Plagiarized Designs: Understanding Consumer Acceptance

ABSTRACT - The distinctive identity of a brand has enormous commercial importance. When a competitor copies that identity with a cheaper inferior product, it can jeopardize the heavy investment in creation and design of products. The identification of the original versus the plagiarized knock-off is a critical issue to the marketplace. However, even when the identity is clear, a remaining issue is whether consumers are willing to pay a premium price for the original product. A conjoint analysis is used to investigate the identification and valuation of an original vs. a copy. The willingness to pay for the original depends on the competence or knowledge of the consumer. Ways of identifying Atrade dress@ by distinguishing among the utilitarian, systemic or symbolic aspects of a product are discussed.



Citation:

Tore Kristensen, Gorm Gabrielsen, Ricky Wilke, and Judith Lynne Zaichkowsky (2003) ,"Plagiarized Designs: Understanding Consumer Acceptance", in E - European Advances in Consumer Research Volume 6, eds. Darach Turley and Stephen Brown, Provo, UT : Association for Consumer Research, Pages: 42-47.

European Advances in Consumer Research Volume 6, 2003      Pages 42-47

PLAGIARIZED DESIGNS: UNDERSTANDING CONSUMER ACCEPTANCE

Tore Kristensen, Copenhagen Business School, Denmark

Gorm Gabrielsen, Copenhagen Business School, Denmark

Ricky Wilke, Copenhagen Business School, Denmark

Judith Lynne Zaichkowsky, Copenhagen Business School, Denmark

[The author thanks SSHRC for research support while working on this project.]

ABSTRACT -

The distinctive identity of a brand has enormous commercial importance. When a competitor copies that identity with a cheaper inferior product, it can jeopardize the heavy investment in creation and design of products. The identification of the original versus the plagiarized knock-off is a critical issue to the marketplace. However, even when the identity is clear, a remaining issue is whether consumers are willing to pay a premium price for the original product. A conjoint analysis is used to investigate the identification and valuation of an original vs. a copy. The willingness to pay for the original depends on the competence or knowledge of the consumer. Ways of identifying "trade dress" by distinguishing among the utilitarian, systemic or symbolic aspects of a product are discussed.

INTRODUCTION

Consumers generally distinguish and form preferences among the product offerings in the marketplace. They evaluate different brands to purchase the right products for themselves, their lifestyle, and their image. The core of branding is recognition of the product, the image and who produced the good, along with the manufacturers guarantee of a certain standard of production (Keller 1993). For the producer, branding enables them to improve the quality and image beyond an industry average because the recognition and developed brand can facilitate a premium price for a premium quality.

This can also be the case when the product, as such, is not branded by a well-established brand name, but is rather identified by the name of the inventor, creator or designer, its distinctive form, color, symbols, tags, and other visual distinguishing characteristics. For example a Picasso painting is only a Picasso if painted by Picasso himself. Many others have copied his style, but only originals command the premium prices because many people want to own originals not copies. Most luxury products, for instance furniture, interior and household items, fashion clothes, perfumes can fall into this category of distinctive design with high image and prices.

The importance of form and design to product success and consumer well being is outlined by Bloch (1995). Among other issues he discusses how design helps break through cluttered markets; can render older competitors obsolete; can generate influence about desirable product attributes; provides sensory pleasure and stimulation, and hence increase consumer well being. All and all, a good design makes you fall in love with the product.

When one company has a good design that the consumer falls in love with, it is quickly recognized by current and potential competitors, and unfortunately for the original manufacturer, usually quickly copied. While there are marketing ways to protect one’s image, the protection of one’s design is usually left to the courts. This is an enigma because the courts are confounded by consumer behavior (Dinwoodie 1997) and prediction about success of protecting design is far from certain. Officially, U.S. federal trademark law protects certain product features under the rubic of trade dress, which previously have been unprotected (Trade Dress Protection Act, 1998). But this issue is a broader one, as many companies occupy the global marketplace, and laws tend to be country specific. More recently the European Union has taken a step toward standardizing issues of trademark or trade dress infringement, but commerce has a long way to go before similar laws are applied world-wide.

Even when similar laws are in place, the legal system itself is set up to interpret the law. And the law is interpreted by those people who are consumers and have different view points about consumption of goods. The United States Trade Dress Protection Act indicates that a product’s design may function as its trademark, if the design identifies the source of product and is distinctive. The problem is how does one go about determining when a design identifies the source. This is perhaps the same as acquiring "secondary meaning" or being distinctive. In design circles, it takes time to develop secondary meaning and design, especially fashion, usually is recognized rather quickly as desirable or not.

In a recent ruling involving Wal-Mart¦s strategy of copying the design of a well known clothing supplier to a competitor (J.C.Penny) and having reproductions made and then selling at a much lower price, the Supreme Court over ruled prior judgments and ruled in favor of Wal-Mart¦s behavior. The ruling said that product design trade dress that is not registered as a trademark with the U.S. Patent Office is not subject to protection under U.S. Law, unless it can be established that the design had acquired distinctiveness. The interpretation is that trade dress can never be inherently distinctive and said Wal-Mart was in the realm of legal competition (Samuels and Samuels 2001).

If a company has developed a recognizable trade dress for their product and they wish to be the sole beneficiary of the value they have created, they may pursue legal action. However it may be better not to leave this in the hands of an uncertain and expensive system, such as the courts, and instead focus on the understanding the consumer demand. Given the importance of design, the need to protect ones’ customer base, and the right of individual’s and companies to reap the benefits of their design investment, this paper investigates the design and preference issue from the consumers’ point of view. Specifically who is the customer most willing to pay the higher price for original design, how much more are they willing to pay and can they be described.

SELECTED LITERATURE REVIEW

Creating and Buying Design

Companies make their designs or trade dress as distinct as possible in order to avoid the easy exchange by mistake. By using particular strong shapes (the "beetle" and the "Mac"); colors ("Coke"); texture ("Oxo Good Grips"); symbols "Toyota"); sound, "Harley-Davidson"; and smell "Shiseido perfumes") a particular identity is sought. This identity is distinguishable from close copies in ways that precludes closeness with similar forms. This is probably due to our senses, which identify particular impressions as particular appealing, sensual, disgusting or scary (Ackerman 1990). In other situations, the visual image is well balanced (Chevreul 1838), expressive (Gombrich 1972), or close to an ideal type (Zeki 1999).

In order to realize such a strategy, the company (or rather the designer) must assess whether people (essentially its target group) are able to identify the product based on its visual appearance. This is no easy task, and it requires considerable skills and time to achieve. The company is also interested in knowing how much people care for the original. How much are they willing to sacrifice in monetary terms to buy the original versus. a copy. If there is ambiguity or uncertainty about the recognition, this issue also includes the perceived risk of buying an original to later discover it is a fake. It seems fair to assume, that for a price that does not differ very much, anyone would want the original, but if the price is much higher, there could be many people who are no longer willing to pay the premium price for original design.

The issue perhaps depends on the type of product as well. If it is a luxury product or item of art, the customer may be more willing to pay the price of the cost of design than if it is a pure utilitarian product. If the product is something consumers use everyday and is perceived to have many substitutes, then perhaps they simply do not see so much value in it. It may be for these products the imitation or copies of the design are "good enough" at the lower price. It seems reasonable to investigate the differences in willingness to pay, as copies are usually priced much lower than originals. There can be many other different reasons as spending power, taste, and cultural belonging are also likely important factors in the selection of imitators versus originals.

Brand Imitation

The distinction is made between products that are almost alike versus outright counterfeit products. The first category comes into being by imitation and copying in a broad somewhat accepted sense for competition (Schnaars 1994). People have always learned by following those with good ideas and solutions to practical problems. We may dress like somebody we have seen, not by wearing exactly the same clothes but by copying some aspects we like which we think will make us look good. This is a natural way that taste is diffused in society without any problems (Van Paris 1981).

Because an imitator is not necessarily a direct copy, it is more difficult to define, identify, label as illegal and hence prevent. The purpose is to take advantage of the original work or design invested by somebody else. In many cases an average consumer may prefer the copy because the price is usually much lower, and the quality can be satisfactory (Wilke and Zaichkowsky 1999).

The second category, counterfeiting, is clearly illegal because the goods are deliberately disguised as originals. It is a 100 percent direct copy and labeled as such. Counterfeits are swiftly and clearly dealt with in the legal system, more or less equally world-wide. An imitator, on the other hand, looks like the original or could possibly be confused with the original, but is not sold as the original. Often, it is difficult to prove that an illegal action has taken place, and the look-alike product may in fact be legally recognized as a legitimate competitor.

Enigma of the Law

Davczyk (2000) discusses the role of trade dress as a way to strengthen the ability of people to identify originals and its implication for litigation. This has been an urgent issue because the courts have sometimes found the issue challenging (Bosworth 1999). The trade dress can be defined as

"the total image or overall appearance of a product or service, including, but not limited to the design of packaging, labels, containers, displays, decor, color, the design of the product, a product feature, or a combination of features, except that trade dress shall not be registered or protected under this act if it is functional."(U.S. Trade Dress Protection Act, 1998)

The functionality is further defined in terms of design, e.g., "such superior design for its purpose, that to afford it protection would significantly hinder effective competition". Additional factors considered are 1) whether the matter yields a competitive advantage; 2) whether alternative designs are available; and 3) whether the matter achieves economies in the manufacture or use of goods or services, or affects their cost or quality.

In the area of design and products, the law is mixed on its findings. One very famous example is the Stiffel Co. who secured design and mechanical patents on a pole lamp, a vertical tube with lamp fixtures along the outside. Sears Roebuck and Co. put a substantially identical lamp on the market that sold at a retail price similar to Stiffel’s wholesale price. In this case, any difference consumers perceived between the two brands was likely to be in price. Because furniture has a style, but little overt brand labeling, it is unlikely that the average consumer was aware whether the lamp was a genuine Stiffel. When this went to court, it was decided in favor of Sears, who continued to sell its copycat lamps to the public at a lower price (Sears, Roebuck and Co. v. Stiffel Co. 1964). Similar decisions have been made with respect to furniture, despite extensive evidence of confusion by customers and salespeople (Parkdale Custom Built Furniture Pty. Ltd. v. Puxu Pty. Ltd, 1982).

Leaving all this in the hands of the court, some manufacturers have found protection in their design of lamps (PAF S.r.l. v. Lisa Lighting Co. 1989; Bauer Lamp Co. v. Shaffer, 1991) and furniture (L & J.G. Stickley, Inc. v. Canal Dover Furniture Co. 1996; Kruger Int’l Inc. v. Nightingale, Inc. 1996). From a manufacturers perspective, it may be risky to leave this up to the legal system and time may be better spent on creating consumer demand for the original product.

Summary

The purpose of this study was to test people's ability to identify the original product in a common consumer good category where design elements may be distinctive. Our questions were whether people were able to tell which one is the original and if they could, how much were they willing to pay for the original. Understanding consumer's evaluation and price trade-off among original and imitation products is perhaps key to creating demand for the originals. If we have that information in addition to the market structure, we may be able to provide insight to loss of "brand equity" due to plagiarism or copying of the design.

METHODOLOGY

Stimuli

The product category is rice paper lamps, a type of lamp dominated by cheaper copies that many people buy to use in "backrooms", storage rooms, children's rooms, or nurseries. Many consumers are unaware that these lamps are particular instances of products of art and high-class design. The famous Japanese sculptor and designer Nagoochi designed some of these lamps. Needless to say, the Nagoochi product is distinct and it is expensive compared to imitation copies. This lamp is sold in prestige design shops for about 120 U.S. dollars. We have chosen to investigate design, identification and willingness to pay for this lamp by comparing it with two cheaper rice paper lamps, which were designed by anonymous designers and sold in shops with a more average assortment for about 12 and 20 U.S. dollars respectively (see Figure 1). These products are not "cheapish" or bad quality. Yet it makes a considerable difference whetheryou pay 12 dollars or 120 dollars, which is the span between the cheapest and most expensive version.

FIGURE 1

Subjects

A total of 107 consumers took part in the experiment, 40 males and 67 females. Forty-nine percent were under 29 years of age; 37 percent were between 30 and 49; and 14 percent were over 50.

Design

An experimental design was used to test how people evaluate an original when compared with two imitation brands. In the first part of the experiment, the lamps were compared in pairs and respondents were not told the names of the lamps.

A--------B         B--------C          C--------A

The lamps were marked with the letters A (copy), B (original), and C (copy) and the scales also referred to these letters. In the second part of the experiment, additional price information was given in a conjoint design. Three actual prices were quoted, $ 12 (copy C), $ 20 (copy A) and $120 (original B) respectively, but they were not fixed to any particular design. Rather, all of the three prices were assigned to each lamp in a full factorial design, such that all of the nine possible combinations (three prices by three lamps) were compared. In the paired comparisons each letter (indicating a particular design, A, B, C) was given a price tag. For example: A with price $ 12 was compared to B with price $ 20; B with price $ 20 was compared to C with price $ 120 and C with price $ 120 was compared to B with price $ 12, etc.

The comparisons were chosen such that each pair of lamps and each pair of prices were compared the same number of times, giving a randomized experiment (Gliner and Morgan 2000). In the last part of the experiment, the respondents were given the information that the famous Nagoochi designed one of the lamps and people were asked to select which one. This information was compared to how much design competence the respondents rated themselves as having, on a continuous scale, ranging from none at all to professional training and working full time in design.

Data were analyzed as paired comparison with continuous ratings (Gabrielsen 2000). In the first part of the experiment a preference scale for the lamps was estimated. In the second part a conjoint analysis for paired comparison measurements was performed, which gives separate preference scales for lamps and prices.

Procedure

The experiment was run at an exhibition of originals and copies at a design museum in a major European city. Subjects participated voluntarily under self-selection. The rice lamps were presented physically on a table and people could both see and touch the lamps. Beside the lamps there was a computer with a self-managed program. The program presents very briefly a choice scenario about the lamps and asks the person reading the computer screen to participate in an experiment.

Subjects were first given a training screen on the use of the computer and scale for judgment. Training trials were carried out with respect to preference for the color red compared to their preference for the color green. The cursor was directly between the colors and this was labeled as the neutral position. Subjects were asked to move the cursor to the left or right to indicate preferences labeled either some, quite a bit, or extremely preferred it. They were instructed to be careful about moving the cursor to the last extreme right or left. (This was important to avoid ceiling effects in the measurement.) After the training trial, the subjects went on to rate the pairs of lamps. The distance the subject moved the cursor away from the middle was measured in centimeters by the computer and used as their preference measurement for each pair of lamps.

TABLE 1

ESTIMATED CONTRIBUTIONS TO PREFERENCES FROM LAMPS AND PRICES RESPECTIVELY

TABLE 2

ESTIMATED CONTRIBUTION TO PREFERENCES FROM PRICES AND DESIGN, BY DESIGN COMPETENCE

THE FINDINGS

In the first part of the experiment, in which only lamps were compared without the price information, the preference scale was estimated to show that consumers clearly favored the original Nagoochi lamp (B). It's computed rating was 5.4, lamp A was rated -1.4 and lamp C -4.7. Therefore the preference for the original was about 10 times stronger than lamp C and about seven times stronger than lamp A. Furthermore, the difference in preference between C and A is smaller than the difference from A to B.

The conjoint analysis separates the effect of lamps and the effect of prices into two separate scales and is shown in Table 1.

The preferences concerning the prices are as expected in that the preferences decrease as the price increases. The preferences for the prices $ 20 and $ 12 are almost the same, whereas the preference for the price $120 is very much lower. This is a simple negative ranking of prices, which shows, not surprisingly, that people in general prefer a cheaper to a more expensive price, not taking the product into consideration.

The preference scale for the lamps shows the same ordering of the lamps as in the simple rating without the price information and also the same relative distance between the lamps, however, the preference scale for the lamps in Table one is more compressed. The interpretation of this is that the difference between the preferences seems to diminish when the prices are attached. The comparisons are expressed by the willingness to pay for each individual lamp. What we see is not the immediate rating of the product. We get the more consequential type of rating from asking the respondents how much they are willing to sacrifice to acquire each of the lamps. This is the side of the price that concerns the perceived value in monetary terms.

The participants were asked to self-rate their design competence and then they were divided according to two groups, whether the persons claimed themselves as having low or high design competence (54 and 53 persons respectively) using a medium split. There were no significant differences of the preference scales for the lamps between the groups, however the preference scales for the prices were significantly different, (see table 2). The preference scale for prices in the segment with high design competence was highly compressed compared to the segment with low design competence. This means, that the higher the competence, the more weight is attached to the design. The competent respondent is more willing to pay a high price for the original and places less emphasis on the price.

The respondents were asked which lamp was the original. A total of 59(55%) respondents correctly identified the lamp B as the original, 21 (25%) thought A was the original and 27 (25%) thought C was the original. Identification and the split of self-reported design competence showed 48% of low competence selected correctly and 62% of those with high competence selected correctly, A chi-square analysis of these figures was insignificant (x2=2.42, df=l, n.s.).

DISCUSSION AND CONCLUSION

Our purpose has been to address the issue of plagiarism or copying in the design of products. The problem is urgent for many producers who experience that products they have devoted considerable resources and efforts to create and design are devoured by cheap copies that look Re the original but clearly cost much less. The cases we have analyzed are not cases where deception or counterfeiting have been used, but such situations where an original and the copies differ in ways that can be detected by the trained or untrained eye. While most people will respond positively to a statement that they prefer originals, the matter is different when this means sacrificing a premium price. As we see in the study this means a ratio of 10 between the cheapest version and the original. When seen in such perspective, the preference for the original is no longer absolute, but it depends on consumer's competence or knowledge of design. Only those most competent are really willing to sacrifice more price for design, but it is not significant enough for them to perhaps actually buy the original.

This raises the issue of consumer education and also of trade dress. The issue is recognition of the products. Improved ways to identify the original may persuade more consumers that they should consider the premium priced product. Further research may take advantage of the developments in sensorics and senso-metrics. These disciplines have been dealing with recognition and characterization of food, fragrances and drinks for many years. There is an existing body of knowledge that can lead into manageable testing procedures that we expect may be applicable for other product categories as well. While there exists a well-defined set of characterizing terms for fragrances, food and drinks, such terms may have to be invented for other products. Also here, there are insights to be learned from the recent developments in vision research and cognitive science.

Another issue is creating trade dress by means of other senses than the visual. We will assume that the product category is an important issue here. We may distinguish between pure utilitarian, systemic (technical and social) products and symbolic products. A pure utilitarian product, we assume, does not really lend itself to much trade-dress, although we are aware that it happens quite frequently. For instance if you buy a screw or other replacement (original) to an automobile, it is usually physically branded, like Ford or Daimler-Chrysler. If we assume, that a screw is a screw, the producer faces a real problem. Knowing, that the copycat market is highly lucrative, the producer claims, that the warranty is no longer valid if a copycat, however trivial, has replaced an original item. In the case of products that require a system in order to operate, like a cellular phone the issue is one of compatibility. In this sense, the situation is equal to the utilitarian product; only the focus is now in the interface with a system.

A symbolic or a social product that marks the user as a member of an "in-group" is one where the issue is urgent. Here the likelihood is high, that the social risk of erring leads more people to buy the original, paying the premium price. This is exactly what our experiment has shown. We might have expected a different outcome, that there was a "snob-effects" involved, and people with limited design competence actually were more willing to pay a premium price. As it happened that was not the case as interesting in this situation.

In total 59 (55%) of the participants were able to identify that lamp B was the original lamp. It may be that people who are less competent are more likely to accept a copy. This is hardly surprising. Further studies should corroborate this. We also face some degree of "self-selection" of respondents, since this happened in a design museum. People who enter such places are more Rely to appreciate and to be competent about design that the "average consumer". So an interesting follow up will be to repeat the experiment with other audiences, and also with other products. An interesting category could be fashion clothes for children. This may be a situation where, parents and children's conflict reach a peak. Teenagers are vulnerable to the judgments of their peers and they feel safe when they wear right clothing. On the other hand, when the parents have to pay, they see little point of spending on high-class fashion that they know will be worn down or as it happens stolen very soon.

If we have the data for a particular product category, which we have in this case, it should also be possible to calculate the expected loss in "brand equity". To do so, we would need to know how the market is composed. If we know how the distribution of competent vs. less competent consumers, we should be able to estimate the number of people who will buy the original and how many we risk losing because they are not willing to pay the price. This is another perspective, that needs further attention, and if possible a real market experiment.

REFERENCES

Ackerman, Diane (1990), A Natural History of the Senses, London: Chapmans.

Bloch, Peter H. (1995), "Seeking the Ideal Form: Product Design and Consumer Response", Journal of Marketing, Vol. 59 (July) 16-29.

Bosworth, Mike (1999), "Gavels pound on knockoff vendors" Apparel Industry Magazine April.

Bauer Lamp Co. v. Shaffer, 941 F. 2d 1165, 1172 (11th Cir 1991).

Callaway Golf Co. v. Golf Clean, Inc., 915 F. Supp 1206, 1212 (M.D. Fla. 1995).

Chevreul, Maurice (1838), The Principles of harmony and Contrast of Colour and their Applications to the Arts, Translated by C. Martel (1899) London: Bell

Davcsyk, Spencer (2000) "Aesthetic Functionality in Trade dress: Post-secondary Aesthetic Functionality Proposed", Commercial Law Journal, Vol. 105, pp. 309-330.

Dinwoodie, Graeme B. (1997), "Reconceptualizing the Inherent Distinctiveness of Product Design Trade Dress", North Carolina Law Review, Vol. 75, 471-606.

Gabrielsen, Gorm (2000), "Paired comparisons and designed experiments", Food Quality and Preference, 11, pp 55-61.

Gliner, Jeffrey A. and George A. Morgan (2000), Research Methods in Applied Settings: An Integrated Approach to Design and Analysis, Mahwah, New Jersey: Lawrence Erlbaum Associates, Publishers

Gombrich, Ernst (1972), "The Visual Image: its Place in Communication", originally published in Scientific American, vol. 272,pp. 82-96, repr. In The Essential Gombrich, London, Phaidon.

H.R. 3163 "The Trade Dress Protection Act" 105th Congress, 2d Sess. (1998).

Keller, Kevin Lane (1993),"Conceptualizing, Measuring, and Managing Customer-Based Brand Equity", Journal of Marketing Vol. 57 (January) 1-22.

Krueger Int'l Inc. v. Nightingale, Inc., 915 F. Supp. 595, 607 (S.D.N.Y. 1996).

L & J.G. Stickley, Inc. v. Canal Diver Furniture Co., 79 F. 3d 258 262 (2d Cir. 1996).

PAF S.M. v. Lisa Lighting Co., 12 USPQ2d 1161, 1175 (S.D.N.Y. 1989).

Parkdale Custom Built Furniture Pty. Ltd. V. Puxu Pty. Ltd., High Court of Australia, (1981-1982).

Samuels, Linda B. and Jeffrey M. Samuels (2001), "Supreme Court Makes Protection of Product Design Trade Dress More Difficult", Journal of the Academy of Marketing Science, Vol. 29, No. 1, 108-111.

Schnaars, Steven (1994) managing Imitation Strategies New York: Free Press Sears, Roebuck & Co., 376 U.S. 225, 84. S Ct. 784, 11 L. Ed. 2d. 666 (1964).

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Wal-Mart Stores Inc. v. Samara Brothers Inc., 529 U.S. 205 S. Ct. 1339 (2000).

Wilke, Ricky, and Judith Lynne Zaichkowsky (1999), "Brand imitation and its effects on innovation, competition and brand equity", Business Horizons, November-December, 1- 18.

----------------------------------------

Authors

Tore Kristensen, Copenhagen Business School, Denmark
Gorm Gabrielsen, Copenhagen Business School, Denmark
Ricky Wilke, Copenhagen Business School, Denmark
Judith Lynne Zaichkowsky, Copenhagen Business School, Denmark,



Volume

E - European Advances in Consumer Research Volume 6 | 2003



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