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'Sourpeas' story has a sweet ending

But head of group says now-dismissed trademark infringement suit left him with a sour taste and a desire to help fight trademark abuse.

A pet name most people think of as sweet and innocent ended up the crux of a trademark infringement lawsuit that was anything but.

Miami-based Sweet Pea Ltd., a maker of women's apparel, filed a federal lawsuit earlier this year alleging that 52 defendants, most of whom have small online shops through,were infringing on its trademark by putting the term "sweet pea" on their clothing. The company sued each merchant for $16 million. (Click here for a PDF of the lawsuit.)

Seattle-based Tim Celeski, whose wife was one of the defendants, responded by organizing a group called the "Sourpeas" to fight the suit, which was voluntarily dismissed this week by the plantiff.

Celeski and his wife--both graphic designers--quickly concluded that the suit was unfairly targeting mom-and-pop shops that didn't have the money to properly defend themselves. They pointed out that larger retailers such as Gymboree, which currently sells a "Sweet Pea" line of newborn clothing, were absent from the suit.

The lawsuit itself was 2 inches thick and quite intimidating in the way that it was all set up.

Sweet Pea Ltd. denies targeting only the little guys, and the company's general counsel, Todd A. Gabor, said the apparel maker didn't even know about the Gymboree line until after the Sourpeas noted it. Gabor added that the company's goal was simply to combat the infringement of its trademark. "We never had a single desire to make any money off this," he said.

Sweet Pea owner and founder Stacy Frati added that those sued were retailers who popped up in Web search results when "Sweet Pea" was used as a search term. Frati said the situation was confusing to her customers. "We built a name, and we're just protecting it," she said.

But Celeski wasn't buying it, and he quickly turned to the Internet for help. First he created a password-protected Web site with a chat room, so defendants could get together, share resources and create a legal defense. Then he put together a public Web site that was not only part of a strategic media campaign, but also an educational resource for those who might find themselves in a similar situation.

Celeski said he doubts it was coincidence that settlement negotiations started up just as the story was making headlines in papers around the country, including Sweet Pea Ltd.'s hometown of Miami. (Click here for PDF of the suit's dismissal.)

Sweet Peas' Gabor, however, said the media coverage had been positive "exposure" to the fact that "you just can't trade on someone else's mark." He said he asked that the case be dismissed because of the defendants' willingness to settle (on terms he wouldn't specify).

The following is Celeski's take on the story, which he hopes will be of help to others involved in what he considers to be a growing problem of trademark abuse in the Internet age.

Q: How did you and your wife react when you first saw the suit?
Celeski: My wife was the first person to see this. She was the one who was served. She was very shocked by this--particularly since she's someone who has lived by trademark and copyright laws all her life--to find that somebody was accusing her of trademark violation. The lawsuit itself was 2 inches thick and quite intimidating in the way that it was all set up.

My reaction was a little bit different because it just really looked like some kind of a shakedown lawsuit from the beginning. So my first inclination was to try to find some way to fight it.

How did you go about doing that?
Celeski: My first task was to, of course, get some legal advice and find out what this was really all about. Our attorney (called) the plaintiff's attorney and found out it was a situation that could be remedied, if a $5,000 one-time payment was made to the attorney. The plaintiff's attorney always mentioned that there was room for negotiation, but that seemed to be where it started for pretty much everyone else we talked to. How did you go about finding others named on the suit?
Celeski: My wife and a few of the others tracked back names from shopkeepers at Cafe Press. And after that it became a matter of using Google and other search engines to try to track down the other defendants. It was quite interesting because if we did Google searches, we were finding the defendants' names on the lawsuit in almost the same order, or same priority level. How did the other defendants react?
Celeski: It was just totally shocking that they would be named in a lawsuit, and it was taking a great psychological toll on them. The fear of the financial repercussions was just tremendous. Most of these defendants turned out to be mothers with small children at home who maybe opened a little Cafe Press shop and maybe printed a little T-shirt or something for their daughter or child. And then to find that they were named in a lawsuit that requested a $16 million judgment against them, or a potential $5,000 payoff, was devastating. And the more we found out about that, the more determined we were to try to get everybody out. Why do you think that the defendants were targeted. And why do you think others weren't?
Celeski: When I first saw the lawsuit it became very obvious that there was something missing. There were no large defendants in here. The most important defendant not named in the lawsuit was Cafe Press, the very manufacturer, seller and fulfillment company for most of the merchandise that was in the lawsuit. It became very obvious that small companies were in essence targeted because the plaintiff's attorney knew there was no way financially that they could afford to truly defend themselves in the case. The cheapest way out of the lawsuit was to write a check.

There were huge numbers of large potential defendants, including Gymboree, Carters, Nordstrom and many others that should have been named, but they weren't.

The very same day that the Miami Herald story ran, all of a sudden we were getting settlement offers that were quite acceptable to the defendants.
Talk about the media campaign. How did you go about that?
Celeski: Early on, we knew we needed two things to prevail. One of them was a very good legal strategy and representation. The private Web site ultimately was a tool that helped us find just the right attorneys. The second part was a strong media campaign (which) would be a very useful tool. A media campaign is not always useful in every case, and sometimes it can definitely backfire, if it's not planned very well. If you go public, you can really hurt yourself.

So what I started to do, and it took me about three weeks to put it together, was to put together a very careful media plan. One of the most important parts of the media plan was to essentially create a set of tools, some guidance and some structure that would help train essentially 12 to 15 people who went public.

What was the end result?
Celeski: There was a timing to the media campaign. Everyone started by first hitting their own regional or local newspapers and TV stations. We tried to time the media campaign so that the most important date was effectively when The Miami Herald would run a story. The Miami area was where both the plaintiff's attorney and the plaintiff were located. The very same day that the Miami Herald story ran, all of a sudden we were getting settlement offers that were quite acceptable to the defendants. Whether that was coincidence or not is something that might be disputed, but the effect was very obvious, once the media campaign had ramped up.

Has all this given you new insight into potential problems with trademark laws?
Celeski: My background originally is in graphic design. Understanding the basics of copyright law is simply a part of the business. I had certainly been well-aware that true trademark infringement has been a big problem ever since the Internet started to become very popular. But I wasn't aware that you would find situations where, in essence, trademark abuse is also an equal problem caused by growth in the Internet. Trademark abuse is when a potentially questionable trademark or copyright is used as a vehicle to create a type of legal extortion on potentially innocent victims. It was something very new to me. In the process of dealing with this lawsuit I was in touch with a large number of intellectual-property attorneys, and all of them had said that this seems to be (the area that will spawn) the coming shakedown lawsuits.

What do you feel are the other things that will come of this case?
Celeski: The third part of all this was to archive the important materials into an educational resource for people who may end up in this sort of litigation situation. The Web site over the next few months will evolve into more of a general purpose Web site to help people with the issues of trademark abuse and trademark infringement. But we won't even start this until we take some time off. Between my wife and I, we're well in excess of a couple hundred hours in terms of the efforts put in to try to resolve this problem."