Wednesday, May 4, 2011

Milk and Honey Shoes Copied our Online Shoe Designer

We're all for competition. Competition is good for consumers, competition is exciting and competition helps spur on innovation... most of the time.

2 weeks ago a US based competitor of ours, Milk and Honey Shoes launched a new version of their online shoe designer, and it looks remarkably familiar - it's nearly identical to ours.

We're torn between being angry, annoyed and flattered and we're not entirely sure how to react. We have a friendly relationship with most of our competitors. Jodie and I have had lunch with Tanya from Princess Chic and we shared a spot on A Current Affair late last year. We even refer customers to each other for types of shoes we each don't offer. I've had coffee in London with Julia Grinham from Upper Street and I've spoken with at least 5 other entrepreneurs looking to enter the custom women's shoe space when they've contacted us to learn more about our experiences in the business. We've also blogged about our competitors (prior to Milk and Honey Shoes and Upper Street launching).

While we don't mind well meaning competition, we do mind the outright copying of the work of others. Here's a picture of the original shoe designer Milk and Honey Shoes had on their site:

It was fairly clunky to use, but Dorian and her sister Ilissa the women behind Milk and Honey Shoes, had come up with it themselves and it did some things arguably better than our designer - namely it encouraged users to design in a step by step fashion making smaller decisions along the way - something that we've thought might help solve the problem of too much choice. Rather than re-iterating on what they had, or taking the time to innovate and develop something new, they've instead blatantly copied our work. Here's some side by side shots of their designer with ours:

1. The starting page:


2. The designer:


3. Even the 'drawing to finished shoe' image on their new home page is completely different to what they had previously, and is similar to the feature images on our home page.


The functionality on the new Milk and Honey Shoe Designer is identical to our designer, and entirely different to their original version. Clicking on the 'toes' arrows scrolls the user through different toe types, same with the 'embellishment' and 'heels' arrows. You select a leather from the scrollable box and paint the different components of the shoe in that leather. Their original designer did none of these things. About the only thing that's different is that they've put the functions on the left of the screen.

On the one hand we're flattered. Milk and Honey Shoes are clearly impressed by our work, what we've achieved and would like to emulate that. However there comes a point where emulating the work of others becomes unethical and in our view Dorian and Ilissa have crossed that line. It's ok to take concepts and improve upon them, or to borrow good ideas and meld them into your own. It's not ok to take someone else's work, move a menu from the right to the left and call it your own.

I was reading about a very similar case 2 weeks ago where Movieweb, a movie comparison site copied some functionality from Flickchart, a similar site. Flickchart have commenced legal action against Movieweb and the brief is embedded in that blog post.

Legal action is not normally our style, but then neither is allowing our work to be ripped off so blatantly. From a straight sales and long term business strategy perspective we're not too concerned. If the best Milk and Honey Shoes are going to ever be able to do is copy something we launched on our site 18 months ago we have little to be concerned about. However what does annoy us is offering our user interface on their website might help them get some 'design your own shoes' press coverage from journalists who might instead have covered us. For customers visiting both sites it also begs the question 'are Milk and Honey Shoes and Shoes of Prey the same business?' - a question we were asked by a customer a couple of days ago.

We're unsure how to proceed. What should we do?

30 comments:

  1. Hey Guys,

    It's definitely a tough one, although I would think that the legal action track is probably going to be one of the least productive routes.

    I think you hit the nail on the head with the core of the issue being the need for brand distinction between yourselves and those who have emulated what you have done. If it was me I'd focus my energy there.

    Good luck and congratulations on having competitors blatantly rip you off :)

    Cheers,
    Damon.

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  2. I think it's a reality of being in business. It's not right, but if you're at the top of your game, it's inevitable. You blogged about it, that's one major action you've taken. Legal action is costly, time consuming and emotionally draining. Rather, you should use that time/money/energy to focus on how to become even better at what you do. If they have no ability to innovate, they'll never be able to keep up with you.

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  3. Congrats SOP! Very flattering.

    Does this make you reconsider your shoestring approach? If you had a bunch of capital behind you could potentially move the technology so far ahead of hacks like this and become less imitable?

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  4. I wouldn't stress - yours still looks better...

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  5. Thanks guys.

    Damon - good thoughts on focusing our energies on ensuring there is a strong brand distinction. Will give that some thought.

    Paul B - if we needed motivation to continue innovating heavily we've certainly got it now. :)

    Matt - good thoughts on investment. This is definitely an extra factor leading us in that direction. We're speaking with some potential investors at the moment (as we often do) though we've been taking the discussions a little more seriously of late. Watch this space...!

    Corey - Thanks :)

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  6. Milk and Honey's website is powered by http://karmatechnologies.co.uk/

    It would be interesting to know what brief they were given and who drove the copying.

    http://karmatechnologies.co.uk/aboutus.html
    "Our priority is that your projects are delivered according to your specifications, and on time."
    "We provide a bespoke service and take great pride in our work. Knowing that small things really do matter we work closely with you to create something that you really do want."

    http://karmatechnologies.co.uk/index.html
    "You have your own idea of how your website should be, but is it right for your target audience?"

    http://karmatechnologies.co.uk/contactus.html
    Interesting Philosophy at the end of this, given your case.

    Sib

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  7. Interesting they bother to put this on their footer: "Copyright © 2010 Milk and Honey Shoes LLC."

    Sib

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  8. I had an awesome post full of wisdom and wit, but blogger ate it so you only get this one.

    • I work in the Intellectual property space and your case appears dubious at best– do you have any form of registerable IP? Patents? Designs? Similarity in website relies on copyright which is very, very hard to build a case on.
    • Legal action involves huge amounts of time, money, cost, aggravation – but you know all this (see Fox, early career)
    • Consider this market validation (see Groupon) and would be a great asset to show investors if you decide to capitalize
    • Have you considered contacting MAH in a non-threatening legal action kinda way? Ask them why they thought they could take a piece of the market that SOP couldn’t? Use them as a learning tool. If they don’t play nice, then mock the hell out of them using social media, which you have a great platform in. ‘Shoes of Prey – the company so good, MAH copied us!’

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  9. Michael,

    My wife runs a small business (kids birthday parties) and her content and ideas are stolen with blatant regularity.

    She usually puts a legal shot across the bow and then focuses back on her business and ensuring that she's doing it better than anyone else. Don't be distracted by imitators.

    My advice is to do the same.

    Mike

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  10. From someone who is in the midsts of a massive litigation at work, you only want to get into it if you are committed to the process and going through with it - so time consuming, stressful and expensive! It just sucks time out of everyone that is better spent on the business.

    Perhaps a firmly worded letter putting them on notice might not go astray though?

    Otherwise agree with the comments, focus on your business and distinguishing your brand. People may copy your idea but it is all about execution of the idea! (ps i think their website is ugly)

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  11. i wouldn't bother with the legal stuff.

    keep innovating and changing the custom women's shoe game. they'll always be catching up.

    happens constantly, people do look at the competition and comparison features, look and feel and take elements from it.

    The Chinese have been doing it constantly online. There are clones of nearly every major successful website. There is a clone of twitter called Weibo, 100's of Groupon clones, instagr.am clone, etc...

    It just shows whatever you are doing is working.

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  12. The - good thoughts. Not entirely sure of our legal position on this one but reading the brief regarding the Flickchart v MovieWeb example Flickchart were claiming breach of copyright and an action which must be US based called 'Unfair Competition'. Might have to look into that one should we decide to go down the legal path.

    Mike - agreed that we shouldn't let this distract us, that's good advice. If anything it's an extra motivator to keep innovating hard so that we're constantly moving ahead of competitors like Milk and Honey Shoes.

    Phuong - agreed that it's the execution of the idea that's critical. We'll think through a rejig of our website to ensure we're differentiated some more brand wise. Frustrating that we have to do that, but maybe not such a bad thing anyway.

    Matt - agreed that copying happens all the time, though I think this case is more blatant than most. The Chinese get away with it because IP laws in China aren't really enforced. Still, I agree that it shows what we're doing is working and the best way forward is probably to use this to motivate us to innovate. Still frustrating that customers are now getting confused between us = legal action still possibly a good option.

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  13. Imitation is the best form of flattery Mike...

    Focus the team and your efforts on creating competitive advantage and the rest will be spending most of their time catching up.

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  14. I agree with those advocating taking no action. It's flattery and if they've had to copy anything at all, then are they really going to be a legitimate threat? The only possible winner would be the lawyers on both sides.

    I wouldn't have linked to them from your blog - you've driven a bunch of traffic to their site by doing so. Also, don't refer to them in social media or on your blog - ridiculing them achieves nothing in the end and robs you of the high moral ground.

    Keep innovating, make sure your SEO strategy is right, and make them irrelevant.

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  15. Hi Michael,

    Thanks for sharing this issue. A few thoughts in no particular order:

    a) A polite phone call seeking an explanation would give a good indication as to their commercial attitude toward this issue

    b) I see the use of a lawyer as a useful business device to be employed in the right circumstance. A well worded letter clearly establishing your cause of action and asking someone to desist etc is relatively inexpensive and a useful tool to remind others to exercise proper commercial judgment. It is up to you how far you want to take the process after that.

    c)What are your thoughts on buying out your competitors?

    d) Most importantly, the risk to SOP is entirely dependant on the market power/capability of the infringing group. If you think that the infringement won't make a difference to the end game then just leave it.

    e)I keep trying to remind myself that the designer is only one element to the SOP offering. The most important stuff at least is my mind is how you treat your customers and the quality of your product. I totally understand that the designer is a part of all of that but at the end of the day, it is probably the most easily replicated. It is much harder to replicate the many manifestations of the "attention to detail" concept and the manner in which you interact with your customers.

    Anyway, that is it from my end.

    Best of luck mate!

    Saf

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  16. Thanks for your thoughts everyone, much appreciated. They're still much smaller than us, we're not sure they've hired anyone beyond the two founders, so we're not overly concerned longer term. The issue that concerns us most is that customers who come across us both are getting confused between our websites. Will give some more thought as to how we approach this but we may start with a non-aggressive letter/email to them to express our thoughts and get theirs, we can decide how to take things from there. We will certainly avoid letting this distract us too much, good advice there. :)

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  17. Hi Michael

    Indeed, this bites. Can understand why you're peeved.

    Yes, the comments re it being flattery are true - but not when customers start getting confused.

    I think a gentle legal 'shot across the bows' letter would help matters. I think it would a) make them think twice about copying future innovations you have b) make them take you (even more) seriously and c) make you feel better.

    Beyond that, I'd really have a good hard think as to whether you wanted to go further...legal can be an expensive minefield.

    However, in the immediate future, I would say - Look at this as an opportunity to refresh your home page/shoe designer page layout. Probably time for an update anyway, and as much as I hate to admit it, their site looks cleaner. So: refresh, update and come up with something that says to customers a) no room for confusion with M&H and b) we are the first, we are the best.

    Finally - agree with Doug O. Beyond this blog, don't reference them.

    Good luck

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  18. Hi Michael,

    I'm sure Groupon feels the same way every time a clone starts up. There is probably someone else out there who felt the same way about Groupon when it started. The only way to win is to constantly innovate - if you're current site was the end of the line in terms of innovation I'd be very worried (and I'm not). But in a space where ideas can be copied easily and freely, massive innovation is usually needed to stay ahead of those with bigger budgets.

    Re your comment on the media - absolutely there is the risk that they will get coverage from outlets that are unfamiliar with SOP. My only advice would be an all-out media campaign designed to get SOP in front of every possible media outlet.

    Or don't - you seem to have been doing very well with the strategy as it stands!

    But a legal battle doesn't seem like a smart use of resources.

    Best of luck,
    Brad

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  19. Chutzpah! And now they're getting NY Times writeups praising their site design... http://www.nytimes.com/2011/05/12/fashion/on-the-web-design-your-own-clothes.html

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  20. Your moral outrage is valid and their competitive strategy is flawed because they can't lead by copying. They are being dumb and short sighted. But, their copy is not identical, so note that you basically have no case and the other lawsuit you have cited as a comparison is just another lawsuit. ie: Anybody can sue anybody else and just because they are suing doesn't mean they are doing to win nor was it likely a good business decision to decide to sue.

    Next, you have made an unforced error by giving a competitor free coverage in front of your followers. I had never heard of MAH until you covered them here. They are in the US. I am in the US. I have no reason now (presumably) not to consider them as a purchase option in the future. As a customer, I don't care if they copied a nice site design from somebody else.

    What you should have done is have a nice and private conversation with them for starters and see what you could learn about their thinking and express your potential [legal] displeasure. This, followed by some strongly worded letter(s) for your lawyer to put the fear of god in them (or at least try) would both make you feel better and make it less likely for them to consider doing it in the future. Also, there is some possibility they might actually change their design.

    There is no such thing as bad press. Never, ever, ever, ever give good coverage to your competitors ESPECIALLY when you are already the bigger and more established of the two. You have absolutely nothing to gain by doing so.

    Stay focused on your work and making your stuff better and figure out what you can learn from their copy. They will never pass you up by copying unless you lower yourself to their level in the process

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  21. I happen to know one of the girls and Milk and Honey. I don't believe they set out to copy anyone. They have fired two web developers as a result of their new web design which has caused considerable damage to their sales and ability to move ahead with their ever-growing business.

    If an unethical web developer has done something dubious, to make his life easier, he has involved a site which has lower sales conversions than their previous site.

    That being said, I know there are strict laws against defamation in Australia. So if the girls in question wanted to get involved in a legal dispute then I imagine that Milk and Honey might be entitled to a considerable sum in damage for public slights against their reputation.

    I really don't know why neither of the girls have written their side of the story here.

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  22. Thanks again for your thoughts everyone.

    PHM - A website refresh is a good idea, particularly to differentiate ourselves now that Milk and Honey have moved closer to us. We're actually working on that at the moment.

    Brad - Couldn't agree more re: the importance of innovating and staying ahead. It must definitely be a very frustrating experience for Groupon and I think they've done an amazing job of staying ahead of all their competitors - certainly very inspiring to watch. The press comment is an interesting one. Some commenters have suggested that we don't want to give Milk and Honey any press, others like yourself suggest we can use it to get press for us. We're leaning towards the latter, however we'll wait to see what Milk and Honey do next as their designer is currently down. PS - I hope the book is going well!

    Anonymous 1 - Good thoughts. Since writing this post we actually decompiled the code in their designer and there are stolen pieces of our code in there, so we do have a case. We'll wait and see what their next move is before deciding how to progress.

    Anonymous 2 - Thanks for sharing your thoughts. I think it's a little hard to argue that they didn't set out to copy our designer given they are nearly identical in look and function, and regardless of their intention, the reality is that they are. Since writing this original post we've forwarded Milk and Honey clear details showing code stolen from our shoe designer incorporated into their shoe designer. In addition to the clear intellectual property issues here there is an issue of passing off - our websites are now so similar that customers are confused between our brands.

    It's interesting to hear their sales have dropped from the new designer, if that's the case why don't they just change it back?

    It's not our concern whether an unethical web designer has stolen our code without the knowledge of Dorian and Ilissa (assuming that's what you're implying). Our main concern is the confusion this creates for customers and Dorian and Ilissa launched a copied version of our shoe designer that is causing this.

    There are strict defamation laws in Australia that's true, however a defence to defamation is 'truth'.

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  23. It's not illegal to copy "look and feel" on the Internet. Going down the legal road is only going to cost you a lot of money and give your competition a lot of free publicity. In fact, before this blog post, I've never heard of the other company, and I've never visited their site. This is the reality.

    Like any good business, you have to become more unique than your competition. But, customizers especially have this challenge because so many of the design decisions (thus value added) are made by the buyers. For customizers, there is a very real threat to becoming commoditized. You can copy a product configurator, and you can sell the same materials as the next guy.

    Your strategy should be focusing on things that cannot be copied instead of legal action.

    Just my 2 cents.

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  24. Hi Michael,

    First I just want to say that I find your blogg really interesting and I have been reading it since about a year ago when a friend of mine in Melbourne told me about you guys.

    I agree that your two websites are now very similar, theirs now to the better compared to what it used to look like. I am also trying to set up a customized site, but for dresses, and now when developing the design tool I have of course done some reseach and used several different ones. I remember that theirs used to be hopeless to use, so I wouldn't think that too many customers had the patience to use it. Having said that, it is no wonder that they wanted something more like yours which is really easy to use! And of course, that has inspired my design tool too, which is being build now. Of course it won't be a copy of yours, and it is not even the same product :)!

    Also wanted to share another small anecdote with you. After my Australian friend told me about you, I told my friend Ingrid Skjelbred about you. And of course she already knew about you... the world is a small place!

    Anyways, keep up the good work and keep writing your blog, it is very inspiring!

    Thanks,

    Hanna Karlsson, Norway

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  25. Nicholas - good thoughts and certainly our configurator is only one small part of our business. Agreed that there are no legal issues with copying 'look and feel' however I'd argue that are ethical issues in doing so, particularly in a space as small as ours. There are also legal issues with directly copying source code which, since writing this blog post, we've found has been done.

    Hanna - thanks so much for your kind words and I hope your custom dress business is progressing well. The world is indeed a small place, I met Ingrid when I spent 3 months in Google's Dublin office back in 2008. Say hi to her for me!

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  26. Hi, I've just started reading you blog with this particular post, which is very interesting. Do you know that you have 2 more followers?

    http://www.ateliershoes.com/design.php?shoe=4
    http://loft37.pl/customs/

    I found them because I was looking for better price for custom made shoes or at least company closer to Europe to pay less for the delivery. It was obvious for me that you were first, even without reading the blog. Your designer is great, it's well thought through. It gives impression of never ending options. Difficult to chose but hey :) it's a heaven for women. So other companies just follow and that is where the competition start. Frankly speaking people “borrow” ideas in every business, if you are successful it is certain that you will have followers. Legal way is a waste of time, I am confused with Nike and Reebok, Panasonic and Samsung, Starbucks and other coffee houses. But as a consumer I have better choice. If I am to spend money in Internet I bother to check which option is better. I have forums, Facebook and Google to help me with that. That is the real advantage of Internet shopping, not the aspect of easy shopping without getting out of home. The bottom line is what is important for client - not only fun from designer, but quality and customer service. Hats off - yours is at the moment (without a shadow of doubt) BEST one!

    Alex

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  27. Hi Michael,

    This is hilarious, you seem very passionate that another company has "ripped you off" - how dare they! do they know who you are? you worked for Google for gods sake!.

    My first thought's we're I wonder if the founders of warbyparker.com reacted the same way when they saw your "inspired" version of their business model in sneakingduck.com.

    I agree Milk & Honey shouldn't have copied source code. Yet it seems quite likely you copied a whole business model...hmm which one is the greater act of unethical business practice?

    Yet travelling OS and cloning a proven model not yet present in Australia is a good strategy.

    Michael If you give it, you have to learn how to take it.

    Keep up the passion Michael - you clearly are an "Innovator" on a mission of 'integrity' A true leader of industry.

    Signed Sincerely
    A Fan of True Egoless Original Innovation.

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  28. Alex and A Fan of True Egoless Original Innovation, thanks for sharing your thoughts. 2 points:

    1. Downloading and copying source code is theft of copyright. And regardless of the legal issues, I think there are also significant ethical issues around downloading and copying the source code of others. It's not innovation, it's theft. And beyond just the source code, copying the exact design steps, layout and functionality of something as unique as an online shoe designer, when there are so many other ways this can be done, can't be called innovation. Why didn't Milk & Honey talk to their customers and get feedback on what they wanted in a shoe designer? Our 2D designer was a long way off ideal, and we've since updated it significantly. Any even the way we do it now is still a long way from where our shoe designer will end up. There's so much opportunity for innovation in this space, but Milk & Honey didn't choose to do that.

    2. If you asked an average person on the street I'm confident they would agree that downloading and copying source code, as well as copying layouts and designs of an online shoe designer is very different both ethically and in terms of the level of innovation required, compared to taking a business model that works in another country and applying it in a new market. There are significant differences between the Australian and US retail markets, the way health funds operate, the way a fashion product can be branded and the way goods are delivered to customers. Setting up a similar business in two different markets requires innovation. Warby Parker and Sneaking Duck also don't compete directly, Warby Parker don't even ship to Australia which is the market we're focused on.

    3. While points 1 and 2 stand on their own, for the record we business planned out Sneaking Duck during our time in China setting up Shoes of Prey - before either Shoes of Prey or Warby Parker launched. We'd seen the try on at home model work at Glasses Direct in the UK, we'd seen glasses companies with try on online launch that feature successfully and we'd even originally planned to take the Toms Shoes model of buy 1 give 1 and apply that to glasses (we've not yet launched the latter). While we wanted to combine all these and sell fashionable prescription glasses online, we didn't want to lose focus on Shoes of Prey so put the business on ice until we could bring someone else in (Mark Capps) to set up and run the business with us.

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  29. I am a lawyer and a shoe lover. The look and feel of a software application is protected in the USA. The relevant case is Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir. 1982).

    This principle should apply to a website since it is very similar to a software. You should consult a lawyer that specialises in IT/IP protection in the USA and in Australia.

    Regards and Good luck.



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  30. If competition is key to whoever is the strongest - then what you should offer as an incentive is beat the price or the promos that your competitor is doing. Offer discounts on accessories; or a loyalty discount for next time the customer is considering customizing another pair of shoes. Also, I think as a brand distinction, perhaps expanding to having the individual's name under your own brand can really personalize and provide purchasing power to an individual. Afterall only a person knows what a dollar is worth to them - very similar to 'you haven't walked a mile in their shoes' - play on that and add some personal touches that ensures that loyalty is never compromised and is rewarded.

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