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This sweet-pea designer proves she's no pushover
(Seattle Times, The (KRT) Via Thomson Dialog NewsEdge) Mar. 15--Self-employed graphic designer Leslie Newman is used to doing business online. So when she found herself on the receiving end of a $16 million trademark lawsuit over her "sweet pea" design, it was natural that she'd use the Internet to fight back.
Newman and her husband, Tim Celeski, helped organize defendants from around the country in a publicity campaign they say contributed to a settlement this week with the Miami clothing designer that sued them in January.
That outcome seems worlds away from the January night when Newman was served with the lawsuit claiming that her designs on T-shirts and bags violated Sweet Pea Limited's trademark on the phrase "sweet pea."
Most of the defendants -- 52, including Newman -- are tiny compared to Sweet Pea, whose chic tops and dresses sell for $60 to $100 at hundreds of boutiques and national chains, such as Nordstrom. Newman's sweet-pea apparel, a sideline to her West Seattle graphics and illustrating business, had total sales of $310.
"They just laid this huge lawsuit on all these kind of naive, innocent business people," Newman said.
But Newman wasn't intimidated and quickly set about contacting other defendants.
She easily found many through CafePress.com, a Web site that puts sellers' designs on everything from fridge magnets to messenger bags and handles production, billing and delivery.
Celeski built a password-protected Web site in which defendants could talk, share information and legal resources, and plan a defense that included going public with their fight. The group adopted the name Sourpeas.
"Most of us don't have money to fight this," Melanie Drake, a stay-at-home mom in Ross, Pa., told the Pittsburgh Tribune Review late last month.
The Sourpeas, noting that it wasn't warned first with a cease-and-desist letter, called the suit an attempt to scare it into a quick cash settlement.
Sweet Pea's attorney Alexander Barthet said the suit was meant to protect his client's rights in the trademark. Sweet Pea had no way to know whether the defendants "sold none, one, 10 or 10,000 shirts," he said. While the Sourpeas didn't have cash to mount a vigorous legal defense, it did have other assets.
Celeski, the son of a former television news producer, is a self-described news junkie for whom discussing communications strategy is "a family tradition." His background includes work in marketing and organizing business groups, although he's never been a public-relations professional.
He spent three weeks strategizing, writing a news release and background materials and coaching the Sourpeas on how to communicate effectively with the media.
"I wanted people to be able to outline their entire story within two to three sentences," he said.
In late February, the Sourpeas let fly.
It distributed news of the lawsuit -- and its spin on it -- using a free on-line press release service. The group built buzz through mentions on Internet blogs and launched a Web site with information and phone numbers for the Miami company and its attorney.
It barraged media outlets where Sweet Pea would feel it the most. The Miami Herald, Sweet Pea Limited's hometown paper, ran a story about the dispute last week. The Sourpeas highlighted several elements around this relatively low-stakes trademark suit to sell it to the media, although many were irrelevant to the legal issues.
The case seems improbable, they noted. How could a phrase as common as sweet pea -- the spring vegetable and flower, the affectionate name for pets and babies, including Olive Oyl's -- be trademarked?
"There are all kinds of words that are covered by trademark that are very common words -- a lot more common than sweet pea," said Margreth Barrett, a professor at University of California Hastings College of Law who has written on trademark law and the Internet.
Search engines make it easier for intellectual property owners to find people who might be violating their trademarks, Barrett said.
The Sourpeas lived the underdog role, with defendants like stay-at-home mom Drake telling reporters she made only $27 for her trouble. Adding to that image, the Sourpeas pointed out that the lawsuit didn't go after any large companies like Gymboree, the major kid's clothier selling a sweet-pea line this spring.
Barrett said that while going after the "small-time" defendant may not be an admirable legal strategy, "there's nothing in the law that says [the plaintiff] has to pick on somebody his own size."
Newman and most of the Sourpeas reached settlements with Sweet Pea this week, but they're keeping the details confidential.
Did the media campaign have any bearing on the decision to settle?
"We were sensitive to not overkilling this situation," said Todd Gabor, Sweet Pea's general counsel.
But Barthet, the outside attorney who filed the lawsuit, said there was no "direct correlation between resolving the case and the [newspaper] articles."
Celeski said the media coverage helped make Sweet Pea aware of its attorney's tactics and who it was suing.
"We wanted Sweet Pea to understand that the defendants were not a bunch of faceless companies, but almost all young mothers without the resources to defend themselves on the merits of the claims," Celeski said.
Celeski is documenting the Sourpeas' experience and posting it on their Web site, sourpeas.org, as a resource for other groups who find themselves in a similar bind. He's pleased with the outcome but warns that going public carries risks.
"There always is the danger of putting defendants in more jeopardy," he said.
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