Click Lights Back on Air Despite Ruling
For Smart Inventions, the injunction thus becomes a temporary moral victory that may prove profitable only when the case goes to court in Los Angeles in the fall.
"It's not a patented item, so I can't stop them from selling it," said Jon Nokes president of Smart Inventions, Los Angeles. "I've been through everything in this industry: Other people have stolen my products, my packaging and now my commercial. But I've never won any damages. This time, I hope to."
U.S. District Judge Audrey Collins granted the injunction March 20, forcing the Click Lights commercial off the air after finding that Allied Communications, Pompano Beach, FL, had lifted "substantial creative elements" from TapLight's commercial.
"The preliminary ruling suggests that the court has looked at these materials and concluded that it believes it knows who is going to win this case [in the fall]," said Stephen Mick, attorney for Smart Inventions Inc. "We have no objections to them selling Click Lights. They just have to come up with their own campaign instead of using ours. Once we go to the jury, we think the facts are pretty plain and apparent."
The original suit alleges federal and state copyright infringement, false advertising and unfair competitive practices. It was filed Feb. 28 against Allied and its marketing arm, International Brand Marketing, in the U.S. District Court in Los Angeles. The case stems from similarities in the commercials for the two lights.
Knocking off a product is nothing new, but knocking off a commercial is so immediately recognizable and risky that the practice occurs far less often.
"If you created a better product, you think you would want to differentiate yourself from the competition," said Elissa Myers, president/CEO of the Electronic Retailing Association, of which Allied is a member. "This is bad for the industry at large. We have a review board in order, and if this case goes to court and they lose, we will take action to censure and expel them from the ERA."
Allied was offering six Click Lights free to people who join its America's Advantage membership club. Roughly half of the Click Light commercial features the lights, while the other half features the membership club. At issue in the impending trial are the five scenes in the commercial illustrating uses of the lights that, according to both sides, are remarkably similar.
Nokes claims that director Anthony Sullivan came up with specific uses for the lights that had previously not been used by any campaign, including lighting an outdoor garden and lining the stairs to the basement with TapLights. Allied president Mark Kravets and his attorney, Steven Stone, said the similarities between the two spots exist only because the products themselves are so similar.
"These commercials are similar because they are similar products," Stone said. "The nature of advertising is that you can only illustrate certain uses, and as a result, you will have similar commercials."
And the results are just what Nokes thinks started the controversy. Since it started airing in August, more than 650,000 sets of TapLights have been sold at a price of $19.95 per set through DRTV. An additional 1.5 million lights have been sold at retail, 400,000 through the Home Shopping Network and QVC and 200,000 through a print campaign put together by TeleBrands.
"Once I saw the numbers we were pulling, I expected we'd get the usual knockoffs," Nokes said. "It's bad enough to be knocked off, but to come in after a successful campaign and lift basically the whole commercial is just ridiculous. I had to do something this time."