Variation on a theme

As I learned from a learned group yesterday, a real, bona fide, lawsuit has been commenced against Rowan and a Hebridean mill by the Harris Tweed Authority (HTA). A news report from The Herald can be found here (ignore the javascript box–this is the print version that puts all the content on one page) and the HTA’s press release is available here.

The conflict relates to the use of “Harris” to describe Rowan’s knitting yarn, which the HTA says infringes its registered marks. The HTA owns marks — primarily, certification marks — in more than one country for use in association with tweed made from virgin wool.

Certification marks are used to indicate that a particular product or service meets a defined standard or set of characteristics, such as quality, country of origin, or method of manufacture. One well-known example is the Woolmark symbol. These marks are owned by a single entity, but they’re licensed for use by others who provide products or services that meet the defined standard. A basic explanation of UK certification marks can be found here.

Often, the entities that own certification marks are created by private individuals or companies out of a need to protect a particular industry. Sometimes they’re created by statute. In the case of the HTA, both are true; it was originally founded as a private company in 1909 to protect the home-based clothmaking industry based in the Outer Hebrides, and was later re-established as a UK statute-based entity with power to enforce the Harris Tweed appellation. A copy of the Harris Tweed Act 1993 is available from the HTA website. The preamble contains a very abbreviated history of the HTA, and the reason why it was re-created by statute.

The Harris Tweed Act 1993 includes a general definition of Harris Tweed:

“Harris Tweed” means a tweed which

(a) has been handwoven by the islanders at their homes in the Outer Hebrides, finished in the Outer Hebrides, and made from pure virgin wool dyed and spun in the Outer Hebrides; and

(b) possesses such further characteristics as a material is required to possess under regulations from time to time in force under the provisions of schedule 1 to the act of 1938 (or under regulations from time to time in force under any enactment replacing those provisions) for it to qualify for the application to it, and use with respect to it, of a Harris Tweed trade mark.

(Note that the wool itself need not be grown on the islands, nor need the intial processing be carried out on the islands; but the definition states that dyeing and spinning take place in the Outer Hebrides.)

Generally speaking, the principle tools available to the HTA in enforcing the definition of “Harris Tweed” are its intellectual property rights. The statute grants the HTA authority to obtain and maintain trademarks and other marks or designs anywhere in the world, and to license them to users as it sees fit, as well as to enforce its registered and unregistered intellectual property rights against others to prevent the sale or offer for sale of material that is “represented as Harris Tweed but is not Harris Tweed” or any garment or article that is “represented as made (wholly or partly) from material which is Harris Tweed when it has not been so made.”

The certificaton mark that has been registered in the UK and in other countries consists of an orb topped with a Maltese cross, and the words “Harris Tweed.” (Like the “stitch and bitch” case, that doesn’t mean that all enforceable rights are necessarily restricted to that incarnation of a certification mark; as you can see in the present case against Rowan, the HTA takes the position that the use of “Harris” to describe yarn is an infringement of at least its common law trademark rights, because it is confusing or evokes the association with Harris Tweed.)

The HTA has a history of defending its mark: in Alice Starmore’s In The Hebrides, there is an excerpt by Francis Thompson about “The Orb Mark Judgment,” which recounts the 1964 litigation between the HTA’s predecessor and a manufacturer that had been producing so-called “Harris Tweed,” but not stamped with the certification mark. The action in that case had been commenced by the manufacturer, who sought a declaration that it was able to market cloth as “Harris Tweed” provided that at least some portion of the manufacturing process took place in the Outer Hebrides. The manufacturer had indeed contracted with islanders to weave the cloth, so the fabric was being woven on the islands, but apparently other steps were carried out on the mainland. The HTA, as the defendant in the action, countered that it was essential that the entire manufacturing process take place in the Outer Hebrides. The Scottish Court of Session ruled in favour of the defendant HTA.

Coming back to the present day, Rowan recently released a new yarn line of “Harris” yarns (4 ply, DK, aran, and chunky) that it described as being “created using all the traditional spinning and dyeing techniques made famous by Harris Tweed cloth, ensuring a quality and depth of colour in a pure wool yarn created just for hand knits,” and with pattern support by Di Gilpin. The yarn was manufactured by Harris Tweed Textiles Limited (HTTL), which is in fact based in the Outer Hebrides and seems to be knowledgeable about Harris Tweed certification. Its website suggests that it produces certified Harris Tweed cloth, although the text on the site doesn’t state that outright; however the HTA’s press release acknowledges that HTTL’s cloth has been certified Harris Tweed.

According to this press release, the HTA requested that Rowan and HTTL cease offering the “Harris” line — not necessarily that they cease offering the yarns altogether, but more likely that they stop calling it “Harris” yarn — but apparently the companies refused. And so, on May 10, the HTA commenced proceedings against Rowan, HTTL, and two other companies, seeking an injunction preventing them from using terms such as “Harris wool” or “Harris yarn” to describe their non-Harris Tweed products, or from using HTTL’s harris-tweed top-level domain to promote products that are not Harris Tweed.

It’s apparent that so far, at least one of the defendants intends to vigorously defend the action; the Herald reports that the chair of HTTL called the lawsuit “disgraceful” and “naive and misguided,” lashing out that the HTA has not done enough to promote the island industry, and further that the the “Harris Yarn” name is generic. (He also noted that HTTL doesn’t offer the yarn for sale online at its harris-tweed.co.uk website.) And Rowan, of course, still lists its Harris yarns on its website.

Some retailers of Scottish yarn have apparently changed their advertising copy quite recently (I have no idea if the changes to the site were sparked by a request from HTA.) Alice Starmore’s Hebridean yarn, which had previously been described as an attempt to make a “knitting version” of Harris Tweed weaving yarn website (this is a link to archives.org — scroll down to the paragraph beginning “Though times be good or times be lean…”), is no longer described as such on her current site.

Previously, AS wrote that she found it ironic she could never find a Hebridean product to knit with, despite being surrounded by Harris Tweed production:

Why could I not obtain knitting yarn in all the wonderful blended shades used in making Harris Tweed? Answer – because the weaving yarn has a different twist to knitting yarn. It is a twist specially used for weaving, as the yarn has to be tough enough to take the tension of warping on a large piece of machinery. This makes it unsuitable for knitting purposes. It is entirely feasible to make a knitting version, but a certain amount of new equipment is required, and it has taken me a while to find a mill that is interested and willing.

and that she eventually found a spinner on the Isle of Lewis who had developed a “Babysoft” Harris Tweed that she had spun with a knitting twist (note that the HTTL site lists a “Babysoft” Harris Tweed cloth). This description certainly existed on the site until at least some time in 2004; now, the story of her yarn still explains that Harris Tweed weaving yarn has a different twist than knitting yarn, but no longer refers to a “knitting version;” also, the story now refers to the “encroachment of rogue companies who have misappropriated the Harris Tweed name (much more on this story soon).”

Another retailer that previously described some of its yarn (another archive.org link) as “developed from the yarn used in the famous Harris Tweeds” and “specially developed by a manufacturer of the famous Harris Tweed textiles to bring the renown softness and quality to knitted garments” changed its website to now describe its yarn as “specially developed in the Hebrides off the West Coast of Scotland to bring the renown colour, softness and quality to knitted garments” — the references to “Harris” have been (mostly) expurgeated.

Like the SFSE/stitch and bitch conflict (which so far as we know is not at litigation yet, so don’t start overreacting), there are a lot of questions that simply can’t be answered at this stage. Does HTA have the right to prevent usage of “Harris” by anyone at all in relation to yarn and wool, because it could be made into a cloth? Maybe, maybe not. Did consumers think that Rowan’s Harris yarn contained HTA-certified content? That would require research we don’t have. Will HTTL’s argument that it has successfully employed 10 islanders when the industry meant to be protected by the HTA has been dwindling have any impact on the court? Who knows.

The only thing I can predict with any certainty is that the general public will offer up a more dignified response, compared to some of the individual reactions that the “stitch and bitch” incident garnered elsewhere. Perhaps it’s yarn snobbery, but I figure that the target demographic for Harris-like wool yarns is a little more restrained than the SnB audience. Or perhaps it’s because it’s easier for people to take a more neutral position when the parties involved are corporations rather than individuals.

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4 Responses to Variation on a theme

  1. j. says:

    Yes, the Harris Tweed designation is kind of like the protection that is given to particular wine regions, depending on the country, since some countries don’t give as strong protection to wines and spirits names.

    It’s up to the HTA to establish that it’s entitled to trademark rights just like anybody else in order to protect the name “Harris Tweed.” In some countries, associations of champagne producers, etc., may be required to meet the same standard. But I wouldn’t be surprised if in certain countries, say their home countries, the protection was ensconced in legislation or regulations.

  2. Jo in Ottawa says:

    Also interesting that the name only requires manufacture in the Outer Hebrides and not the Isle of Harris itself, given the name.

    Is the legal status of the description ‘Harris Tweed’ a bit like the designations that some wine regions give? I know that some European decisions have prevented place-based names for some foodstuffs to be only used for food manufactured in that place. There is something happening about ‘feta’ at them moment, I think. Would this case be similar to that, or is there something specific about the Harris Tweed mark?

  3. j. says:

    I don’t think the HTA can be bought out–they’re established by statute, so they’re not a private company that can be acquired. But the individual homeworkers or mills could be bought out, or simply abandon their Outer Hebrides-based business for something more remunerative. If they did, I suppose that would mean the HTA would have nothing left to protect…

  4. Steph says:

    Thanks for summarizing all the cafuffle. I appreciate a good wool but had no idea about all the “stuff” that surrounds the name Harris Tweed.

    Which mean’s you’re right. I’m not all that upset about the lawsuit and don’t really have an opinion on the topic. Though the idea that the trademark originated to protect the work(ers) of a particular region is interesting–what if that industry dies out? What if they get “bought out” and move offshore somewhere?

    The AS stuff is particularly interesting.