Newsmaker: 'Sourpeas' story has a sweet ending

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 CafePress.com,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.

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[dargon19888]

Article too one sided...

Its what is not said that is important.

In order to maintain your trademark, you have to sue anyone who infringes on it.

While Sourpea's notices that only the "little guy" got nabbed, he may be misinterpretting why only the little guys got sued.

Litigation costs money.

One potential strategy is that you sue the little guys, get them to settle quickly. (Read minimal expense to you). You then have a history of litigation and "victories" so that when you go after the larger guys, you have some legal ground in your favor.

IANAL, but as a small business owner, had I a trademark that I wanted to protect, that's the way I'd go after the infringers.

Use the "little guy" to my advantage and to test the waters.

Its really a matter of money. On both sides....

But hey! What do I know?
Just some armchair qb who's into gaming strategy.

[Jim Harmon]

What I'd like to see now is...

... to have Sweet Pea Ltd be sued by Max Fleischer (known for "Popeye" cartoons) for infringement on the name "Sweet Pea!" :D