Happy World Intellectual Property Day. Because, um… you know… it is.
To celebrate, the Canadian Intellectual Property Office talked a trade-marks examiner into writing about how exciting her job is. She quoted Forrest Gump. I wish they had managed to get the patents examiner who apparently decorated his cubicle with a picture of himself wielding a sword, because to be honest that sounds more interesting.
I will be very interested to see how this series develops.
I grabbed this then forgot about it. After the jump (cut for the sensitive), a portion of the webpage at stitchnbitch.com, circa March 28, 2006.
The links have been reordered since then.
A response to Stoller’s motion to amend the petition to cancel has been filed. Not surprisingly, SFSE objects to the proposed amendment.
Some levity, more backstory, a public appeal(?), then the substantive argument…
Let’s dispense with the levity first.
This response to the motion to amend characterizes the proposed amendments as “nothing more than the latest in a string of continued efforts by Petitioner [that's Stoller] to harass Respondent [that's SFSE]” and that “[s]imply put, the proposed amendment is not being made in good faith but as a tactical maneuver to literally drown Respondent in litigation costs.”
(I must interject, I’ve never used the phrase “literally drown” in such a context myself. “Literally” drowning is much more severe than “figuratively” drowning.)
This response also notes that the cancellation proceeding was instituted “on the eve of Christmas”.
Christmas, people. Can’t we all just get along?
To be fair, the cancellation proceeding was instituted by Stoller on November 7, which puts it around the beginning of the shopping season. However, the Trademark Trial and Appeal Board bears the responsibility of transmitting the petition to cancel to the trademark registrant, and the TTAB’s internal procedures meant that this notice was sent out on December 21, which is close enough to Christmas eve. Stoller’s attorney sent a copy of the petition to cancel as a courtesy to SFSE’s attorney in November. Thus, one might think that highlighting that December 21 date is a swipe at the Board responsible for hearing the cancellation proceeding.
The submission also reveals a few more incidents in the Stoller-SFSE saga:
The submission also includes content that, on my reading, appears to be an appeal to the (knitting) public at large. I’m certain that SFSE is aware that each step of the TTAB cancellation proceeding is being reported (so far as those steps are easy to research, thanks to the USPTO website), so they have taken the opportunity to reach out:
On information and belief, Stoller and/or other individuals closely associated with Stoller then launched a campaign to portray SFSE in a negative light. A handful of individuals started to regularly post a series of negative and inappropriate comments on SFSE’s web site, began to post negative reviews regarding books written by the principal of SFSE on Amazon.com, sent derogatory letters to SFSE, organized a boycott campaign against SFSE, and generally pursued a strategy of making it appear that SFSE was attempting to usurp rights in the name and mark STITCH & BITCH – all the while ignoring or concealing the fact that Stoller claimed to own the mark STITCH ‘N BITCH, had filed four trademark applications to secure the mark STITCH ‘N BITCH for herself and for her own benefit, had demanded that SFSE cease use of the mark STITCH ‘N BITCH and, in short, has been seeking to destroy SFSE’s senior rights in the STITCH AND BITCH CAFE mark [sic -- that should be an ampersand, actually] so that Stoller could secure her junior rights in the STITCH ‘N BITCH mark for her own benefit.
and in a footnote:
It should also be noted that some of the negative postings have suggested that SFSE’s enforcement actions regarding groups using the name STICH AND BITCH (such as STICH AND BITCH NYC) [sic] was for the purpose of preventing user groups from expressing their views on knitting on [sic] sewing. Such has never been the case. SFSE took actions to protect its rights and to have online groups change their names from STITCH AND BITCH to another name, not to prevent groups from having online venues. SFSE continues to support and welcomes the free exchange of ideas in the fields of sewing and knitting, and has even invited groups that want to use the STITCH AND BITCH mark for their online user groups to do so on forums that could be created on or through SFSE’s web site for free
No evidence of the factual allegations in these excerpts is attached to this response, although perhaps this evidence has been the subject of the discovery process. And I’m not certain that the TTAB cares whether individuals are free to talk about knitting or sewing online — that’s not the point of a cancellation proceeding. These allegations, while they might colour the proceedings as a whole, don’t seem to be tied into the question to be decided on this motion: should the amendment to the original petition be allowed?
And speaking of that question, there is some substantive argument on this point:
The test for allowing an amendment, as enunciated by SFSE in its submissions, is whether granting leave to amend will not be unduly prejudicial to the non-moving party (i.e., SFSE).
SFSE argues that Stoller was well aware of these additional grounds before the cancellation proceeding was commenced. Apparently, because the Wayback Machine was used to provide documentation, and because so many people rallied to Stoller (or at least, against SFSE), she should have known everything at the outset:
Indeed, in postings and communications from individuals supporting Petitioner, it is clear that such archival web pages [from http://www.archive.org/] have been reviewed, commented on and communicated to Petitioner well before the instant Petition to Cancel was filed.
It’s nice to think that someone thinks the opinions of non-parties count. The submissions also suggest that SFSE thinks that Stoller has had plenty of legal counsel helping her out (at least two different sets of attorneys?) and that new grounds, therefore, could not have “suddenly” been discovered.
However the Board might address the question of whether Stoller should have pleaded those grounds at the outset (was it necessary to have discovery in order to determine that those new grounds were available? consider, for example, the new allegations concerning sewing instruction and manuals, or the precise nature of a telecommunications service provided by SFSE, or the nature of the guestbook functionality as evidenced through the WayBack Machine), the submission seems to only suggest that there would be undue prejudice only because of the increased cost of the proceedings.
As a final note, SFSE’s submission also hints at “expert discovery” and “significant third party discovery”. But alas, no hints at free trips to New York for anybody.
I had been waiting for Carol to post about why she hates the new yarn weight standards, and I see she has done it. I had started writing a verbose diatribe on the subject (was that redundant?) last year, but like lots of other things, it got lost in the pile of drafts. And when Carol mentioned on her blog that she was going to write about them, I wanted to read what she said first, because she works in the field and she writes so much more succinctly than I do.
(Whoa. I just looked at the old timestamp on this post–August 2005. Since I had started writing this post after the standard had been published for quite some time already, I suppose we’d better stop calling it “new”, and just “crap” instead.)
But now I’ll cut all the pendantic stuff I had written and get (closer) to the point.
The standard is vague and overbroad, just as Carol said. And, just as Carol said, the use of numbers to label the categories is confusing as well. Using numbers that increase as yarn diameter increases, and needle size decreases, is just plain confusing. If numbers are such an important label, one could point out that there’s already a number on the label: it’s called gauge. Perhaps if the labels were printed with a small gauge range, such as 4-5 stitches per inch instead of 18 stitches over four inches, some of the problems the CYCA standard purports to solve would be solved, without the use of additional fancy graphics.
But while gauge is the most important number to define the appropriate range of yarn weight for a pattern, it’s not the only factor that needs to be considered when choosing a yarn. Yes, your pattern might call for yarn to be knit at 18 sts over 4 inches; but what does that mean? I can buy a “chunky” yarn, whose label recommends 14 sts over 4 inches, and force it down to 18 using smaller needles; I can buy an “aran” yarn, like bainin, which knits directly to gauge very easily and creates a fabric with a substantial feel; I can buy a mohair yarn that also knits exactly to gauge, but it will feel very different from the bainin.
So, just how important is this attempt at yarn categorization, anyway? This isn’t a situation where manufacturers must comply with specific standards with narrowly defined tolerances in order to guarantee interoperability of their products with equipment manufactured by other companies. In that case, compliance with standards provides the consumer with assurance that if you choose this product, it will operate in a predictable way. However, there are very few circumstances where a knitting designer would promise a knitter that “if you use this pattern with category 4 yarn, it will turn out the way you expect.” Certainly not when category 4 covers both Jo Sharp Silkroad Aran and Multi-Fizz.
My own view is that the CYCA standard is simply a tool to make business easier for the larger enterprises, not for the consumers in this market. For the experienced knitter who has the insight to recognize that a range of yarn weights might work for a design, or that certain yarn types will obscure the design, the CYCA categorization probably won’t add anything to what is already present on the label. On the other hand, the category designations won’t hurt that experienced knitter, either. But these are also the knitters who, as yarn shop or craft store customers, are less likely to require any of the sales staff’s time.
In dealing with the less experienced knitter who more slavishly follows pattern instructions (remember, there really are knitters out there who think they need to knit a sweater in the same yarn and the same colour as the original), the CYCA guidelines are a boon to the retailer: the non-knitting big-box craft store employee can just gesture vaguely at the yarns that fall within that category, without having to explain the difference between “fingering” and “light worsted”–an explanation that requires a (not much) training or experience. The guidelines also provide deniability to the retailer; if the customer returns and complains that the yarn from category 5 isn’t working out at all, the retailer could claim that the fault lies with the publisher or author who specified category 5 in the first place. (Yes, I am aware that many large stores can provide better service than this.)
Alternatively, the categorizations work better for projects that are not seriously gauge-dependent. Scarves, blankets, and other generally two-dimensional objects can tolerate large changes in gauge. Even drop-shoulder sweaters, and loose-fitting raglans, will still fit well enough as long as the gauge isn’t changed too much. Pompons and plant hangers, or whatever else it is that people do with yarn if they don’t knit or crochet, will still work. Assuming (which I do) that these types of projects are more popular with the customers of generalist craft retailers than with specialized shops, again, the CYCA standard is of use to the big-box stores, but not so much to anyone else.
I do remember a time when I needed more guidance than I do now for yarn substitutions. But I remember that I’d flip back and forth between the pattern instructions and the information page in Vogue Knitting, to figure out whether a substitute yarn might be suitable according to their yarn weight table (which had about half a dozen categories, I think), and conclude that this yarn weight table was almost no help to me. When it came right down to it, I needed to match that gauge and produce a suitable fabric, and I did it based on observations of the yarn’s physical characteristics (fuzzy? smooth? length per unit weight?).
If a pattern publisher wants to provide unambiguous information that will allow the knitter to find a suitable substitute yarn, then the pattern should contain more information than simply stating a yarn category and a gauge. For example: “Gauge: 23 stitches over 4 inches (Category 3). Choose a solid-coloured, smooth yarn that knits to the above gauge to ensure that the cables in this design stand out.”
This works with sewing patterns. If you’ve ever looked at a sewing pattern envelope, you’ve seen that the information printed on the back includes fabric suggestions: “Crisp fabrics like poplin or lightweight denim.” “Soft fabrics like challis, chambray or lightweight linen.” Why? Because a soft, flowing blouse with gathered sleeves will simply not work in melton or wide wale corduroy, just as a winter coat would have no practical utility if made up of georgette. The pattern doesn’t quantify the weight of the fabric; that information is usually unavailable to the home sewer (sewist, whatever). Words — real words that have meaning, like “organza” or “batiste” — convey a lot more information about the desired objectives.
Of course there’s a learning curve; a newcomer to the craft won’t learn what seersucker is by osmosis. Similarly in knitting, it takes time to figure out that double knitting (8 ply) is twice the thickness of fingering/jumper weight (4 ply). The CYCA standard sought to eliminate yarn weight terminology confusion by dropping all of those idiosyncratic weight names, and replacing them with a tradition-neutral numbering system. What it actually does is defer the confusion to a later stage of a project: the part where the knitter starts wondering why her project doesn’t match the pattern schematics.
Hey, look, there have been developments in everybody’s favourite trademark dispute.
Deb Stoller has filed a motion to amend her petition to cancel SFSE’s trademark to add new grounds.
The parties have been going forward with discovery–interrogating each other’s representatives in order to discover what relevant evidence exists. And based on those revelations, Stoller wants to amend her petition to add further grounds for cancelling the STITCH & BITCH CAFE mark.
If you check out the above link, start around page 4 of the proposed amended document. In a nutshell, the new allegations are that at time the trademark application for STITCH & BITCH CAFE was filed, the mark was not actually in use in association with the wares and services listed in the application.
Trademark rights, whether registered or not, are predicated on use (with all the legal wrangling such a short word implies) in commerce or trade. If you don’t have a trademark registration but are using some mark to distinguish your goods, services, or business, you may have the common law right to protect yourself from others who are passing their own wares or services as yours — but to get that right, you must be using some trademark or tradename, because you’ll need to prove that you have developed a reputation or goodwill in that mark or name. (If you weren’t using it, how could you have goodwill in it? It follows logically.)
If you want a trademark registration, you may file the application based on an intent to use the mark at a later date; but even if your application passes all the procedural hurdles and substantial examination, it will not be registered unless you provide proof that you have begun to use the mark (it’s called a “specimen” — an example of how you’re actually using your mark as a trademark, on packaging, in ads, and so on). If you file a trademark application for a mark that you’re already using, then you may declare your date of first use, and provide a specimen to show how you’re using the mark.
That all seems fairly innocuous, but mistakes can have serious consequences for a trademark registration. Giving an incorrect date of first use may invalidate a trademark registration. Because trademark registrations are based on assurances that the applicant believes that they’re entitled to the mark (a subjective opinion), and that they’ve been using it at least as early as the date they say they’ve been using it (which should be objective), those dates are important. (Now that I’ve harangued you about first use dates, I’ll refer you back to this.)
In the case of SFSE, the application for the CAFE mark was filed in 2000 based on alleged use since November 1998.
But now, Stoller wants to allege that SFSE was not “providing on-line chat room for the transmission of messages among computer users concerning sewing via a global computer network” under International Class 38 with the CAFE mark.
Registered (and applied-for) marks are classified according to the wares and services for which they’re used. Since more than one entity can use the very same trademark for different products or services, there needs to be an orderly way to categorize trademark registrations to make it easier to determine whether it would be confusing to allow two people to use the same mark. Someone using the trademark KNITZ for fungicides in IC 5 (why not?), business-wise, would probably never collide with someone selling KNITZ beer in IC 32 (why not indeed?), and customers may never mistake the beer as a product of the fungicide company (we hope). The International Classifications are quite broad, though, and they’re not determinative of confusion. It’s conceivable that two people with similar marks could coexist in the same class, and it’s quite possible that similar marks in different classes could be confusing.
Applicants often tailor the description of their goods and services to match the wording in international or national classification manuals, because the wording must be in ordinary commercial terms that other people in the industry would understand, and examiners like to see things that match their classification manuals. Note the usage of “transmission of messages” and “global computer network” in the CAFE mark service description: those are phrases in the manual.
International Class 38 is “telecommunications“. That class covers services involving one-to-one and one-to-many communications using technology. In the amended petition, one new ground is that the services that were provided as of 1998 in association with the CAFE mark–the guestbook on the SFSE site–was not a service in IC 38, because SFSE did not actually provide telecommunications service, just the guestbook. In other words, to provide a service in IC 38, SFSE had to act as some kind of Internet service provider to provide access means to their site.
On a related point, another ground is that the “chat room” that SFSE purported to provide wasn’t a chat room at all, because it was incapable of providing real-time messaging. I think a number of us noted the guestbook nature of the SFSE forum some time ago–in fact, I think that occasionally a poster would ask (in the guestbook) if there was a way to easily find a conversation thread or previous guestbook entry.
The amended petition also presents grounds for expunging the CAFE registration in respect of the remaining services, “sewing instruction and manuals distributed in connection therewith”. In the original petition, this part of the trademark had not been attacked at all. Evidently the discovery turned up some new information: that if there had been use of the CAFE mark in association with sewing instruction in 1998 (which is disputed), it was not in interstate commerce. (Trademark registrations are governed by Federal law.) And whatever use SFSE had made of the mark for sewing instruction, it had abandoned that use for long enough that the registration for those services should be expunged.
There are also a couple of allegations of fraud on the Trademarks Office, based on the fact that SFSE knew that it wasn’t actually using the mark as declared in the application. Fraud allegations are not unusual in IP proceedings, but an actual finding of fraud by a court or administrative tribunal is not so usual.
In the end, even if the trademark registration is cancelled, it doesn’t mean that SFSE will have lost its rights to use its trademark. It simply wouldn’t be registered, which would make it harder to enforce against others. But would that factor sway ISPs?
(Thanks, Yvonne, for the TTAB alert!)
Look at this: a second-hand needle shop.
An interesting concept: useful for collectors who can identify a good find from the pictures (thumbnails link to larger pictures, but they’re not very clear) and for those with a limited knitting budget in the right country (free shipping with a minimum order within the US). But it would still seem worthwhile for a potential customer to hit the local thrift shops first.