That's a question Flickr user mini-cupcakes asks in our Flickr forum:
What is wrong with small business owners today? I am totally flabbergasted! I got a certified letter today from a cafĂ© here (that I really respect) stating that I have copied her names and flavors of cupcakes stating it is causing confusion for her customers and is detrimental to her reputation. If someone implies that you copied something it sounds like you were out to do harm. I have a cupcake I named after my favorite movie “pretty in Pink”, not knowing she has a cupcake named that also, so I get this mean letter in the mail demanding I change my cupcake name and implying I copy her? How crazy is that? If it were me and I had an issue I would go into the business ask to speak with her and just say,”hey, I do not know if you are aware but we also have a …” just be nice about it, I mean we are all small women owned business, are we not supposed to be helpful of one another? I think she may be mad that I have opened the first cupcake centric shop when she used to be the only place you could get good cupcakes (in addition to many other bakery and food items). Am I ranting for no reason? I just feel like if you have a problem with someone, for whatever reason, go speak with them do not send a nasty letter. Any thoughts?
What is wrong with small business owners today? I am totally flabbergasted! I got a certified letter today from a cafĂ© here (that I really respect) stating that I have copied her names and flavors of cupcakes stating it is causing confusion for her customers and is detrimental to her reputation. If someone implies that you copied something it sounds like you were out to do harm. I have a cupcake I named after my favorite movie “pretty in Pink”, not knowing she has a cupcake named that also, so I get this mean letter in the mail demanding I change my cupcake name and implying I copy her? How crazy is that? If it were me and I had an issue I would go into the business ask to speak with her and just say,”hey, I do not know if you are aware but we also have a …” just be nice about it, I mean we are all small women owned business, are we not supposed to be helpful of one another? I think she may be mad that I have opened the first cupcake centric shop when she used to be the only place you could get good cupcakes (in addition to many other bakery and food items). Am I ranting for no reason? I just feel like if you have a problem with someone, for whatever reason, go speak with them do not send a nasty letter. Any thoughts?
Comments
My website (http://www.spoiledcowgirl.biz) had been a very tiny un-marketed business that I used as a web design portfolio piece for the most part...and this was a total slam to my sense of "goodwill" among small biz owners.
My sympathy goes out to you! I know the feeling exactly. Anger/Shock/Fear and then some...
The link at the bottom is just a sampling, but do Google "recipe copyrights" to look into it more.
http://www.webmasterworld.com/forum44/597.htm
Unfortunately, there are a few more important loops to jump through, and a few hundred dollars to spend.
I think shes full of frosting.
"A mere listing of ingredients is not protected under copyright law. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection. Note that if you have secret ingredients to a recipe that you do not wish to be revealed, you should not submit your recipe for registration, because applications and deposit copies are public records."
Trademarks, on the other hand can be done for titles, and yes, it's ok for her to trademark her cupcake after a movie, since a cupcake isn't in the same category as the movie or other products.
Next thing you know she is going to want to sue you for having a chocolcate or vanilla cupcake!!
It is very sad that our world is so sue happy!!
Life is so short to be this silly, isn't it? It's cupcakes!
Thanks
We have read posts on your blog regarding other cupcake shops running into similar situations and applaud you for your efforts to educate people on the subject and that an available domain name doesn't mean you are not infringing on someone elses registered trademark. We have invested into hundreds of websites trying to limit/reduce the possibility of this occurring, you just can't cover all the possible variations to keep someone from encroaching on the intellectual property that is protected with registering a trademark.
Initially, we were going to have our attorney send the letter, but then we said "Don't be a D*ck! Let's be nice, kind, and polite." After all, (to your point) we are all small business owners. So, we sent this letter and are including it in hopes that a variation of it would be helpful for someone else:
===================================
Hello Mrs. XXXXXX,
We would like to preface this letter by saying that our goal and intention is not in the spirit of "creating conflict or problems" but rather to find a solution to this situation to enable both of our companies to continue to independently prosper.
We have recently become aware of your company operating under the name "Dxxxx Cxxxx Cupcakes". We are formally notifying you that the phrase "Dxxxx Cxxxx®" is a registered trademark with the United States Trademark & Patent Office (Dxxxx Cxxxx® Reg. No. 3,408,xxx).
Our research indicates that you filed for an Limited Liability Company under "Dxxxx Cxxxx, LLC" in the State of Kansas on September 21, 2007; Registered the Universal Resource Locator for www.DxxxxCxxxxCupcakes.com on October 12, 2007; submitted to inspections by the Kansas Department of Health inspection on October 26, 2007; and reportedly opened for business on or around November 1, 2007. These dates all are superseded by our actual use of the mark “Dxxxx Cxxxx” as well as our Official & Public Filing for Federal Trademark Protection with the United States Trademark & Patent Office for Dxxxx Cxxxx® on July 23, 2007.
The use of our trademarked name in the naming of your business has already caused some confusion amongst our Customers and Vendors while diluting our brand; specifically online through your website rankings and positive & negative blogs that have been posted and frequent sole reference to “Dxxxx Cxxxx” and product quality.
We would like to review and discuss with you an appropriate course of action that might be amicable between both parties and possibly avoid the need for litigation. Please contact us within the next 10 days.
Regards,
===================================
Now after the owner received the letter they attempted an inbound call to our office without leaving a message. We returned the call a couple of days later and have left multiple messages with no response. Not all people respond to the nice guy approach apparently.
In todays internet world, it doesn't take a business in the same town, or state, to have an impact on your business or reputation. Blogs, Flickr, and Google rankings can all have an impact on your brand - even if the internet postings are not done by the individual business. We are still being the "nice guy", but unfortunately it is becoming apparent that we will need to let our legal team earn their retainer.
In order to Trademark a name you have to sign an affidavit affirming that to your knowledge, nobody else is using the name. If this other bakery was using "Pretty in Pink" first, you could not legally sign that affidavit. Just FYI.
Here's the relevant portion of the application: "...to the best of his knowledge and belief no other person, firm, corporation, or other entity has the right to use the above-identified mark in commerce, either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods or services of such other person, to cause confusion, or to cause mistake, or to deceive..."
It appears from where we sit that the cupcake shop owner is spending good money for bad, ours and theirs! Now the path that they have elected to take is a different approach than ours and we are going to most likely file lawsuit against them. Now because of the hassle, burden, damages, brand dilution, etc. we have little choice but to look to them to pay for our attorney fees as well. This cupcake shop had only been open for 5 months when we became aware of them and let them know of their infringement...it isn't like they had been operating for a lengthy timeframe and established a deep rooted clientle. A very basic search with the United States Patent and Trademark Office could have possible prevented this www.USPTO.gov - so please, at a minimum, take a look if you are starting a business. Conduct more than just a Google search before registering a domain name or deciding on that perfect name...it may already be someone elses property.....