I Knew the Value of My Intellectual Property. So Did My Competitors.

by Jacquelyn De Jesu

When my company, SHHHOWERCAP^®, earned each of its seven patents, the accomplishment was more than just validation of my invention; it was the armor I knew I would need as a solo inventor to grow my self-funded business. The very reason our nation’s intellectual property (IP) rights are protected is to incentivize Americans to invent and receive compensation for our drive to innovate. 

Patents are not just confirmation that a product is new and novel; they add to a company’s balance sheet. Research shows that IP comprises about 70% of the value of publicly traded companies. 

As an advertising art director in New York City, I knew the value of intellectual property, disruptive ideas, and securing patents, which instantly makes it easier to launch successfully, secure loans, attract investors, and gain retailer interest. That is why I spoke to IP experts before I even started designing my first-of-its-kind product, SHHHOWERCAP^®.

“Patents are not just confirmation that a product is new and novel; they add to a company’s balance sheet.”

While still working full-time, I spent two years developing a prototype for a form and function update of an outdated beauty necessity. Once I was sure I had reinvented the shower cap, eliminating the many design flaws that kept so many women from using them, I went back to the IP experts to file. I thought the cap’s humidity-resistant technology, its turban shape, pleats, elastic band, no-slip inner grip, and the addition of a pocket in the back to guarantee the cap would fit securely around the longest, thickest mane made it revolutionary. The United States Patent and Trademark Office agreed. Before going to market, we filed several design and utility patent applications. (The patents we eventually won date back to the day we filed. I encourage inventors not to wait to file applications if they believe their product is new and novel).

I launched SHHHOWERCAP^® into the marketplace in 2015. Relying on a network of contacts built over years of working in the beauty industry, I secured Fast Company’s interest in my launch. The headline of their August 2015 article on my design was titled “Reinventing the Shower Cap for The Modern Woman.” I couldn’t have written that headline better myself, and I sold more than $15,000 in product in the next 10 days. The more than 400 articles that followed, including stories by Vogue, Glamour, and a feature on the TODAY Show, helped propel my business to become a coveted and established brand in the modern woman’s beauty routine.

Within two years my product was being sold by Violet Grey, Sephora, Bloomingdale’s, Nordstrom, Fred Segal, and internationally. Other hair care companies like Bumble and bumble called me into their offices expressing interest to either collaborate or license my IP.

Backed by a patented design and a trademarked tagline, “The Shower Cap Reinvented,” within a year, my company was on its way to becoming profitable. My team was growing, and we established our offices in the heart of NYC’s SoHo. 

How Strategic Infringement Distracted and Devalued My Government-granted Assets

About three years after launching SHHHOWERCAP^®, I was alerted to a product that looked a lot like mine, with our trademarked tagline, on television and in a national chain of stationery stores. That product was made in China for a fraction of the price, while ours was manufactured in the United States, using materials sourced from around the world for the few things that could not be found here.

I called my lawyers. We examined this Chinese-made product and even had its chemical makeup tested to prove it was a copy. Although the evidence was marked “Attorney’s Eyes Only,” and I was limited in my view of the facts for years, it was clear from a layman’s view the infringement was intentional and not a mistake, and the experts around me agreed. I was confident in my innovation and because I had successfully enforced my patents in earlier matters, I felt secure as an independent inventor asserting my IP rights in this case.

I had the option to initiate a lawsuit, which was intimidating given the enormous cost associated with it and the fact that they had done this to so many female inventors before me. The other option, which I pursued, was to inform the retailers we worked with that they were selling a product that was accused of using authorized IP and that we had asserted our rights. Unfortunately, federal law does not spell out how retailers have to respond when accused of selling products that violate a patent or trademark, so this did not resolve the problem.

The cease and desist letter I sent asking that the infringers halt manufacturing, pull the product from shelves, and stop distributing for profit received a much different response than companies we had dealt with in the past. We soon realized this was part of a much larger strategy. I had not just created a product for them to copy; I had built an entire new business category for them to follow, and they saw the value in the pursuit. Enabled by an online marketplace that was unequipped or unwilling to monitor for counterfeit products and accelerated by their strategy to sample with multiple overseas factories now meant that knockoffs were spawning across China. The company I am up against has continued to scale its operations and business overall, as well as its presence in our category, using this “fast follower” shower cap product. It currently manufactures more than 250 products — mainly in China — and is valued at more than $360 million, generating over $100 million annually.

Then the unthinkable happened — the company using my patented design, innovation, and tagline decided to sue my company and me as the sole patent owner, threatening that my trademark and patents themselves should be invalid.

“Then the unthinkable happened — the company using my patented design, innovation, and tagline decided to sue my company and me as the sole patent owner, threatening that my trademark and patents themselves should be invalid.”

The fact that federal law allows accused IP violators to sue in this manner has a chilling effect on innovation and inventions still to come. 

Five years later, I am still embroiled in legal battles that have been a boot on SHHHOWERCAP^®’s neck. There are moments when I want to give up. The financial toll has been enormous. Our reputation has been unnecessarily impacted. An appeal in federal court based on the matters of law in my case is in progress. After seeing the evidence, even with the level of damage they did to my business with their litigation, we believe we will be successful there, if not in the appeal itself.

I am the female disruptor and founder of a multi-million-dollar enterprise who has had to endure before, and I will continue this fight. But, I can’t help but imagine how different the circumstances would have been if I had not understood the value of IP and taken steps early to protect my design. It feels as if my success with my IP in the market instead put a target on my back.

It is a constitutional right for creators to own their work. Lawmakers are stepping up to help protect Americans’ intellectual property from being stolen, shipped to China for production, and then sold back to the American people. The bipartisan Respecting Economically Vital American Innovation Leadership (PREVAIL) Act and Patent Eligibility Restoration Act (PERA), both sponsored by Senators Thom Tillis (R-NC) and Chris Coons (D-DE), would make critical reforms to the U.S. patent system, remove incentives and create barriers to “efficiently” infringe, and encourage companies to properly license work from inventors.

By helping independent inventors, this legislation will strengthen the U.S. economy. More than one-quarter of U.S. jobs and 38% of the total economy can be attributed to IP-intensive industries. Intellectual property theft costs the United States $225 billion to $600 billion each year. Around 12,000 IP cases are filed annually. The average cost to defend a patent lawsuit is more than $3 million. (I have unfortunately incurred costs about a third of that so far just to protect myself).

Strengthening IP protections also will advance women’s economic security. According to the National Science Foundation’s National Center for Science and Engineering Statistics, only 10.9 percent of patents issued in 2022 had a female inventor involved in the project. Even today, many women use a non-gender-specific name or a first initial when applying for a patent. And while there is no hard data on how often women have patents stolen or leveraged, research indicates female inventors are more likely to become victims of intellectual property theft. As fans know “all too well,” even Taylor Swift is not immune.

I am not only the CEO of a company with global brand equity but also the proud granddaughter of an American female inventor. Ten years into this, I believe in my product now more than ever. My business is both creatively and professionally fulfilling, but this has darkened an otherwise beautiful American dream. It is time for federal lawmakers to step up to protect American innovation and end the bullying that too many independent inventors have suffered.

Doing so will inspire more Americans to innovate, to take steps to protect their intellectual property because their efforts will not be in vain, and to safely (or as safely as possible) have the confidence to assert those rights when they are infringed upon.

Jacquelyn De Jesu is the founder, inventor, and CEO of SHHHOWERCAP®.

View the full issue of The Engage Reader IV