Blatantly ripping off another indie business - help/advice?

[chairs]

Okay this post is going to be long, but I would like to get some advice for my friend here. My best friend Amanda owns the adorable online shop Bake It Pretty, which is currently the only source of income supporting her family. They have been doing quite well but in the past few months, a situation has arisen that is REALLY pissing me off, and is very troubling to Amanda, as it could be quite literally threatening her livelihood... another online shop is blatantly ripping off LOTS about her business (product line, graphics, photo styling, etc... and has actually admitted to it, but has made no plans to stop doing it). I got Amanda's permission before posting about this.
Here's the timeline:

Amanda opens A. Bel Emporium on etsy in March 2007
(she has written some great Q&A posts about starting an indie business on her blog lately - part 1 | part 2 | part 3)

Layer Cake Shop opens June 2008 (right before Amanda goes on a break to move to NC and re-launch the new business.)

She noticed LC looked just like hers, exact products, styling, copy, etc. But she NEVER once contacted her or anything. Greta of LC sent Amanda an email out of the blue on October 10th 2008 (copied below)

**EDITED**
I have removed the emails at the author's request, so I will just paraphrase. Amanda has nothing to hide and believes in full disclosure, so feel free to email her if you would like to more detailed info about the emails so you can make an informed decision.
info [AT!] bakeitpretty.com


Email to Amanda (Bake It Pretty) from Greta (Layer Cake Shop) was Titled: *A confession*
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Greta admitted to being inspired by Amanda's etys business and modeling hers after it. She acknowledged the fact that Layer Cake was successful and that she realized it was taking sales away Amanda, she apologized for it, but made no promise to stop or change. Greta confessed to feeling like she "crossed over to the dark side" in regard to ethics and creativity. She also stated, "Although you inspire me, my intentions for the future are to be my own shop, using my own ideas, setting myself apart."


Based on this email, Amanda replied:
***********************************************************
Amanda told Greta she was not mad at her, and not to give up. Amanda encouraged her to keep at it, and find her own niche.
(Yes, Amanda realizes now that she was way too nice and is embarrassed by her naivete.)


Greta responded:
***********************************************************
She thanked Amanda for her kindness and alluded to her future plans by saying, "I really want to start holding cupcake workshops for kids.. I think its my project for after the holidays." She also wished Amanda success in the launching or her business and new website.

Amanda was happy for Greta, assuming that she was finding her own way, and decided to let it go. She was overwhelmingly busy making her new website of which she did almost everything entirely on her own. Amanda had no contact with Greta for over 8 months (until these last few days.) Layer Cake mysteriously stopped blogging or promoting her shop (though she kept her etsy shop going,) until she launched her new LC website, off of etsy, secretly and quietly overnight on June 1st 2009.

Anyone who looks at the two sites says that she blatantly copied Amanda's aesthetic, style, website layout, and exact product line. The product photos are also very similarly styled.

http://layercakeshop.com/Shop/Baking/Cookie-Cutters/View-all-products.html
http://www.bakeitpretty.com/category_16/Regular-Cookie-Cutters.htm

Anyone can sell supplies, Amanda doesn't dispute that. But I think it's the kits/concepts that are the worst part because Amanda works so hard on them and feels they are pretty unique.

http://www.bakeitpretty.com/item_284/Magical-Forest-Sampler.htm
http://layercakeshop.com/Shop/Kits/Woodland-Cupcake-Kit.html

Even the "coming soon" images look VERY similar! ***EDITED*** Layer Cake has recently changed their "coming soon" image.
Bake it pretty:


Layer Cake (image won't display here)
coming soon image

>From layer Cake About page:

*Layer Cake Shop was born in 2008 on the indie online marketplace Etsy. What started as a little hobby quickly grew into a full fledged �for real� business and we knew our very own website was in order! We are ecstatic to have launched this shop featuring our handpicked collection of baking, decorating and packaging supplies for your cupcakes, cakes and cookies. We�ve got hundreds of new products, and oh so much more to come!** etc.....*


Bake It Pretty About Page:

*This little cottage industry began in 2006 under the name A. Bel Emporium on the popular Etsy online marketplace. The success of that shop sparked the creation of the new, bigger and better website you see here. We are pleased to continue offering the same, charming miniatures and baking supplies as before...plus much more! ...etc*


*****************************************************

This is from Amanda to Glitter:

Basically, I'd love to know what people think I should do about this and how I can protect my business. I want to make it clear that I completely understand that selling baking supplies is not a concept I invented, but I am so proud of my shop and I really felt like I made something new and special. I believe her shop is similar enough to mine as to create confusion in the marketplace (several people have already emailed me asking if we are affiliated.) And it is clear beyond a shadow of a doubt that she copied me because she absolutely admitted to it. She obviously has no scruples about continuing to imitate me, and where do I draw the line? There may not be anything I can do about it now, but how do I keep it from getting *worse*? Not that it really matters, but this is not a simple hobby for me. It's my entire family's livelihood and I can't afford (mentally or financially) to just let this go again. In my heart I still believe that most people have good intentions, and that given time, people who learn and imitate from you will move on and do their own thing. I'm truly shocked that this person took things so far...I feel sadly disillusioned.

I sent them an email after her new site was brought to my attention. No reply as yet.
***EDITED*** I was finally acknowledged by Layer Cake after they discovered this forum post, but nothing was discussed/resolved.


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So, what do you guys think? I know there are a lot of indie business owners/lawyer types on here. Anything she can do?? Thanks!!
--
http://www.bakeitpretty.com
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be good to yourself.

[town hall]

I'm afraid I can't be of much use, but HOLY CRAP that shop is an exact copy of your friend's store! I'm shocked that this person can sleep at night.
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[Redapple]

I'm a bit confused...did Amanda send the email you posted as a reply to the "confession"..? If so, yes it is WAY too nice.

I'm a bit shocked at how similar the sites are!

That being said, it happens. Really, people copy things all the time. It's also much more likely to happen on the internet since it's so easy to poke around. And people are sort of clueless to what they are doing when they do copy something.

THAT being said. I am a business owner and if I saw a shop that looked like mine and someone sent me an apology for copying me and "taking business away", I'd be furious. I'm pretty sure she knew what she was doing. Seriously, that email is bananas!

Perhaps there is some legal advice coming from someone on this board cuz I think that might be what you need.

Best of luck!

[sexy_secretary]

i'm super confused. so this person emailed your friend before even hearing from her about how she swiped her ideas? this is such a weird situation. Is the Bake it Pretty concept trademarked or copyrighted in any way?

I'll be honest, at first glance I was like 'well, it's similar products and layouts in some ways, but not a complete rip off. Then I looked closer and she even uses similar backgrounds in her photos and descriptions are similar and everything. So weird.

I have no good advice, maybe you could do another post in the 'The Business Side' board since there might be folks who have dealt with this that only frequent that one?

Good luck to your friend in whatever happens. I have loved Bake It Pretty since you first showed it to us, Chairs!
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[chairs]

Layer Cake shop emailed Amanda completely out of the blue the email titled "A Confession" - admitted to ripping her off... but when Amanda emailed her back (I didn't post that one but it was a very gentle reprimand) she just wrote back like la la la, everything is cool, and didn't mention it again.

Meanwhile she has been copying everything from photo backgrounds to the exact product line to the kits, which Amanda sold back when she had her etsy shop and are completely original.

I don't think the "concept" of Amanda's shop is copyrighted or if that's even possible...
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be good to yourself.

[Redapple]

[mk.carroll]

That makes my heart hurt.

My only advice right now is for her to lawyer up. You may want to take down your posting of the other shops e-mail and BIPs emails too, since if a cease-and-desist request doesn't do it, and a lawyer determines that she has grounds, she may want to bring a lawsuit and she won't want to have these e-mails floating around in public.
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[scarymonster]

Has your friend tried emailing her in a more direct way? From the sounds of it, she kind of encouraged the girl to keep copying by being overly nice (just saying that based on how friendly the other girl was about it) and didn't really send the message that she wasn't cool with it.
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[midnightsky1686]

[SublimeStitcher]

Eeeeehhhhhhhhhhhh. Why do people do this? Why? It always reminds me of the comedian's lament when they hear someone stealing their jokes: "Do your own material." What's worse, is this is indie-to-indie. Not big company-to-little-company. Is that worse? I guess it just makes it even more disappointing.

I feel it's practically my duty to comment and I've looked over both websites. I'm not a lawyer, and my advice is not to take the place of one, but I can share what I've learned from years of consulting with (a really, really good) one.

One thing is, I feel they should be wanting, and demonstrating that they want, to distinguish themselves from Amanda's business. Using the exact same cloth backdrops (dots and checks in the identical colors) for the product photos seems more to demonstrate that they want to create confusion, and based on emails from Amanda's customer (which she should be sure to keep), that confusion is happening.

If they were to say "Well, there's only so many ways you can photograph this, or represent that" or "Pink polka dotted fabric is just popular" the answer is: "No, there are an endless variety of ways this can be depicted, and there are endless other popular aesthetics to be used, so that it wouldn't have to look exactly like mine." If they then say, "Well, it's just a coincidence" That's pretty absurdly reaching, if they've visited your site many times before and have stated they know how popular and successful your business is. Then, their actions begin to speak for themseleves, despite any denials they make. (This logic applies in other instances as well.)

Your friend is going to hear a lot of people say "Meh- this is just business. People do it all the time. You just have to expect it to happen." Couple of things: I have never heard a person who honestly makes their living from their own original creative work or entrepreneurial efforts express this viewpoint. And while yes, you can and should expect something like this to happen to your business (especially if it's successful- because, only successful businesses and ideas get ripped off), the following assumption is not, therefore, that you can't do anything about it. There's also the other lame debate about no one has truly 'original' ideas and everything comes from somewhere else. Yes, yes but this argument usually comes from the guilty party, and as Jean-Luc Godard said: "It's not where you took it from, it's where you took it to." Looks like she, figuratively, set up shop right across the street from you with the same colored awning while apologizing for your customers crossing the street to come to her.

There are laws in place that protect your business from being ripped-off in a wholesale fashion that relate to copyright and trademark law, but you cannot copyright or trademark an entire concept or business model. You CAN protect it, though. It can also be a question of unfair competition, if they are attempting to displace you from your established position in the market, attempting to profit from the customers you've attracted / made and take advantage of the hard work you've done. Very, very hard work that many people simply don't realize goes into building a business and often don't want to do themselves.

Then there's the unfortunate attitude of "it's just an obvious idea that anyone could do". But, it wasn't obvious before you shed light on it. You made it seem obvious, cute and appealing. That takes a lot, a lot of work and creative thinking. Simple is hard. Taking an idea, bringing it to fruition and presenting it in a way that makes sense, brings multiple elements together in an elegant, original and appealing way is very, very hard to do. It's called "making it look easy". Copying it is the easy part. Which is why there are laws that protect you from another business simply popping up and making money off your years of hard work and original ideas.

Also, be aware that "defamation" is when you make false accusations. Defamation is not when you say negative things that are true and based in fact or expressed as your opinion "I feel they are boldy and blatantly copying me." -is something you have every right to say (but you should only say it if you really believe it to be true, can prove it, and it's hurting your business). The person being accused may not like that, and they may cry 'defamation', but so long as what you say is true and you can back it up, you are free to expose their business practices, being aware of the best, most effective and sensible way you should handle that.

This is what I would do:

Stop emailing with them if she intends to bring in a lawyer.

Immediately add "Est 2006", or the appropriate year in the upper right-hand corner of her website. Begin marketing her website and cupcake kits as "The Original" or in similar fashion.

Establish a proxy to block the other business' ability to view her website.

Screengrab, screengrab, screengrab.

Not many people know that there laws recently put in place (related to the Patriot Act) that make it illegal for another business to visit / view your website / take your newsletter for the purpose of acquiring business information / resources for their own business, especially if they are competition. And, I'm not sure, but I think it's a felony. Even some lawyers may not be aware of this law, is my understanding.

About those emails- this woman has already damned herself with her own words. She has already admitted everything that you would work with a lawyer trying to get her to admit:

That she is aware of your website and has visited it.
That she is knowingly copying you.
That she is having great success with it, and most importantly:
that she is taking away business from you.

There's a difference between healthy, fair competition, and targeting another business and actively going after its customers, especially if this is done with deceptive practices (-though I'm not saying that is the case here). Amanda should be sure to keep any emails from people expressing confusion about the two businesses, especially if they believe they are affiliated but are not. Unfair competition deals in part with a business actively seeking to create confusion in the marketplace by offering overly similar product or to appear to have a relationship (when one doesn't exist) with the competition making it look like you endorse or approve of their activities.

I would suggest your friend consult a lawyer who specializes in IP (Intellectual Property), and make the lawyer aware of the above facts (visiting the site, admitting taking sales away, etc). The effort to make direct communication has already been made, and her actions indicate that she won't stop, so this would be the next logical step if she wants to pursue action, see what her options are, or simply send a stronger message that she doesn't like the direction they are taking their business and wants to see it stop.

All that said, the very most important thing that Bake It Pretty does, is continue building her business and establishing / maintaining goodwill with her customers. Because, if the other guys are just copying you, they are always waiting for your next great idea (because they lack their own). So, you have to be the first one to put it out there, and also, let people see that you put it out there first. People value authenticity, originality and finding the initial source of things. When they discover that they've been marketed a copy of the original, they feel disappointed and even duped.

Hope this is helpful! I'm also going to pm you.

ETA: Crafting a Business: Copyright, Patent, Protect?

ETA: Yes, I've edited this a bunch, but just in little nit-picky ways. Sorry so long.

[scaredsi11y]

Thanks for weighing in, Jenny! I knew that you would have some really good advice for chairs and her friend.

The copying issue was cemented for me when I saw that both sites have a lightning bolt cookie cutter in the exact same place. The link with the similar kits is awful too. I have nothing else to say except that this kind of thing makes me REALLY MAD.
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[knittinator]

This whole situation sucks!
As soon as I have a little extra money I'm going to buy something from her!
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Oh, what a gal was Quickie!

[turquoisewater]

When I was looking for unique/vintage cupcake cups for my wedding this past year, I visited the Bake It Pretty shop, and bookmarked it for a later time. I then came across the LayerCakeShop on Etsy, and 110% thought it was the Bake It Pretty shop- which I think I had learned about through someone's blog.

Makes me realize how interesting it is as a potential customer that you don't really pay attention to a company's name- it's the distinct vibe that your friend had created. Her style is this sort of vintage mixed with whimsical, and it's what made me love her stuff! As a jewelry artist who has also dealt with copycat stuff- but at SUCH a smaller scale- I know that this kind of thing can make you feel like someone just punched you in the stomach.

I ended up NOT buying the cupcake liners from either, because we bought a cake instead, but I am so upset that I almost supported the Etsy shop in lieu of your friend's shop. As a customer, she almost duped me- ugh. I think what bugs me most is that a lot of times, copycats get bored and don't go pursue the idea long-term because they're not really as engaged because they weren't the innovators. The fact that this person has now launched a copycat web site sucks.

[thora]

Oh, this is an awful story. I, too, am glad that Jenny of Sublime Stitching chimed in here. I was hoping our resident expert might have some advice and commiseration. It's devastating, though, that this has happened to more than one of us glitterati (and affiliates). It's the worst to have expertise in and experience with legal battles of this nature, isn't it?

Chairs, please reassure your friend that *she* was the true innovator, the one with the gorgeous design sensibility and dedication to making this happen. I know, though, that being ripped off in such a direct way has probably dulled her sense of accomplishment.

I adore all of the stuff in Bake it Pretty's shop. Now more than ever, I really want to pick something up from it. I hope that loads of her loyal customers are reaching out in a similar fashion. And, I really hope that few are being duped.

So sorry. Ugh. This makes me really upset.

[SublimeStitcher]

I got a little bit long-winded.