Your analysis is a little different from what she provided.

Analyse it this way:

1. Identify the suspect taking of another’s work (photocopying, plagiarizing, colourable imitation, etc. etc.).

2. Determine if it was copyright infringement:
(a) was the taking done without authorization of the copyright owner or someone able to give that authorization?
(b) did the taking constitute a substantial part of the copyrighted work? (this is the hardest of these three questions to answer, because “substantial” is not clear-cut)
(c) if so, did the alleged infringer have access to the work? (may be indirectly; but if the alleged infringer was totally isolated from outside influences including a source for the work in question, then it seems more like coincidence and not copying)

3. If the act was infringement (yes to all three questions in part 2),
(a) determine if it falls within one of the specific fair dealing exceptions
(a) did the act fall under one of the categories of fair dealing (not detailed here)?
(b) was this manner of dealing with the work “fair”?

Determining whether the dealing was “fair” is a somewhat quantitative, but also qualitative analysis. At this point, you again consider how much of the work was taken, and whether it was necessary for the fair dealing purpose, and what impact it has on the original work (and other considerations). So in a fair dealing analysis, you assess some of the same questions twice: first as “substantial part” when identifying copyright infringement, and again as “fair” dealing.

In the case of a pattern book, chances are the act of copying even a single pattern in a book makes it infringement, which means yes, it’s against the law, but then you need to move on to the fair dealing analysis.

I’ve been having a debate with an instructor about Copyright. She claims that copying a patternbook or at least much of a patternbook to have a (personal) working copy is against Can. copyright law.

If you need fair dealing and the right to an expemption, wouldn’t it technically be against the law. But then the cases seem to suggest fair dealing can also be an independent justification.

(Uh… I hope. I never asked.)

The thing about the use in commerce is also a bit tricky. SFSE wasn’t charging money to access their site, and the chat forum seemed to be a supplement to their in-person gatherings, but I recall reading (somewhere… now I can’t find it) a decision or comment that stated that “commerce” was broad enough to encompass activity that didn’t require a transfer of funds. Not certain if it would include this particular type of use. And I believe the legal definition is something like “all commerce which may lawfully be regulated by Congress” (I’m pretty certain some government agencies think they can regulate this kind of thing .) So we’ll see what the TTAB (the board hearing this) will say–and oh, there are a few blogs run by US trademark attorneys who report TTAB decisions when they’re published, so it will be very interesting to see what their comments will be.

The falsity of the claim that they coined the “stitch and bitch” phrase is incidental–their trademark application wouldn’t have made that kind of statement, only that they believed they were entitled to use the mark (which isn’t the same thing as inventing the phrase). Plus, they tacked on “cafe” to the end of their mark. The evidence of the use of “stitch and bitch” is more useful, I think, for the descriptiveness argument.

Further, as I understand it, TM can only be placed on commercial interests, in that one must be earning some kind of consideration (money) in relation to the use of the TM. Until very recently, SFSE only used the SNB Cafe mark in relation to the online guestbook and forum, nothing was sold through those until they decided to stamp the phrase on some sewing and knitting notions. The relation to SFSE was just by mention (online forum provided by SFSE, etc), and until recently, they engaged in no online commerce, only selling product and services at their physical store in New York, right?

How much hay can be made of SFSE’s contention that they invented the SnB phrase being proven false? Some lovely person is collecting evidence of use of the phrase, both online and Real World, prior to 1997. Putting TM on SnB would kinda be like TMing “Quilting Bee” or “Sewing Circle” wouldn’t it?

I think I think too much … especially on a Saturday. I’m going to go Stitch ‘n Bitch now …

If you look at the different International Classes (follow the link in the post and poke around), you’ll see that there really isn’t any other category that a guestbook/chat forum fits. And I wonder how much the Board will split hairs on the guestbook/chat forum issue. However, there still are the original grounds (that “stitch & bitch” and “cafe” are each descriptive).

Regardless of this outcome, I’d like to know what’s going to happen with SFSE’s new trademark application for STITCH AND BITCH. If this cancellation proceeding succeeds, Deb’s applications will continue to be cited against SFSE’s new application, resulting in… an opposition by SFSE against Deb? (An opposition is kind of like a cancellation proceeding, but it takes place before a mark is registered.) If the cancellation fails and Deb’s applications die, she arguably has common law rights in the marks for her series of knitting and crochet books, and SFSE did not introduce knitting until after this whole thing started, so… an opposition by Deb against SFSE?