Swerve-on-Swerve

Via Opinionated Lesbian:

It would appear that CanWest Global, Canada's giantest media corporation, is putting the financial screws to Swerve, a gay, lesbian, bi, etc. etc. non-profit freebie. The little paper has to take on the media behemoth, which it can hardly afford to do, because CanWest's Calgary Herald has just launched a weekly insert called ... Swerve.

The non-profit freebie wants to hold on to its trademark.  But, according to the non-profit freebie, CanWest is giving it the finger.

Here's the thing: CWG and Swerve are literally around the corner from each other -- which would make it tough for CanWest execs to plead ignorance on this case.

From the non-profit queer freebie Swerve's news release (PDF):

Swerve’s editor, Richard F.J. Wood, learned about the Calgary magazine from an article in the February 2005 issue of Masthead magazine. A search through Canada’s trademark database revealed that The Herald was applying to trademark the name. “That left us with a dilemma, as there is a limited window of time allowed to oppose a trademark application. And once the trademark is approved, we’d face an enormous legal battle to defend against Calgary if they chose to enforce it. We had to try and resolve this in a friendly manner while preparing for a possible legal fight.”
Wood wrote to Gail and David Asper, as well as Bruce Leslie, CanWest’s Director of Corporate Affairs and Brand Management, asking to meet with a representative from CanWest to discuss the name conflict. “My hope was to resolve this in a way that benefited both organizations. I suppose I was naïve to think it could be so simple, but here at Swerve we believe in goodwill.”

CanWest lawyers replied with three alternatives, none of them attractive to the Swerve people.

1. Swerve the non-profit freebie could limit itself to Winnipeg, and let CWG have the name in the rest of Canada.

How generous, especially since Swerve is already distributed outside Manitoba, and hopes to grow.

2. Swerve the non-profit freebie could accept a pay-off and change the name it has used for more than 10 years.

Which the Swerve folks might have considered if there were a ''reasonable offer'' on the table.

3. Swerve the non-profit freebie could fight the megabuck CWG for the name.

When I talked to him this afternoon, Geoffrey Elliot, CWG's veep of corporate affairs, told me "It's a legal matter and we never discuss legal disputes."

Looks like it's on.

UPPITY DATE: Peter Menzies, Calgary Herald publisher, writes:

I have now returned to Calgary and note that you have written about the Swerve trademake issue and used your forum to redistribute their press release.

I am disappointed to see that Mr. Wood has chosen to articulate the matter in this fashion. We launched our magazine last November as a purely local supplement to our newspaper, not as a corporate initiative. As good business people, we proceeded to make a trademark application to protect our interests and those of our employees and advertisers in this market. When I first heard of Mr. Wood's concern, indeed of his magazine, it was because he had notified the company that unless we paid him a large sum of money he would feel obliged to challenge our application. As we had no intention of interfering with his business operation in Winnipeg  we did not feel it was necessary to meet his request. While he has every right to challenge the application, he has been assured in writing by us that we do not tend to interfere with his operation within the Winnipeg area and wish him all the best.

All I can say is, if Elliot had articulated some of this, or directed my call to Menzies, my original post would have been more complete.

Comments

[Pat Anderson]

I hate stuff like that.
It reminds me of Starbucks threatening to sue Haida Bucks because people would confuse the two coffee emporia. Starbucks backed off after the threat got some David-vs-Goliath type press and people wrote to them that they were going to boycott Starbucks.
Could the same happen here?
Sounds like it's time for a letter/email campaign to CanWest.

[20/20]

This is a case of the process of asperization giving Swerve a dose. It stinks.

[Rick Barnes]

Can the Asper's really go ahead with this. At the very least they ought to give some legroom to a paper that originates in their city.

Think about a section in the new Canadian Museum of Human Rights. They could have CannedWest NotsoGLobal highlighted for having bullied a small queer paper!

[Richard F.J. Wood]

I can't say when Peter heard about our magazine, but his lawyers were aware of us in early April, if not sooner. If you go to the site that lists the chronology of their application to trademark the name, it lists the initial opposition date as April 25. We knew about them in February, and tried to work through our lawyer for three months to find out where they stood before I wrote to Gail Asper on June 21 with an offer to sell the name. That was the first time we made an offer to sell the name for a price based on the costs of changing our name and establishing our new brand — it was a price that also took into account the loss of ten-years worth of goodwill we’d built into the brand. In all honesty, it was an opening offer.

We've never been given a dollar figure from The Herald; we've only been told they will not pay a significant amount. We're open to counter offers, but if changing a magazine's name after ten years is so cheap and easy, then perhaps we could give them $50 to change their name after the ten months they've been in print. Obviously it would be a ridiculous offer, so why is it reasonable to pay us a token amount?

We have not been assured in writing that they will not to interfere with our use of the name. It was one of the options presented to us, but with one major catch (and Peter includes this in his comments): They will not interfere as long as we distribute in Winnipeg only. Our answer to that has been no from the start. We already publish outside of Winnipeg and online. We will continue expanding our readership as any good publication would.

It would be more reasonable for them to drop their trademark application, let us trademark the name, and then negotiate an agreement to coexist that has them publish in Calgary while we continue to publish in the rest of the country.

Considering the absurd and vicious trademark enforcement we've seen from large corporations in the past (Peter must be aware of the Barbie case in Calgary, since The Herald covered it), and taking into account that CanWest is not known as a gentle giant, it would be naive at best and stupid at worst to think we wouldn't face an even larger legal battle once CanWest trademarked the name. We're not being greedy (any payment we receive money goes into the magazine, not our pockets; we are a non-profit after all), and we're not being malicious (we can’t afford that luxury), we're being proactive and fair.