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.
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.
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?