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One for the Little Guys

A big group of little guys won a nice victory last week when Sweet Pea, Ltd., a Miami clothing company, dropped a massive shakedown—er, lawsuit—against 52 small companies and individuals who had been using the term “Sweet Pea” on clothing.

It looks like Sweet Pea, Ltd. decided there were easier ways to make money than selling little black dresses. They hired a lawyer and brought a vexatious trademark lawsuit! The suit targeted small, mostly home-based businesses that sold clothing with the words “sweet pea,” many of which were selling clothes through CafePress, an Internet store that sells stuff for anybody on a print-on-demand basis. Interestingly, they forgot to sue any of the huge companies also out there busily selling clothing using the words “sweet pea,” like Nordstrom’s or Gymboree.

Each little company got served with a two-inch stack of legal papers containing a demand for $16,000,000. The lawsuit was venued in Miami, thousands of miles away from many of those who were sued. Those who contacted the company’s attorneys were reportedly told that they could get out of the suit for $5,000.

It appears that Sweet Pea Ltd. was taking a page from the music industry, which has been filing similar actions against college students for downloading music. The choice is paying an attorney thousands to fight the damn thing, or just pay up and make it all go away.

All the little sweet peas did something else, something radical: They banded together, got an attorney, and started yelling. The press started picking up a bona fide David and Goliath story. Soon the story hit the papers in Miami, and Sweet Pea, Ltd. withdrew its silly lawsuit. A few of the defendants that had paid a settlement to the company got their money back.

This was a classic case of trademark abuse—it happens all the time, and the good guys don’t always win. An enabling factor of trademark abuse is the incredibly elusive nature of trademark rights. A trademark, as you might know, is a designation of commercial source; a commercial name, logo, sound, almost anything that identifies a business to the public. Not all trademarks are created equal, some are easier than others to protect. Totally random marks are strong—it’s not for nothing that the drug companies come up with invented words to brand their new medicines; more common terms, like “Acme Explosives” or “Sweet Pea Clothing” get less protection. If brand names become part of the cultural lexicon, protection can disappear entirely. Apple Computers has been scrambling to hold on to its rights to “pod”-related trademarks after the word “podcast” was declared the new word of the year by the Oxford English Dictionary. Oops. Making your brand a household word can have some really unpleasant consequences.

And all of this murkiness is the devil’s playground. Large trademark owners take advantage of the uncertainty of the law by terrorizing smaller folks who may be using a similar mark. It’s a form of legal bullying, and to some degree it’s mandated by the nature of the law itself. If you own a trademark and don’t police it or actively protect it, you can lose it, as other people’s use of the mark whittles away at your mark’s strength. And this can lead to some terrifically silly situations. About 15 years ago, the owners of the punk club QE2 (located where the Fuze Box now sits) got a cease-and-desist letter from lawyers for Cunard Cruise Lines, stating that the nightclub “appeared to be offering many of the same services” as the QE2 cruise ship. Having just seen the Sic F*cks play a sloppy-drunk 1 AM set at the Q, I thought this claim was particularly hysterical. Ships ahoy! But the lawyers were doing what they had to do—they probably had no intention of actually suing the club, but they needed to have some C&D letters in the file to prove that they were actively protecting the mark in case the issue ever came up.

But that’s not what Sweet Pea, Ltd. was doing. There was no cease-and-desist letter (one of these days I’ll write something about C&D letters, because their bark is usually worse than their bite). These guys went straight to the lawsuit, and were looking to make some fast money, not to police their mark. To be sure, the Internet facilitated the lawsuit. Sweet Pea wouldn’t have had any idea that 52 tiny companies were selling shirts with the words “sweet pea” on them without Google and the Web. But wonderfully, the Web also facilitated the defendants’ ability to fight back, to band together, and to engage the press, and to ultimately force Goliath to back down. Fight the power, indeed.

—Paul c. Rapp

 

Paul C. Rapp is an intellectual-property lawyer with offices in Albany and Housatonic, Mass. He teaches art-and-entertainment law at Albany Law School, and regularly appears as part of the Copyright Forum on WAMC-FM’s Vox Pop program. Contact info can be found at www.paulrapp.com.


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