“Stop acting so small. You are the universe in ecstatic motion”. – Rumi
There’s been a controversy that has exploded in the float community over the past few days. It’s the violent crossroad where Trademarks of a phrase felt to be a common descriptor in the community and an aggressive letter to enforce said trademark, meet.
I’ll talk more directly about the letter below, but I want to focus on making business decisions and the experience we create when interacting with colleagues in our community.
We are a young industry, full of people who may not have a strong business background. It is wide open for growth and innovation. As I watch the Float Pod controversy unfold, I find it to be chock full of lessons and warnings as we all move forward in the float industry.
While I have spent much of my time creating the float experience I give my clients, in the last few weeks as many interactions with colleagues have come to the forefront, I realize the importance of putting the same energy into the way I interact with the people in my industry.
Why be so concerned about interaction with colleagues?
My response is a reflection of me and the business I run. My reaction is an opportunity to show my creativity, innovation and what is important to me as I move through this industry.
With that in mind, I sussed out a few points to consider and think about the next time I need to approach and/or respond to a difficult subject.
1. Be clear about the purpose of your discussion or request.
Before you confront someone, ask yourself, how is this serving me? How will this help me? Is the possibility of bad publicity or losing good will worth it? Sometimes it is. Sometimes it isn’t. Make sure you have a clear picture and measurable outcome in mind.
2. Create an innovative, win/win situation if at all possible.
Before the confrontation, think about how to approach it. Is there a way to create a win win situation for both parties?
A few weeks ago the members of the podcast all received, in their inbox, a cease and desist letter regarding using the name The Art of Floating. It was a very similar letter, full of accusations of things that were downright ridiculous, and obviously a boilerplate letter.
They had never reached out to the blog in the many years it shared the name, a name which was created without knowledge of their float business. This was the very first point of contact.
They could have made a choice to reach out in a kind, unassuming manner. There's a chance, it could have been handled in a brief phone call while actually increasing good will.
And, quite frankly, if it were me, while I had the group in my debt, I would have talked about the podcast and not only negotiated a deal that would make all parties happy, but probably pitched a few ideas that would have gotten my name in front of the many listeners and those who visit the website.
There were so many cool ways it could have been approached – and yet they chose a boilerplate letter full of cold sounding legalese. And that’s fine. That’s the traditional way this stuff is handled. There's nothing wrong with it. But why not be different, stand out, be innovative, create opportunity and good will.
They got what they wanted, but lost out on so many other things that could have been had in addition to what they wanted. Coming out, guns blazing, accusations flying and aggressive words being flung may be appropriate sometimes, but I am slowly finding, I lose more than I get.
Which route would you have chose? Honestly? Is it one you would have been happy about in the long run?
The controversy that is happening right now is a learning opportunity for us all to grow, make decisions and move forward in a way that is authentic to each of us.
Did Float Pod do something wrong? No. They have a legal right. And there is nothing illegal about the way they chose to enforce it.
We are already growing out of our cottage industry phase. I’ve worked in the corporate world for a long time and while I did not receive the letter, I’ve received a few like it in my time. It's a fairly common corporate practice and response in this situation.
This may be the first time this has happened in the float industry, but I guarantee it won’t be the last. So making a plan now as to how to respond is smart.
Was Float Pod smart? In my humble opinion, given the industry they are in, it doesn’t seem like a really bright move. Perhaps it was a calculated move and part of their big picture. Perhaps not.
They could have saved money and endeared themselves to a few in the industry by reaching out one by one instead of sending the incendiary letter. Some sweet (free) words and some handshake agreements could have avoided having that aggressive letter out there on the internet.
Creating good will among industry colleagues would seem to be a desirable goal. Why they chose an aggressive accusatory letter to enforce their trademark, I doubt we will ever know.
That letter is out there, now. And as I’ve said many times on the podcast, when you buy a tank, you aren’t buying just a piece of equipment, you are buying a relationship. And this move may lose them some future clients.
If I were considering the purchase of a Float Pod, and then I saw this letter and the way they treated fellow members of a generally nice community– I’d think twice. I’d wonder if they could treat a small business that way, how would they treat me if I did something they didn’t like?
Granted, I never looked into the Float Pods because Float Pods currently do not meet Tennessee regulations. And if you modify them, a quick discussion with your insurance agent will let you know insurance companies don't like to cover people who are not using equipment in the intended way. (And if you’d like to verify that, it would be my pleasure to personally hook you up with the contact who deals with this at the State of TN Health Dept.)
So how does one respond to an aggressive opening like this?
First, don’t panic. I’m sure this feels like a kick in the gut. I hurt for those who received these letters because at least one is in the throes of the first few weeks of a very stressful time – the opening of their float center.
But, this kind of letter is not so unusual and can be dealt with.
Take some deep breaths. Call your lawyer. Ask a lot of questions. Float. Sleep on it.
In this case, I found the letter to be odd. There are an awful lot of accusations and claims of harm done, but nothing to back up those claims. It was easy to get a litany of questions that I would need answered before moving forward.
- There are many levels and types of trademarks, but no trademark information was given in the letter other than it's theirs. What type of trademark do they have, exactly? Who was the reviewer of the trademark? What scope was this trademark determined to have?
- How are they determining that"your use of the trademark is intended to (and actually does) confuse and misdirect customers seeking [their] goods and services" . I would like to see proof of that. Can we get a confused customer to speak up, who was not confused about any other of the 40+ tank manufacturers products, but couldn't figure out what a Float Pod was because of the way this specific person used it to describe their closed tank?
- In the comment "Your activities are unlawful and constitute unfair competition, intentional trademark infringement, trademark dilution and false designation of origin" (emphasis mine) how exactly are they determining my intention? Empirical evidence of the intention of each person who received this letter would be fascinating to see.
- "We demand you immediately stop using the Mark or any other name or mark confusingly similar." I find this a little vague. I would need a list of ALL marks that are confusingly similar. Are their potential clients easily confused? Does this mean that Pro Float Pod or The Escape Pod would be confusing for their potential clients? Have they done studies on the intelligence levels of their potential clients and their ability to read, ask questions and do research? That could all impact what is "confusingly similar" I would think, so I suggest Float Pod publicly create a list of names they deem as such.
And while this may all seem in the spirit of sarcasm, I honestly feel these are legitimate questions in this incident. And if I were on the receiving end, I would want every last answer before I submitted "an acceptable response".
The person that received this letter (the "Whom It May Concern of the letter in the picture) started their float center five weeks ago. As someone who started a float center, I'm pretty sure their time was not spent sitting around thinking about how they could intentionally and with malice confuse the minds of those searching out True Rest / Float Pod / Nick Janicki. But it is obvious the writer and those who stand behind this brand, feel otherwise.
And what if you're watching from the sideline?
It’s easy to react during these times in a nasty, defensive way. But there is a lot of talk about holding higher standards in the industry. The only standard you can raise is yours. The only standard I can raise is mine.
Some of the things I saw in the forum were mudslinging, anger and aggression along with some stuff that didn’t necessarily have to do with the matter at hand.
I have heard lots of stories about interactions with Float Pod and True Rest. Not many positive ones have been recorded and maybe the history of pent up frustration is to blame for the explosive response to the posted letter. But despite that, I believe the anger not targeted at the root problem and finding actions to change it, reflects poorly on the industry and does not fit the high standards we are proposing.
If you feel an injustice has been done that could affect the entire industry, there is nothing more noble than finding productive, proactive ways to search for a remedy and find answers. You have as much right as they do to legally seek answers and respond with facts.
In the meantime, I have a float center to run and a few trademarks to get in place (It is a good business practice, after all). And with time management in mind, this entry will be my final thoughts on this matter.
Janicki did respond via a youtube video you can find by clicking HERE. It would be easy to go on. It would be tempting to dissect the response video by Float Pod. But honestly, why? I don’t believe it serves me. His video stands alone and is a testament to who he is, what he stands for and how he treats people.
As of this blog, Janicki has yet to personally interact with the float community or take the time to answer legitimate questions or concerns, which leads me to believe that a letter using aggressive language often meant to intimidate and bully, is an acceptable way to first approach this situation. It's a money saving approach, meant to avoid the cost of lawyer sending out the letters. Very corporate.
Here's to doing better and becoming an industry chock full of shining beacons of innovation, passion and action. May we all be kind to each other.