re moving forward.

    Until he actually tells you what you’re infringing, he hasn’t told you that you’re infringing.

    But then IANAL. Maybe talking to a lawyer makes sense.

    Any chance of getting more startup money? That seems like a tiny investment.

    • That Toy Chick Says:

      The initial $500 was very generously donated by the sexblogging community, and I was determined to make it work on that…in fact, I was completely on time and on budget as of two weeks ago, then this happened. If it was a matter of x dollars would solve it, I might try a different approach, but this has turned so crazy that I am loathe to throw more money at it – be it mine or donated.

      I owe it to those that have donated already to either use the money to do something actively productive going forward or return what hasn’t been used.

  3. adriana Says:

    IS there no way to get a free consult with a lawyer?

    • That Toy Chick Says:

      Hey, if you know one, I’m all ears 🙂

      Patent law is highly specialized, and I’ve pretty much tapped out my local area – everyone charges at least $200 to even sit down and talk about it. No searches, no forms, no yes-or-no, just talking.

      Think I’m in the wrong business, I’m tellin ya. $200 for an hour! There are sex workers that don’t charge that much for -sex-, for goodness sakes. And that’s considerably more fun.

  4. adriana Says:

    Might I also suggest this? http://www.patentquestion.com/main_form.asp?sitename=patentquestion&pagename=askus

    I don’t know, this just sucks )=

  5. tygerbaby Says:

    He needs to pee or get off the pot. If he won’t put up, he needs to shut up.

  6. Darling Dove Says:

    If I were you I would stick it out. Burns is trying to play the good guy. You’re already banned from EF, prolly not IP banned, but what I’m saying is causing drama there cant get you in any more shit than you’re already in and if you have to use that venue to ask him, do it.

    Keep emailing him asking for the number. Every day, until he gives it to you. You shouldn’t jump to the lawyer route, because the fact is he IS from a big corporation and they most likely DO have more money than you- as most people know the ‘law’ is more about who has the biggest dick made out of money to swing around in court.

    Take your situations to a few lawyers and offer up a lost revenue or libel suit. Some lawyers do work pro bono and you should not waste your money if you do not win.

    I can guarantee if you go for a lawyer he will say some shit about how you didn’t wait long enough and you’re so impatient, etc, trying to paint himself as the bad guy. So.. he posted his side on EF, why not post yours? like I said, you’re already fucked on that front, you can’t get MORE fucked just by mild trolling.

    Ride this until the horse is dead, then spring for a lawyer if he still will not comply. It sucks.. but you shouldn’t get yourself in debt just because of an immature kid.

    • That Toy Chick Says:

      As it has been so often repeated there, it isn’t the forum for it. It’d be skewed on many sides – I have baggage with the forum/company itself and they with me, they control the forum and can edit it or censor as they see fit, and at the end of the day I doubt it’ll make much of a difference. While I’m sure others may disagree, the forum is logically an extension of the retail site, and as such it would be a bad business move to allow statements to be continually made that paint one of your vendors in a bad light. If someone was bashing someone I worked with in my blog comments, I’d probably be inclined to shut it down too.

      I’d rather tell my uncensored story here – that way anyone who wants to hear *my* side can hear it without it being swept under the rug or downplayed. I don’t have to worry about lines altering, or entire posts vanishing, or threads being locked. It’s their right to do those things (if they do them), of course, but I’d just as soon not take my issues to a place that can filter them at will.

      As far as trolling, I’m trying to keep things factual as I can, as I don’t want to be accused of emotionally manipulating the whole situation to my benefit – it’s terribly tempting to sink into the name-calling though, believe me. If I’m in the wrong, I’d rather be told by my peers flat-out what I’m missing here than engage in a constant volley of barbs. I’m upset, my friends are upset, and the whole thing is just awful. I don’t want it to go on any longer than it absolutely has to, you know?

      • Darling Dove Says:

        Then.. stick with riding the horse till its dead, lol.

        I get what you mean.. I just feel like its wrong that he dodges this bullet consistently. He should face it, somehow.

  7. Wendy Blackheart Says:

    I agree with tygerbaby – I think he’s trying to blow smoke up asses and stall you. Besides, from what I see, your product *works* differently than his, which should make all the difference – and I’d buy your product over his any day, based on your materials and reputation.

  8. mivox Says:

    I would write a very formal and polite letter to him explaining that if he won’t produce documentation showing exactly how you’re infringing on his patent/copyright/whatever within 30 days, you will continue with your business plans.

    Then prepare to lawyer up either way. On the one hand, a consultation to look over his material and see if you are in a bad position re. infringement; on the other hand, someone to get him off your back if he starts getting more threatening without delivering any proof.

  9. tne Says:

    I voted “other” in the poll:
    consumerist.com might be able to help or help guide you to some resources.
    Call the company yourself, and ask for this “legal” department – skip mr burns entirely?

    I wonder if the fact that you have asked repeatedly for the patent number, and his refusal to comply, gives you any sort of leg to stand on or work-around.

  10. jonsbabydoll Says:

    It’s a tough call. It seems like what they are trying to do is ride this out until you are either too exhausted/frustrated/broke to go forward. And realistically, they can. They are a big company with a bunch of money and time to jerk you around.

    It sucks, it really does. I think these are the types of stories that people hear and shake their heads and curse ‘the man’.

    I wish I had better things to say. I wish I had advice of any kind. 😦

  11. Dangerous Lilly Says:

    Well darlin I already told you what my boy said. That this is typical business tactic and means nothing of weight, they’re just trying to scare you into shutting down, to avoid the competition.

    However he also said that you CAN get a free consult with a patent atty and that you just need to have them write down your materials and how-to and thats enough….You yourself wouldn’t have to take out a patent.

    Emailing you now with at least one name, he’ll get me more tomorrow.

  12. Tweets that mention What Would You Do? « -- Topsy.com Says:

    […] This post was mentioned on Twitter by Epiphora, aagblog, Eithrael Viola, ThatToyChick, pantherapardus and others. pantherapardus said: RT @thattoychick: Chilldils update – help me decide my next move & read the whole sordid story. http://tinyurl.com/y9hzz35 (Please RT!) […]

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