journal

Well, that didn’t take… uh… short.

This, finally:

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) ­ Sew Fast Sew Easy and Debbie Stoller have reached an agreement over the use of the marks ³Stitch and Bitch Cafe² and ³Stitch ‘N Bitch.²

Under the terms of the agreement, Sew Fast Sew Easy’s ³Stitch and Bitch Cafe² mark will be limited to goods and services in the areas of sewing and embroidery, while Stoller¹s ³Stitch ‘N Bitch² 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 ³Stitch ‘N Bitch² 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.

Well, something happened.

Evidently I was waiting out some kind of development to prompt me to blog… about anything.

Withdrawal (by Deb Stoller) of cancellation proceeding against STITCH & BITCH CAFE trademark (except I can’t get the second page of the filing to show up right now — I can only see the cover page).

Settlement? Moving on to the next great catchphrase? Anybody?

ETA: press release should be forthcoming.

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.

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!

Rinse and repeat

Okay, the quoting myself gimmick is done, so here it is, plain and simple: another extension of time sought and granted in the great, excruciatingly boring trademark opposition battle between SFSE and Deb Stoller. The basis for the extension was that the parties continue to be in settlement discussions (you might wonder whether these settlement discussions are actually being pursued with diligence, or if, like the publisher of the Stitch ‘n’ Bitch books, they’re all napping).

Now: the discovery period is scheduled to close on August 14, 2007; SFSE’s opportunity to provide testimony will close on November 12, 2007, and Deb Stoller’s on January 11, 2008; and SFSE’s rebuttal testimony opportunity will end on February 25, 2008. Briefs on the merits from either side will be exchanged in the couple of months following that last date, so look for the parties to actually advance an argument on the merits in Spring 2008. Or maybe ask for another extension on August 14.

Do I hear an echo?

Ahem.

A few months ago, I said:

Remember that cancellation proceeding against the STITCH & BITCH CAFE mark? No? That’s all right, because not much has happened. Discovery was scheduled to close on November 6. The parties requested an extension of time from the TTAB (Trademark Trial and Appeal Board) to January 5. The reason given was that the parties were engaged in settlement discussions (which to my cynical self suggests that the parties probably had some form of settlement discussion, the lawyers were hoping that this would go away, but when it didn’t the parties had to actually had to examine each other’s representatives so they needed more time; so far, no notice of a settlement). The extension of time was granted, which was to be expected.

And then there was an amended answer filed, which resulted in a resetting of trial dates; discovery was set to close on March 17, after which it would be time for testimony. Now, I say:

Remember that cancellation proceeding against the STITCH & BITCH CAFE mark? No? That’s all right, because not much has happened. Discovery was scheduled to close on March 17. The parties requested an extension of time from the TTAB (Trademark Trial and Appeal Board) to June 15. The reason given was that the parties were engaged in settlement discussions (which to my cynical self suggests that the parties probably had some form of settlement discussion, the lawyers were hoping that this would go away, but when it didn’t the parties had to actually had to examine each other’s representatives so they needed more time; so far, no notice of a settlement). The extension of time was granted, which was to be expected.

Please resume your nap.

Same ol’ same ol’, amended

More fun! SFSE has filed an answer [PDF] to the amended petition.

Actually, it’s quite boring; there’s nothing exciting to say about anything here.

It’s probably time to move on to more exciting old topics, like the cashmere content scandal (which is still playing out, but is currently unexciting since everyone has rehashed the details over and over) and cancelling distribution agreements (which was almost overwith, but not quite).

Let’s set a date (and extend it again) [now with edits!]

If you search your memory, you might have recalled there was… some… what was it?

Oh yeah, some dispute over stitching concurrently with bitching. Right.

You’ve probably forgotten by now — I certainly did — that a motion to amend the petition to cancel that trademark, adding new grounds for cancellation, had been filed in April 2006. The response, naturally arguing against the amendment, was filed not long after. Last month, there was a ruling [PDF] on that motion: the amendment was allowed, because it would not prejudice the respondent’s (that’s SFSE’s) rights in the proceeding.

The scheduled event dates in this proceeding were reset as a result. Now, SFSE’s answer to this amended petition to cancel is due on January 11, unless there’s some last-minute federal statutory holiday hocus-pocus I’m not aware of. Discovery is now reset to close on March 17, and all the testimony periods end on September 28.

Unless, of course, there’s more occasion for delay.

In the meantime, of course, Deb Stoller has continued to fulfill her publishing contract, with the crochet and page-a-day calendar released under the SnB name in 2006, while SFSE launched a university, sold chocolates, rocked the online forum world with php (you watch out — they’ll discover blogs next) and… explained once and for all how to go about setting up a Stitch and Bitch™ Knitting Group. In only four steps! Four steps, like the handy guide previously published at stitchnbitch.org [PDF]!

No, no one has prioprietary rights to a method for setting up a knitting group in four steps. However, I think a little comparison might be instructive.

Lady Purl (if you’ve forgotten the stitchnbitch.org’s mascot’s name, she’s Purl, remember?) suggests that you:

1. Find a place to meet.
2. Set up a mailing list.
3. Pick a day and time.
4. Show up!

On the other hand, SFSE would have you:

1. Find a Suitable venue
2. Choose a Day & Time
3. Spread the Word

and…

4. Register your Knitting Group (at Stitch & Bitch Cafe®, natch).

Um. And?

You know, that’s the funny thing about knitting groups. New ones need a leader for a while before they can flourish on their own. It’s… like…

An online forum.

Yeah, that’s it. You can’t just set up a forum, sit back and say “here’s a place to post all about knitting!” and expect the public to participate, without doing something substantial to make the public want to post there. Otherwise, you just wind up with a long list of U.S. placenames and a small smattering of people asking if there’s anyone out there.

Lesson not learned yet, I guess.

Edited to add: Well, this needs to be amended: I’m not right to blame SFSE for innovative failure to note that one must show up to one’s own stitch ‘n bitch, because the correct source for their handy-dandy 4-point guide to setting up your own legally!sanctioned!knitting!group! isn’t the stitchnbitch.org guide. Not directly, anyway. Take a look at this and compare.

So, maybe there’s a different lesson to be learned.

Search and replace

A couple of months ago, I said:

Remember that cancellation proceeding against the STITCH & BITCH CAFE mark? No? That’s all right, because not much has happened. Discovery was scheduled to close on August 8. The parties requested an extension of time from the TTAB (Trademark Trial and Appeal Board) to November 8. The reason given was that the parties were engaged in settlement discussions (which to my cynical self suggests that the parties probably had some form of settlement discussion, the lawyers were hoping that this would go away, but when it didn’t the parties had to actually had to examine each other’s representatives so they needed more time; so far, no notice of a settlement). The extension of time was granted, which was to be expected.

That should have been November 6; I read the wrong date. Anyway, today I say:

Remember that cancellation proceeding against the STITCH & BITCH CAFE mark? No? That’s all right, because not much has happened. Discovery was scheduled to close on November 6. The parties requested an extension of time from the TTAB (Trademark Trial and Appeal Board) to January 5. The reason given was that the parties were engaged in settlement discussions (which to my cynical self suggests that the parties probably had some form of settlement discussion, the lawyers were hoping that this would go away, but when it didn’t the parties had to actually had to examine each other’s representatives so they needed more time; so far, no notice of a settlement). The extension of time was granted, which was to be expected.

The end.

Stitch v. Bitch chronology

For posterity, and because I haven’t fixed up archive access yet, a listing of all posts in this category is available here.

She limps along

When we last left our tragic protagonist, she had cowardly booted Ninja slightly northward to be finished off (actually, restarted and completed in its entirety) by the real heroine. Look: photographic evidence (dated August 22) of its completion. Have I mentioned recently that Wannietta is better than five of me continuously working in a caffeinated state, plus she can drive a bus?

Of course, after that, the pattern had to be multisized. That took a few more days. This pattern has eight charts. (While three of them are so simple they don’t actually need to be charted, this is compensated by the fact that one chart is 80+ rows long without repeats and the remaining four charts, which do repeat, also have finials because they all begin differently. And two of them end differently, too.)

The stitch v. bitch tag lives on, too. Remember that cancellation proceeding against the STITCH & BITCH CAFE mark? No? That’s all right, because not much has happened. Discovery was scheduled to close on August 8. The parties requested an extension of time from the TTAB (Trademark Trial and Appeal Board) to November 8. The reason given was that the parties were engaged in settlement discussions (which to my cynical self suggests that the parties probably had some form of settlement discussion, the lawyers were hoping that this would go away, but when it didn’t the parties had to actually had to examine each other’s representatives so they needed more time; so far, no notice of a settlement). The extension of time was granted, which was to be expected.

So really, no news there. On the other hand, there’s a development in SFSE’s pending trademark application for STITCH & BITCH. And that development is that… there will not be any news in the near future. If you wish, follow along with the document listing here.

As you might recall (or might not), after Deb Stoller filed her four trademark applications for STITCH ‘N BITCH and the SFSE v. people-who-used-”stitch and bitch”-or-a-variant-thereof-to-reference-their-knitting-groups-on-teh-internets! thing started up, SFSE filed a trademark application for STITCH AND BITCH themselves. This application was filed on June 1, 2005, and in the application they sought to claim that their use of the mark had started at least as early as November 1998.

There was just a little problem with this application: technically they were using STITCH & BITCH before this time; whether you consider the additional CAFE bit to be part of their trademark or not, it was an ampersand, not the word “and”. Evidently this discrepancy wasn’t noticed, and the specimens of use that were filed in support of the application contained the ampersand. This discrepancy was duly noted by the Examiner, who issued an office action on December 28, 2005 requisitioning either a new drawing of the applied-for mark, a substitute specimen showing the mark as applied for, or an amendment of the application on the basis of intent-to-use (i.e., an application for a mark that had not actually been used by the applicant yet).

The latter option, of course, would scuttle any claim to use since 1998. So in June 2006, SFSE filed a new drawing — the application is now for STITCH & BITCH, with the ampersand. (If you’re following along with the dates, yes, stuff often gets done very close to the deadline. Don’t read anything into the fact that patent and trademark prosecution often cuts close to a deadline.)

The Examiner also cited two of Deb Stoller’s pending STITCH ‘N BITCH trademark applications (the one for books, and the one for knitting kits) against SFSE’s applied-for mark as being potentially confusing. SFSE didn’t submit arguments regarding this issue, and so this week the USPTO suspended SFSE’s STITCH & BITCH trademark application — meaning, that prosecution will resume once it is determined whether one of those two STITCH ‘N BITCH marks will be registered.

This is not a “good” or “bad” thing, if you’re keeping score. The suspension is a way for the USPTO to save itself, and possibly SFSE, needless work: if Deb Stoller gets one of those two STITCH ‘N BITCH registrations, then prosecution of STITCH & BITCH will resume, and SFSE will have to submit arguments about confusion. If she doesn’t get either of those two registrations, then prosecution of STITCH & BITCH will resume, and SFSE will be spared the trouble of arguing against confusion with one of Deb Stoller’s marks. And of course, the dust will not settle on the STITCH ‘N BITCH applications until the cancellation proceeding is ended one way or another.

Clear? Oh, good. Because we’re not quite done.

If we were to assume that Deb Stoller failed to get her trademark registrations for STITCH ‘N BITCH and SFSE proceeded with its STITCH & BITCH application, and if we were to assume further that SFSE’s application were approved for advertisement, it would have to go through an opposition period in which interested parties could object to the application. An opposition, in a sense, is like a cancellation proceeding, except the opposition relates to a pending application and not a registered mark. So even if the STITCH & BITCH CAFE mark survives the cancellation proceeding, it doesn’t mean the spectator sport is over.

I know what you’re thinking. I can’t believe more people don’t make trademarks their career choice. Such drama!

And if that’s not enough for you, here’s Whip Up’s review of Rip It!, the book by Elissa Meyrich that promises to give voice to your inner designer (that’s a paraphrase). Enjoy.

SnitchU

In our continuing story, Deb Stoller has filed a reply [PDF] in the cancellation proceedings. The reply is on-topic, and very restrained. It explains that the amendments that she seeks to make couldn’t have been made earlier, because the discovery answers from SFSE were required first. Some (and I don’t know who) might suggest that the reply reads like a patient parent explaining to a recalcitrant child why eating chocolate right before suppertime will ruin her appetite.Speaking of which, SFSE is selling chocolate bars emblazoned with their registered trademark. Personally, I don’t eat chocolate tinted that shade of pink.SFSE has also started offering a “Stitch & Bitch University” series of sewing courses. Ten 2.5-hour classes for $620, which somehow totals 26 hours based on the website description.  Is this the use they were referring to?  Eagle eyes might spot the header on that page that reads “Stitch & Bitch U”. Where’s XRX when you need them?

Empathy

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.

(more…)

… and New York answers

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:

• SFSE’s submission states that once SFSE became aware of Stoller’s trademark applications, in June 2005 SFSE’s attorney wrote to Stoller and “invited Stoller to discuss” her “attempts to use and register the STITCH ‘N BITCH mark”, but received no reply. This letter is provided as an exhibit to the submissions.  It was addressed to Stoller’s counsel and warned that SFSE had strong evidence of actual confusion between SFSE and Stoller’s business (likely this statement is referring to SFSE guestbook entries in which the writers had made reference to Stoller’s first SnB book).  The letter closed with an indication that SFSE might be amenable to discussing an amicable resolution, but in the meantime demanded that Stoller cease her use of STITCH ‘N BITCH.
• Later attempts by SFSE’s “representatives” (the submission does not specify that it was the attorney who made these attempts) to discuss the matter also proved futile. 
• Stoller’s counsel provided a response in November 2005, which is also provided as an exhibit.  This response included a copy of the petition to cancel the STITCH & BITCH CAFE mark, and characterizes SFSE’s belief that its trademark rights extended to STITCH ‘N BITCH for chat rooms as “misguided”.The letter also includes a demand that SFSE cease its use of STITCH & BITCH on sewing-related equipment (which use was proferred as a specimen for this) in view of Stoller’s superior (earlier) rights, and indicates that Stoller believes that SFSE’s “rush” to place the STITCH & BITCH mark on products “by superimposing the mark on photographs of goods shown on its website is in bad faith” [coughpicturecough].

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.

New York calling

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!)

One piece of evidence, two interpretations

Yes, it’s time for another post about everybody’s favourite two words sandwiching a conjunction.

It looks like SFSE has been busy appealing to public opinion. Their forum banner points out that the Stitch & Bitch Cafe has been online since 1998, with links to sample pages of their guestbook from those years.

If you click on the links, you’ll be taken to pages containing guestbook entries from the twilight of the guestbook cgi script, including such comments as (this is a selection of the first couple of mentions on a few pages; then I got tired of looking):

Yea, the Friday Night Stich and Bitch at SFSE was great. Fun to see everyone’s cool creations — and inspiring! I want to get on a “sewing tear” as Leigh put it… (1999)

I had a great time at the stich and bitch on Friday night. It was a lot of fun. What fabulous clothes everyone is sewing! Since you all were raving so much about Mood Fabrics, I decided to check it out on Saturday morning… (1999)

If your looking for sewing buddies why haven’t I seen you at our Stitch& Bitch nites. Thats when every one sews together and shares their tip, comments, and feelings. We all get a lot sewn too. We always post an announcement about this night. (2000)

As always Elyssa, great stitch and bitch night last Friday. I am really inspired by all of the creative women who hang out at SFSE. I can’t wait until the next one! (2000)

HI I am in search of a Stitch&Bitch group on the North East side of Detroit or at Wayne StateU, any suggestions? (2000)

(It doesn’t look like anyone answered the person who posed that question about a group in Detroit. And that first 2000 quotation above was posted by “Elissa”.)

In Deb Stoller’s cancellation proceeding against the CAFE trademark, she’s seeking to prove that “stitch and bitch” is a generic term to describe a gathering where one, uh… crafts and chats (”when every one sews together and shares their tip, comments, and feelings”?). So I’m sure that someone, on Deb’s behalf, is rooting through the Wayback Machine and the archive snapshots graciously restored by SFSE to see how much hay can be made of the use of “stitch and bitch” by SFSE customers, and by the company itself, and what witnesses are still around. One wonders whether all those customer e-mail addresses in those old guestbook entries are still valid, and how those people might feel if they’re bothered now, six years later (by implicated parties, by interested parties, by spammers).

But I’d be cautious about concluding that loose treatment of “stitch and bitch” on a guestbook is determinative of the phrase’s generic status, or that this would be a sufficient basis on its own to cancel the CAFE trademark. We’ll see what arguments are made. But if I were SFSE’s lawyer, I’d be wondering why they kept posting stuff on their website without running it by me first.

AS if…? [now with edits]

Apparently Sew Fast/Sew Easy has extended the Yahoo terms of service campaign. It seems that now it is objectionable to either use the acronym SNB, or to use a “stitch and bitch” phrase in the description text, not the title, of a Yahoo group. It’s not absolutely clear. Yahoo groups who happened to have old content in their messages or files that contained some variant of “stitch and bitch” were targeted. So were groups who had complied with earlier demands to remove “stitch” and “bitch” from their group titles, but for whom Yahoo had failed to update subject line tags or the description text in Yahoo Groups search results. Thus, for example, a group’s message subject line still read [stitchandbitchYourTown] when in fact the group had already voluntarily changed its name to [SNBYourTown] — so the group got another demand to change their name from Yahoo.

This is reminiscent of a claim made in 2002 by Alice Starmore’s agent, Alexander Muir, that using Herself’s initials was sufficient to “denote” the ALICE STARMORE trademark, which was apparently a bad thing.

(No, it didn’t make sense to me at the time, either; Starmore was not using AS as a trademark, so far as anyone knew.)

Since that last bit about “AS” isn’t applicable anymore, I’ll just meander off the main subject a little and point out that silencing critics by flexing one’s intellectual property rights is by no means an Internet innovation. Even if the goal of litigation is ostensibly to protect one’s state-granted rights, there are certain cases where eliminating (or attempting to eliminate) a source of criticism must have been an extra bonus.

For example, in the 1970s the Church of Scientology sued Cyril Vosper for publishing a book critical of Scientology. Vosper had been a Scientologist, and became disillusioned with its teachings. In the meantime, he had access to a number of the Church’s writings, and in writing his book, he included a number of extracts of the Church’s works, bulletins, and letters, which were protected by copyright, just like anybody else’s literary works. Some of these extracts were very substantial excerpts, so when the church sued Vosper for copyright infringement and breach of confidence in an attempt to get an interlocutory injunction (an injunction before trial preventing further dissemination of the book), the English Court of Appeal had to deal with the question of whether too much had been taken by Vosper for his book to qualify as a fair dealing:

Counsel for the plaintiffs says that what Mr Vosper has done is to take important parts of Mr Hubbard’s book and explain them and amplify them. That, he says, is not fair dealing. Counsel for the defendants says that Mr Vosper has, indeed, taken important parts of Mr Hubbard’s book, but he has done it so as to expose them to the public, and to criticise them and to condemn them. That, he says, is fair dealing.

It is impossible to define what is ‘fair dealing’. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions.

To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal of fact must decide. In the present case, there is material on which the tribunal of fact could find this to be fair dealing. (Hubbard et al. v. Vosper)*

Everyone studying copyright (well, in countries drawing heavily on Commonwealth jurisprudence) reads this case in law school, this passage is frequently quoted in Commonwealth cases dealing with copyright and fair dealing for the purpose of criticism — particularly by the defendant in copyright infringement suits, because the Court of Appeal determined that there was fair dealing, and that the equities did not weigh in favour of an interlocutory injunction. (If you want the court to do your “dirty work” — stop an infringer by issuing an injunction — you need to have relatively “clean hands” yourself. Injunctions are usually a form of equitable relief, meaning that it’s within the court’s discretion to grant or refuse them, based on the facts of each case, the conduct of the parties, and the court’s impression of what would be fair in the circumstances.)

Of course, the SFSE affair isn’t about copyright, it’s about trademarks. As another example, in Canada, Michelin sued the Canadian Auto Workers union for copyright and trademark infringement. Around 1994, CAW had used Bibendum (you know… the Michelin Man!) in pamplets and posters intended to convince Michelin employees in Nova Scotia to join the union. One depiction of Bibendum showed the jolly huge fellow about to squash a worker with his foot.

The result of this lawsuit was a lengthy, reasoned decision thoroughly setting out the meaning of “use” of a trademark in Canadian law (”use” is a many-faceted term). In the end, it was determined that CAW had neither infringed Michelin’s Bibendum trademark, nor depreciated Michelin’s goodwill in the mark (depreciating the value of the goodwill in a trademark is actionable, even if the impunged use is not a confusing use). The attempt to recruit union members, even using a parody of Michelin’s trademark, was not the sort of commerical activity resulting in a “use” that would attract liability.

CAW was held liable for copyright infringement in their portrayal of Bibendum, though. (Not surprisingly, the application of the Charter right of freedom of expression was also argued, and seriously considered and analyzed by the court. It was determined that CAW’s freedom of expression was not infringed by the enforcement of Michelin’s copyright.)

These were lawsuits dealing with print. The Internet, and subsequent litigation, has brought us the US Digital Millennium Copyright Act and Internet service providers’ terms of service. When I say “us”, it really does mean all of us who use US-based service providers, even if we aren’t in that country ourselves — laws governing Internet operators have far-reaching results.

The DMCA operates to give ISPs an “out” in the case of copyright infringement, if the ISP complies with the notice and takedown regime set out in the statute. IIRC, upon receipt of a proper notice of allegation of infringement, the ISP must notify the alleged infringer and take down the material within certain time limits in order to avoid pecuniary liability. The alleged infringer, under the DMCA, has a certain time limit to respond to the allegation with a counter-notification, and if done correctly, the ISP must restore the content and the complainant must then take court action to get it removed again.

Many ISPs, like Yahoo and eBay, have built the takedown procedure into their policies. However, the DMCA applies to copyright only, not trademarks. So to cover themselves, ISPs treat other intellectual property rights the same way they treat copyright — except for the counter-notification. So, if the allegation is trademark infringement, it’s harder to get your content restored, even if the allegation is unfounded.

The easiest solution for individuals is to vote with your wallet, so to speak. If you don’t like an ISP’s policies, move to an ISP with policies you do like. Which reminds me of Canada: if the last proposed amendment to the Canadian Copyright Act hadn’t died on the order paper when the government fell, we might have our own mini-DMCA system in place by now. Except it would have been a notice-and-notice regime: the ISP would have to notify the alleged infringer of the allegation, and retain information about the alleged infringer’s identity for a set period of time. The bill with this amendment will probably get reintroduced at some point; I don’t know if there are plans to beef up the notice-and-notice system. As it is, it’s so… Canadian. “Hello, sorry to bother you, but someone told us you’re infringing their copyright, so we’re just passing along the message. You might want to think about doing something about this. Thanks!”

Anyway. Moving to a new ISP is easier said than done, especially when you’re talking about switching from a service that provides nearly idiot-proof mailing list facilities. But imagine: Yahoo thought that knitters formed an important enough demographic group to specifically reference them on their Groups homepage. What if it were possible to move every major (>100) knitting group from Yahoo, and over to somewhere else? Would Yahoo notice, or bother to react?

*As an aside, I hesitated to put up that quotation from the decision, because certainly someone who wants to infringe copyright might engage in study at the Google School of Law and find this, and claim that it justifies, oh, I don’t know, scanning a pattern from a book and sticking it up on their blog with a few comments, and claiming that’s a fair dealing. But this is a classic passage that captures the balance the court must strike between copyright and fair criticism, by a famous English jurist. So, in case you’re self-medicating: judges aren’t stupid. They can tell the difference between real criticism and a lame excuse to distribute copies.

… and then someone else decided to play

Some enterprising individual has decided to register stitchnbitch.ca and bitchnstitch.ca, and is offering them for sale on eBay (with a modest profit built in).

I’m not certain what point this seller is trying to make, if indeed there is a point beyond trying to make money. I suppose I’m only mentioning this because somebody — the seller? — added a comment to an older post that no one will otherwise ever see, soliciting bids. The commenter used the name “george”. The registrant’s name, according to the whois lookup, isn’t. There is no live site because the domain names were only just registered.

.ca is, of course, the Canadian TLD. The whois lookup is here. Canadian domain name registrants are required to meet particular Canadian presence requirements, which includes a list of permissible registrants, including Canadian citizens and non-Canadian owners of Canadian trademark registrations.

But whoever the registrant might happen to be, or whoever might buy these domain names, here’s a link to CIRA’s rules, including the domain name dispute policy. It might come in handy someday.

Bitch (n): a difficult or unpleasant thing or situation

(One of the definitions of “bitch” in the Compact OED. Trademark examiners often consult dictionaries, and these days, Google, if they suspect that a trademark is descriptive.)

The most recent Cast On podcast by Brenda Dayne (she talked about Rogue in an earlier podcast and has a smooth radio voice… how can I not admire her?) features the knitting trademark story of 2005-6.

(Of course, there was another knitting trademark story competing for attention last year that I’m not finished writing about either, but it has to come in second to any story involving words that they’re still afraid to speak in Madoc, Ontario. Quinte, you will never be anything but a rest stop on the 401 until you embrace the future. It’s full of cussin’.)

Brenda recounts the factual basis for the controversy, mostly accurate. (The month in which CafePress started shutting down stitch and bitch group shops may have been earlier, and if someone had called up Anne Macdonald to get her impressions on the whole issue, it’s news to me; but how else can Brenda say that Macdonald was “surprised” by SFSE’s claim as the originator of the phrase “stitch and bitch”?)

Brenda notes that she personally doesn’t care who attains or retains what rights to what registered trademarks (a position shared by others), but what ticks her off is the “name-calling of a woman who has done so much for the knitting community” — referencing Gregory Garvin’s letter calling Deb Stoller “Ms. Stole-it” and suggesting that she gives feminists a bad name. Brenda goes on to say that this was done by a “petty little marketing man with a tenuous grasp of the English language” with “no real idea of who his customers are and, quite possibly, the smallest penis in the world.”

She’s clever with the irony, she is. She also probably figures that she’s out of the legal reach of SFSE.

Because knitters are like Canadians…

… and they’re thrilled with any mention in the international press.

The Economist, February 4, 2006, page 29 (North American edition)

You can’t quite make it out, but that subtitle says “What Texans do when they’re not herding steers”. The article focuses on Texas knitters before briefly describing the rest of the international community.

And a close-up:

And another tiny slice of irony

The funny thing is, before the most recent rash of trademark-related activity, I was in the process of renaming and redeploying the so-called “stitch and bitch” part of my site.

Here’s the lame old main page for my first site design, circa April 2001 (the March 2001 link wasn’t working just now). Likely not all of the graphics will load, but there you see in the text– “Stitch & Bitch”. At the time, that section comprised only the mailing list digest “parody” and a poll — interactive content! (I’m still fond of that digest; I should resurrect it.) I don’t know where I heard the expression “stitch and bitch” that caused me to use it as a heading. Obviously I must have heard or read it somewhere at least as early as late 2000 or early 2001. I’m guessing it was on the knitlist, because that was my primary source of knitting gab at the time.

I did add other things to the section intermittently. There was a piece that was (kind of) about innovation in knitting (which I still mean to repost and write a sequel about! someday!), and another sort-of interactive knitting list drinking game (you know, take a drink when someone posts about their surgery, or misspells “copyright”). The drinking game used a bog-standard guestbook script so that people could add to the list. Then other stuff got added: the agony aunt (another thing I keep meaning to restore), the garter stitch scarf instructions. And an explanation that the rantings were mine with only the occasional opportunity for reader participation, because a couple of times I was asked by readers how they could participate. (Yup, blogging software made life a lot easier.) Later, I reorganized the site, and subdivided the “stitch” and the “bitch”: “stitch” for useful stuff, “bitch” for less useful.

But late last year, I started thinking that the “stitch and bitch” title wasn’t really suitable: if you saw that title, you wouldn’t think, “oh, here’s where to find all the useful tips and humorous articles”, you’d think of… something else.

So in planning a site redesign, I thought I’d put the useful stuff into “tips and techniques”, the funny stuff into “diversions” (that’s something else that’s been defunct for a while — there used to be knitting-related wordsearches and memory games), and the ranty stuff, um, in the journal, I guess, because that’s where I’ve been putting it lately. The splash page for the site reflects this reorganization, although all those links don’t work yet.

(And the “knitting form and function” bit? Snooty? Well, I had to put something there. If it wasn’t there, for all you know the website could be about spinning or salad or something. And there’s form — clothing and other things that are knit — and function — the widgets I’m still working on and techniques. Get it? Get it?)

So, in short, if you had actually noticed that I had a stitch & bitch section on my website at one point, and then noticed that it was gone, I’m just saying that it had nothing to do with anybody’s real or purported trademark rights.

Handshake

Yeah. That was fast. For now, it’s speculation whether it was done due to a demand from either SFSE or Deb Stoller, or an internal decision.

Although I’m disappointed to see that Yahoo took the high road and didn’t go with the obvious “k” pun.

Walk a mile

You know, I’ve tried to remain neutral. Some of you have even congratulated me on that, but I don’t feel neutral.

I’ve been trying to avoid answering the questions like “do I think SFSE has a valid trademark?” or “do I think that Deb Stoller’s and SFSE’s trademarks can co-exist as registered trademarks?” or “if Stoller started branding sewing items with STITCH ‘N BITCH right now, would SFSE be successful in a trademark infringement or passing off action?” because those aren’t questions that can be answered with 100% certainty until the USPTO or a court (depending on which question, and how far up the legal food chain the question is taken) has rendered its answer. I can certainly see how reasonable lawyers can take either position in any of those questions.

And, like a lot of knitters out there, I don’t actually care whether SFSE keeps or loses its trademark registration for STITCH & BITCH CAFE, whether Deb Stoller manages to get one or more of her STITCH ‘N BITCH trademark registrations, or whether SFSE also gets a trademark registration for STITCH AND BITCH. You got a registration? Good for you. You didn’t? Well, the key benefit to a trademark registration is that it makes it easier to stop other people from using confusingly similar marks in the same territory as your registration. (And in some countries, having a trademark registration may effectively be a defence against infringement of someone else’s registered mark.) You can have an unregistered trademark, and if you feel (preferably, you got legal advice) that you’re not infringing anyone else’s mark in using it, have fun. Sell things.

But it’s hard — it’s damn hard — to remain neutral in the face of certain bad PR decisions. It skews your perceptions. I did actually think about imposing a cure: pretending that I was in charge of SFSE’s public relations, and writing a letter that I thought might explain the trademark situation and smooth things over. That sort of thing is generally not my job: I usually take the position that the least said, soonest mended, and that the business owner (or whoever) is the expert in customer relations, and that they have better insight into what their customers want to hear. If they feel they must make a public statement, it’s my role (should they care to instruct me to do so) to make sure they don’t misstate anything, and that they don’t make any damaging omissions. Then I throw in the spelling corrections for free.

Anyway, I got lazy and didn’t try the cure. If I feel myself slipping again, I promise to do it. Or at least think about it again.

Right hand, meet left hand

As noted in the comments to the last post, Yahoo has taken up knitting:

This is on the main page of Yahoo Groups right now. I logged out and reloaded the Groups homepage just to make sure it was still there. If you click on the “Stitch ‘n’ Bitch” icon, you’re taken to the listing of knitting-related mailing lists hosted by Yahoo. All 1701 of them.

Of course the irony is that Yahoo just deleted some groups that had “stitchnbitch” or some variant in their titles, but likely the people responsible for handling suspected IP violations aren’t the same people who decide how to present information to the user.

Well, any interested party who might object to this new STITCH &/N/AND BITCH usage knows where to find Yahoo’s intellectual property policy.

An evidentiary object-lesson (now with even more edits)

The word is that the link to the letter referenced in the last post doesn’t work any more. All that happened was that the HTML file was edited. The underlying file, statement.swf, is still there. All you need to do is look at http://www.sewfastseweasy.com/stitch_and_bitch/statement.swf to see it.

But even if the file is removed, never fear. I think that half of the Internet knitting community either saved a copy or took screenshots — check LissaKay’s comment to my last post (#10). If that Flash file disappears from the SFSE website, I’ve got my screenshots ready to go.

Edited to add: Yup, there it is, back again. It wasn’t loading at all earlier.

And then edited again to add: Jess called it (in the comments): one of the spelling mistakes on the second page of the letter was corrected. Another one of the spelling mistakes on the second page was half-corrected. Too bad he didn’t correct the mistake he made in typing Deb Stoller’s name.

And once again: It’s gone, again. But now you can see that there are some new ground rules at the SFSE forum: “No deliberate direction to advertising of any Stitch and Bitch books will be allowed.”

You’ve been warned. But it’s a strange conundrum for a business; you might recall that when SFSE supplied its specimens of use for its trademark application for STITCH AND BITCH, it supplied a photograph of a workbook with “Stitch & Bitch” printed on the cover. Some clarification of the injunction against forum advertising might be needed.

I’ll be editing this post one more time today to post a link to my commentary on the letter as originally posted. Here–page 1, page 2. It’s not a legal analysis–it’s just scrawled notes of what went through my head when I read wrote (duh) it. No guarantees about legibility.

I don’t normally mark up a letter to this degree when I’m working. If this had been a letter presented to me by an articling student or a junior, I would have started making notes for the first paragraph or two, then given up and just called the writer into my office.

… or maybe not.

An open letter from SFSE to the crafting community, signed by their marketing manager, who is also the fellow in charge of their online forum.

The overall tone of the letter suggests settlement negotiations — if there are any ongoing — aren’t going so well. Or perhaps they are, and SFSE is a little rash.

The letter begins with a request to the reader to look at a PDF linked on SFSE’s website from an article dated 1999, and is advised that from that article it can be seen that SFSE “was the first to use Stitch & Bitch in commerce inclusive with a trademark”. If “inclusive with a trademark” is intended to mean “with a trademark symbol” (recall that the “TM” symbol may be used with unregistered marks), it’s not in that article. But that doesn’t mean that SFSE wasn’t using STITCH & BITCH CAFE as a trademark back then. We know, after all, that they claimed an earlier date of first use in their trademark application.

The letter then goes on to explain the position that SFSE found itself in — it has a trademark, it needs to defend it. While a neutral statement like that might encourage some bystanders to take a tolerant, if not sympathetic, view of SFSE’s predicament, the bulk of the letter will probably provide ample antidote.

For example, if a lawyer knew that his or her client was going to put out a public statement defending its position in a legal dispute, the lawyer would probably recommend that he or she be given a chance to review it. But you don’t need a lawyer to tell you that publicly referring to the adverse party in derogatory terms — say, for instance, referring to a Ms. Stoller as “Ms. Stole-it” — is usually Not Wise. You never know; publicly suggesting that someone is a thief might backfire in the form of a claim for defamation of character.

Similarly, making allegations that one’s adversary has a history of “coping [sic] and taking” other people’s work, if it can’t be backed up, could later prove problematic. And this letter does just that, citing Deb Stoller’s call for submissions for her crochet book Stitch ‘N Bitch: The Happy Hooker on Craftster. I can only surmise that the writer of this letter is a little unfamiliar with how many craft pattern books are compiled. As for the title, “The Happy Hooker”? Yes, it’s unoriginal, and it’s even a groaner. But it’s even older than the 1998 webpage cited in the letter. Like “stitch and bitch”.

And then a twist: “She calls herself a feminist, but seems to be willing to take what she wants from any woman who lets her get away with it.” That’s not really a basis for deciding this trademark issue, and it seems to be premised on a misunderstanding of the difference between being the editor of a book and being a designer contributing to the book, but it does call to mind a different issue about the business of arts and crafts that I started to write about last year: the issue of the value of the intangible property created by designers and authors. But I’ll resist the segue for now.

This “feminist” dig precedes a bit of a disconnect: “She borrowed our ideas and when we put a halt to it - she attacked our trademark.” I’m not clear how that follows; first, the book was published; then, third parties set up “stitch and bitch” groups of their own and made up t-shirts and SFSE invoked Yahoo’s and CafePress’s terms of service to shut down some of these activities. The letter seems to imply that it was this activity that triggered the cancellation proceedings. I thought it was the result of the stalemate in the prosecution of Stoller’s trademark applications.

It also appears that SFSE offered some dollar amount for… something. Whatever it was, the offer was turned down.

Thanks to the anonymous person from New York who alerted me to this addition to the SFSE website. By the way, it would be helpful in future if you could add these sorts of things to your site as normal HTML, rather than in Flash, because it makes it easier for people like me to copy and paste the content.

Maybe we could work something out

Thanks to an astute reader who just posted this last night:

A request for an extension of time was filed on consent in the SFSE cancellation proceedings, pending settlement discussions. If the whole discovery process can be avoided, it’ll be cheaper for everyone concerned: researching documents showing use of “stitch and bitch” (and variants), possibly interviewing people, preparing statements, examining each others’ witnesses, preparing arguments, and written (if not oral) submissions, all at one or more lawyer’s hourly rates.

I’d guess that the outcome of a settlement would involve keeping SFSE’s trademark on the register, although there are lots of possibilities: for example, SFSE could assign its trademark rights to Stoller and Stoller could license the mark back to SFSE; or SFSE could take over the SnB trademark applications and license the SnB mark to Stoller; or the parties could make some other arrangement that makes it easier for both the CAFE and the STITCH ‘N BITCH marks to coexist as registered marks. The deal may or may not expressly address the STITCH & BITCH application subsequently filed by SFSE (I’d expect it would be considered, since that application is currently stymied by Stoller’s earlier-filed applications).

No guarantees that there will be a settlement, of course. We’ll see.

Anecdotal evidence

Anecdotes are charming, but unfortunately they don’t always pan out.

Take the Sarah Lawrence stitch-and-bitch group story, for example (it’s reproduced in the comments here). The story goes that somebody’s grandmother was in a “Stitch & Bitch club” at “Sarah Lawrence University” in 1938, and that this somebody has the 1940 yearbook that includes a pictures of 14 women captioned with “stitchery and bitchery - the ladies of the stitch and bitch club” at McConley Hall.

Some people (exactly who, we don’t know, but we could speculate about the interested parties) have tried to follow up this story by contacting Sarah Lawrence College, and discovered a dead end. Their library archivist has reported that not only could she not find a stitch and bitch club in the 1940 yearbook, but there’s no McConley Hall at SLC. (She has suggested that their might be some confusion about the school, but that Saint Lawrence University, a school with a slightly similar name, doesn’t have a McConley Hall either.)

Please don’t contact the SLC library, unless you’re extremely determined to verify this for yourself. I suspect that their archivist might be getting a little tired of all the inquiries. But you can try searching for “McConley Hall” yourself, and see what happens. I can’t find the source of this anecdote anymore; it was on the old SFSE board, and I don’t know who posted it. But if they see this, I bet a lot of people would love to see that yearbook.

But if you want to pin your hopes on another second-hand source of information, remember that Anne Macdonald wrote about social gatherings during the second World War in No Idle Hands: A Social History of American Knitting (New York: Ballantine, 1990):

In Akron, Ohio, twelve young women, who moved in with parents or in-laws when husbands went overseas, gave their elders a free night once a week (so to speak, since they parked their children there!) to attend “Stitch and Bitch Club” meetings. Loaded with sewing and knitting, stuffed on supposedly “light refreshments” provided by the evening’s hostess, voicing opinions on everything from parenting to politics and exchanging news from each war zone represented, they met until each member’s husband returned home — all but one. The sensitivity of the others to that member’s sorrow has bound them for life, but none could face continuing the club after the war.

That’s on page 302 of my softcover edition. Regrettably, Macdonald’s endnotes do not include a specific reference for this story; it might have come from one of her numerous secondary sources.

Up the ante

We have, perhaps, some explanation for the most recent round of Yahoo-mediated attacks on knitting groups using the “stitch n/and/etc. bitch” name.

Deb Stoller has initiated cancellation proceedings against SFSE’s STITCH & BITCH CAFE trademark registration in November, and SFSE filed its answer last week–it’s now available to view. (Honestly, considering the potential cost of challenging a registered trademark, I didn’t seriously think it would escalate this far. I admire Stoller for doing this.)

The basis for cancelling, Stoller argues, is the sheer descriptiveness of “stitch and bitch” to describe crafty gatherings. As the services of SFSE for their trademark are essentially a virtual version of such a gathering, the mark is too descriptive to be registered. The petition to cancel the mark also alleges that SFSE has “taken no action to preclude most third parties from using” monikers similar to “stitch and bitch”, so any value in the mark as a distinctive mark has been destroyed. (There is a “use it or lose it” aspect to trademark rights that does not exist to the same extent in copyright or patent law.) Last week, SFSE denied these allegations (and retained a very good law firm to help them do it).

In the meantime, as you may recall, SFSE applied for a trademark registration for STITCH AND BITCH. A first office action raising objections was issued at the end of December, raising some issues regarding the descriptions and classifications of the goods and services, and objecting to the specimens of use because the examples of usage filed by SFSE read STITCH & BITCH while the application dropped the ampersand in favour of AND. (While SFSE didn’t notice the difference, the examiner did. And I know you all did. While accuracy is required for registration, when it comes to infringement the grammatical or typographical differences are less important.)

But more importantly for those of us who enjoy a little irony, the examiner also raised an objection on the basis of a likelihood of confusion with Deb Stoller’s pending STITCH ‘N BITCH trademark applications against SFSE — precisely the same problem that Stoller has with SFSE’s CAFE trademark.

Don’t worry, I’m sure it will all block out. In the meantime, be good, and don’t post anything publicly that you might have cause to regret later. Like the webmaster at SFSE’s message board and what he said on 43things… at least, before angry SnBers found him out and posted it to the SFSE board.

Don’t click if you don’t want to think about it. Or if someone’s looking over your shoulder.

Creative people have many talents.

Fluke, right?

Why are both Knit Happens (the SnB book support site) and the Bust site both down? Please tell me they’re hosted by the same service and there’s a temporary outage. Or that my ISP’s connection to that part of the world is down, which is possible (I’ve lost contact with my own site occasionally).

’salright now. Please disregard my fearmongering.

Yes, but check out the executive compensation.

Just what are knitting-related trademarks worth, anyway?

While I suspect that most people value the use of terms that involve the words “stitch” and “bitch” on a more… well, emotional basis, often the valuation is determined in dollars.

They could be worth a lot, or maybe not so much.

As an example of what’s probably one extreme, take Spinrite, a major supplier of craft yarns in North America (in Canada, it’s one of the two major suppliers): it distributes or produces brands like Bernat, Lily, Patons — the ones that you see in the big box craft stores like Zellers and Michaels, and the not-so-big, like Lewiscraft, which is seeking bankruptcy protection.

Spinrite doesn’t actually own the Patons brand; it has a licence from Coats & Clark (they own Rowan) to use the Patons mark in North America. According to their prospectus for their 2005 IPO, Spinrite currently pays $200,000 a year to Coats & Clark (see pages 22, 26, and 42 for descriptions of their brands and the licence). At the time of the IPO, the Patons brand provided 19% of Spinrite’s sales. If we apply that number to their 2005 annual revenue as a rough estimate, that could be almost $20M of revenue from Patons.

“Sure they made those sales,” you might say, “but it’s yarn. They’d sell that yarn anyway, even if they called it something else.” Not all of it, necessarily. The trademark has an intangible value; if you see the Patons label and you’ve used the brand before, you’d probably think about its consistency, quality, and reliability, and if your impression was positive, you’d probably be willing to take a chance on buying a new yarn with the Patons label. That kind of value is intangible goodwill built up in the Patons name. Spinrite might be paying what appears to be a considerable sum for the right to market Patons yarn, but that investment probably comes back more than tenfold.

On the other hand, the goodwill in a trademark can be run into the ground by shoddy products or service. Sure, it might be recognizable and distinctive, but only because consumers want to avoid those products (unless they have no other reasonable choice).

Spinrite, by the way, is one of the creditors owed money by Lewiscraft. Lewiscraft owns a Canadian chain of craft stores (unsurprisingly called Lewiscraft, as you probably guessed) which, knitting-wise, carries about as respectable a range of knitting yarns as Michaels or the other big stores that are probably squeezing this company out. Despite my current yarn snob status, I have a soft spot for that store.

When I taught myself to knit, I had precisely three sources of yarn: Eaton’s, the little yarn shop that used to be in Sears that I think was run by Wool-Mart (which found itself renamed Wool-Tyme when Wal-Mart decided to move into the Ottawa area), and Lewiscraft. The cotton yarn for my very first completed knit item (a self-designed sweater with eyelet detail and a cowl neck) came from Lewiscraft. So did the yarn for my first unfinished object (another cotton sweater). And my second completed item (another cotton sweater with cables and eyelets, I think from a 1994 VK). And possibly my third cotton sweater too, an Adrienne Vittadini design in VK which was the most complex thing I had made at that time, because it involved twisting stitches from the wrong side of the work. Sometime after that third completed cotton sweater and a couple more unfinished cotton sweaters, I lost interest in most cotton yarns.

In the meantime, the shop in Sears disappeared (but if it really was Wool-Mart-Tyme, that business lives on with multiple locations, and it’s very nice). Eatons dropped its craft department (well, I guess they learned their lesson). It was Lewiscraft, with help from elann and Yarn Forward’s mail order, that tided me over in Toronto until I learned of Romni, Imagiknit (now long gone), Passionknit, the Yarn Boutique (recently closed), and that place that sold lots of acrylics that used to be on Bloor not too far from the university.

I think I’ve purged most, but not all, the Lewiscraft-purchased yarn from my stash by now, except for the odd ball or two that I pick up from time to time, including the machine-washable yarn (Patons brand, natch) to make the mood toque only just last month. Other times I just go in and gawk at the novelty yarns and all the painting and foil-scraping kits designed to take the creativity out of crafting, like those licensed Lego kits that are only good for building one thing. And I hope that in Lewiscraft’s restructuring, the store closest to me makes enough money to avoid closure, because where else can someone who hates big-box chains go for styrofoam balls?

Yahoo for terms of service (now with edits)

Because, as you know, everything on the Internet containing the words “stitch” and “bitch” is bound to be an infringement of the US-registered STITCH & BITCH CAFE trademark (yes, that’s sarcasm) and no ISP wants to get blamed for it, Yahoo! has asked some stitching and bitching group owners to change their names pursuant to Yahoo’s terms of service.

More ranting on LJ, but keep in mind that Deb Stoller does not have a trademark registration although she might arguably have common law rights in STITCH ‘N BITCH. Anyway, advising everyone to use “Stitch ‘n Bitch” in a group name on the assumption that it’s Deb Stoller’s trademark… (a) doesn’t protect you from the depredations of a certain other trademark owner–if that owner sees no difference between “&” and “and”, then why would it see a difference between “&” and “‘n”? and (b), seems to assume that in the event Stoller has rights in that name, she would be willing to have its distinctiveness frittered away by sales of t-shirts, etc. Maybe she is, and maybe she’s licensing all these groups. I don’t know.

This recent activity strangely coincides with Stoller’s Monday deadline to file a response with the USPTO about the non-registrability of her trademarks (due to confusion with STITCH & BITCH CAFE, as you might recall). If she misses it, that’s okay, a response can be filed a bit late, although the USPTO database may show her application as “dead” in the meantime.

The prior history, in reverse chron: here, here, here (just a little background info), here, here, and finally here.

Wow, that’s a lot. The “useful arts” category was supposed to be about craft-related patents. I need to make up a new category.

Edit: A missive from Deb Stoller to all those affected is reproduced here, as well as in the comments to this post. She’s recommending the prefix SNB. This reminds me of the time that an agent of the LSD made the amusing claim that even using the intials AS was somehow an incursion into A Somebody’s trademark rights.

Oh, and the forum on SFSE’s website now has a section where individuals can help each other find a SNB group. The heading: “Stitch and Bitch Group” and the description, “If you want to find a group, post here.” Currently no posts. Is this a way for SFSE to find other unsuitably-named groups?

The bitches keep on stitchin’

Hey, look, the tape measure on the Sew Fast Sew Easy website, um, changed.

It used to look like this simulation.

What does this mean? Is this actually in production?

(Yeah, no food porn. I do have a photograph of a cheesecake with a giant crack in the centre because I always spread the sour cream topping on too soon after it comes out of the oven. It was okay. Nothing to write blog about.)

Stitch ‘n Bitch… the continuing story

Props to Everybody wants a rock for catching this first.

Deb Stoller’s four US trademark applications for STITCH ‘N BITCH (the four were for different classes of goods and services: knitting kits, television shows, bags and cases, series of books) were refused by the examiner. At this point, she has time to either file another response arguing against the rejection, or she can appeal the decision (this is within the US Patent and Trademark Office, not to a court). Or she could try again with a fresh application, perhaps for a design mark (using the fancy SnB font) rather than a word mark.

All four applications were refused on the same basis: confusion with a previously registered mark, that is to say, our favourite STITCH & BITCH CAFE. (When I first typed that, I inadvertently hit the dollar sign instead of the ampersand. How telling.) Deb’s arguments (via her attorney) that the channels of trade and the goods and services of the SFSE mark and her own were not persuasive to the examiner. The fact that the word CAFE appears in the senior (i.e., earlier registered) mark was not determined by the examiner to be sufficient to distinguish Stoller’s mark, because, as the examiner concluded, the CAFE is “highly suggestive, if not merely descriptive, of a virtual cafe or coffeehouse when used in connection with the registrant’s online chat room services.” In other words, he didn’t consider the CAFE to be a strong part of the SFSE mark.

Stoller had also tried to highlight the popularity of her mark. That wasn’t convincing to the examiner either, who pointed out that this could result in “reverse confusion,” in which consumers believe that the user of the junior mark is the source of the goods associated with the senior mark. (Reverse confusion is a doctrine used in the US; the concept has been introduced in Canada, but not applied in an infringement case.)

Console yourself with this fact, though: even if Stoller ultimately manages to get a trademark registration for STITCH ‘N BITCH, it’s no guarantee that SFSE wouldn’t still try to allege infringement of their CAFE mark. And there’s no reason for SFSE not to start working on Deb Stoller and Workman now, except for the fact that it will probably cost them more in lawyer’s fees than chasing after stitch and bitch groups on CafePress.

And in related news about that “virtual cafe or chathouse”, scroll down to July 7 to see the debate raging over whether it was okay to photocopy old sewing machine manuals without permission from the copyright owner. The verdict of the guestbook old-timers: “Now I know I’ve heard everything! Of course the manufacturer wants us to be able to use the machines that we’ve purchased. Get over it!” coupled with an unrelated anecdote about how somebody else granted permission for reproduction of something that wasn’t a sewing machine manual.

First we take Chicago

SFSE has moved on to another city on CafePress: Cleveland.

The knitting group has accordingly changed their wares to specifically avoid any confusion with that sewing shop in New York. Note the fine print.

This ain’t Xaviera with a crochet hook…

… is it?

A mock-up of the Stitch ‘n Bitch Crochet: The Happy Hooker cover is here. Eep.

The picture you’ll see via that link isn’t necessarily the real cover of the book–mock-ups are used for promotion, and there’s something rather digital about Deb Stoller in that picture. But, since this is promotional, you’d think that Workman would get the table of contents right instead of pasting in… chapter titles from a soup cookbook?

The title, like the original “Stitch ‘n Bitch” (or allegedly trademarked variant thereof), seems to be an attempt to reclaim an expression from a bygone age. There’s the “original” Happy Hooker, a NYC madam, and I’m pretty certain that “The Happy Hooker” was also the name of at least one craft shop in the 70s/80s (in fact, I swear there must have been one in Ottawa at one time).

However, this doesn’t seem to be a case where a phrase had fallen into complete disuse (or practical disuse, if we give a nod to SFSE). A quick Google shows that “Happy Hooker” is currently used for bait and tackle shops, and other fishing-related activities, and is currently used by crochet types on their personal sites and blogs.

P.S., depending on how you navigate the SFSE site, attempting to view their “knitting” classes brings you to a page advertising crochet. It’s all falling into place.

Look! Only one eyelash!

Brief explanations of what happens during the trademark application process for the US and Canada.

To put it simplistically, the application is examined to ensure it meets formal requirements, and to make sure that the mark meets more substantive requirements: the major ones are that it can’t be confusing with an existing registered trademark or pending application and that it can’t be too descriptive or deceptively misdescriptive (being merely suggestive is okay, but you shouldn’t be allowed to claim exclusive rights over a common descriptor used in the industry). If the trademark meets this scrutiny, then it’s advertised (published in the trademark office’s journal) and parties with an objection have a limited window within which to oppose the application. (Standing to oppose an application is defined more broadly in Canada than in the United States, but in either country it involves the payment of money, so one typically isn’t inclined to oppose unless one has a commercial interest.) If no opposition is filed, then the trademark is allowed and is registered upon payment of further fees. To actually be registered, the trademark has to be in use, and specimens (not necessarily the actual products themselves) need to be filed to show that the trademark as applied for is being used.

And in other news, this link should work. But in case it doesn’t, it’s a press release announcing the Lily Chin Signature collection, dated June 11.

The yarns:

The six yarns in the premiere collection are named after Chin’s favorite neighborhoods in her native Manhattan: Tribeca, a mohair blend; Chelsea, a unique blend of merino wool, cotton, and acrylic; Nolita, a fun dusting of eyelash; Central Park, a wool blend boucle with a touch of stretch (Lycra); Gramercy, a super wash merino wool with a special twist; Greenwich Village, a mohair yarn with a twist of a lustrous stand of rayon.

Chelsea and Central Park sound like they could be interesting. Central Park sounds like… why, it sounds like it might be an alternative to Adrienne Vittadini Maria, a wool/acrylic/Lycra boucle blend that I always liked very much, but came in a rather limited colour range. Speaking of American designers, the press release also says this:

Chin’s debut marks the first time an American knitwear designer has created a line of fashion yarns under her own name. The highly anticipated collection will be available in yarn and needlework shops in the U.S. and Canada in August 2005.

I suppose that Vittadini doesn’t count as an American knitwear designer, because she’s a clothing and accessories designer, and she developed her name in Europe, I believe.

Edit: The LC website has been updated, so now you can see the yarn for yourself. That Central Park is no substitute for Maria. It also appears that generally speaking, LC’s colour palette and mine don’t really agree.

You knew this was coming…

U.S. Trademark Application, Serial No. 78641350, filed June 1, 2005 for…

For use in association with “Knitting and sewing supplies namely: Knitting kits, sewing kits, knitting needles, sewing needles, seam rippers, tracing wheels, measuring tapes, rulers, scissors, magnetic seam guides, mugs, knitting instructions, sewing instructions, patterns, fabric, pre-cut material, thread, buttons, webbing, pin cushions, thimbles, marking pencils, hangers and pins” and “Printed materials, namely patterns for sewing, knitting, and crochet, greeting cards and printed instructional books and manuals on sewing knitting, DIY, and crochet.”

The owner? Sew Fast/Sew Easy, of course. Here are excerpts from the photographic specimens showing use of the mark:

That tape measure is from the photograph you see here. The other thing is a printed workbook.

The application claims that first use of the mark occurred in 1998. It was only last month that their website had been altered to offer “Stitch & Bitch”-marked merchandise for sale online (with an ampersand, yes, not the word “and”), but for all I know, it was available in-store since the last decade.

By the way…

You people posting your little diatribes about “stitch and bitch” to the SFSE guestbook? You’re not helping the anti-SFSE “cause,” so to speak.

You people who don’t know the difference between copyright, trademark, and patent? You’re not helping set a groundwork for meaningful discussion or analysis.

You people telling others that a trademark registration has no usefulness if it’s proved that a trademark phrase was “used” in a 1940s yearbook, which is not the way the law actually works? Ditto.

Sorry — this morning, when I peeked at the SFSE forum, I saw nothing productive in all those guestbook posts. And sometimes I feel tempted to subscribe to LJ Knitting just so I can post some clarifying remarks. But then I’d be tempted to violate one of my cardinal forum rules, which is to avoid being particularly active on a board where one of my patterns gets discussed, because I don’t have time to consistently respond to forum questions or comments (as opposed to answering inquiries directly by e-mail).

I was interested in the last comment that was posted in the latest reprise of the SFSE thread on LJ:

I think if this community as a whole supports the protection of copyrights then the community should also support the protection of the trademarks. The argument made above is that by enforcing her rights she is alienating other crafters makes as much sense as saying one can’t make a copy of an old pattern published in 1940…

I think she’s the first person to point this out. Unfortunately it came in rather late, once the thread was a day old and bumped off the first page, so there are no responses to this. I wonder, was there this much angst and anger when the first SnB book was published over the co-opting of a decades-old phrase?

More cafe followup

(Followup to this tempest in a guestbook.)

The, er, forum has a slightly different look, with new graphics. Take a look at ‘em. See that prize ribbon there? It reads:

For Licensing
Stitch & Bitch,
Stitch and Bitch Cafe
Click Here

However, there is no live link for that graphic.

Edit: Oh, and all the little graphics say “Stitch & Bitch TM” on them, too (at present, looks like they’re not physically available). CafePress makes t-shirts. Do they make bootstraps?

Shades of followup

In response to some comments, and in response to some of the general reaction posted in other public fora.

First, I’d think that Stoller would be concerned because she has her own pending TM applications in the US. Potentially the older, registered, STITCH & BITCH CAFE could be cited against Stoller’s applications during examination of her trademark applications, so of course she’d be interested (I haven’t examined the wares and services to see what kind of overlap exists).

I gave away my copy of SnB a long time ago, but I don’t think that Stoller claimed to coin the phrase or invent the concept (tell me if I’m wrong)–I think she just resurrected the practice. And there seems to be anecdotal evidence posted on the net going both ways–yes, there were gatherings called “stitch and bitch”, no, there weren’t, or if there were, they were sewing related. Whatever.

I think the point that is being missed in a lot of the invective is that this is a trademark issue. It’s not copyright: you don’t magically become entitled to rights simply because you think you independently coined a name, phrase or word. You have to do something with the name (either register it as a trademark, or develop goodwill associated with it in a business context) in order to earn those rights. A brief explanation (Canadian law, of course) here. A good summary of US trademark infringement can be found here.

And it’s not about who came up with the concept of “stitch and bitch” either as an event or as a phrase first. Trademarks can make use of common language; slogans don’t make much sense if they don’t use words out of the language in which the target market communicates, right? Somewhere in a comment or post, someone referred to a Citibank promotion using the phrase “thank you.” As an example, there is a US trademark registration for THANK YOU VERY MUCH (not owned by Citibank) for use in association for conducting seminars and training courses in the field of customer service. That doesn’t mean that the general public is entitled to be rude and stop saying “thank you very much” to each other. It means that anyone else in the US offering similar services in association with that phrase risks infringing a registered trademark. Certainly that trademark owner didn’t “invent” the phrase “thank you very much,” and they’d be hard pressed to prove that there would be consumer confusion because individuals were using the phrase in casual conversation. Nevertheless, the fact that they didn’t coin the “thank you very much” doesn’t mean that they’re not entitled to trademark rights for their particular usage of the phrase.

Oh… and like others, I’ve been trying to figure out the reasoning behind the rebuttal on the SFSE guestbook, “Every attack you post, raises the value for the use of our intellectual properties…” The only thing I can figure is that with each visit to the page, their hit count increases, which they could use to either demonstrate the value of the goodwill they have associated with their mark, to demonstrate that they are indeed using their mark in association with an online forum, or to demonstrate depreciation of their goodwill by angry posters.

Shades of you-know-who

Everyone knows by now (at least, if they’ve read Deb Stoller’s first knitting book) that the phrase “stitch and bitch” has been used to describe gatherings of crafters for decades.

What you didn’t all realize is that someone figured out the potentially lucrative side of that phrase long before Deb did.

Sew Fast/Sew Easy, Inc., a New York company, got a US trademark registration for STITCH & BITCH CAFE three years ago, based on claimed use since 1998 in association with “sewing instruction and manuals distributed in connection therewith” and “providing on-line chat rooms for the transmission of messages among computer users concerning sewing via a global computer network.” You can look it up yourself using the US Patent and Trademark Office website; follow the links for trademark searching. The application itself was filed in 2000, which was a couple of years before the resurgence in popularity in the term “stitch and bitch.” (The working title of Deb Stoller’s first book circa 2002 was actually something else. If you do the search, you’ll see a number of trademark applications in Stoller’s name; they haven’t actually be registered yet, they’re still in the application stage.)

SFSE has started flexing its legal muscle. Check out the MetaFilter commentary here.

Here’s the page on the Sew Fast Sew Easy website that perhaps comprises the “online forum.” Actually, it’s a guestbook. Check frequently, because apparently they’ve been deleting posts. Note that this page includes the notation “Stitch and Bitch®” etc., etc. That’s not technically correct, because in fact the US trademark registration includes the word “cafe.” If they have a registration for “Stitch and Bitch” without any extra words or letters, it must be in another country, because I couldn’t find it.

People, get all riled up if you want, but it’s not copyright, okay? Yes, it’s very rare to have an enforceable copyright in a mere title. But this is a trademark issue. You know, brand names, slogans, catch phrases, title-like-things. (Yes, this touches on one of my pet peeves, but at least everyone seems to be spelling “copyright” properly.) Rights to trademarks can actually be parceled out according to the wares and services that are offered by the trademark user. And just because a phrase seems to be common doesn’t mean that it can’t be made the subject of a legitimate trademark.

Do SFSE’s rights extend to the organization of informal groups of knitters that physically gather in various locations to stitch and bitch? Can they claim infringement through the use of a confusingly similar “Stitch and Bitch” when their registered trademark was actually granted for “Stitch & Bitch Cafe”? Did they actually legally “use” their trademark since 1998? All of those are legal questions, and they’re US legal questions in this context, so beyond my proper ken (not that I’d be putting legal opinions up here anyway). Is SFSE doing itself a favour by engaging in this campaign? From the popular opinion, doesn’t sound like it.

Edit 1: a question. If the scenario had played out the other way, and Stoller was attempting to enforce her own trademark rights against a later comer (someone selling something marked “Stitch ‘n Bitch,” not a casual group calling itself a stitch and bitch group), would she incur the same level of rancour? Or, if SFSE in this case had targeted an actual business that was clearly intended to be an ongoing, profitable concern for its owners–say, a knitting store–that had adopted the name “Stitch and Bitch,” would the reaction have been this violent?

Edit 2: another question. Poking around the site I see that the bio for Elissa K (listed registrant of the SFSE domain name) states that “A former instructor at Parsons School of Design, she has developed a new upbeat method of teaching sewing and design. Her method is patented and comes with a workbook that is written to accompany the classes at Sew Fast Sew Easy.” Of course certain words jump out at me, so I bit. But a USPTO search of patents and published applications for “Meyrich” (her last name) turns up nada. (Even if she didn’t own the patent, if she was an inventor her name should turn up in a search. Assuming that Meyrich isn’t a name she assumed later, and assuming that her patent issue after 1976.) Seems likely if there was a patent application, it would have been filed in the US rather than anywhere else; if it had been, it might have been filed back in the day when US patent applications weren’t published until they were granted. If anyone has her book, can they let me know if there’s a reference to a patent or application at all? I’m just curious.

Edit 3: a correction (not by me). SFSE has changed the registered trademark notice on their guestbook page to indicate that the registered trademark rights comprise the word “cafe.”

Edit 4: a further correction. And later on, same day (this is May 11), it’s back to reading “Stitch and Bitch®” which makes me think that the last time they deleted guestbook comments, they uploaded a previous version of the page.