Turns out there's big money in shifty business: Liveblogging the Green Shift Inc. press conference

UPDATE:… This Canadian Press story is a fabulous backgrounder, and will make the news

by kadyomalley on Wednesday, July 9, 2008 11:18am - 0 Comments

UPDATE: This Canadian Press story is a fabulous backgrounder, and will make the news conference make considerably more sense – well, as far as the questions go.

10:50:05 AM
Oh, Canadian Press, why must you be such a rebel? In case you’ve not yet seen the wire, the embargo went kaboom approximately ten minutes after we were sternly requested not to go live with the details until the plaintiff—Green Shift Inc. founder Jennifer Wright, in case you’re just joining the festivities—takes the microphone in the Charles Lynch press theatre.

Anyway, now that the organically-fed cat has been let out of the recycleable fair trade bag, I can reveal that she’s suing for the not-inconsiderable sum of $8.5 million, plus a quarter million in punitive and aggravated damages—and asking for a permanent injunction to prevent the Liberals from “passing off” the trademark, a statement acknowledging that they have “directed public attention” to their wares, services or business in such a way as to cause or be likely to cause confusion in Canada.”

10:58:26 AM

Two minutes to go!

11:02:48 AM
And she’s off, introducing herself as the founder of the real Green Shift, which is more than the name of her company, she says, but the program she has been building for the last ten years.

Interestingly, she refers to the Liberal “tax plan.” What an odd choice of words.

11:04:14 AM
She’s not here to discuss “Mr. Dion’s tax plan,” she says, but the lawsuit. So don’t be asking her any tricky questions about carbon taxes and cap-and-trade, y’all.

Who are all these companies and institutions that are “part of the Green Shift,” incidentally? She seems to use the term interchangeably – Green Shift, the company, and Green Shift, the “movement”.

11:06:56 AM
More background on the infamous call from “Liberal representative” Katie Telford who had the “audacity” to call her the night before to give her the heads up on the launch of the Liberal plan and “that fellow” Joseph Mayer. But Wright saves her most concentrated ire for “Who the Hell is Garth Turner?”, who had the nerve to write on his blog that she should be grateful.

11:09:29 AM
Question from Sun Media on how she arrived at the $8.5 million figure. “Marketing experts,” she says. Last year, business exceeded a million.

11:10:34 AM
Asked whether the launch has cost them actual business, she dodges the question; companies are “staying quiet” thus far, although some have asked her to keep their name out of it.

Ironically, she notes, the company has also worked with the Ontario Liberal Party, as well as the federal Liberals. (Maybe, she’s not sure.)

11:12:21 AM
Does she own the trademark? It has been applied for, but it’s not approved—although it has made it through “five” stages so far.

11:12:57 AM
Good question from CanWest: Doesn’t it bother her that the Green Party has a “Green Tax Shift”? No, is the upshot.

Being small, the company hasn’t been able to put advertising on “every” project out there, but there are “at least 15 million coffee cups out there” that were produced by Green Shift, Inc.

11:14:17 AM
Tim Naumetz brings up all those other uses of the phrase “green shift” and suggests that she has seen the term out there. Why does she have a right to the term? She’d be happy to explain, she says, but she really doesn’t. Apparently, there was a tussle over greenshift.com—owned by an American company—which the company eventually abandoned.

As for the British use, she… Is she seriously claiming to have invented the term “green shift”? She is. Wow.

11:17:36 AM
More from Tim, who has done his homework on what Green Shift, Inc. actually does: coffee cups and other supplies, which it provides to companies. “We’re here to be a program for those who want to be leaders,” she says. The symbol and the name Green Shift show that this is a company that people can trust.

11:19:46 AM
And now, Wright delivers short history of trademark law, and an attempt to explain why Elizabeth May’s “Green Tax Shift” is fine, but the Liberal “Green Shift” isn’t.

11:20:59 AM
The CBC’s Rosemary Barton tries to get her to comment on the Green Shift as a plan; she demurs, although she reminds us once again that she is an environmental consultant. “As for the tax plan,” she might be in favour of it; she doesn’t know. She’s not here to slam anyone else’s program, she’s here to get free publicity for her program. Sorry, I meant to get the Liberals to stop using “her” name.

11:23:44 AM
Naumetz wants to know what she means by “tackle” – as in, “tackling pollution.” It seems to involve “assessing” products, but also corporate reputations. “Nothing is closer to my heart than toilet paper,” she says, bafflingly, in mid-tangent about the work she’s done with the pulp and paper industry. She’s here to “harness the power of environmental leaders.” Wait, what?

11:25:47 AM
Asked which government agencies she worked for, she names the EcoLogo program and the US-based Green Seal, but that seems at least partially to have been during her career as an environmental auditor.

It just gets more confusing when Naumetz attempts to figure out exactly which department paid her to wander around asking “What’s in that carper?” “What’s in that flag?” I’m not going to transcribe the whole thing; let’s just say there are uncomfortable silences, and they’re not on Naumetz’s part.

11:29:22 AM
She says she had “offers” of pro bono legal help, but decided that she wanted “someone good”—ouch, poor nameless good samaritan trademark lawyers—and decided to stay with her original lawyer. She’s ready to fight til the bitter end, even if it “bankrupts” the company.

11:30:43 AM
“There’s been a lot of confusion in the media about the trademark versus the company name,” she notes. I have to say I’m still a little confused. “We’ve had to define things that aren’t in the dictionary,” she says, like “biodegradable”! Wait, in 2001, she had to explain to the trademark registrars what biodegradable meant?

The important point is that the Liberals have “done a lot of damage,” she says, which will require “cleaning” the Internet so that the Liberal plan isn’t the only hit that turns up.

“We’re not a common name out there yet,” she acknowledges, but it’s getting out there. People are starting to hear the phrase “green shift” and think of her company, apparently. Or were, until that dastardly Stéphane Dion ruined everything. It could cost as much as $10 million for the company to rebrand, she claims.

11:35:31 AM
SunMedia asks about the risk that the public will see this as the environmental movement “fighting amongst themselves,” which Wright readily agrees is “terrible … These are all our customers!” Really? Which ones, exactly? The lack of any tangible examples of any actual companies who have expressed concern, or pulled their business due to the controversy is… odd.

11:38:24 AM
Also odd, as Naumetz points out, is the absence of any Green Shift products. Where are the coffee cups, the posters, the stuff? Back at the hotel, apparently. “I’m not perfect, Tim,” says a grumpy Michael Krauss, who looks like he’d like this to wrap up soon.

She’s actually giving more details now, in response to queries about where we can actually see her coffee cups in the wild, but again, it’s hard to follow.

11:40:58 AM
Wait, what? Now she’s saying that “Green Shift” actually applies to a “network of companies” that are striving to be environmentally responsible. It’s also the name of her company, and the program offered, and a “concept.”

Meanwhile, Michael Krauss is handing out examples of the Green Shift poster, which was printed in 2008.

11:43:14 AM
Last question: she claims that the Liberal use of the term will “only damage” the company, which prompts her to deliver a rather esoteric manifesto on breaking down barriers—race, gender, you name it—and social justice. And on that inscrutable note, she and we are out of here.

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  • http://www.todaysautonews.com jwl

    Reading about trademark law.

  • Johnny LaRusic

    john g:

    Actually, the trademark’s not *quite* approved yet. It needs to reach “Registered” status before it’s all finalized. Here’s the list of steps in the application process:

    http://www.cipo.ic.gc.ca/epic/site/cipointernet-internetopic.nsf/en/wr00035e.html

    The mark is currently at step #3 and #4: “Advertising” and “Opposition”. It will be (has been?) published in Trademarks Journal where, for the next two months, interested parties may contest the application.

    Confusing, huh? “Approved” here means “approved for publication”.

    Also, is “the proximity of the goods” factor a strong point for Mrs. Wright’s case? Given that the Liberal Party isn’t selling any goods or services, I’d say “no”.

    The “the degree of caution exercised by the typical purchaser” factor also a weak point, given that Green Shift appears to primarily deal with businesses and not individual consumers.

  • T. Thwim

    We’ve already clarified that jwl has difficulties understanding what he reads. A quick read of section 6 of the trademark act demonstrates that this has happened yet again.

    Most notable in the act for the allegation of confusion is the requirement that the wares and services being offered by the groups in conflict could be attributable to the same person. Now, I’m not sure that even the BT’s could be confused as to whether a private business was offering a governmental policy on carbon taxation and income tax refunds, or as to whether the Liberal Party of Canada was selling disposable coffee liners. But I’ve overestimated them before.

  • boudica

    But jwl, you are the one who said you were clueless on that subject. So I’ll ask again, how can you possibly be able to determine that she has a case?

  • john g

    wow that is confusing. thanks johnny.

    however, it seems fair to say that she’s past the point where she could be rejected because the term “green shift” is not trademark-able because of general usage. my read of that site is that she would have been rejected for that at step 2.

  • boudica

    So… She served her statement of claim BEFORE having her trademark application approved?!? And she has not had any loss of business?

  • john g

    And whether she is politically motivated or not; someone will always claim political motivation when a political party is involved in something like this (see Elections Canada vs Tories; RCMP vs Liberals); and in this case there may even be. But any presense or absense of political motivation completely misses the point

    A read of the trademark site says that if you have a trademark, you have to protect it. You are pretty much obligated to defend any infringement of it to the extent that you can.

    I would hope that even some of the most blindly partisan Liberals among us have to admit that at least the possibility for confusion exists, and that there is reasonable grounds to at least suspect an infringement has occurred.

    If her business WERE to be adversely affected, the first question anyone would ask her is “well, why didn’t you sue them for using your good name”?

    It’s a bit sad that so many here and in the media are slagging her for possible political motivation (even if it does exist), when really she is pursuing, what appears to me, to be the only option the Liberals have left available to her. She asked nicely. She sent a cease and desist letter. She was ignored. What else is she supposed to do?

  • boudica

    “And whether she is politically motivated or not; someone will always claim political motivation when a political party is involved in something like this (see Elections Canada vs Tories; RCMP vs Liberals); and in this case there may even be. But any presense or absense of political motivation completely misses the point”

    Excuse me, john g, but it is Jennifer Wright herself who claimed that her main motivation behind this move is that she fears that her current clients and potential new ones wouldn’t want to be associated with a product that has been politicized, yes?

    I’m simply expanding on an earlier point I made which was that the media event she organized yesterday pretty much sealed her fate in terms of being viewed as politically motivated.

    I’m not speaking to the merit of her case because, like jwl, I’m clueless about trademark laws.

    I’m just saying that the woman seriously shot herself in the foot during that press conference. The clip running on CBC yesterday had her saying that “green shift” is more of a concept than a company and that there is indeed a limited pool for terminology to be used when speaking about environmental concerns.

    How is that supposed to help her case?

  • boudica

    “A read of the trademark site says that if you have a trademark, you have to protect it. You are pretty much obligated to defend any infringement of it to the extent that you can.”

    john g, didn’t we just go over the fact that she DOES NOT have the trademark yet?

  • john g

    “Excuse me, john g, but it is Jennifer Wright herself who claimed that her main motivation behind this move is that she fears that her current clients and potential new ones wouldn’t want to be associated with a product that has been politicized, yes?”

    Agreed…but that doesn’t speak to her own political motivation. That speaks to her motivation to protect her business from others political motives.

    “I’m simply expanding on an earlier point I made which was that the media event she organized yesterday pretty much sealed her fate in terms of being viewed as politically motivated.”

    I would tend to agree with you on this.

    Though she may be saavy enough to know that given the media’s tendency to protect the Liberals from political embarrassment, without this “media event” we would likely never hear very much about this lawsuit.

    Even with the presser, the G&M did not even put this story on their website’s landing page yesterday. You had to click through to “National” to find it buried in the politics section.

    And as a businesswoman, I’m quite sure she wants not just the free publicity of having this in the news, but also the fact that the more this case is in the news, the more it helps her ultimate goal of eliminating confusion.

    The media, in protecting the Liberals from embarrassment, is actually hindering the Liberals cause, since the more publicity she gets, the less chance for confusion and the weaker her legal case is.

  • john g

    boudica, if trademarks are anything like patents you are afforded protection during the application process itself. Therefore you still have to protect your application even if its not approved yet.

  • boudica

    john g, can I just say that speaking with you is as boring as it gets because you invariably come back to your the-media-is-bias line. I’m beginning to think that you use this line whenever you run out of arguments.

    My point was simple. Jennifer Wright claims to have started all this because she doesn’t want her company linked to a political party. I am suggesting that holding a press conference/photo op like the one she did yesterday will have caused her company more damage on that front than the LPC’s climate change policy ever could. Add to that the fact that you now have a CPC junior Minister writing press releases in support of her claim.

    She has now become a “tool” for the CPC against the Libs’ green shift – or, at least, she will now be viewed as such.

    Had she done what most people do in these circumstances, which is to send the Statement by courrier to the LPC headquarters and refer media calls to her lawyer, she would likely have come out of this with an out-of-court settlement and smelling like roses.

    She might still get that settlement, if the LPC has any sense, but you better believe that the kind of media exposure she sought will cost her future business.

  • Johnny LaRusic

    john g: Green Shift’s mostly there with the application, but someone could file an opposition to the application.

    Filing an opposition is $750 (!!!) but given the amount of publicity this case has received I think Mrs. Wright can expect some challengers.

    Given the speed of our court system, it’s unlikely this case will see an end before the next election. And after that, Dion and Liberals, win or lose, will have little use of the phrase anymore.

    I suppose Green Shift and Mrs. Wright are hoping a judge will order a temporary injunction against the Liberal’s use of the phrase while the case worms its way through the system.

  • Compos Mentis

    OK, this is best site with respect to Canadian law that I could find: http://www.advertisinglawyer.ca/trademark.htm.

    So, from what I can make of this, Ms. Wright has a “confusing trademark”, or at best, a “weak trademark”, which makes legal enforcement difficult.

    A strong trademark would be something like “Kodak”, which is a unique word (unlike Green Shift).

    And I believe she still has to prove that her customers would mistake the LPC’s web site for hers?

    Just my (very unlawyerly) humble opinion.

  • Johnny LaRusic

    Compos: I believe (as another non-lawyer… where’s a trademark lawyer when you need one?) you’ve got the right idea.

    Wright’s asking 8.5 million “in general and special damages” and “$250,000 for aggravated and punitive damages.” For that 8.5 million, I she’d have to demonstrate actual loss of business of that amount.

    It’s unlikely, if successful, she’d get the full amount (makes for a good headline though, huh?). It’s also possible she could win and get $0 if a judge isn’t convinced Green Shift lost any business as a result of the infringement (a judge could, of course, award money for putative damages though).

    Man, it’s times like this I wish I went into law instead of math… :-)

  • boudica

    I doubt it will get to that. Unless Wright is a complete imbecile, she will accept the Libs’ olive branch and settle out of court.

  • http://jimbobbysez.blogspot.com JimBobby

    Whooee! An environmental advocate travels 350 km to deliver a handful of papers? Gimme a break. This is a pure PR play – guerrilla marketing. The green thing would be to send the papers by registered mail or bonded courier and hold a press conference at the company’s headquarters. Of course, the coverage would not be nearly as good as when she shows up in person in Ottawa.

    It’s all about getting publicity.

    Corporate event planners concerned with their clients’ eco-image will be sure to use biodegradable dinnerware now that the public is aware of its availability. Not that there’s anything wrong with that. I hoe she and other suppliers of eco-friendly goods get a boost out of this.

    JB

  • Wayne

    I think this situation has Dion in a terrible place. If he changes the name of his tax plan (as this is what it is) to say Green Tax Shift it looks awful as it give the impression and appeareance that the Liberals can’t even announce an idea without them falling all over themselves (which they do already) then again if they settle out of court they will probably have to shell out a few bucks which the party can ill afford at this time so what do we have here = bad hair day!

  • Cam

    I think Wright really blew it… at best she came across… weird.

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