journal

Let’s make a deal

There are some things I’ve written in bits and pieces to others about publishers and publishing contracts and whether it’s worth it for an author of hand knitting patterns (or rather, the designer and pattern writer, since these roles are frequently combined) to self-publish, or publish through a third party. I figured it was time to collate some of them in one post. (A lot of this is on Ravelry, which already does have several thousand members and everybody will be assimilated soon, but those posts are buried in old forum threads, now.)
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If it’s on a t-shirt, it has to be true.

They will fight using trademarks, and they will fight using t-shirts?

I confess that because of the early hour I don’t know what to think. It would make sense as some kind of third-party guerrilla tactics designed to lower the brand’s value, because otherwise it seems like a misguided attempt by the company to have a little fun, but with the same end result of damaging its own goodwill. You decide. And see who else hearts this New York sewing enterprise, too!

I don’t know who this Jenna in Toronto is, but if Google is correct, she’s a 22-year-old Russian model working as an escort. That’s some classy clientele!

I wonder, whom do Elissa and Gregory love?

Meanwhile, back in New York…

No progress, check.

Request extension of time for another 2 months, check.

Request granted, check.

If it’s on the Internet, it has to be true

Let us all give thanks, and a tasty seed-filled treat, to our little bird who tells me it’s time for an update. This time, two things:

1. Another extension of time in the cancellation proceedings. The “remember I said?” schtick has officially overstayed its welcome, so let’s just check back on October 13, 2007.

2. I think I didn’t realize (or I had forgotten) that there is a Wikipedia entry for Stitch ‘n Bitch. This ignorance isn’t really surprising; a review of my search history indicates that I had recently consulted that site for “content management system” and “Lynda Carter” and “DIY culture”… but nothing knitting related. Sites like this, which pool the knowledge of users all over the world, are a terrific resource — as long as you realize that sometimes the contributors have their inherent biases or axes to grind.

At this point, you’re probably expecting to see an example illustrating this very point. How fortuitous!

Clicking on the link above will provide you with, of course, the current version of the Wikipedia article. It was actually a hard-fought battle to get it, and (temporarily) keep it, in that shape. Fortunately for us, Wikipedia tracks the changes that were made to an article since its creation, and you can see by following the edit history and the talk page that there have been several skirmishes over the article’s content. Even skimming the edit history gives you a hint of what happened. In short, the content of this article has flip-flopped between a version that mentions knitting groups using the name, the SFSE boycott, and various issues regarding the disputes involving SFSE, and other versions that omitted one or more of these things but expanded on SFSE’s services, like this one. (If this is an example of a pro-SFSE editor’s work, one wonders why the references to Debbie Stoller were left in. So that people searching for Stoller’s name would find this information about SFSE? Because deleting it would have been too radical an edit? I wonder.)

What has happened to this article is called edit warring, and as a consequence the article has been protected against further edits for a month. This isn’t the first time that this sort of thing has happened to this article, according to the history, but just for fun let’s take a look at the latest straw that might have broken the camel’s back.

Specifically, let’s step back to earlier today. There was some radical cutting and pasting to line 19.

It used to read:

In fall 2005, Sew Fast Sew Easy took legal action to police its trademark to prevent consumer confusion with products found on the internet. Due to letters claiming trademark infringement from Sew Fast/Sew Easy’s lawyers, knitting groups that had accounts with [[CafePress.com|CafePress]], an online merchandise site, were forced to remove all items featuring the phrase “Stitch ‘n Bitch”. Local groups that communicated with each other through [[Yahoo! Groups]] were similarly forced to remove “Stitch ‘n Bitch” from the name and description of their group.

But then it was changed to:

In fall 2005, Sew Fast Sew Easy took legal action to police its trademark to prevent consumer confusion with products found on the internet. In 2007, the internet encyclopedia [[Wikipedia]] was sent a cease and decist order requesting their company information be posted in the online encyclopedia since they are the legal trademark owners or have the entire article removed.

(Note: we don’t know that SFSE had its lawyers do this, since it could have been SFSE’s personnel who did this work, so the sentence referring to “Sew Fast/Sew Easy’s” lawyers may have been inaccurate.) But otherwise, who could have wished to delete this information about actions taken against knitting groups? I wouldn’t know. All I have are clues.

Item: IP address (which I didn’t bother looking up myself).

Item: Spelling and sentence structure.

Item: The edit refers to cease and desist correspondence. Unless this action were publicized (was it?), generally only two parties would know that a C&D letter had been sent: the recipient, and the sender. (Also their lawyers, but their lawyers wouldn’t be editing Wikipedia.)

Plus, the talk page for this article, where contributors can explain and debate the changes made, includes this unsigned comment in support of the August 17 edits:

This article will continue to be changed back until either Wikipedia removes this article or Debbie Stoller stops attacking Sew Fast Sew Easy. I support Sew Fast Sew Easy in their endevours to continue using their trademark which they have been using for years until Debbie Stoller decided to sue Sew Fast Sew Easy because she was denied trademark status.

Could this be the aforementioned “cease and desist order”? No, that would be too circular.

Hmm.

An inherent axe is a painful thing.

… and then they ended it

Further to the earlier post: Artyarns voluntarily dismissed their action against Tilli Tomas on July 25. TT had never served an answer or taken any step with the court.

Perhaps they’ve arrived at some agreement?

Personally, I still don’t like most twisted singles, much less aran-bulky weight ones containing silk. They still look worn out too quickly for my liking.

Live! Now!

We interrupt the previous rant to bring you the latest news flash from the administrator of the Stitch & Bitch Cafe. I’m not certain what motivated the mass e-mailing, because this information has been posted on their own forum since June 22. But still, I know you’re not all checking that forum, so you’re missing the posts by “Hipster” about “big belts” and by “joefrankberg” about “How to earn money”.

I really enjoy that bit right after the header.

From: stitchnbitch@sewfastseweasy.com
Mailed-By: swishmail.com
Reply-To: stitchnbitch@sewfastseweasy.com
To: stitchnbitch@sewfastseweasy.com
Date: Jul 31, 2007 10:11 PM
Subject: Opening of the LIVE Stitch & Bitch Cafe

The following is an email sent to you by an administrator of “Stitch & Bitch Cafe”. If this message is spam, contains abusive or other comments you find offensive please contact the webmaster of the board at the following address:

stitchnbitch@sewfastseweasy.com

Include this full email (particularly the headers).

Message sent to you follows:
~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Sew Fast Sew Easy proudly presents our newest project - the LIVE version of the Stitch & Bitch Cafe. Digital learning workstations in our retail location.

Stop into the cafe to learn to knit, sew or crochet, get your notions or find our when the next Stitch & Bitch nights are. Learn all the basics to knit or crochet or learn to sew a fly zipper or make a pair of low-rise men’s briefs for yourself or your boyfriend.

Thank you so much for the many letters of encouragement and for your continued patronage.

Sincerely,

Gregory Garvin

Vice President

Sew Fast Sew Easy, Inc.

Oh, look. He’s still there. And he’s the vice president!

When shall we three meet again? (now with edits!)

In thunder, lightning, or in court?
When the motion for costs done,
When the new lawsuit’s lost and won.

ETA: since Kim has taken the time to post a comment, I’ve edited this post to reflect some of what she wrote. Read it over, and see if you’ve changed your mind.

What do you do when you lose one trademark battle in court against an adversary with deep pockets, and wind up owing a lot of money?

You sue the same adversary again, apparently. If you know the story, skip the next five paragraphs.

Those Harry Potter (or Canadian trademark law) aficionados among you might recall that in 2005, a Canadian band called Wyrd Sisters (if you’re reading at work, if you click on that link all the naughty bits are obscured by the guitar — but if that still concerns you, try the Wikipedia entry instead) sued Warner Bros. Entertainment, among others, over the release of the fourth Harry Potter movie, Harry Potter and the Goblet of Fire.

The fourth book of the HP series introduced a band called the “Weird Sisters” — a name evidently drawn from a phrase used repeatedly in Shakespeare’s Macbeth, and referencing the fates — and Warner Bros. had apparently planned to include references to the band name in the Goblet movie and in soundtracks and had engaged in some publicity regarding their plans. The company did, first, engage in some due diligence, and contacted bands already using similar names to obtain consent for the use of the name. One was a U.S.-based band, Three Weird Sisters. Another was the Canadian Wyrd Sisters. Warner Bros. entered into negotiations with the bands (the starting point of Warner Bros.’s offer might have been zero). Three Weird sisters, the bands some payment in exchange for permission to use the Weird Sisters name, and the U.S. band, at least, was going to accept some deal.

The Canadian band, on the other hand — which had already met with some significant measure of success in Canada after nearly twenty years — didn’t like the idea so much. Whatever compensation While Warner Bros. might have offered would have paid offered some compensation for their use of the name, the band leader didn’t think it was enough – what she wanted was acknowledgement in the film credits, but that was apparently not acceptable to Warner Bros. Whatever popularity the band had in Canada, it certainly would be overwhelmed by the notoriety of the Harry Potter franchise, and in her view, the public would think that the band had copied their name from Harry Potter.

In the end, negotiations between the Canadian band and Warner Bros. broke down, and the band leader sued Warner Bros. in Ontario Superior Court and sought an interlocutory injunction against the release of the film. Before the hearing, Warner Bros. decided to pull all reference to the Weird Sisters band. While there is still a band performing in the movie for a short period of time, there’s no reference to the band’s name at all; only those who were acquainted with the book would know what the band’s name might have been. This apparently didn’t find favour with HP fans (if you scroll down on that Three Weird Sisters page, you’ll see a reference to angry e-mails received by that U.S. band as a result of Warner Bros.’s decision), but it was, after all, the safest thing for Warner Bros. to do. They screened the movie for the Wyrd Sisters band leader and her lawyer to show that the movie would not contain and Weird Sisters reference.

But that wasn’t enough. The band leader proceeded with the injunction hearing anyway. sued Warner Bros. in Ontario Superior Court anyway, and sought an injunction against the release of the film. (Although it was reported that the band leader would have been happy with a one-line acknowledgement in the movie, who knows if that was on the table during negotiations, or only after the lawsuit was started.) According to the reasons for judgment issued by the court, the argument was that despite the removal of verbal references to “Weird Sisters”, the damage would be done anyway, because the public would be confused, and would think that in buying the Wyrd Sisters CDs and attending their concerts, they were buying the music or attending the concerts of the band referenced in the Harry Potter franchise. However, the court found that the evidence on this subject was too speculative, and that Warner Bros. had taken every reasonable step to avoid confusion; the motion was dismissed, and months later the band leader was ordered to pay C$140,000 in costs.

After she lost the interlocutory injunction motion, the band leader also filed a Canadian trademark applicaton for THE WYRD SISTERS. When it was advertised for opposition in 2006, Warner Bros. (who by then was owed the $140K) opposed her mark; it seems that opposition is still pending. The band leader also filed a U.S. trademark application in October 2006, which is still pending; it hasn’t reached the stage at which Warner Bros. can oppose it yet.

Presumably, there would have been some attempt to settle the costs order, if not a further attempt to settle the entire dispute. We can at least guess that the latter, if it happened, didn’t succeed, because the band leader has sued Warner Bros. yet again — this time, in Federal Court.

While the timing of the lawsuit anticipated the release of the fifth movie, Harry Potter and the Order of the Phoenix, she did not seek an interlocutory injunction restraining the distribution of the movie pending trial (and for that matter, unless someone can tell me differently, there is no reference to the Weird Sisters band in the fifth book, nor in the movie… what about those Famous Witches and Wizards cards? and there’s only one reference to the Weird Sisters in the book, easily avoided in a movie rendition). I haven’t seen any of the court documents, so I can only guess that this lawsuit is intended as leverage in negotiations, but Warner Bros. isn’t planning to let that happen: they’re bringing a motion to stay the action.

Chain of title

In Spanish, it means chain; in French (if you add an “s” to the end) it means lock. Either way, it seems that somebody secured the resolution they wanted. Now we know why the action was discontinued.

In text (the notice is on the KnitPicks website, too):

Special Note: In August, our Sierra yarn line will be renamed to Cadena - the exact same fiber content, construction and weight, just a brand new name, and we’ll be adding new colors!

Mmm… pizza.

CBC just sued Locoboy (sorry about the music playing in the background, at least it’s better than low-quality vanity site background music) for trademark infringement over his Hockey Fight in Canada shirts. Well, he’d been warned; it remains to be seen if he gets benched.

Which reminds me… what ever happened to that American who had been selling shirts adorned with something that looked very much like the exploding pizza logo? And $24.99? Is this a funding thing? Sigh. Someday, I’m going to break down and buy one, anyway.

(Also just learned: the CBC has a blog. If they’ll blog about cease and desist letters they send out, maybe they’ll keep a running commentary on their lawsuit, too. But I do wonder why they didn’t try to get that HNIC domain name.)

Only until they change their minds

By now, some of you have heard about the U.S. Supreme Court’s antitrust ruling yesterday on resale price maintenance — I know, because you’ve e-mailed me! I haven’t downloaded and read the decision yet, but the court changed the law and, as this article suggests, lifted the ban on distributors fixing minimum prices for their retailers. (No, the case had nothing to do with yarn; it was about handbags.)

This doesn’t mean that all resale price maintenance is legal. What the court did (in a 5-4 decision) was abolish the rule that resale price maintenance is per se illegal, because sometimes fixing minimum prices could actually promote competition (this is not the same as conspiring among competitors to fix a minimum price; this is just about a distributor telling its retailers to sell at a fixed price). Instead, each case of resale price maintenance must be evaluated on a case-by-case basis to determine its anticompetitive effects. In the case at bar, the fixed minimum price gave small businesses the opportunity to compete on customer service against discount chains (whom, I assume, did not sell the exact same high-quality product).

You can imagine that distributors will probably be quite pleased with this. At first blush, I can see that the argument makes sense with goods that are carried by large and small retailers alike and that are, as far as the consumer is concerned, non-substitutable. Consider what happened to small, independent book stores. You don’t hear readers saying “I’d like to read the Discworld series, but I don’t want to spend all that money on the books. Can anyone recommend a cheaper substitute that has some sort of special, unseen school for wizards?”* Someone’s going to buy the book, or they’re not; if multiple retailers want to compete, they have to carry the exact same book, not some substitute book about wizards. Considering the number of small shops that have folded, perhaps customers do not attribute a value to customer service that’s equivalent to the price difference between a local bookshop and the local big box store that can afford to discount the retail price. A fixed minimum price might have helped those shops.

One the other hand, it makes less sense when the product is substitutable with goods of similar quality. To bring this back into our context, knitters look for substitute yarns all the time, so even yarns from different suppliers compete on price and quality. Sure, some yarns are unique, but there’s often something just as good, depending on the knitter’s standards. A yarn shop doesn’t need to compete with exactly the same products; it can choose to carry Cascade 220 or Ella Rae Classic, and make its customers understand that the yarns are perfectly substitutable.** If a yarn is competing against other yarns sold by other retailers, then insisting on a minimum retail price arguably harms competition. If a yarn was only competing against itself, because it was the only pure silk yarn spun with pure gold beads shaped like Elvis that was rated for use in -40°C weather,*** then the competition would be between shops selling the same item, and a minimum price may make sense.****

Interestingly, I’m not certain where patterns fit into this. Lots of people will substitute one pattern for another, because they just want a sock with a certain type of heel, or a raglan with some kind of cable decoration, but they don’t want to pay for a pattern, or they have a low ceiling on the price they’re willing to pay. Some patterns, though, are less substitutable than others.

Off to digest.

* Pretend we don’t have libraries.
** Yes, I know some people might threaten a lawsuit over claims that certain yarns are substitutable with certain other yarns. This is the gateway to the fascinating intersection of trademark and antitrust law; trademarks and other intellectual property rights are a form of permissible legal monopoly, contrary to the basic premise that monopolies are bad; businesses are within their rights to legitimately exercise their IP rights to compete against others. Identifying when wielding IP rights becomes an anticompetitive abuse of those rights is a fun question.
*** Don’t get any ideas.
**** I am only making a crazy hypothesis; I am not saying that producing pure silk yarn spun with pure gold beads shaped like Elvis that was rated for use in -40°C weather will keep you on the right side of any country’s antitrust laws.