I’ve mentioned before that I don’t ordinarily take weekends off, normally, and I take my rests when I can get them. Today I kept a relatively slow pace and I sent off just a few small packages today and had a little meeting in the morning. I did no sales calls at all, though I returned phone calls.

I guess a day off is when I take lots of really long breaks between tasks.

I had lunch at home, which was way bigger than it needed to be because I felt ravenous at 1pm. It was basically more quesadillas with remaining salsa, and some refried beans, but I served too much. I didn’t really feel a need for dinner at the customary time, but I had an orange at home, a cookie at Uptown, and some fried potatoes made at home, spread out as little nibbles between 6pm and 11pm.

Tonight I went to a free concert at Jazz Alley featuring this year’s winner of the Kobe Jazz Fesitival’s “Jazz Queen” title, Shoko. A similar event last year featured Yoshika, and I attended with a friend who was helping me out with some promotional events last summer.

This year, I was a slacker planning to attend, as I was last year, and I didn’t find anyone else to see the concert with. I ended up going on my own. It turns out I met some people who vaguely recognized me from other environs, and I recognized one of them from a weekly Japanese meeting. It turned out to open up an interesting coffee shop customer possibility I’ll have to explore, and created an opportunity to share a bottle of Oregon Pinot amongst us, and we could collectively enjoy a nice couple of sets of music.

I nearly had a disaster shipping out today’s orders… I had a bunch of packages to ship, and I was running up against the wire. I got everything loaded in my car, and tried to start it, whereupon I heard nothing but clicking sounds.

Last year, after a car breakin, I caved in and bought an expensive alarm system, which also featured a remote starter control. This is clever, if gimmicky, and is moderately useful. Unfortunately, it opens the door to special problems.

One of the very useful built-in features of my Toyota Camry is that, when I remove the key from the ignition and open the door, the headlights automatically shut off. This is very useful for someone like me, since I drive with my headlights on most of the time, and I often forget that I left them on when I get out of the car. Even when I’m forgetful, the battery doesn’t suffer.

Unless, of course, you have a remote starter. The feature still works, but, if, for example, you unwittingly kick off the remote starter when grabbing something out of your pocket, the headlights and the engine turn on. If I don’t actually drive the car anywhere, the engine shuts down after 12 minutes, but the headlights stay on, because the car door never gets opened when I’m busy packing orders in my office.

And then the battery drains. And then I miss the pickup at my nearest FedEx Kinkos. And I’m forced to wander around hoping to find someone with jumper cables, and this works out only about 30 minutes after I started this misadventure, when I happen upon some kind man walking his dog not far from his home. Then I drive to the FedEx sort facility and barely make the last shipping cutoff.

I was then compelled to eat mediocre slices of pizza somewhere downtown instead of doing something more interesting at home.

I found my business email account is now averaging one spam message per day advertising some sort of questionable Japanese matchmaking service, and about one or two messages per week in Hebrew. Every once in a while I get spam in Chinese or Korean, though that’s far less common.

My domain name has a Japanese word in it, so maybe that would explain why I’m targeted for Japanese spam, but it’s not much of an explanation for the stuff in Hebrew. I haven’t ever registered for any Japanese site with my business email account except FoodEx or Hoteres trade shows.

Except for the fact that MSN somehow redirects a defunct Israeli florist site to my YuzuMura domain, I can’t figure out why I get spam in Hebrew. I tried to get someone in MSN that I used to work with to investigate that particular problem, though nobody has ever gotten back to me.

I’m not literate in Hebrew and I don’t understand enough Korean to recognize what the Korean spam is about. I understand the gist of the Japanese spam but even on the extremely remote chance I were the type inclined to respond to such offers, I don’t see what value sending it out of the country would be. The Hebrew spam seems to be Israel-based companies promoting vending machines or vacation packages or something similarly useless since I’m nowhere near Israel. They are particularly abusive because they tend to include large image files.

Sometimes I wish email weren’t so close to free. One of my email accounts became almost completely useless after 6 years of use.

The day started out rainy, which wouldn’t ordinarily be shocking in Seattle, but it made me less excited about doing all of the things that I really needed to do this morning. I went to my office to prepare some things for today’s grocery store demo, and I did these things quickly, but rather than rush off and be a happy demo guy, I directed my attention to preparing web orders for shipping, even though none of them can ship until Monday.

I made it to my demo, a little behind my original planned timeframe, and it went as well as usual, I think. My mind wasn’t quite on task, but things mostly worked out.

When I got home I got very frustrated about something personal and I lost all of my energy. I ate some cake I made late last night, and even the sugar didn’t create the usual rush of endorphines. I just felt hopeless.  I got doubly irritated when I tried to fight with my freezer, putting in uncooperative ice packs that I used to keep milk and candy cold for store demos, and watching them fall out, or finding out that something in the freezer shifted and kept the door from closing. I must have looked a mess when I went to run a quick work-related errand, and I am probably in worse shape now. When I got home, someone parked in my parking space, and I was so irritated I blocked them in. I’m in a mood not much different than when I felt some slight, real or imagined, from my parents when I was a moody teenager. It often took a few days or weeks to recover.

I hope I’m not that bad as an adult. It will ruin me.

My morning didn’t end up as productive as I needed it to be; I was hoping to get some more paper for gift cards for online orders in the morning, do some order packing, and handle a wholesale order that I needed to deliver. One of my errands today required obtaining just-finished matcha-chocolate dipped fortune cookies and trekking them out to the Eastside, with the intent of getting  back in time to finish the internet and phone orders on my plate. This didn’t work out very well, since I had to do other things on this side. I am a bit frustrated, because I’ve been really behind schedule on a lot of things recently.

I got home fairly late, so I kept dinner simple… some grilled corn with Japanese mayonnaise, pico de gallo salt, and lime juice; simple quesadillas with a pepita salsa, and some sliced jicama with a heavy splash of lime juice and a little more pico de gallo salt.

Quinoa is a miraculous thing… not exactly a grain, but nothing like a bean, it has a fairly high protein content, and serves well as a vegetarian main dish. It also looks almost alive when it’s cooking, as the germ starts making its way out of the seed.

I once served quinoa to a bunch of Japanese friends who were kind of afraid of the dish, because they watched the germ squirming out of the quinoa in a wormlike fashion. But they took to it instantly, as it was richly satisfying served with some bitter greens and mushrooms.

Tonight I made a not very exciting dish with quinoa, broccoli, confettied bell peppers, tomato, and onions. I stirred in a bunch of basil pesto, sans cheese, and served it with a little more pesto and harissa. I usually cook this with a bit of  vegetable soup stock, and lacking this, the dish suffered a bit and required more aggressive seasoning. I might have been able to use a lighter hand with the pesto had I a bit more complex of a base note.

Tonight’s dish looks a little bit like a 1970s vegetarian creation, but it did actually taste fairly nice. It did benefit from the harissa, though.

The weekend internet orders that had accumulated since Friday almost spiraled out of control. It’s relatively rare for me to get a lot of internet orders over a weekend, but last week had the advantage of coinciding with a new month. Over time, I’ve learned that I get a higher number of orders in the first half of each month than the last half. I’m not quite sure why that is.

Anyway, the car complications distracted me from filling orders, so I didn’t get any of the weekend orders out until today. I still have a few orders that date back more than 48 hours, which is my usual service standard. But I should be able to get everything under control by tomorrow, unless something insane happens.

I’m really happy with the upswing in traffic and orders on YuzuMura.com. I’m still not exactly sure what’s responsible for the upswing, but I hope it keeps working. I need it to roughly double to make it really pay for itself, though. And it’s already getting hard to keep up with, considering all of the other things I should be working on outside of YuzuMura.

If I knew that absolutely every day would be as busy as the last 7 days, I could actually hire some help. But I’m not quite there yet.

I mentioned maybe a week or so that my car’s brakes had become a bit noisy. I got it in to have it checked out today at Meineke, not far from my office.

It turned out that this problem was not just brake pads… apparently two of the pads had worn to non-existence, and the brake was riding right against the rotor. And along with it came a $600 repair bill…

It distracted me most of the day so I didn’t make much of a dent on an insane number of internet orders that came in during the weekend. I wish I had some help right now, though I don’t have any money to pay for it.

By posting the entirety our email exchange in a comment on my blog, The Chinese Gadfly has implicitly granted permission for open publication of our email exchanges; accordingly, I will indulge him, although I will remove the email addresses and names of my supplier and those of my attorney’s office.

Since he published his email address on my blog, you’re welcome to email The Chinese Gadfly.

The Chinese Gadfly uses multiple identities. The first email came from a domain which is cloaked to a pseudo-trade directory. Most of the company’s online presence seems to be search engine spamming. Their message came by way of the online contact form on my YuzuMura.com site.

From: [YuzuMura.com Online Contact Form]
Sent: Friday, September 02, 2005 3:11 PM
To: [Jason Truesdell]
Subject: Contact Inquiry From Website

Name=Pelo Napili
Phone=+8618301727207
EMail=pay@payac.com
Subject=Dragon Beard Candy
S1=Dear Sirs, I wish to inform you that "Dragon Beard" word has been registered with ipos "Trade Mark" under the nutra swiss plc. To avoid any legal action gainst your company, Please remove all the above marks from your website immidialy. I has been sent the report to China Industry Commerce for future actions if you not proceed our request. Thank you Shanghai Wan Pan International Nutra Swiss Representative in China
B1=Submit

Note that The Chinese Gadfly has not yet explained the class of trademark, the nature of the claimed infringement, or the relevance to the U.S. market. The claim that “’dragon beard’ word” is a trademark is ambiguous, since it’s not possible to trademark without a context. For example, Dragon Beard is an established shoe and sportwear brand in Japan. But no reference of “dragon beard candy” would likely be confused with shoes. More importantly, it’s a novel use of the phrase, and not naturally associated with shoes, so in such a case, it would be a fairly strong mark in that context.

About a year ago, I noticed a strange web site popping up in searches for “dragon beard candy”; it was basically a packaged version of American cotton candy, with the typical artificial coloring, sold in plastic translucent tubs. I didn’t think much of it at the time, because it was so obviously unrelated to what I import. But it rode on the coattails of the name for this traditional confection. I remembered the domain names associated with this, and one of them referenced a company name “Nutra Swiss.” So I chose to infer that they were referring to this product, in spite of the fact that they didn’t provide that information.

Dragon beard candy has existed in Asia for ages… the legend says it’s been nearly 2000 years, although some sources say it originates later in the Ming Dynasty. Certainly it has evolved over time; peanuts weren’t readily accessible until relatively recently in China, and so the typical filling must certainly have evolved over time. Immigrants in Montreal, New York, Vancouver, BC, and occasionally in San Francisco and Los Angeles have used the English phrase “dragon beard candy” to describe the type of candy for at least 20 years. Trademark law doesn’t generally allow for phrases that have a history of non-branded usage to gain protection as a trademark. I did a quick search in the U.S. Patent and Trademark Office’s web site and saw only the apparel-maker’s registration.

My supplier told me I should direct The Chinese Gadfly to their legal office, so I wrote Mr. Chinese Gadfly back:

From: Jason Truesdell
Sent: Saturday, September 03, 2005 1:55 PM
To: pay@payac.com
Cc: [Bamboo Garden’s Hong Kong Office]; [Bamboo Garden’s Singapore Office]; [Attorneys with whose firm I have placed a retainer]
Subject: RE: Contact Inquiry From Website

You’ll have to take that up with the Hong Kong based maker of the candy. I am merely a distributor within the United States, and the term whose use you are disputing is merely a translation of a 2000-year old common name for the candy; it is not a brand name. I conduct no trade under the name “Bamboo Garden Icy-Crispy Dragon Beard Candy” in China, and I do not use “dragon beard” as a brand name. We use the phrase [dragon beard candy] as a common name for a class of candy, and common names may not be used as a trademark in the United States.

You may direct your concerns to the legal office of Bamboo Garden in Hong Kong. Please direct any such inquiries to [Bamboo Garden Hong Kong Office Email Address].

To the best of my knowledge, within the United States, in order for trademark protection to apply.

1)       The protected trademark or service mark must function as adjective, not as a noun.

2)       The phrase must be applied to a specific product category or categories.

3)       You must have actually conducted substantial trade in the United States market under the brand name. You cannot simply protect a phrase that you intend to use. We have seen no evidence of actual trade in the United States under the trade name you refer to, and you have not demonstrated any.

The only evidence of your claimed brand identity I have seen is in online export directory listings and in a no longer extant web page.

Were the name not already in common use, “Dragon Beard brand Cotton Candy” could possibly have been trademarked. The applicable trademark in this case, however, is “Bamboo Garden Icy-Crispy Dragon Beard Candy.”  Bamboo Garden is the brand, and the mark applies to the common class of candy Dragon Beard Candy. I also understand Icy-Crispy is also a trademark of Bamboo Garden when applied to the common name dragon beard candy.

Other criteria for enforceability include whether the usage of a mark is “well known.”  Because I have seen no substantial evidence of a market presence in the United States, I doubt that you would have a claim on that end. Your usage is not inherently distinctive, it is not arbitrary (due to prior usage as a common phrase), and due to the common usage is not suggestive. Our perspective is that “dragon beard candy” is merely a translation of a common term.

To the best of our knowledge, “Dragon Beard Candy” has been used as a common name for a type of handmade candy originally served some 2000 years ago in China. We believe that the common name for this type of candy has at least 20 years of prior usage in the United States and Canada among immigrant candymakers.

If you can demonstrate an international registration which is relevant to the U.S. market (China has no jurisdiction on U.S. trademark protection), and if you can demonstrate conclusively that your use of “dragon beard candy” is novel and exists prior to the common usage of the generic term “dragon beard candy” within the North American market and Hong Kong, I’d be happy to re-evaluate our decision to use the generic term “dragon beard candy.” Until such time, we see no justification for altering our usage of the term. 

Jason Truesdell, Principal
Yuzu Trading Co. LLC
Phone: 206-274-4575
Fax: 206-260-7401
Wholesale: http://www.yuzutrade.com/
Buy online at http://www.yuzumura.com/

Cc: [Names of my attorneys]. Please file only, no action on your part or on the part of Davis Wright Tremaine is required at this time.
Cc: [Names of my contacts at Bamboo Garden]

The Chinese Gadfly did not respond to the issues I raised. Instead, he sent a “Finanl notice” (sic), under a different identity, and chose to invent a new name for me:

For our next installment in the adventures of Mr. Chinese Gadfly, we’ll feature his continued ambiguous threats and simultaneous non-responsiveness to the substance of our replies. I expect Mr. Chinese Gadfly’s rhetoric to increase in histrionics and decrease in substance. Stay tuned. 

Technorati tags: China, trademarks, law

I got to bed a little earlier last night, but it was only after I composed and sent a response to my latest source of irritation.

Late Friday, a Chinese company sent an email to me by way of YuzuMura.com claiming that my use of the phrase “dragon beard candy” runs afoul of a trademark they registered in 2001 in China. Somehow, the 2000 years of prior use as a common phrase (in Chinese) got past the Chinese trademark authorities; perhaps they considered it a novel usage since they registered the mark “Dragon Beard brand cotton candy” in English rather than Chinese.

Translations of common phrases are, to my knowledge, not well protected by trademark law, but the more amusing thing is that they are making a claim against a phrase that existed in English in the United States, Canada, Hong Kong and Singapore for a fairly long time prior to their registration.

Also, their company, “Nutra-Swiss,” does not appear to have any trade presence in the United States. They don’t have much to protect; if a trade name is not in active use, it’s not protectable, and this should be doubly true for a weak mark. These days, their online presence appears confined to search engine spamming and domain name resale, although I do recall seeing some photos of some artificially-colored plastic tubs of cotton candy on some trade directory last year. I’m not selling cotton candy or even comparing my product to their artificially-colored goo anywhere on my commercial site, since it’s irrelevant to my market.

I expect there may be one or two more rounds of email, after which I’ll probably publish the entirety of the exchange here for popular amusement. They don’t show a very sophisticated understanding of trademark law.

Dinner

I needed to take advantage of leftover ingredients today. I still had a bit of ricotta in my refrigerator, which would not likely survive much longer than today; it was still in decent condition. I also had some tomatoes, onion and mushroom, in addition to a bit of parmesan. It turned out that Central Market, where I did my matcha latte demo today, had a little sale on manicotti shells, which is quite fortunate, since I had already thought of making manicotti on my way to search for pasta. I was lower on tomatoes than I remembered, so rather than incorporating the mushrooms into a filling, I made them part of the sauce, which was heavy on onions, deglazed with a little fume blanc, and seasoned with garlic and basil. I chopped the roasted peppers into confetti and included them in the ricotta-parmesan filling.

For a dish which was composed primarily as an excuse to use up ingredients, it turned out fairly well. The wine and mushroom sauce turned out more interesting than the tomato sauce I had planned. But I only have about 6 weeks left in Washington’s tomato season…

Technorati tags: China, trademarks, law