Common Law Trademark Infringement, Common Law Unfair Competition, Copyright Infringement, Litigation Update, Michael W. Mosman, Trade Dress Infringement, Unfair Competition, Voluntary Dismissal
Plenty of thought, time and expense goes into creating a website. Therefore, it has to be pretty upsetting when a direct competitor rips off the “look and feel” of your site.
That’s what Marmoset, a specialized boutique music agency based in Portland, Oregon, alleges of The Music Bed, a similar company in Fort Worth, Texas. Check out comparison images in the Complaint or, better yet, go visit the websites yourself.
What do you think? Are the websites too similar? Confusingly similar?
And remember, imitation is the sincerest form of flattery.
Marmoset, LLC v. The Music Bed, LLC
Court Case Number: 3:14-cv-00431-MO
File Date: Monday, March 17, 2014
Plaintiff: Marmoset, LLC
Plaintiff Counsel: Timothy S. DeJong, Jacob S. Gill of Stoll Stoll Berne Lokting & Schlachter PC, Charles F. Moore of Alleman Hall McCoy Russell & Tuttle LLP
Defendant: The Music Bed, LLC
Cause: Trade Dress Infringement, Unfair Competition, Copyright Infringement, Common Law Trademark Infringement, Common Law Unfair Competition
Court: District of Oregon
Judge: Judge Michael W. Mosman
UPDATE 7/7/2014: A Notice of Voluntary Dismissal Without Prejudice was filed in this lawsuit on 6/6/2014. To date, there have been no discernible changes to either website.
I’m keen to know what the result of this case his – has a decision been reached? I was shocked at the extreme example of plagiarism. Such an incredible site being ripped off by its direct competitor – appalling.
Ryan Wines said:
Ryan Wines, Co-Founder of Marmoset here. Regarding the outcome of this case — a settlement was reached.
It’s true, Marmoset sued The Music Bed in Federal Court for Trade Dress Infringement, Unfair Competition, Copyright Infringement, Common Law Trademark Infringement, Common Law Unfair Competition — and you can read all about it in the above filings and documentation. I invite you to go slow, take it all in and arrive at your own conclusions.
In any event, after a very lengthy and expensive legal matter, The Music Bed satisfied all of demands we made of them in a settlement. Currently, their website and branding is different enough to satisfy me and our partners.
With that said, it was very disappointing to be ripped off and copied in such blatant and arrogant manner. There is no question in my mind, it was blatant, it was intentional, and it was without any sort of ethical or moral compass involved on their end.
They say “imitation is the sincerest form of flattery.” Unfortunately, I have yet to feel flattered, and instead have been left with a very real sense of sadness, as something good and special to me has been stolen. In the end, it’s all too bad and was a waste of everyone’s time, attention, and resources. I have zero respect for The Music Bed’s proud leader, Daniel McCarthy.
Unfortunately, this is sometimes the nature of business. I get that and have moved on to more productive, and much more exciting matters.
I’m so glad to hear you’ve reached a satisfying conclusion. My partner and I are regular users of your site, and have been rooting for you!
We’ve recently had several experiences of our own painstakingly designed website being ripped of by our competition (not to the same extent as yours, luckily), and I can completely relate to your feelings about the suggestion of imitation being the “most sincere form of flattery” – bollocks. Putting all of your energy and passion into your business’ branding and website only to have it stolen by your direct competition feels like a giant punch to your stomach. It only serves to dilute your industry, and undermine the integrity of both your business AND the business that stole your work… And yet it continues to happen.
I’m sorry you’ve had to waste so much time and money on this – but good on you for seeing it through.
Marmoset is an incredible resource for us; thank you for all your hard work, your help is invaluable in bringing our films to life!
Lucy Spartalis (+ Alastair Innes)
As an innocent, somewhat biassed bystander (I was on the team at Musicbed when this happened), I think some slight clarity would be useful. My understanding at the time was that the settlement is not allowed to be public, so I won’t give any details that aren’t already on this post. But I’d like to point out something Ryan already stated above: “it was lengthy and expensive.” A few things about that comment:
1. My understanding is that it wasn’t lengthy at all, as a matter of fact, most of what they asked for didn’t happen, and multiple pages of requests turned in to a few bullet points of things that they wanted changed about the website which from my understanding happened very quickly.
2. They asked for not only attorneys fee’s to be covered, but also for damages. I believe it is safe to note, that if this was costly for them, it was because they didn’t get any of that. And the only reason they wouldn’t have gotten it, is if their argument wasn’t strong enough.
Here’s the deal, and this is really why I am writing this. While I was there, I saw hundreds of things happen where Musicbed had the right to sue. Every week, they deal with people that have misused music, or have copyright infringements. While I can’t speak to the last year or so. I can tell you that I never once saw them sue anyone. It was always done with a phone call.
There were even 3 situations (that I can remember) where they had the right to sue other companies for the very thing that this lawsuit is about, but yet, nothing. Just a phone call. The CEO or someone else would take a call, would have a conversation with the other party, and then they would find some sort of common ground where everyone was happy, and people were given the opportunity to right their wrong.
And from what I have ever heard, the whole team has nothing but respect for Ryan and his team. They are willing to admit their faults, and they are willing to make things right. I saw it first hand.
Anyway, Lucy, just know that if you are using either company, you are in good hands, and supporting good people!