Over at Olives and Artichokes, news of dastardly doings on the internet. A large commercial seed company “has bought the rights to the name” of “an organisation pledged to maintaining plant diversity”. The entities are Baumaux seeds and Association Kokopelli, long-time sparring partners. Search for “Kokopelli,” and “the first item to appear is one of the Bamaux [sic] strains of tomato seeds”.
I pointed out that this wasn’t actually misuse or impersonation, but a legitimate use of Google advertising. Underhand, maybe, but if Baumaux is prepared to pay for the privilege of making sure that Google Ads delivers its particular tomatoes as a clearly identified paid-for link, and only on google.fr, so what? Furthermore, on the search I conducted not 10 minutes ago, every single unpaid link does relate to the Association Kokopelli, which is some pretty strong Goo-fu.
The response:
[I]t’s not fair and is typical of what big business does to small ethical organisations. The big seed companies are determined to squash Kokopelli because of its principles and its determination to produce a diverse range of seeds rather than a smaller commercially lucrative one. This is part of that campaign. Whether you agree with it or not depends on whether or not you support ruthless capitalism.
Predictable enough. But rather than whinge “‘snot fair,” like my little sister used to do, why not turn ruthless capitalism in on itself? I don’t have a very clear understanding of how Google Ads work, but I think there are two things of interest, one more so than the other. First, I believe that a company bids for the space. Someone else could outbid Baumaux, and then their ad — which for all I know might be allowed to trash Baumaux — would appear instead. Probably too expensive. Secondly, and this might be more interesting, I think it is the case that the company doing the advertising pays only when someone clicks on the ad, and does so whether the click results in business or not. So if all Association Kokopelli’s supporters were to click on any ad they see for Baumaux, it would cost Baumaux money. How much? No idea. But surely more satisfying than just whinging.
A final point. The ad that appears is actually for Baumaux’s collection of tomato varieties that they package under the name Kokopelli; they have registered the name. Now that really is underhand. I can’t fully understand this lawyer’s post on the subject. Nevertheless, I hope this aspect of the saga will be taken up and fought. Baumaux clearly can’t make a living honourably, their original claim against Kokopelli made that clear. Stealing your enemy’s name and product smacks of desperation.
It may seem like a small spat, but Baumaux’s dastardlyness really does deserve more attention that it has had so far.
I wouldn’t call it whinging, or childish as you imply, to point out the obvious fact that a small organisation like Kokopelli can never outbid a company like Bamaux or to point out that this is part of a campaign which has been going on for years, and which those of us who are concerned about biodiversity have been following, to prevent Kokopelli from doing its work.
Just a small further point – I did say in my article that the Kokopelli name was being used as a registered name for tomato seeds, so I can’t quite see why you state this as though it is something that you discovered. It seems sad to me that your blog can’t be more supportive, rather than critical, of attempts to publicise the difficulties of an ethical company like Kokopelli. I shall continue to buy seeds from Kokopelli – that’s all I can really do as an individual – and I hope others do too.
Here’s another example of corporate behaviour that is either absolutely dastardly or perfectly understandable business practice, depending on your point of view. Cascadian Purely O’s: betrayal or business as usual? And the answer, as ever, is to understand what is going on and use your money to express your approval or otherwise of the business in question.
Jeremy,
Thanks for posting this. I had not heard of this before.
I am not a French speaker myself, and probably struggling to understand the same Google translation you are, but my understanding is the rights of the use of the name Kokopelli is being taken up and fought as you say, but by Baumaux. Baumaux is demanding Kokopelli seeds cease and desist in the use of ‘their name’. Further, they are demanding Kokopelli Seeds pay €100,000 in compensation for the use to date.
You’re most welcome. That was about my understanding of it too. I was hoping that Laurent would be along to give us a more comprehensive understanding.
Baumaux and Kokopelli are two businesses – yes, businesses – operating in the same market, seeds for amateur gardeners. And they are at loggerheads. Humping from one blog to another, you can see that it is very, very personal between former friends, and very ugly.
Baumaux is not big business as suggested in the blog entry, but an SME (small and medium-size enterprises); its turnover appears to have been some 8 million Euros in 2006. Kokopelli is a business incorporated as an association. It operates at the fringes of the law and is surfing on well-known anticapitalistic philosophies and ideologies. It is important to clarify this insofar as people may be carried away by Kokopelli’s discourse as liberator of seeds and defender of biodiversity. Baumaux and Kokopelli, and other operators such as Ferme Sainte-Marthe, sport largely similar catalogues (available on the internet). A word of caution here: if you go to Kokopelli’s list of species and varieties, you will find listed some 400 tomato varieties, the full list ending with a notice that it is subject to availability. If you go to “boutique”, you will only find 56 entries.
The blog entry refers to two issues: Google.fr hitlist for “kokopelli” and the trade mark.
I am not familiar with the workings of the Google search engine, and agree with Jeremy’s analysis to the extent that, if the Kokopelli association (or for that matter any other entity with the name of Kokopelli) wishes to beat Baumaux, it should use the Google system to its advantage.
Interestingly, when I looked for “Kokopelli catalogue”, my hitlist started with Baumaux, followed by Kokopelli’s rant about the court case it lost against the French authorities and about the official catalogue. There are three commercial links, including to Willemse and Thompson-Morgan.
As for the commercial links, note that if one finds the situation unfair, the blame should be put in large measure on the search engines. Google is indeed challenged in court by various well known companies which claim that their trade marks are infringed – by Google, not the users of its adword system.
As regards the trade mark, Kokopelli omitted to register its trade name as a trade mark. This was a major mistake. It is now pretty disingenuous to claim that the name was not trade-marked out of respect for the age-old cultural symbol of the American Indians. That sense of ethics indeed did not go as far as abstaining from using the word as a trade name.
Baumaux’s registration of “Tomate Kokopelli” as a trade mark is no doubt open to criticism. Kokopelli’s claim that this is a provocation is clearly founded. Unfortunately for them, the registration is – perhaps – legal.
First of all, the registration could not be refused on account of the existence of an earlier mark for the same or similar products, since there is no such mark.
Secondly, trade mark law (art. L. 711-4 of the Intellectual Property Code) does not allow the registration of “the name or style of a company (dénomination ou raison sociale), where there is a risk of confusion in the public mind” or “a trade name or signboard (nom commercial ou enseigne) known throughout the national territory, where there exists a risk of confusion in the public mind”. The Kokopelli Association did not object to the registration of the mark on these counts. Whether it could with reasonable chances of success will remain unanswered here, since much depends upon the purpose of the Association as stated in its statutes.
Whether it will, will also remain unanswered. Beyond the legal issues, the fact is that the current buzz is all benefit for Kokopelli.