First, Randazza posted about it.  Then Ken posted about it.  Now I’m posting about it.  It’s a test.  Can the blawgosphere, a bunch of lawyers with computer access, do enough to right a wrong?  Let’s find out.

The wrong is that big, mean, nasty Nordstrom has chosen to crush a small, two-person business because they held the rights to a name that big, mean, nasty Nordstrom wanted to use.  As explained in this InformationWeek article, the US Patent and Trademark Office screwed up (shocking!) and opened the door to the giant corporation “steamrolling” a tiny business run by Ann Sather and Becky Prater, who had trademarked the clothing name “Beckons”.

Nordstrom, the retailer with the glorious public image, is using a screwup by the federal government’s Patent and Trademark Office to overwhelm a tiny online retailer via courtroom challenges that to date have cost the two women who own the small business $70,000. Reflecting the riskiness of IP issues, they tell the PTO, “Your office has ensured our demise.”

After Ann and Becky filed, but before their application was published, the Nordstrom retail chain filed applications for a trademark on the word “Beckon,” planning to use it as a house brand on women’s fashion apparel and accessories. The similarity between the two words and the identity of the product lines would have required the PTO to reject Nordstrom’s application, but it didn’t. Somehow, the examining attorney missed the fact that “Beckons” already was a registered trademark associated with clothing. He approved Nordstrom’s applications for publication.

So instead of continuing to build their business, Ann and Becky found themselves hiring lawyers to file an opposition to Nordstrom’s trademark applications, something they had to do to protect their mark. Because they were first to file and first to use, the law unambiguously gives them the right to their trademarked term “Beckons” and anything similar. But trademark law and trademark practice are two different things.

The strategy was simple: attrition.  Just keep lawyering these two women to death and eventually they will be crushed.   InformationWeek writes about this as a cautionary tale of the trademark process, which it most assuredly is.  But my take is that it’s a reflection of lawyers run amok, where we put aside all professionalism and honor to do harm for the party with the most cash on hand.  Wonder why people think the law and its practitioners are scum?

While Ann and Becky may lack the funds to afford to fight Nordstroms to the death, and will ultimately lose despite the fact that they did everything right, they had no hand in the government’s screw-up (shocking!), it seems that those of us who write daily about the injustices that our system perpetrates can pitch in the make sure that Nordstroms does not get away with this unscathed.  I don’t know whether there’s a chance to help the victims, but I bet we can smear Nordstroms pretty well if we all make a stink out of this.

If nothing else, let’s turn this mutt from a cautionary tale about the trademark system into a cautionary tale about big business using its resources to crush anyone who stands in its way.  Nordstroms disgraceful conduct should not go unnoticed, and perhaps the next big corporation out to crush it tiny opposition will think twice about the public relations fiasco that might follow.

It couldn’t hurt.  It might help.  Write about it.  Let see if the blawgosphere has enough clout to make a difference.