HOLT UNCENSORED #80
by Pat Holt
Friday, July 30, 1999:
FEMINIST BOOKSTORES FIGHT BACK - PART II:
AND THE AMAZON STANDS ALONE
FEMINIST BOOKSTORES FIGHT BACK - PART II:
AND THE AMAZON STANDS ALONE
When I first heard about the trademark infringement lawsuit brought by
Amazon Bookstore of Minneapolis against Amazon.com of Seattle, I thought
this might be a case of too little, too late.
But a recent talk with Carol Seajay of Feminist Bookstore News (see #78) made me realize how much is at stake for all of us who work with books - and especially for readers, especially for posterity, especially for the First Amendment - regardless of the outcome of the suit. (By the way I forgot to mention that you can subscribe to FBN for $70 per year, and boy is it worth it, by emailing Carol@FemBkNews.com .)
Last week Amazon Bookstore vs. Amazon.com had its first hearing in what is certain to be a protracted and hugely expensive series of legal battles that so far has received surprisingly little news coverage. Perhaps that's because at first glance, the case seems like it's going to be another sad but simple slam-dunk on the part of the corporate heavyweight.
Amazon.com started out as the little whipper-snapper with a bright idea that taught us all a big lesson about the Internet - so big we still don't know what the lesson is (does profit matter? can inventory be nonexistent?). Because it exploded into consciousness and took Wall Street by storm (what Wall Street? Even that venerable institution has been transformed along the way), Amazon.com seemed to lead the world rather than copy in any way the long-term success of Amazon Bookstore of Minneapolis. So, since the lawsuit was first announced this Spring, few at Amazon.com - especially founder Jeff Bezos (who, by the way, was six years old when Amazon Bookstore started) - have wanted to look back.
But let's slow down a minute, says Seajay, who notes that not only is Amazon Bookstore of Minneapolis the oldest feminist bookstore in the country (if not the world); it's also a company that earned its common-law trademark in nearly 30 years of existence..
Since it's been around for almost three decades, you'd think a new company wanting to use the name would have found it in a routine search. "If the Amazon.com founders had even gone to the American Booksellers Association [ABA] list of members and looked up current store names, they would have found Amazon Bookstore in Minneapolis," Carol says. "To many people, if they didn't even do that, at the very least they're careless."
Of course, some folks think the Amazon.com people did find the name of Amazon Bookstore and said to themselves, "Oh, this is just a bunch of silly women - we really don't have to worry about them." It would be fun to get Amazon.com on that, wouldn't it? We might see trademark law AND poetic justice in action.
But wasn't Amazon of Minneapolis only a brick-and-mortar store when Amazon.com came into existence five years ago? Isn't there a difference between a physical store and an online store? There are differences, of course, but look at it this way, one legal observer has said: "Before Coca Cola went online, you couldn't have started your own Internet company called Coca Cola.com - the trademark already existed."
Why did Amazon Bookstore wait for three years before suing? In fact, says the store's cofounder, Barb Weiser, it didn't wait. "We were a bit irritated at the beginning when we saw that Amazon.com had taken our name, but remember, this Seattle company was a very small firm, and the confusion at first was not that great. As they got larger, we put out a disclaimer on flyers and on our own website (started in 1996), but it was not until the holiday season last December that the confusion got so terrible we felt like we were working for Amazon.com."
You can feel the tension mounting as Weiser describes the "nonstop calls coming in from Amazon.com customers wanting service. Since Amazon.com doesn't display its address, and our store is listed on the Internet through the ABA's membership directory, people call us - not only about books they want to order but about authors, gift certificates, conferences, reviews, submissions. We even get vendor invoices from publishers, of all people."
It's not as though the Minneapolis bookstore didn't try to straighten things out with the Seattle company. In 1997, Amazon Bookstore approached Amazon.com at the ABA convention, where Amazon.com representatives stated they knew about the Minneapolis company but that the older company had started out as a bookstore and Amazon.com had started out online. That, the Minneapolis contingent insisted, was not the point.
"If Amazon Bookstore in Minneapolis had never gone online," Weiser says, "the problem would still be there. It's really the word, Amazon, that is the source of the confusion. We find it amazing how much people don't understand that Amazon.com isn't a real bookstore you can walk into."
"By the holiday season last December," says Shelley Wessels of Fish & Richardson, the prestigious trademark law firm that represents Amazon Bookstore in Minneapolis, "ecommerce had become a tremendous phenomenon in the media." Probably 99.9 references to Amazon meant Amazon.com in Seattle, and "reverse trademark confusion" beset the Minneapolis store: Usually, Wessels says, it's the big company with established trademark that experiences confusion when a small company tries to use the trademark. Here Amazon.com, having grown into a giant company, was disrupting the financial stability of Amazon Bookstore.
"We watched our in-store sales drop," says Wieser, "until we had to reduce store hours and not replace outgoing staff. Not only have we lost sales to Amazon, we've encounted many costs trying to clear up the misunderstandings that snarl up the store because of Amazon.com. Worse than that, Amazon Bookstore, which turns 30 next year, has lost its sense of identity. Even our peers now refer to Amazon, and they mean dot-com. To have lost our identity to one of the reasons independents have gone out of business is hard to take."
Feminists aren't the only ones who believe that "Amazon.com is making out like a burglar" because it's been able to use millions from Wall Street (not from sales) to finance a branding campaign that's aced out Amazon Bookstore in Minneapolis AND is regarded as a model of good advertising. "Can you imagine what would happen to Amazon.com if it lost use of 'Amazon?' " FBN Assistant Editor Teri Mae Rutledge wrote with tongue not-so-far in cheek in the May/June issue.
"All it's left with is 'dot-com.' And that ain't no address. What would it use instead? It couldn't use 'BookSense.com' - that's taken. Maybe 'Bezos.com' (That way it would at least be clear that it's a one-rich-guy kinda company. It couldn't even do the Prince thing and call itself 'the corporation formerly known as . . . ' And it'd have to spend a ja-zillion dollars all over again to re-brand itself. We all know that such a backslide this late in the online bookselling game would be devastaing to poor little Bezos.com . . . Could such a backslide even - gasp - cause stock to fall? The possibilities are dizzying."
The hearing last week was an attempt, says Wessels, to convince the court to grant a motion by Amazon Bookstore of Minneapolis to get Amazon.com of Seattle to at least stop advertising in the Twin Cities of Minnesota and put a disclaimer on the Amazon.com website informing customers of the difference between the Seattle company and the Minneapolis company. (Why doesn't Bezos just do this part and be a nice guy about it, one wants to ask, for crying out loud?)
Awaiting the judge's decision, Wessels concedes that so much is riding on this case that Amazon.com is going to bring in tremendous legal ammunition. However, "the courts are sensitive to who's the big guy and who's the little guy in this case."
Can Amazon the 30-year-old bookstore blow Amazon.com the 5-year-old website out of the trademark-infringement water? Perhaps a better question is, why should the rest of us wait for a court judgment? Amazon Bookstore in Minneapolis is a great independent, as it has proven for three decades, and its future is in peril: The time for independent-minded observers to act is now.
If you want to bring your own sense of fairness to this particular playing field, why not throw a little business to the Minneapolis Amazon? You can buy many general books from Amazon Bookstore in Minneapolis by clicking over to http://www.Amazonfembks.com, and if you want a great short-story collection to start out your order, try "The End of the Class War" by Catherine Brady (see next Tuesday's column).
One last thought: Perhaps the greatest irony in this case is that of all the independent booksellers and all the trade organizations and all the legal observers and all the maverick columnists who have watched in horror as Amazon.com has built its incredible house of cards on billions of non-sale income, the only one to stand up to this huge and voracious monolith is a lone feminist bookstore that happened to start out with the same name.
Heaven knows nobody would blame Amazon Bookstore of Minneapolis if it were to fold up its tent, as so many independents have been forced to do, and bring its superb history to an end. Instead, it has found and somehow managed to hire the best trademark law firm in the country (neither Weiser nor Wessels will talk about their financial arrangement, and good for them).
Amazon Bookstore now stands alone, facing not only the newest kid on the block but the biggest bully, all the while insisting the world of bookselling is big enough for everyone. One wonders, though, considering the intransigence of Amazon.com: Are you big enough for that, Jeff Bezos?
Dear Holt Uncensored:
I want to comment on a letter written by author Steven Piziks (#79), whose story mirrors ones I have heard from several authors. I've had many authors tell me that they were better promoted, better treated and had more people show at our store than the Barnes & Nobles they visited. I try to have 1-3 people attend the event who can take care of the author and customers in addition to extra clerks to sell books. I work with the store manager on how many people we need and what we need to set up the event. We had Ann Rule and 300 people showed up. She was late, the crowd was restless, we lined them up Disneyland style, snaking them through the books. They were offered small snacks (small bites of cake, scones, etc) and cups of water. Coffee and drinks were ordered and delivered in line. As the hour got late, we took down names, phone numbers, book dedications and had the books signed and held until whenever the customer found it convenient to pick them up.
With all our author events a week before we have a display table at the front of the store and offer all the author's books at a 20% discount up to the day of the event. After the event we continue the front display, now with autographed books for a week or more.
The most important thing is, if you take the time and energy to come to our store (or most independents') we will hand-sell you like crazy. I try to get all our staff to read at least one of the author's books. Can B&N claim that? do their employees continue to hand-sell authors that appeared in their store 2 years ago? We do.
The power of the independents can help get an author's book in more hands. If we love the book it gets displayed not just stashed on the shelf . . . Authors need to [make a relationship with local independents] more often. The big PR guys in NY won't send you to my store or an independent near you. Make the effort. The next time a bookseller stops you at the local trade show, take their card and consider scheduling a reading/signing at their store. Sherman Alexie was expecting 2 loggers to show up at his signing/reading. We had 150 people, none toothless and very few in flannel. Take a chance - you'll make a bookselling friend for life.
Jan W. Poole (email@example.com)
across the river from Portland OR
Dear Holt Uncensored:
Although I usually enjoy your articles even when I may disagree with some of them, I cannot let your response to Mike Jensen's complaint regarding his treatment in three feminist bookstores pass without comment. You first attempt to justify these instances of rudeness, if not outright bias and bigotry, by stating - without of course offering a shred of proof - that "it's taken decades for many feminist bookstores to create the kind of safe and reliable place their customers seek." Decades, Ms. Holt? Twenty or more years to come up with a bookstore that's safe and reliable? Please, give us a break! Then, in a wonderful example of the sort of tortured pc logic that leads to endless intellectual dishonesty, you conclude that "if the booksellers who run them [feminist bookstores] believe keeping men out helps them serve their target customers better, why be mad at them?" Perhaps here's why we should be mad at them. In your sentence above, substitute the word "Blacks" for "men." Or perhaps the word "Jews" or the word "teenagers" or the designation for any other group of human beings. That's why we should be upset about the type of treatment Mike Jensen received Ms. Holt. It's called discrimination and it's always wrong.
Steve Marek, firstname.lastname@example.org
Holt replies: I remember the same arguments coming up when a local women's health club was sued by men for reverse discrimination and all sorts of heated exchanges occurred about substituting "Blacks" and "Jews" for "men" and what exactly is the definition of a private club and isn't this the same as sit-ins at lunch counters in the South and what about those signs that say the management reserves the right not to serve anyone in so-called public stores and restaurants and remember the Bohemian Club and so forth. All I'm asking is that we view this situation with a little heart. Truly, it takes decades to create AND SUSTAIN a safe place for women - I hardly made that one up - and when it comes to aligning oppressed groups, why not be consistent and substitute "Blacks" and "Jews" for "women" instead of "men"?
Dear Holt Uncensored:
I'm not Black and I support the existence and continuing prosperity of Black-owned bookstores, including with my dollars. I wouldn't go to an event at a Black-owned bookstore and expect to be fussed over or to be allowed to monopolize a book discussion. I wouldn't interrupt an ongoing transaction between a worker and a customer. I wouldn't go in and demand to see the books by white folks (most of which are available elsewhere). And there would be some events that I'd avoid out of sensitivity and hope that if I overstepped this, that someone would kindly tell me so! I see some parallels here.
OK, also, not all feminist bookstores are alike. If I based my entire opinion of non-explicitly feminist bookstores owned by white guys on two bookstores, I might also conclude that, based on indifferent to rude customer service and lack of interest in carrying anything beyond a handful of works by people of color, white guy-owned bookstores aren't interested in my business. Luckily, I know from experience that these bookstores, like feminist bookstores, vary both in philosophy and practice. And even nonseparatist feminist bookstores go out of business. I know.
Dear Holt Uncensored,
The Joannides team [#79] should keep the Goofy Foot name.
If their imprint never becomes a household name, it hardly matters that they sport a funky monicker - and if they do become a household name, guess what: it won't sound funky to anyone any more. I had a wise novelist for a stepfather and he once rightly warned me (I was a budding writer at the time) not to get to hung up on titles, because it's the book that makes the title and not the other way around. It's the truth.
Dear Holt Uncensored:
The blunt subject of this e-mail ["What about poor people?"] sums up why discount-bashing sticks in my throat. I have worked in the book industry for three years (the three long years since college), including working as a near minimum-wage clerk at an indie bookstore, unpaid internships at two small literary presses, working for low pay at a mid-size publishing company, and now for respectable pay at a New York company.
Needless to say, although my knowledge and investment in the book industry is rich and deep, my pocketbook is not, and I appreciate a break on a good book ($14 for a trade paperback is still a lot of money). It is not myself, however, that I am primarily concerned about; after all, I am unusually educated about books like most of your readers and can make choices based on book industry ethics.
I ask about low-income readers for whom the major chains (city and rural (Costco for ex.)) are the primary places that they shop, for economic reasons, and because often that is their only choice. This market actually has access to more titles now that the general discount chains are selling more books at affordable prices. (I was overjoyed to see Jane Hamilton's novels piled high at Costco.)
High-spirited stories about why paying full-price for a book at an independent bookstore is a better lifestyle choice than paying half-price at a chain are as socio-econically biased as discussing why buying a diamond at Tiffany's is a better lifestyle choice than buying the same size and cut at a discount chain store. Only the rich can afford to choose to pay for extra services. Clearly the book industry has to change from within so that independents and chain stores can compete fairly in the discounting war. Just don't disparage people for buying books at price levels they can afford, wherever they buy. Don't we all just want more people to read more books?
New York City
Holt replies: I wonder if you have also noticed that people who are unable to spend a lot of money on books often become the independent bookstore's greatest ally. These are people who take advantage of so much that is free from independents - storytelling hours, young adult contests, giveaways, author talks, writing groups, book clubs, newsletters, special events. They're the ones who know (better than anyone) that books do cost too much, and it's not the independent bookseller's fault. And, I think, they're the ones who've made sales of affordable trade paperbacks soar through the roof in many neighborhood stores.
As you indicate re Jane Hamilton's books at Costco, being poor does not mean you can't be discriminating or that a bookstore in your community can't be relevant or supported. How great it is to see that in very poor areas, enlightened municipal governments have found redevelopment funds or tax breaks to bring bookstores back as a way to enrich and stabilize the customer base. These keep crime low because heaven knows they don't make enough money to steal; during the holiday season they provide the most inexpensive and treasured gift ideas in the world. Most important to me, they support local schools, libraries and community events in a way that strengthens a certain literary ecology for the poor and affluent alike.
I would never hold it against anyone who shops at a store that gives discounts on books. Discounts are a way of life to which independents adapted years ago. But I think that until people like you and me realize that our local independent bookseller provides one of the few places where literature is protected and passed on to people who value it - and that this store is probably hanging by a thread - the chains and Amazon.com are going to march in and wipe all of the independents out (as you probably know, half are gone already). As we've seen proven over and over, once you know the plight of independents in "the bookstore wars," it doesn't matter whether you're rich or poor. The great liberating step is to know you can do something about it.
A quick final word about that godsend for us all, the American library. I'm writing this in a tiny branch library in Oakland CA where it's a thrill to see the general reading room crammed with books, many of them just released. What a joy, too, to see people around me from all "lifestyles" reading expensive hardcover editions of new books and to realize (it just hit me!) that one thing libraries do is to take sales of expensive hardcover books away from the chains and Amazon.com. (Independents adjusted to this, too, years ago.) In any case, good for you to think about the price of books, as you're on the inside and can REALLY do something about it!