Ellwood and her partner received a letter directing them to cease and desist selling two perfumes called “Yule” and “Amatus,” because the name and appearance infringed on trademarks owned by Sage Goddess, Inc. The letter was dated Feb. 14, 2017, and the trademark applications were filed the following day.
“They copy a lot of our products,” said Nicely when reached for comment. This is the why he reported taking the step to file this and other trademark applications. In a further written explanation provided by the company’s attorney Scott Shabel, trademarks are necessary to file a complaint with the platforms Etsy and Shopify.
As recounted in that letter, many Wyld Witchery products were too close for their comfort: “The bottle, cap, sari silk, stones, ingredients, and labels for several products were in most cases, identical to ours, including products we’ve had on the market for years. The marketing and descriptive copy used to sell this competitor’s products were, in some cases, lifted verbatim from our website.
“When a number of our customers wrote to us saying they were confused as to whether our products were being sold by another shop, we had no choice but to take legal action to protect our trade name, trade dress and other intellectual property rights.”
Charissa Iskiwitch, who runs the Pagan Business Network site, also received a letter herself from attorney Shabel after the interview with Elwood was posted. In it he decried various factual errors, and requested that the offending piece be taken down.
Iskiwitch’s response came from attorney Courtney Lytle, who represents trademark clients and teaches that area of law. After Lytle remarked that registering Yule as a trademark for a perfume could easily prevent any scented products to use that name, Iskiwitch started organizing the resistance. Her goal was to alert the trademark examiner — who has yet to be assigned — that this is in effect a common word, which cannot be trademarked. Her tactics include talking to business owners whose products could be impacted, and to circulate online petitions.
However, Iskiwitch took pains to make clear that she was not interested in dissecting or disparaging the reasons for trying to trademark such a term. “I am not wanting to trash a business for practices or products or any other reason,” she said.
“It is not about that one person, [and] I won’t participate in that kind of thing.” However, “This is a huge issue,” because of the many scented products with Yule in the name. As she noted, the trademark “would allow one business to stop all others from creating products called Yule.”
According to Lytle, trademarks are broadly interpreted because they are intended to protect the consumer from confusion. The example she used was a line of spices: trademarking its name would also protect an expansion of the name into baked goods, she said, or any other reasonably-connected enterprise. That means that a trademark on Yule perfume could be enforced with cologne and toilet water, but also other scented products such as potpourri and incense.
Lytle freely admits that she’s mostly unfamiliar with Pagan practice, which puts her in line with most Americans who view the word Yule as an old-time synonym for “Christmas.” That’s why she believes the application could very easily go through without opposition. With it, she’s less clear, saying that while the trademark process is more predictable than patenting an invention, there’s still a great deal of discretion left to the assigned examiner.
Once a trademark application is filed, it’s much more difficult to oppose it; for starters, there’s a $400 filing fee. That’s why Iskiwitch got to work quickly. “I do not currently have any Yule products,” she said. Rather, it’s a “battle to help save this word for the business community.”
The application process can take a year or more to be finalized, but Lytle said that if approved, it would be enforceable back to the application date. From that point, it would be a question of if the trademark holder chose to enforce their rights or not.
Elwood said that her own attorney “implored” her to file state trademarks, which in narrow situations may even trump a federal claim. “My partner was apprehensive to go this route with trademarking the names of our holidays, and I agree with her, they belong to the community. However, the lawyer has assured us we do not have to enforce these trademarks, but they are there for if/when another situation like this comes about.”
What runs through this entire issue are accusations of bad faith. Elwood has been fingered for products purportedly too similar; she in turn claims that Sage Goddess spies tried to infiltrate her Facebook groups just before she received that letter.
Nicely asserted that the petition drive falsely accuses his family of trying to trademark the holiday, and that it is being organized by friends of Elwood.Nicely did signal some good faith in the one interview he conducted prior to his attorney requesting no further direct contact. “As a show of good faith, we’re going to rescind the filing,” he said. “We’re going to pursue those other ones. [We’re] not trying to cause harm, just want people to stop” copying their merchandise.
In her PBN interview, Elwood said that she and her partner voluntarily pulled the “Amatus” products and renamed them.
As of this writing, the trademark application database does not reflect any such withdrawal. It’s not clear how quickly such an act would be reflected in the database.
Shubel, the attorney representing Sage Goddess, did not respond in time to answer questions about the cease-and-desist letter, dated the day before the trademark application. Iskiwitch’s attorney Lytle stressed that while the application date is the effective date for an approved trademark, it has to get approved first.
What’s quite clear is that a Pandora’s box has been opened. Regardless of intent or success, the idea of trademarking a Pagan or other minority religious holy day name for the purposes of selling products is now a topic of conversation, possibly even in business strategy sessions. For good or ill, Paganism is being visited with issues of the mainstream market.
* * *
The work of journalist Terence P. Ward was made possible by the generous underwriting donation from Hecate Demeter, writer, ecofeminist, witch and Priestess of the Great Mother Earth.