A suit in sierra

One thing you have to understand about intellectual property attorneys, see, is that they like to make jokes. Sometimes very bad, punny jokes. In the middle of meetings with clients, or maybe during trial. In that sense, they share a trait with many bloggers, who like to try to make up hilarious blog post titles that really aren’t that funny at all.

So, I’d like you to know that I auditioned a number of titles for this post:

The Treasures of the Sierra Trademark
The Trademark of the Sierra Madre
You Sierra, I Sue Ya
Cascade gets KnitPicky
Cascade has a knit to pick with KnitPicks
same as above, but “Crafts Americana” instead of “KnitPicks”
Sierra you later, says Cascade to KnitPicks
A Cascade of Litigation falls on KnitPicks

Have you figured out what this post is about, yet?

Here’s a hint: Cascade Yarns, whom you may know as KFI’s bestest buddy, and who would never, ever dream of starting off an industry-wide controversy alleging that its fellow distributors’ merino/acrylic/cashmere yarns lacked the cashmere content they claimed, right before — oops! introducing its own competing version with exactly the same content, complete with a test report confirming the advertised quantity of cashere, sued Crafts Americana in December for false designation of origin, unfair competition, and trademark dilution because its KnitPicks division has been using SIERRA as a trademark for yarn. Cascade, according to their complaint [PDF], has been selling its SIERRA yarn since 1997. Cascade’s yarn is a pima cotton/wool mix. KnitPicks’s version is wool and superfine alpaca. (Neither company has filed a U.S. trademark application for SIERRA, by the way.)

I’ve been wondering whether yarn companies actually hash these things out. Since only in extreme cases do lawsuits actually get started (and only in the extreme of extreme cases doee the lawsuit not settle and go to trial), I guess that yes, they do squabble about this sort of thing, particularly now that there are so many competitors.

It’s early days, yet. Crafts Americana has not yet filed a defence.

This complaint might have merit, but in view of last year’s (continuing) events, one can’t help but think of instances where companies have tried to protect their market share by negative campaigns and lawsuits against competitors. Because, you know, there are others.



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15 Responses to A suit in sierra

  1. BB says:

    Yep, I was waiting for folks to remember all the Sierra yarns. It’s like trying to copyright the name Alice (no wait, didn’t SWMNBN) try that once?).

  2. knitress says:

    J: Thanks for the info on trademark (which I’ll add to the econ class I teach on ip-related subjects!)

    About Cascade and the FTC: Back in November, one of the principals in Cascade visited my LYS to sell yarn. He’s the son of the original founders/owners.

    I happened to stop by the shop that afternoon (wearing a Cascade 220 sweater by coincidence!). When we were introduced, I asked him whether they’d filed an FTC complaint and if they hadn’t, why they didn’t.

    He told me that the whole thing was “up to the lawyers” and he didn’t know if they’d filed such a complaint or if it had been considered.

    I wasn’t impressed, to say the least. I am even less impressed now.

  3. kbsalazar says:

    There are lots of sources around these days that list yarn names of current and recent products. I’ve even heard back door rumors that some of the more astute yarn makers and distributors look up potential names on wiseNeedle to help them find more distinctive branding. (Not a use I envisioned when I started the thing, but what the heck. Useful is useful.)

    For the record, I’ve got six recent Sierras in the listings:

    Sierra
    Double Knitting – 8 ply 100% Wool
    Crystal Palace Yarns 1995

    Sierra
    Worsted – 10 ply 80% Cotton, 20% Wool
    Cascade Yarns 2002

    Sierra
    Worsted – 10 ply 80% Wool, 20% Alpaca
    Peruvian Collection (Elann) 2003

    Sierra
    Bulky – 12 ply 45% wool, 20% Viscose, 20% Polyamide, 15% Angora
    Lang Yarns 2003

    Sierra Aran
    Aran 80% Wool, 20% Alpaca
    Peruvian Collection (Elann) 2006

    Sierra Lana
    14-Ply Super Bulky 100% Pure New Wool
    Manukau Wools, Ltd. (New Zealand) 2001

    Sierra as a unique name? I laugh.

  4. Kate says:

    Elann Peruvian Connection worsted weight wool might or might not be from the same mill as Cascade 220, but they’re very different yarns. EPC is a 3 ply, possibly woolen-spun, while 220 is a 4 ply, probably worsted-spun.

    On the topic of yarn names, Cascade has a new cotton called “Luna” – but On Line has had a yarn by that name for at least a couple of years.

    Should On Line (distributed in the US by KFI) now go after Cascade?

    I suspect some of this posturing may simply be due to testosterone poisoning.

  5. Bryn says:

    And let us not forget Mountain Colors who markets a “Sierra,” as does Great Adirondack Yarns and Prism “Sierra Cotton Crepe.” Why isn’t Cascade getting all huffy about that?

  6. lori says:

    I have wondered if Elann’s versions of Peruvian yarns and other yarns (ie. cotton-elastic Esprit and Cascade Yarns Fixation) could be one and the same as Cascade Yarns’ or at least from the same mill/Peruvian connection so maybe Cascade can’t pick a bone with them (if they don’t have an exclusive contract with such a supplier)? (But, I don’t really know this for certain, it’s just an observation).

  7. j. says:

    It’s true that Coats/Rowan relabelled one yarn, and apparently JCA issued a recall for Adrienne Vittadini Trina, and the test reports say what they say, until someone disproves them. And I willingly believe that people who buy yarn that contains less than 15% cashmere because it contains cashmere are being fooled (although they may be fooling themselves). To the extent that there is a problem and consumers are being deceived, Cascade did the public a service by blowing the whistle.

    But.

    The error in Cashsoft content, according to Westminster Fibers, was not in the cashmere. Apparently the cashmere quantity was accurate. It was the acrylic content, which was 40% instead of 33%. (Their statement leads to the conclusion that it contained less wool than labelled, but not less cashmere.)

    It is not clear whether the lack of cashmere is a qualitative or a quantitative one. There could very well be cashmere in these yarns, just not very good cashmere. It could completely stem from the definition of “cashmere”. Are we going by the definition in force in the U.S. as of January 1, 2007 (19 micron diameter) or by something else? For example, if you want to know what legally passes for cashmere in Canada, search me — aside from the fact that it has to come from the right goat, I couldn’t find a quantitative definition of cashmere for Canada. As pointed out earlier in the comments (in another post–sorry, not checking right now), it’s possible to reveal the presence of goat (cashmere) fibres by a test, yet not have “cashmere” according to a legal definition. We don’t know what standard each of these labs used for their qualitative analysis; if they were going by fibre diameter only, then what if they did confuse cashmere for merino, because it happened to be 19.5 microns or 20 microns?

    The point is, I guess, that despite the apparent wealth of information we’ve been provided on the tests commissioned by The Knit With, by Cascade, by Designer Yarns, and by KFI, we, the public, still don’t have enough information to actually determine which tests are meaningful. Cascade could be right if we apply a standard of a maximum fibre diametre. But KFI could be right if we don’t. Cascade could be right if it turns out that the cashmere suppliers were ripping off the mills. But then that explains why there were mysterious, incomplete test reports for Italian mills circulated, that indicated the presence of the promised cashmere.

    But the way Cascade went about it is just about the worst way they could have done from an optics standpoint. They didn’t bring a private action (if that sort of thing is possible in the US); if they filed a complaint with the FTC to get the FTC to investigate, they didn’t say so; they just dragged their retailers into the mess and they named names on the basis of apparently one set of tests. If we assume that KFI is telling the truth about the tests it had done — an assumption that can be difficult to make, given their public behaviour and reported behaviour — then we’re left with a battle of expert opinion over cashmere content, and that’s not enough for the public to convict a distributor of ripping them off.

    Why didn’t Cascade spring for more testing if it was going to embark on this PR campaign? (If you’re going to start claiming that your competitors’ yarns lack their claimed cashmere content — a very actionable tort if it turns out not to be true — you’d think that it would be wise to make sure that more than one testing lab arrived at the same conclusion.) If they felt compelled to write to all their retailers, why didn’t they also do something to prove that they themselves had bought into their position, such as provide a copy of a complaint they had filed with the FTC? A battery of tests? Tests of a control sample that they knew contained cashmere, performed at the same time, so that we know what type of quality passed for cashmere in these labs?

  8. Jessica says:

    Everyone is on Cascade for making the whole cashmere content kerfuffle. But it did turn out that at least one yarn line, RYC Cashsoft, had to change their labels because the content information was not accurate. When I spoke with Cascade I was told they raised the issue when they were preparing to introduce their cashmere blend yarn and were upset to find what the mill sent them did not have the correct cashmere content. This lead to further testing and investigating. They do not blame the yarn companies or the mills but the source of the so-called cashmere which is often just microfiber.

  9. j. says:

    I can see the trademark argument, but without further information the actual success of the action seems doubtful. The yarn names are exactly the same, and the wares themselves are the same. A non-neophyte knitter would actually recognize the difference in gauge and put-up, and the fact that no yarn shop actually offers both products — the only place where they’re side-by-side, really, is in an Internet search. So I hypothesize that someone might have a pattern for Cascade Sierra in hand and may be shopping online for the best yarn price, comes across KnitPicks, and (not being the most sophisticated shopper or knitter) concludes that this is the right yarn, buys it, and is dissatisfied when the project doesn’t come out right. But that’s about the only hypothetical scenario I’ve got right now.

    Carol (the hat one): and that is why I hugged my knees and grinned goofily when I saw this. Litigation karma.

    Saun: the location in which a business is established does not have to be the determining factor in whether they can be liable for trademark infringement, passing off, or some other type of tort in another country. There are the issues of whether the alleged wrongful act took place, and where the harm was suffered. A Canadian distributor doing business in the territory in which the plaintiff has rights may be liable for a wrongful act that is completed in the U.S. elann offers, sells, and ships its products to U.S. customers; it has a return address in the U.S. for U.S. customers; it advertises in U.S. publications (although not necessarily its specific yarn brands).

    Knitress, the U.S. trademark dilution law can be applied to unregistered marks. But Cascade would also have to prove that their mark is “famous” in order to succeed on that claim.

    Kathy: Actually, I had been checking the filings for another knitting-related purpose…

  10. Knitress says:

    Ok, this leaves me with an even lower opinion of Cascade.

    I didn’t understand why they didn’t pursue the cashmere complaint with the U.S. Federal Trade Commission, which is charged with enforcing the relevant law. And if they don’t have a trademark on the yarn name, I can’t see that they have any claim on trademark dilution.

    Let alone unfair competition.

  11. Kathy says:

    Do you have a knitter/clerk in the courthouse tipping you off about these filings ;-)

  12. Carol says:

    Jeeze, can’t we all just get along?

  13. Carol says:

    Wasn’t it C.A. that forced the formerly-named “Knit Pixie” to change their name to “Kpixie”? Hmm, I guess what goes around comes around.

    But this certainly isn’t the first time there’ve been more than one yarn with the same name (Bernat Breeze and Karabella Breeze, Celeste by Jaeger and Berroco, Julia by Vittadini and Nashua, and so on). Geez, now we’ll end up with more bizarrely-named yarns, like “Love It!” and “No Smoking” and “Spazzini” just to avoid potential litigation.

  14. Jenni says:

    The yarns aren’t even the same gauge.

  15. Saun says:

    Isn’t elann a Canadian-based company? Can a US company go after a non-US company?