As the adult industry takes steps to become part of the mainstream marketplace, companies are forced to compete more with one another, making copying commonplace.
"All design is a synthesis of what has come before, and it's unavoidable," says Greg DeLong, head designer and co-founder of Njoy. "There is a natural undercurrent of design elements that start to bear a family resemblance between companies in any industry."
Since Njoy began a little more than two years ago, DeLong has sought ways to make his designs harder to copy. He not only drew up unique shapes and forms for his toys but also decided to make them in stainless steel, something no one in the industry had used in production.
"Even with copying, unique design is going to grow," DeLong says. "And that's the real strategy to not being copied — just simply stay ahead of the others."
For a small company like Njoy that is just getting its footing, legal protection can be pricey. Instead of investing right away in copyright or patents, DeLong says to stay focused on what other product ideas you can come up with.
"If we got copied, we wouldn't spend money on lawyers," he says. "We'd spend it on the next product we are going to make, something that keeps us ahead of existing competition and whatever rip-off they have."
The financial burden of legal protection hasn't stopped Stockroom President Mike Herman from obtaining patents and copyrights for his product line. In November, he filed for a patent for the Bolero Straitjacket, designed with a completely open chest that allows the wearer's chest and body to be accessible.
"[Customers] will be assured that when they buy a toy or garment with the Stockroom label they are getting hand-crafted, quality products from a first-rate design and manufacturing house and not a cheap overseas knockoff made with inferior quality control," he told XBIZ in November.
A rip-off is not always obvious to the company owner or consumer because it's not a direct copy. Instead, it incorporates several design elements from different companies. DeLong has seen many pieces of his products incorporated into lower-priced toys.
"We aren't necessarily happy about people grabbing from our designs, but I would be far more alarmed if it was a one-to-one copy or they were making things out of stainless steel," he says.
Sometimes copying actually can help small or new businesses, says Christian Trinker, founder of Funfactory USA.
"Products that copy parts of our designs actually help raise awareness about our company and high-quality products in general," Trinker says. "A copy is a compliment; it means you are good enough for people to replicate."
However, when a company copied Funfactory's Smart Balls, vaginal balls used for Kegel exercises, the company didn't hesitate to take legal action.
"They took our product even down to the name, so in that case your legal grounds are obvious," Trinker said. "In a situation like that, you must sue them because it could ruin your business."
The biggest threat moving forward, Trinker says, is protecting designs in Chinese production mills, where a few of his designs have been copied.
This is a problem not only for small businesses like Funfactory but also for powerhouse manufacturers like Topco Sales.
"In the past when we have come up with a unique design, we go to a Chinese vendor to make it," says Desiree Duffie, director of public relations and marketing at Topco. "Then that vendor turns around and sells it to our competition for a cheaper cost because we've already paid for the work."
This costs the company "hundreds of thousands of dollars," says Duffie, which inspired them to merge with High Tech Novelties, a Chinese adult toy company. The partnership gives Topco its own staff and operations in China, eliminating any chance that its designs will be sold.
Despite the increasing amount of copying in the industry, Tantus CEO Michael Smith isn't losing sleep over the rip-offs on store shelves.
"We are in a financial crunch right now, and when that happens people research more before they buy something," Smith says. "They are going to go online and find out who has the best product."
Smith has dealt with copying since he first started at the company. California Exotic Novelties sent a cease and desist letter that told Tantus to stop manufacturing a product called the Cascade Vibrator; the name had already been used for one of California Exotic Novelties' products. Smith made sure it happened. Within 15 minutes, the name was taken off the product, and the matter was resolved.
"The letter wasn't relaxed by any means, but it was resolved very simply because Tantus didn't want to lose market share based on a name," he says.
Smith has sent similar letters when his own designs have been copied.
He says that although copying will continue to be a problem, the move for adult companies to be more accepted into the mainstream market will safeguard business. With mentions in such magazines as Marie Claire and Health and Fitness and on mainstream retail websites Drugstore.com and Amazon.com, people are becoming more secure with buying sex toys.
Smith says that as soon as the consumer grows more comfortable walking into an adult store, the rip-offs won't be able to compete with the real thing. "Even with copying, there are tons of innovative products out there, and they are diversifying the adult marketplace," he says. "Eventually the consumer will want the highest quality and not the $5.99 jelly replacement."