It's doughnut versus doughnut in a $4 million fight over your pool party. Best known for baked goods-shaped pool toys, novelty manufacturer BigMouth Inc. sued two companies it claims are hawking infringing floaties on Amazon.com. The complaints name "SoloFleet" and "Floating Panda," identifying them by their seller handles since their true identities are unknown. The five products Floating Panda currently sells are pool toys, three of which resemble those sold by BigMouth. SoloFleet has 10 products for sale, one of which is a doughnut similar to one sold by BigMouth.
The aggrieved pool toy purveyor also claims one defendant used to sell a flamingo floatie that infringed its designs, but it was later withdrawn. BigMouth alleged the sellers made counterfeit goods and sold them under the BigMouth Amazon Standard Identification Number, attempting to pass them off as the real deal, according to complaints filed earlier this month in a Connecticut federal court. The differences between products are slight but noticeable to the discerning eye, BigMouth said, such as using less colors on the doughnut, not shading in sprinkles and using thinner plastic. The company also said the defendants used BigMouth product shots without permission.
Prior to hitting the courthouse, BigMouth founder Steve Wampold said his company reached out to both sellers and was either rebuffed or ignored. In a copy of an email he provided, a man who identified himself as the owner of Floating Panda tells him to "stop messing with us" or "I will not let it go next time." (Floating Panda and SoloFleet didn’t reply to requests through Amazon's web site for comment on the email or the lawsuit.)
BigMouth also filed counterfeit and copyright claims with Amazon. In response to one such complaint, the online retailer removed product images on a Floating Panda listing of a pineapple float, Wampold said. BigMouth has assigned two of its 22 employees to police Amazon listings and keeps a law firm on retainer to investigate their findings, Wampold said. But he added that notifying Amazon can be frustrating. "It's a slow process to get them to take action against these sellers," he said. (Amazon didn't reply to a request for comment on the matter.)
BigMouth had been tracking alleged counterfeiters on Amazon for over a year, he said, but didn't pursue legal action until losing the "Buy Box" to Floating Panda and SoloFleet for a doughnut float. The Buy Box is the place on an Amazon page where the customer selects "Add to Cart," and being featured there ensures a steady stream of sales. Because multiple sellers deal in the same products on Amazon, the box is highly prized. Typically, the seller with the best price lands in the box. Wampold alleged the rivals undercut his price by a few cents, bumping him from the box. The move cost his company about $20,000 a day in doughnut floatie sales, he estimated.
Because the defendants in his lawsuits may be hard to identify and are possibly based overseas, Wampold said he doesn't expect them to respond to his complaints. If that's the case, the judge may issue a default ruling. "We don't expect to recover $2 million," Wampold admits. "I'd just love for them to appear in court and try to defend themselves, but how could they?"
All of this alleged floatie theft though has taken an emotional toll on Wampold. He worries that BigMouth's reputation will be unfairly sullied and that online shoppers may unknowingly purchase an inferior, or potentially unsafe, product. "It ruins all the joy and the pride of coming up with a good product," he said. "It's heartbreaking. It's absolutely heartbreaking."