HOLT UNCENSORED #101
by Pat Holt
Friday, October 22, 1999:
AMAZON V. AMAZON II:
BOOKS ARE BOOKS
AMAZON V. AMAZON II: BOOKS ARE BOOKS
Goodness, since Tuesday's column, the lid has certainly flown off the pot about those explosive depositions in the trademark infringement suit of Amazon Bookstore v. Amazon.com.
[A quick recap: The 30-year-old Amazon Bookstore of Minneapolis contends that it has lost money for years because of confusion created by customers and vendors who mistake Amazon Bookstore for Amazon.com, which is headquarted in Seattle. Attempts by Amazon Bookstore to find a peaceful solution through talks with Amazon.com were rebuffed, they say, and they sued. For the full report, click on http://www.nciba.com/patholt/column80.html . ]
As readers may remember, the lawyer for Amazon.com made the "absurd" and "outrageous" (these quotes by the Amazon Bookstore contingent) mistake of asking co-owners of Amazon Bookstore if they were gay, if any of the women owners were "married to a woman" or were "partners," or if a co-owner had "any interest in promoting lesbian ideals in the community."
Insisting that the sexual orientation of its owners is irrelevant to a trademark infringement trial, Amazon Bookstore filed a motion for a "protective order" from the court to prohibit Amazon.com "from inquiring into the sexual history, habits, preferences, or orientation of any witness . . . "
Meanwhile, outrage over Amazon.com's questions was not limited to the plaintiff. Protests have poured into Amazon.com's customer service department demanding that the company close accounts, return gift certificates and stop asking irrelevant questions about sexual orientation in a trademark infringement case.
In what must be a colossal case of bad judgment, Amazon has made matters worse by attempting to defend this line of questioning. The answer to protest letters runs like this:
"From: email@example.com [mailto:firstname.lastname@example.org] ... "Subject: Your Amazon.com Order
"Thank you very much for taking the time to write to us about the Amazon Bookstore Cooperative, Inc. ("ABC") lawsuit. We are, as a company and as individuals, sensitive to matters of personal privacy, and our commitment to diversity extends to our employment practices which forbid discrimination based on sexual orientation.
"However, we have regrettably been drawn into the unpleasant task of inquiring into the inconsistent statements made by the plaintiffs in the ABC case. As you probably know, ABC has a long and proud history of marketing and describing themselves as being owned and operated by lesbian women and serving the lesbian feminist community. Because of a judicial ruling adverse to ABC in this case, ABC and its individual owners are now, for the first time, attempting to reposition themselves as a bookstore owned and operated by a non-exclusively lesbian group of individuals and no longer focused on lesbian feminist customers and books. By legally repositioning themselves as a retailer more like Amazon.com, the plaintiff and its owners have now made their marketing heritage an issue in the case.
"Our recent questions of the plaintiff owners in this case were solely designed to have ABC confirm or deny their own previous statements regarding their lesbian/feminist heritage--an issue brought into this case only by ABC and their owners themselves.
"Please know that we would not have pursued this line of questioning if ABC and its owners had not introduced the matter. We have no choice but to respond to ABC's new legal strategy.
"Although ABC claims they have rights to the Amazon mark since the early 1970s, they have no federal or state registration for such a mark, while Amazon.com does. More importantly, Amazon Bookstore Cooperative, Inc. did not come into existence until one year after Amazon.com began its business in 1994. As a result, we believe we have senior rights to this mark.
"We truly value your patronage and loyalty to us and thank you for giving us an opportunity to respond to your concerns. As this is a currently pending case, we apologize for not being able to respond to you with any greater detail.
"Amazon.com . . . "
One has to stand in awe at whoever was employed by Amazon to spin the facts in this way. It is just a glorious example of obfuscation.
Amazon Bookstore has "a long and proud history," all right, but it's one of "marketing and describing themselves" as a FEMINIST bookstore, nothing else. As mentioned before, even its website is http://www.amazonFEMBKS.com (emphasis mine).
According to co-owner Barbara Weiser, when the case first started and Amazon.com demanded to see "every piece of paper in the store," the five owners carted up 50 boxes of materials for the defendant's lawyers. Out of the thousands of papers in those boxes, one email hardcopy was found in which a former employee had written to Girlfriends magazine and said something to the effect that "we're all lesbians here" (my paraphrase).
She was not an owner; she was not writing for publication; she was not correct and she doesn't work there anymore (not because of the email). So the email can hardly be termed the "long and proud history" Amazon.com would like to describe, but boy, does it speak volumes about Amazon.com's desperate attempt to scramble for a defense they seem to know doesn't exist.
Witness, for example, the company's attempts to say that Amazon Bookstore owners are suddenly trying to "reposition themselves," that they "have no federal or state registration" for the Amazon trademark, that "Amazon Bookstore Cooperative, Inc. did not come into existence until one year after Amazon.com began its business in 1994." All of this is misleading and inaccurate in the extreme.
In fact, the store started out as "Amazon Bookstore" 30 years ago and simply added the word "Cooperative" in 1995 to reflect the nature of its ownership. It did not register for trademark useage with federal or state governments because it didn't have a problem with competing book outlets calling themselves Amazon. It has been listed in the American Booksellers Association's membership directory with the name Amazon all this time and believes it has earned common law trademark status. After 30 years, of course it has.
And let's not pretend this is a case of, say Delta Faucets competing against Delta Airlines. Two different companies can use the Delta trademark because nobody's going to confuse the two.
In the Amazon case, the two companies are selling books, not faucets! Books, not tickets to Zimbabwe! Why is this such a hard concept to grasp?
Yet in media interviews, Amazon.com contends there's a difference because Amazon Bookstore "caters to lesbians, while the Internet company has a general-interest audience," according to the Associated Press. Well sorry, that is a specious argument: books are books! And guess what? Most of the books sold by Amazon Bookstore are sold by Amazon.com! How could there NOT be confusion?
"If you're not in the same business," says Bill Curry of Amazon.com, "the likelihood of confusion declines dramatically." That's right, Bill! But you're in the SAME BUSINESS. And when you're both selling books, this is the kind of confusion that occurs:
"There were about 10 to 15 calls a day from people confusing us with Amazon.com during the last holiday season, " says Wieser, "and we continue to get shipments of books intended for Amazon.com, invoices and orders misaddressed to us instead of Amazon.com, even vendors calling who mistook us for Amazon.com - not to mention people walking in and wanting to pick up books they've ordered from Amazon.com, not us. All of this takes an incredible amount of staff time and sorting out and publishers putting us on hold. It's very expensive. It's a nightmare, in fact."
This is not to say that Amazon Bookstore hasn't been accommodating. "On occasion we've ordered books for people who insisted on coming here and buying them from us," Wieser says. Well, that's good, isn't it? You got a few sales out of the confusion? Wieser pauses. "It turns out that many of the more insistent customers want books from the Christian right."
But here is the part I find most tragic about this whole debacle. Amazon Bookstore is a good bookstore. The people who work there are good booksellers. They have never wanted this fight. When you visit the store (I was there in Sept.), what you find is a healthy mix of general books that have been chosen through the lens of a feminist point of view.
And peeking out from the books about children, health, politics, ethnicity, violence against women, biography, lesbian life and history, as well as from the mysteries, science fiction, biographies, essays and literary fiction, are those great little treats called "shelf talkers." These are personal notes about the books, taped by buyers and clerks on shelves under individual titles, that make browsing an education in itself.
One staff member stands our in this regard, because her shelf talkers set up a running conversation with readers looking for books in the Fiction section.
For example, about "Rapture of Canaan," she writes: "It may have been PMS but more likely it was this book that had me crying like a baby. If you like touching stories but can handle rough stuff, this might be for you and certainly if you're recovering from any sort of religious dogma."
So down the line of books you go, reading this note and that, until you come to "Patty Jane's House of Curl." Says the shelf talker (same handwriting as above): "OK, so I'm a sucker for books that make me cry. This is a sweet, funny book about the perserverence of the human spirit."
And poke, poke, poke, as you push and pull at books, soon enough here's "Stones Across the River," and the same person writing again: "This one didn't make me cry, but that's not to say it isn't full of events that warrant deep emotions. [Author Ursula] Hegi not only knows how to tell a story; she knows the importance of telling stories, with characters who carry more joy, sorrow, rage than any I've read thus far. If you want a book to settle into, to be absorbed and haunted by, this is it."
I tell ya, this succinct literary criticism, right at nose level, is an art in itself. And what a joy to find it in a tiny store that serves its customers so well and so faithfully, a store that seems to sit in the midst of its unwanted legal battle trying to sell books, just like any other book outlet, and to make a profit, just like every other bookseller EXCEPT Amazon.com, which not-so-ironically continues to lose millions as it pretends to have the best business model on the Internet.
And perhaps that's the point. Amazon.com got so big and so fast that pummeling Amazon Bookstore for its staff's perceived sexual orientation doesn't feel like gutter tactics to Amazon.com lawyers. After all, when only one of your distribution centers is several hundred thousand square feet, maybe a little store of 1500 square feet seems expendible.
When you've promoted yourself as the biggest bookstore on Earth, maybe you think it's okay to squish one of the littlest. Along the way maybe you don't notice that First Amendment concerns are very much at stake, or that what the nation needs is more diversity and variety, not less; more bookstores in all sizes of character and integrity.
The funny thing is, it's Amazon Bookstore that's said all along, as do independent bookstores at large, that there is room for everybody. Maybe that's another concept that's too difficult for Amazon.com to grasp.
Dear Holt Uncensored:
The transcript of the Battle of the Amazons lawsuit depo is hilarious. Keep in mind, however, that attorneys bill by the hour. Undoubtedly Amazon.com had several attorneys present, and they all got to bill by the hour. So they go out of their way to drive up their fees by asking ridiculous and offensive questions, knowing that there will be objections and counter-objections, and that there will be numerous arguments over these. Then they ask the same question in another way, and the objections and arguments continue. It is petty and demeaning, but it keeps people employed.
By the way, some years ago I was the plaintiff's expert witness in a $1.5 billion suit between David (a small Arizona company) and Goliath (Sony, JVC, Sanyo, the US Motion Pictures Producers Association, and 15 other major Japanese companies). I was deposed four times. The defendants brought four attorneys to the the deposition and they subpoenaed every book and magazine article that I had ever had published. A personal letter from an old girlfriend was mistakenly among the magazine clips. The lawyers spent two days asking me about everything I had ever written, and another day asking me about the contents of that letter, which they entered in its entirety verbatim, into the transcript. Why? To embarass me (but I wasn't embarassed), to harass me, to drive up their fees.
Marvin J. Wolf
Dear Holt Uncensored:
The following letter was sent to Amazon.com:
"Thanks for the gift certificate, but I won't be using it, specifically because of the line of questioning by your lawyers in the suit against you by the feminist Amazon Bookstore in Minneapolis: Your lawyers are asking about the sexual orientation of the staff and owners of the bookstore. It's outrageous, and you have lost my business!"
Dear Holt Uncensored:
If you want to email comments to Oprah Winfrey about her endorsement of Amazon.com, you can email: http://oprah.com/email-oprah.html
If you want to send email comments to amazon.com, you can send them to: www.amazon.com/exec/obidos/subst/help/mail-menu.html/002-8999601-8269002
Rev. Raelani Azada
Santa Cruz, CA
Dear Holt Uncensored,
What illiterate would confuse Amazon.com with Amazon Bookstore? I love Amazon.com. I get deep discounts on my books and videos - they will combine orders to save on shipping costs, AND THERE'S NO TAX!! Orders are shipped out promptly and I receive them faster than if I placed an order with my local independent. It is called COMPETITION and that's what Capitalism is all about.
James Schiavone, Ed.D.
Schiavone Literary Agency, Inc.
Holt responds: And when Amazon.com gets rid of the competition, how long do you think those deep discounts will last?
Dear Holt Uncensored:
The following is an e-mail we sent to Oprah's show following her ringing
endorsement of Amazon.com on Monday . . . It might help get her and her
producers' attention if
more independents were to send similar messages...
"You and your show have done more to promote reading in the recent years than any other person or event! While you and I haven't always agreed on the sorts of books to read, a couple of times we've overlapped, which REALLY makes for a best-seller here in the store. As the owner of a small independent community bookstore, I am very disappointed in your unqualified promotion and support of Amazon.com on your show yesterday. People listen when you speak; and if you tell them to go to Amazon.com, they will, which is quite terrifying to me, and to all other independents already fighting for survival. You might let your fans know that they can order on the Web and still support their neighborhood bookstore! To keep up with demand, new technology and competition, we have an interactive Web site, as do many independents. Many have developed their own sites, and many more can be reached through Booksite.com (and soon also Booksense.com)."
Owner, Learned Owl Book Shop
Dear Holt Uncensored:
Have you ever heard of an author signing where crying children were turned away by the police? That's what happened at this evening's Borders "event."
Doing the dutiful dad thing this evening: agreed to meet my wife and daughter (age 9) at the Livingston (NJ) Borders for a book signing by J.K. Rowling. They got there at 5:30; I showed up at quarter to 7 to find a sea of people milling in chaos, mostly white parents with children under ten or eleven. Several news cameras created nuclei of hopping, book-waving kids as they filmed the crowd and then split.
The event had been widely promoted and according to their phone person that afternoon they "were expecting people from PA and DE." A logistical nightmare waiting to happen, with none of the minimum wage drone "booksellers" doing anything that might be thought to resemble organizing the crowd. My wife and daughter had been there early enough to receive slips of paper in their books (but were told tickets would be distributed later). Shuffled along in line, chatting with a former neighbor, and about 8:00 a T-shirted Borders "bookseller" came down the line saying that we should be moving up to the front soon, where tickets were being distributed.
Half an hour later, the man next to me in line went up front, and came back ten mintues later with word that 800 tickets had been given out and that was it. As the news spread the kids started wailing, and finally one of the "booksellers" made an announcement expressing regret but no more tickets were available. The cops were there to tell everyone to leave the area in an orderly fashion. The crowd called for Rowling to make an appearance but the author was being well "handled," no doubt, and probably did not hear the roars of disapproval and the crying kids. No representative of the news media present at this time, you may be certain.
A shameful performance from a corporate bookstore; a great disappointment for my daughter and her friends, but a real educational experience. We're all writing letters to the author, publisher and president of the corporation.
I suppose America Inc. has the bookstores it deserves (just don't ask me to shop there). As Ol' Bill B. said, "Count me out of this 'we' business. . ."
Buy books from human beings. Pass the word.
Henry Wessells, email@example.com
Upper Montclair, NJ
I've just returned from the Frankfurt Book Fair, a kind of massive zoo at which people actually pay to come and look at the flora (books) and fauna (publishers) in their cages, though nothing is for sale to the public until the last day.
There continues to be much moaning about the decline in sales of "serious" books on the continent, but one thing remains the same (for the moment): the fixed book prices in Germany and France. Those two countries are fighting tooth and nail within the EU to maintain their system. (At last, something the Germans and the French can agree on!) It's the ultimate dream for independent bookstores, of course: because the price of books is fixed by law, no Amazon, no B&N, no Borders can undercut them on their own titles. (Imports, of course, are another matter.)
This utopia will not happen here. But it's nice to know that it exists somewhere.
The Liturgical Press