By <I>Juergen Kneifel</I>
Competition among manufacturers is what we thrive upon.
Competition fuels our economy and offers consumers the benefit of more product choices, features and varied price options. Competition also drives product enhancement and innovation as businesses seek out to develop products that customers want and need.
But sometimes competition can become downright messy and even unfair. Sharpie Pens are in a mess of sorts with a Chinese knock-off using the brand name Skerple.
Sharpie is a brand introduced by Sanford Manufacturing Co. in the U.S. in 1964. Today, these pens are commonly used for building construction and marking clothing; they’re also often used by professional athletes signing autographs and even by surgeons.
I had minor arthroscopic surgery last year on my knee and I was surprised to see my doctor grab a Sharpie and make markings on the knee that he was going to be treating.
And Seahawk fans may recall a 2002 “Monday Night Football” game in which Terrell Owens of the 49ers celebrated a touchdown against Seattle by whipping out a Sharpie pen from his sock, autographing the football and handing it off to a fan in the stands. It’s still referred to as “The Sharpie Touchdown.”
This permanent marker clearly has a history of success and brand recognition in our country. It’s also still proudly manufactured in the United States, in Shelbyville, Tenn.
But protecting a good name, brand and trademark can become quite costly and a tremendous burden for many businesses. Frankly, we expect manufacturers home and abroad to obey the law and honor patents, trademarks and copyrights.
A lawyer friend mentioned to me that this is likely a case of a costly defense that would never make economic sense, given the history of China’s disregard for intellectual property rights.
I have no problem with manufacturers who come up with their own version of a permanent marker and build their own brand on their own merit, and who work to establish a unique trademark. What is truly unfair is to have a foreign manufacturer produce a permanent marker that is blatantly creating consumer confusion through “lookalike tactics.”
Consumer confusion is often cited as the basis for an infringement complaint. And so I have used a Skerple pen in my classes over the past few years to conduct unscientific research.
Business students are invited to identify a pen I hold in my hand in front of the class each quarter. Sadly, my students fail this test at an alarming rate of 100 percent! They consistently vote that the pen I hold is a Sharpie.
Upon closer inspection and the benefit of a magnified overhead camera to project the image of the pen on the classroom screen, students see that this pen is actually a Skerple. In a side by side comparison with the Sharpie, they’re still amazed at how close the Skerple resembles the Sharpie.
The body color combination is identical (gray shaft, black cap). The cursive font used to spell out the product is also identical in size and style. The names are so similar that the cursive “k” and the cursive “l” from Skerple are easily confused for the other. One minor difference: the Sharpie carries the symbol noting its registered trademark. Not so with the Skerple.
I explain that these markers, which are manufactured in China, are distributed globally wherever they can find a distribution channel. Some business leaders would accuse the manufacturer of dumping the product since the price point locally was clearly cutthroat: 6 Super Skerples for $1.
Fortunately the Skerples have not made it into mainstream office supply channels. They work the fringes of discount stores and dollar stores.
I purchased several dozen Skerples from a discount store two years ago. My plan was to use them exclusively in classroom “show-and-tell” discussions and share how businesses must fight to protect their brand.
I contacted Newell Rubbermaid, the parent company for Sharpie, to learn how they’re fighting this trademark infringement. The company representative offered no comment, a response that often times in my experience indicates reluctance out of legal concern.
Still, my curiosity got the better of me. So I visited the store where I had made my original purchase and surprised to see that the Skerples were no longer available at this particular discounter, but the store was now carrying Sharpie brand pens.
Perhaps the corporate strategy at Newell Rubbermaid is to aggressively engage with non-traditional distribution channels to ensure the Skerples become “lost” in the U.S. marketplace. This has also requires the company to aggressively compete on pricing. I hope their strategy works.
Juergen Kneifel is a senior associate faculty member in the Everett Community College business program. Please send your comments to firstname.lastname@example.org.