I really didn’t want this to be my returning post after an absence, but I feel like this needs to be done.
I’m gonna piss some people off with this post, and I don’t care. I don’t care because if you’re mad about the post, you are the problem.
I spent about five hours writing and researching this post, and I did it because I love vaping and (for the most part) I love the vape community. Vaping helped me to quit smoking, helped me reclaim my health, is helping to earn my living and support my family. I love this thing, and I don’t want to see it destroyed. Least of all do I want to see it destroyed by vapers.
I’m gonna go into a bit of detail here, and it’s gonna be a long post. I’m not singling out any one vendor, there are lots of them that are guilty of this. So grab a beer, grab your vape and strap in, because I’m about to tear some people new assholes.
Earlier today I was alerted to yet another vendor bottling eLiquid that just… well here take a look for yourself:
I simply cannot believe the massive stupidity at work here.
I’m gonna ignore the whole “marketing to children” issue for a minute because I want everybody to put their big boy/girl pants on and pay attention because there is a much more serious issue with this image, and something that is endemic in the vape industry: wanton and wholesale trademark infringement.
At first I though to myself “well, this is a new industry, and it has a big chunk of very young people running businesses right now, and maybe he didn’t know he couldn’t do that.”
I thought that for about 30 seconds while I looked for the facebook page for this company.
Apparently this flavor launched two days ago, and others have tried to inform the gentleman running the page of this. His response? And I quote:
I own the name 100% 🏻😎💯💯💯
Ok, well maybe he didn’t understand what the poster was trying to say. Oh look, here is a facebooker trying to explain it in simpler terms:
Good for you. How about the extremely legible product in the background? I’m guessing you don’t own rights on that.
That’s pretty simple right? Apparently not judging by his response:
It’s defiantly not illegal to take pictures of any products lol !! Sorry but no matter how much people disagree it is legal thanks for ur concern make sure to try it the hype is defiantly real 🏻
People continue trying to explain to this person that what he is doing is wrong, and it is reflecting on the industry poorly, and this is his response yet again:
Negative ur assumption is just that which is just fine 🏻 I bring top quality Vape products to the table what I’m doing is completely legal in every way I am don’t arguing it’s a great juice there are so many major companies that are doing way worse things sorry you feel this way but I’m not going anywhere and I will always stay positive …. Positive mind equals positive outcome 💯🏻💯
No, no it’s not.
Where do I even start?
Copyright law (and specifically Trademark law which is really the issue here) is kind of a difficult topic, maybe this guy just isn’t aware of what the law actually is regarding the use of other people’s intellectual property in images for commercial gain. It’s super hard to find anything that explains it online too.
That document pretty well covers it, but I’ll save you the time of actually reading it, here is the relevant section:
2.1 Can you freely take photographs that include trademarks?Unlike copyright law, trademark law as such does not restrict the use of a trademark in aphotograph. What trademark law does forbid is using a trademark in a way that can causeconfusion regarding the affiliation of the trademark owner to the image. If consumersare likely to mistakenly believe that a photograph was sponsored by the trademark owner, thenthere may be trademark infringement.Example:Printing a photograph containing the Nike trademark on sportswear could result intrademark infringement. In fact, by such use it would be assumed that you are trying toappropriate some of the goodwill associated with the Nike trademark. Consumers willpresumably think that the fabrics are affiliated with the Nike trademark.
As an aside, the word is spelled d-e-f-i-n-i-t-e-l-y. Every browser (and nearly every phone) has autocorrect. You are running a business. You want to be treated like an adult? Act like one. “Whatever, whatever I do what I want!” is not an acceptable response when called out for doing something illegal.
This reflects poorly on all of us. it’s a very serious issue that has already been clearly identified by the FDA as something that will bring regulations to this industry that are designed to shut it down, and that the FDA will not be interested in listening to any input from the vape industry regarding those regulations if we cannot reign it in. And they’re right. This is criminal infringement of someone’s intellectual property for financial gain by another. There really isn’t any defense for that kind of behavior for financial gain.
So what can we do? Jeremy Dollar of Good Life Vapor (who recently attended a meeting with Mitch Zeller of the FDA along with other vendors) had this to say to the person running the page:
I can absolutely tell you they are shutting us down because of this type stuff. Myself and 11 other vendors sat in a 2 hour meeting with Mitch zeller and 7 of his staff and were told flat out when asked how we can help to receive fair and balanced regulations that if the marketing to kids and cartoon and candy labels don’t stop they will not only come after the industry with the intent to shut it down but they will not entertain anymore from anyone as far as negotiations for fair regulations. So you sir are part of what is killing the industry! How do you feel about that? How come you can’t allow your juice to speak for itself? Are you afraid that it’s not good enough to be sold with a less infringing and less appealing to a child label? You can’t ever advocate for vapers when you don’t care enough to save the very industry you are out advocating for
Of course there was no response, because… well what could he possibly say?
A bit further down in the comments someone remarks that it looks tasty asking where to find it, and he responds with this:
You can get it at vermillion vapor , Ajs vapor , vāpour , an more shops to come downtown Vapourium island Vape shop just to name a few…
So what can we do? Call those vape shops. Tell them in no uncertain terms that this is unacceptable, and that you will not patronize them as long as they continue to support vendors doing this kind of damage to our industry for financial gain. It really is that simple.
At least one vape vendor has already taken a public stand against this kind of activity:
They won’t be the last.
This company is not alone in the trademark infringement (or using candy/cartoons in their marketing materials), not by a wide margin. The number of eLiquid makers that are ripping off trademarked and copyrighted images for use in selling their eLiquid is… well I can’t think of any other word than obscene. Just take a look at what your vendor of choice is selling and using for marketing materials. Then take a moment to go read the excerpt above from the paper on Copyright and Trademark Law.
We have to be the change that drives the industry to drop the childish marketing and start acting like a bunch of responsible adults conducting business, because that is precisely what most of us are.
I can give plenty more reasons why this is a really bad idea. Camel was gigged hard because they used a cartoon camel in their marketing materials, despite no actual kids cartoon using a camel. Do you really think that will be any different for a Spongebob eLiquid that features a freaking picture of Spongebob the cartoon on the product page?
This is not a garage industry anymore. The vape industry still has that “gold rush” feeling to it, and there are still plenty of opportunities for 18 year old kids to become multimillionaires virtually overnight. Precisely because the vape industry is now a multi billion dollar industry. Up to this point the copyright owners (otherwise listed as “victims” of all of the infringement that is rampant in our industry in the court documents to come) have left us alone because it just wasn’t worth their attention, I assure you that is changing.
There are billions of dollars on the table here.Wells Fargo is estimating the vaping industry to be worth $10 BILLION by 2017. That’s 18 months from now.
If you believe that the companies who have been victimized by this infringement are going to just leave that money sitting on the table when they are legally entitled to damages you are kidding yourself.
Did I mention that someone posted a screenshot of them posting a screenshot of his page with that image to Wrigley’s facebook page?
Let me take a second and break down what is very likely going to happen to this guy.
1) Wrigley’s is going to (if they’re nice) issue Cease and Desist notices to him, and takedown notices to facebook, and his webhost.
2) Since Wrigley’s is a major corporation, they’re going to sue for damages to their trademark, probably trademark infringement, and possibly a host of other things.
3) They’re going to win, because well let’s face it, this is shockingly blatant.
4) They’re going to leave a crater where this guy used to be that will be so big that no one else is even going to think about climbing the rim to even look at where he used to be. They’ll take all of the company assets, and if the guy who owns it displayed as much business acumen in starting his business as he has in running it, they’ll also take everything he owns in the world because I’m pretty confident that someone who would blatantly infringe on Wrigley’s trademark for CANDY (to use it to sell eLiquid of all things) didn’t invest the time and money to set up a proper LLC or Corporation (and/or has put so many holes in his “corporate veil” that it should properly be referred to as more of a “corpoprate sieve” at this point), probably doesn’t have liability insurance (and if he does, he won’t be able to find an underwriter who will endorse him after this little fiasco), and so will be personally liable for the damages done by his company.
Now, because our legal system is so bogged down, this will likely be after:
5) His distributors jump ship because of the pressure they are getting from all of the negative press generated by this guy’s idiotic response to people who were (for the most part) genuinely trying to help by pointing out that he was making an egregious mistake.
6) His business dries up once all of the media outlets get wind of the pending lawsuit from Wrigley’s (who sponsors lots of things covered by CNN, like baseball stadiums) and his reputation as “that guy who brought down the ban hammer” is solidified (I mean seriously, Wrigley’s? Why not just go whole hog and rip off Disney?).
7) He goes bankrupt.
I’m not saying that it will go down just like that, but I’m fairly confident that it’ll be pretty close to that.
Nick Green posted a video talking about the use of cartoon characters on eLiquid bottles earlier today, and he brings up a good point; a lot of this is due to pride and ego. I’m very proud of my juice branding. I worked my butt off to create a brand that was representative of the work that I put into creating my eLiquids. I’d go All Stop in a heartbeat if I got anywhere near as much negative feedback as was generated by the facebook post that inspired this post. Even if just long enough to assess what I was doing, and see if I needed to change. It’s just good business sense.
The pride and ego that is being evinced by a shocking number of eLiquid vendors who are blatantly ripping off the intellectual property of established companies is staggering.
The industry needs to stop, take a deep breath, and do some serious reflection on how we are conducting ourselves. 10 billion dollars a year. That’s an enormous pile of cash. I don’t want to see that pile of cash go away. More than that. I don’t want to see people go back to smoking, or never get the chance to quit as easily as I did.
Normally this is where is would leave some sort of plea for us to all come together and help make vaping better. I’m not feeling that tonight. Right now I’m feeling disgusted by the number of threads and posts I’ve seen with vapers defending this kind of thing.
And lest anyone think that I am singling any particular vendors out, I think instead I’ll just leave this post with a collection of images that I found while doing research on this article. If you reach the end of these images and don’t feel like there is a problem in our industry, you are most definitely the problem.