Do you know those multicoloured knitting needles–those ones made from a laminate composed of different coloured layers?

Who makes them?

… okay, then. Who made them first?

The fact that KnitPick’s popular Harmony needles, cut on an angle from a multicoloured composite laminate, were preceded by Grafton Fibers’s Darn Pretty Needles is not a new discovery. Grafton (now Dyakcraft) had been selling their needles for a while before they were “harlotted” in mid-2007. Dyakcraft had already been in the business of selling small weaving looms, which they called Harmony Looms, for a few years as well.

Of course, given the popularity of KnitPicks, thanks to their competitively-priced yarn, there are probably a lot of knitters out there who believe that Dyakcraft copied KnitPicks unless they have the opportunity to be put right by others who frequented carefully-curated yarn shops or shopped with artisans rather than mass-producers prior to the introduction of Harmony needles. This sort of mistake on the part of the consumer is not unusual when a smaller producer is outsold by a larger company.

The appearance of the Harmony needles must be of significant importance to Crafts Americana, the KnitPicks parent company. Indeed, last year they filed a U.S. trademark application for the appearance, or trade dress, of their multicoloured laminate needles. They also filed a trademark application (since registered) for HARMONY for use in association with knitting needles…

You know where this is going, don’t you? If you do, your prior education regarding STITCH ‘N’ BITCH has served you well.

Dyakcraft has started two proceedings against Crafts Americana: a cancellation proceeding against the registered HARMONY mark, and an opposition proceeding against the application for the needle’s appearance. You can see the statements of opposition for yourself here:

Needle trade dress – notice of opposition (PDF)
HARMONY wordmark – notice of oppositiong (PDF)

The story (from Dyakcraft’s point of view) is pretty clearly set out in their opposition to the needles: the sales of Grafton’s “chevron pattern” needles since 2004 in the U.S., the coverage in national yarn trade publications in 2007, the initial contact from Crafts Americana after the needles had been “harlotted” in July 2007, and the offer from Crafts Americana to buy rights in the needle design after the USPTO cited Darn Pretty Needles against them. A copy of Crafts Americana’s proposed assignment and non-sublicensable licence back to Dyakcrafts (permitting them to continue selling their own needles) is even included as an exhibit to the needle opposition.

Some of this information had already been publicized by Dyakcraft already, at least on Ravelry: check out this thread in the bone yard from posts 1617 to 1688. The thread sparked an interesting debate about the realities of supporting small businesses vs. larger discounters, whether KnitPicks “stole” the idea from Grafton Fibers (as it then was), and corporate and individual consumer ethics. Some value judgments were possibly passed based on the poster’s means: if the customer would never have purchased the completely Vermont- and artisinal-made product because of the price, and would only have purchased a product mass-produced offshore because of the lower costs, was there any harm to the artisan?

One poster (maybe presciently) observed that nobody had a trademark on a certain type of wood for making needles. That’s true–it is not the function or the process that is at issue here, since that is not the sort of thing that trademarks protect–but the resultant appearance, perhaps with similar colours in a similar arrangement, is the right sort of subject matter. Are the differences between the KnitPicks needles and the Darn Pretty needles sufficiently distinctive? What impact should the offer to purchase the rights have on the trademark application?

Crafts Americana’s response is due on July 11.

Since it was launched, people have been touting Creative Commons as a great idea. And it is, frankly. There are a lot of creators out there who do want to share their work in a spirit that focuses on attribution and perpetuating the work (because the more a work is distributed the more it will live on, one way or another). And — well, I don’t need to promote CC or point out how it’s been used by various publishers and self-publishers.

But just one thing: please, before you decide to use a CC licence for your work, make sure it means what you think it means.

Publishers may choose the non-commercial use version of the CC licence, thinking that by doing so they have prevented anybody from profiting in any way from the use of their work. When you read the bright, clear language on the allegedly “human-readable summary” page for the attribution-noncommercial-noderivs (unported) CC licence, you see this:

Noncommercial. You may not use this work for commercial purposes.

That’s great. However, you might not realize that this does not guarantee that the CC licence prohibits any commercial use.

Why? Because the CC licence makes a point of stating that, notwithstanding the rest of its provisions, there is no derogation from the user’s fair dealing or fair use rights. If you read a little further down on the human-readable summary page, you’ll also see this:

Your fair dealing and other rights are in no way affected by the above.

(If you’re reading a US-ported version, it will say “fair use”.)

And if you click through to read the actual licence text (which, by the way, was written by a human, too), you’ll see (unported version again):

Nothing in this License is intended to reduce, limit, or restrict any uses free from copyright or rights arising from limitations or exceptions that are provided for in connection with the copyright protection under copyright law or other applicable laws.

The fact is that while much of fair dealing or fair use is non-commercial in nature, some uses of copyrighted works may be fair and have a commercial aspect at the same time. If I do research in order to provide a service to clients who pay me for my work, depending on my activity I may be dealing fairly with the research materials I use, but there is still a commercial aspect to my use.

Let’s take the example of the previous post: the situation where the publisher doesn’t want somebody making money by teaching classes from patterns that are distributed free of charge, even if the teacher directs the students to get their own copies. Clearly, there is some kind of commercial use going on; the teacher (who probably has her own copy) is reading the pattern, and helping her students knit the pattern from their own copies — for a fee. The exam question: would a CC non-commercial licence suit the publisher’s requirements, and why or why not? Would your answer change if the teacher did hand out copies of the pattern, otherwise in accordance with the attribution and non-derivation requirements? Would your answer change again if it was not a teacher, but a retailer who displayed a knit sample next to a pile of yarn for sale, and handed out cards with the pattern’s URL (not the pattern)?

The bottom line is this: if you are uncertain whether a commercial use falls within fair use or fair dealing, and you are interested in prohibiting that kind of use, seriously consider whether a CC licence is your best option. You might need to impose some other kind of licence agreement to protect your work the way you want.

I assume that, for many designs, we can all agree that some of the elements incorporated into a design or a pattern did not originate from the designer, to the extent that the designer cannot really complain if someone else in turn takes that same element and incorporates it into their own design or pattern: a traditional motif, a stitch pattern from a dictionary.

And it could be that it is that element that really “makes” the design. Sometimes the designer has applied her own interpretation to the element, somehow adapted it to make it work in the shape of the garment or accessory in a way that may not have been done before. Yet, the element itself is not new, and we do not question the designer’s right to take that known element, and incorporate it into something from which she can derive profit.

Why, then, is there such objection to having shops teach from those patterns, for pay, without further permission, provided the teacher who teaches from the pattern does not violate copyright in the pattern (for example by running off unauthorized copies (e.g., paying for one and making copies for distribution from that one) or removing the original authorship/copyright ownership information)? Even in the context of patterns distributed by the publisher without charge, if each student is directed to obtain her own copy personally? And provided there is no implication that there was any connection between the shop and the designer, beyond the fact that it was her pattern being used in the class?

This is not so much about the legal underpinnings, as it is me trying to understand why that next step is so problematic for some designers.

Or maybe I do understand, and I don’t realize it. I remember when I finished writing Rogue: I was so proud of it; I had never seen anything like it. And it was time to price the pattern. I knew what kinds of prices had been charged for PDF patterns at the time (Bonne Marie Burns was my benchmark), but I remember thinking to myself that there was no way I could let it go for more than $10/copy. I talked myself down from that price, obviously, but I remember that it was a bit of a wrench to accept that what I thought I deserved was likely not realistic. It’s hard to be objective about your own work.

And initially, I did not like the concept of people knitting FOs for sale from my patterns any more than others seem to do. But then I realized that the likelihood of anyone earning a living from knitting up my patterns alone was pretty slim. The designs that I care most about are not ones that can be easily replicated by machine; there would still need to be a substantial amount of handwork, even if the construction of the piece were somehow changed to maximize the amount of machine knitting. (I do care that knitters are not exploited, which is why my licence specifies that the seller must be the one who knit the item, along the lines of a typical angel policy.)

It also struck me that there was some kind of incongruity: if I was willing to say that hand knit items were undervalued and if I deplored the fact that people had been taught to value the cheaply mass-produced over the artisanally-crafted works, why did I want to deprive the skilled knitter from realizing revenue from knitting my designs, if my designs could help the knitter realize a higher price for her skills?

For Immediate Release
March 12, 2009

Contact: Debbie Stoller, [redacted]
Gregory Garvin, [redacted although tempted]

HEADLINE: Sew Fast Sew Easy and Debbie Stoller Reach Agreement on Trademark

(New York, NY) ?Ǭ? Sew Fast Sew Easy and Debbie Stoller have reached an agreement over the use of the marks ?Ǭ?Stitch and Bitch Cafe?Ǭ? and ?Ǭ?Stitch ‘N Bitch.?Ǭ?

Under the terms of the agreement, Sew Fast Sew Easy’s ?Ǭ?Stitch and Bitch Cafe?Ǭ? mark will be limited to goods and services in the areas of sewing and embroidery, while Stoller?Ǭ?s ?Ǭ?Stitch ‘N Bitch?Ǭ? mark will be limited to goods and services in the areas of knitting and crochet.

“I am glad to report that we have amicably resolved our dispute and differences to the satisfaction of each party,” said Sew Fast Sew Easy’s Vice President, Gregory Garvin.

“We are all happy to put this dispute behind us and are urging all of our respective supporters and other concerned parties to likewise put this dispute behind them and discontinue any remaining boycotts,” said Debbie Stoller, author of the ?Ǭ?Stitch ‘N Bitch?Ǭ? series of knitting books.

# # #

This was in my inbox, not quite 10 months since it was announced that the press release would be “forthcoming”.

On that note, I suppose my next pattern is roughly “forthcoming”. Good! I have enough deadlines.

There is not a lot to read between the lines here; however, one thing caught my eye. The answering defendants admitted, for example, that TKW “purchased hand knitting yarn from KFI spun with 12% cashmere”. Yarn that was spun with, not yarn “containing” or “comprising” (Noro Answer, paragraph 51). This is consistent with the rest of the answer, which does refer to the various tests of fiber composition that were made on the their behalf (or on behalf of someone in the supply chain) and says that the documents speak for themselves.

Some affirmative defences are also set out, including the assertion that the plaintiff had voluntarily assumed a known risk (presumably the risk that the goods were not what they purported to be?) and unclean hands (an equitable defence; where a plantiff seeks equitable relief from a court, the plaintiff itself should not have behaved inequitably itself in relation to the matter in dispute).

I’m not clear what the plaintiff’s inequitable conduct might have been, unless it was the subject of the counterclaims made by KFI: the plaintiff has “engaged in a course of conduct that, upon information and belief, is designed to impugn the reputation of KFI and disparage the quality of its yarn products” — pointing out in particular the yarn recall notice that TKW sent to its customers, and a May 2007 article that was published in The Chestnut Hill Local about the cashmere issue (if you do a Google search for relevant terms, you should be able to find the article). It is alleged that KFI experienced a loss of customers and sales as a result of TKW’s statements. So, KFI is claiming statutory defamation, disparagement, and tortious interference with both existing and prospective business relations.

Complaint filed September 2, 2008: document in two parts, here and here (and exhibits in three, here, here and here), posts here, here, (an aside), here, here and here.

Motion to dismiss filed September 24, 2008: document, post.

Plaintiff’s Response to motion to dismiss filed October 8, 2008: document (sorry, no post on it; haven’t had time, but if all you are concerned about is where the cashmere is, you won’t mind).

Moving Defendants’ Reply in motion to dismiss filed October 23, 2008: document.

Plaintiff’s Sur-reply in response to the above reply, filed November 10, 2008: document.

Memorandum and Opinion in motion to dismiss issued December 18, 2008: document.

Order consolidating the two cases, issued December 23, 2008: didn’t bother uploading the document.

Answer filed by US defendants, January 6, 2009: document, post.

TKW v. Noro, KFI, et al.

Complaint filed October 6, 2008: document here, posthere. Certificates of service on all defendants filed on October 21, 2008.

Motion to dismiss on behalf of all defendants except Noro filed November 10, 2008: document.

Plaintiff’s Response to motion to dismiss filed November 17, 2008: document.

Moving Defendants’ Reply in motion to dismiss filed November 23, 2008: document.

Plaintiff’s Sur-reply in motion to dismiss filed December 8, 2008: document.

Memorandum and Opinion in motion to dismiss issued December 19, 2008: document.

Order consolidating the two cases, issued December 23, 2008: didn’t bother uploading the document.

Answer filed by US defendants, January 6, 2009: document, post.

Alice Starmore’s Book of Fair Isle Knitting. In paperback. August 2009. From Dover.

Dover doesn’t only publish public domain works or collections of clip-art; they publish new works, too (you know, like presidential paper dolls). This title isn’t listed on the Dover website. I thought these books weren’t going to be republished… is there news?

As luck would have it, this is one of the Starmore books I’m missing from my collection. This leaves… well, seven I’ll be missing, but at least a couple of them are available at reasonable prices.

ETA: PDF news on spring 2009 releases from Dover. It’s in there. If the deal was between Dover and Taunton Press, perhaps Taunton had a (sublicensable) right to reprint for its territory. Taunton was the US publisher; there was a different publisher in the UK.

Back when the great Starmore-Jamieson/Unicorn blowup occurred (in 2000), Herself had stated that she would not republish “the books that I produced during the distribution period of Broad Bay and Unicorn”. In her letter to retailers, she was silent on the earliest works and those that didn’t use Unicorn-distributed yarn. Alice Starmore’s Book of Fair Isle Knitting was only book published by Taunton. (She had written articles for Threads magazine, but Taunton has already republished those in another book.)

When we last left the cashmere conundrum, we were waiting for developments on the motions brought by certain defendants (the US-based ones) in both the Bliss and Noro actions. And now, we have them.

If you recall (what, you don’t?), certain defendants had moved to have the parts of the complaints that were based on federal law dismissed, so that all that remained were the counts based on state law. If the counts based on federal law were dismissed, the defendants argued, then the rest of the action ought to be dismissed from U.S. District Court as well because the proper venue would have been state court.

The defendants had mixed success. Last week, the court issued orders for both lawsuits (Bliss PDF, Noro PDF). In the Bliss action, the count based on the Lanham Act (false advertising under federal law) was dismissed, but the count based on RICO was not (although the grounds for the RICO claim were cut down).

In the Noro action, the Lanham Act count was dismissed, which left only allegations based on state law. However, the court retained jurisdiction over the action because of the diversity of citizenship (there are companies based in Japan, Pennsylvania, and New York, and individuals from New York and New Jersey).

If you need a scorecard, this is what remains in each lawsuit…

In the Bliss action–

I. (state law) Breach of Express Warranty of the Merchantability of Goods for Resale to Consumers
(against Knitting Fever, Sion Elalouf and Jay Opperman)

II. (state law) Breach of Implied Warranty of the Merchantability of Goods for Resale to Consumers
(against Knitting Fever, Filatura Pettinata, Sion Elalouf and Jay Opperman)

III. (federal law) Explicitly False Advertising Claim Pursuant to the Lanham Act
(against Knitting Fever)

IV. (federal law) Injury to Business and Property Pursuant to Racketeer Influenced and Corrupt Organization Act
(against Sion Elalouf)
allegations of mail fraud and wire fraud remain; allegations regarding witness tampering, obstruction of justice, and exerting influence to obtain documents from a Coats employee struck out

V. (federal law) Conspiracy to Cause Injury to Business and Property
(against all defendants except Knitting Fever)

VI. (state law) Perfidious Trade Practices (Deceit) under the Common Law of Unfair Competition
(against Knitting Fever and Sion and Diane Elalouf)

VII. (state law) Motion to Pierce the Corporate Veil of the Elalouf-Controlled Entities
(against Knitting Fever and the Elaloufs)

In the Noro action–

I. (state law) Breach of Express Warranty of the Merchantability of Goods for Resale to Consumers
(against Knitting Fever, Sion Elalouf and Jay Opperman)

II. (state law) Breach of Implied Warranty of the Merchantability of Goods for Resale to Consumers
(against Eisaku Noro & Co., Knitting Fever, Sion Elalouf and Jay Opperman)

III. (federal law) Explicitly False Advertising Claim Pursuant to the Lanham Act
(against Knitting Fever)

IV. (state law) Perfidious Trade Practices (Common Law Unfair Competition)
(against Knitting Fever and Sion and Diane Elalouf)

V. (state law) Civil Conspiracy
(against all individual defendants, not companies)

VI. (state law) Motion to Pierce the Corporate Veil of the Elalouf-Controlled Entities
(against Knitting Fever and the Elaloufs)

The files linked above include the reasons for judgment. If you hadn’t read anything up to now, finding it tl;dr, the memoranda (reasons) provide a good summary of the allegations made in each lawsuit. I feel compelled to caution first (due to certain earlier observations) that just because these allegations are summarized in the reasons here does not mean that a court has determined that all the allegations are actually true; the test for whether allegations should be dismissed generally requires the court to assume the allegations in a pleading are true.

What’s next? The actions could go forward, or one or more of the parties could appeal one or more of these orders; the moving defendants, for example, did not get everything they asked for. In any event, this action will move about as quickly as… my knitting. Which is somewhat existent, but not quite.

ETA: also, the court ordered that these two actions be consolidated for the purposes of discovery and trial.

Complaint filed September 2, 2008: document in two parts, here and here (and exhibits in three, here, here and here), posts here, here, (an aside), here, here and here.

Motion to dismiss filed September 24, 2008: document, post.

Response to motion to dismiss filed October 8, 2008: document (sorry, no post on it; haven’t had time, but if all you are concerned about is where the cashmere is, you won’t mind).

Reply to response to motion to dismiss filed October 23, 2008: document.

Sur-reply in response to the above reply, filed November 10, 2008: document.

TKW v. Noro, KFI, et al.

Complaint filed October 6, 2008: document here, posthere. Certificates of service on all defendants filed on October 21, 2008.

Motion to dismiss on behalf of all defendants except Noro filed November 10, 2008: document.

Response to motion to dismiss filed November 17, 2008: document.

Observation: the more you type the word “here”, the funnier it looks.

Complaint filed September 2, 2008: document in two parts, here and here (and exhibits in three, here, here and here), posts here, here, (an aside), here, here and here.

Motion to dismiss filed September 24, 2008: document, post.

Response to motion to dismiss filed October 8, 2008: document (sorry, no post on it; haven’t had time, but if all you are concerned about is where the cashmere is, you won’t mind).

Reply to response to motion to dismiss filed October 23, 2008: document.

Sur-reply in response to the above reply, filed November 10, 2008: document.

TKW v. Noro, KFI, et al.

Complaint filed October 6, 2008: document here, posthere. Certificates of service on all defendants filed on October 21, 2008.

Motion to dismiss on behalf of all defendants except Noro filed November 10, 2008: document.