Kokopelli

[PatrickW]

I just heard about this the same way I always hear about things concerning Kokopelli. I read something vague on a blog who's owner read something vague on a different blog, and posted a misinterpreted summary of it together with a link to the story in French. This is of course after a number of days passed since it was first posted on the Kokopelli blog.

That said, I don't know a lot of what's going on myself.

Anyway, what I understand is the same seed company that sued Kokopelli Seeds last year for selling 'illegal' seeds, has registered the name Kokopelli and using it for a tomato variety name. Further, they are demanding Kokopelli cease and desist with the use of the name Kokopelli and all associated business activities, and pay €100,000 in compensation for the use of the name to date.

Here's the story in French: www.kokopelli-blog.org/?p=207

Here's the Google translated version: tinyurl.com/ylc8pl6

[plantsnobin]

Wow. It will be interesting to follow this to conclusion.

[mjc]

Not sure how French law works, but if I'm not mistaken, wasn't Kokopelli in existence before 2007?

And generally, doesn't prior and established use of a name trump some idiot bureaucrat's decision to award protection to that name to someone else, at a later date?

Did these Baumaux jokers higher the SCO lawyers?

And who wants to pay their prices, anyway...close to $6 (US) for 25 seeds of fairly common heirloom tomatoes.

[PatrickW]

I doubt Baumaux has any real claim on the name, Kokopelli has been around for a long time now, certainly before 2007. I was a member in 2005, I think. At the same time, there's little doubt this will cost Kokopelli a lot of time, trouble and money to get straightened out. The post that I linked to above mentioned it's actually a crime to intentionally register a name you know is in use, and they were in the middle of legal action with Kokopelli Seeds at the time, so they can't claim they had never heard of Kokopelli.

This does look a lot like the SCO case, doesn't it! I see there's another open source software person in our ranks.

I wouldn't be surprised if the tomatoes were really F1 heirloom forgeries, as we sometimes see those around here.

[mjc]

I'd say maybe Kokopelli needs to get in touch with the EFF, if for nothing else, to get some hints on getting a low-cost legal team together that has some experience fighting the kind of slimeballs that Baumaux seem to be.

And the original French actually made more sense to me than the Google translation, but it was too slow going, so I didn't finish reading it...(and it's been nearly 30 yrs since I had French in school).

[Alan]

I hope Kokopelli fights this to the best of their ability, it would be a shame to loose such an important source of diversity, particularly in Europe where it is the most needed.

[tatermater]

Thanks, Patrick for bringing this issue forth. I have no doubt that the atorney that I spent so much time with in France will have a fighting chance to bat this down. I am so glad that my name was mentioned in this conflict as well.
I will support Kokopelli Seeds of France to my utmost. All the way through Europe I supported the freedom to exchange seed without any restriction of any kind, and that varieties start with the individual first, not last.

Kokopelli Seeds of France, who last year was fined more than €17.000 for selling ‘illegal’ seeds, is involved in a new legal conflict. Baumaux, the same company that instigated the previous legal action against Kokopelli Seeds has now registered the ownership of the name Kokopelli and is selling a new variety of tomato with it.
Baumaux is not stopping there however, they are also demanding Kokopelli Seed cease and desist in their use of the name Kokopelli and all business activities associated with it. They are also demanding a payment of €100.000 in compensation for use of the name to date.
The original French language story is here, and a Google translated version here

Sorry for my quote in English and French. I did highlight my name a couple of times to make sure I can read the links correctly. I am behind Kokopelli 100%.

Despite our small ways (for we are not watered by the billions of euros for research on transgenic F1 hybrids or more efficient poisons), Kokopelli has this year launched the first campaign of development work breeder Tom Wagner's great.

Kokopelli, à ses frais, a organisé le voyage de Tom Wagner en Europe qui lui a permis d'animer des formations (obtention de tomates-pomme de terre) en France, en Suisse, en Belgique, en Autriche, en Irlande, au Danemark et en Angleterre. Kokopelli, at its expense, the trip was organized by Tom Wagner in Europe that allowed him to lead training (obtaining tomato-potato) in France, Switzerland, Belgium, Austria, Ireland, Denmark and England.

Et pour en revenir au piratage, Tom Wagner se plaint amèrement du fait que la société Baumaux commercialise toute une gamme de ses propres créations de tomates sans même lui faire honneur d'un remerciement ou de le nommer: par exemple, Green Zebra, Green Grape, Striped Stuffer, Red Zebra, Banana Legs… And to return to piracy, Tom Wagner complained bitterly that the company Baumal markets a line of its own creations of tomatoes without honor him a thank you or to appoint: for example, Green Zebra, Green Grape , Striped Stuffer, Red Zebra, Banana Legs ...

Il met également en valeur sur son blog que sur la liste des prétendues variétés « amateurs », du catalogue prétendument « amateur » du GNIS, (et dont certaines, cependant, sont commercialisées en tout « professionnalisme » par les grandes centrales de supermarchés, Carrefour, Auchan, Monoprix), il existe 84 variétés « amateurs » de tomates dont 12 % sont les siennes pour sûr et sans doute même 17 % (si l'on prend en compte les synonymes ou variétés filles). It also highlights on his blog that the list of varieties called "amateurs", catalog supposedly "amateur" GNIS (some of which, however, are marketed in any "professional" by the major central supermarket, Carrefour , Auchan, Monoprix), there are 84 varieties "fans" of tomatoes which 12% were his for sure and probably even 17% (if one takes into account synonyms or varieties girls).

La société Baumaux, les autres catalogues de semences conventionnelles, les centrales de supermarchés, et le GNIS, ont-ils proposé à Tom Wagner de participer au financement de ses travaux d'obtention végétale grâce auxquels ils font des choux gras? The company Baumal, other seed catalogs conventional power of supermarkets, and the GNIS, they proposed to Tom Wagner to help finance its work through plant variety to which they are fat cabbage?

Les pirates de la biodiversité, où sont-ils donc? Pirates of biodiversity, where are they?

I do not know anything about any proposal to me about finances from Baumal and others. I will always be the law breaker.

Tom Wagner

[tatermater]

I first learned about this post over on my own forum, a little used exchange called
tatermater.proboards.com and when I clicked on the link to HG, I posted my message hoping to go back to my forum but all I get now is this message:

Too Many Connections
There are currently too many connections to this server. Please check back again in 30 seconds.

A number of minutes have gone by and I wonder what kind of traffic or foolishness is going on? I have never seen this before. I wonder if this is just coincidence? Note from me...after about one half hour I was able to log on to my forum.

[canadamike]

I spoke to Dominique Guillet, head of Kokopelli, and they do not know if they will sue, although they have solid ground.

One thing I plan to do is create new varieties with names that include Baumaux. It is legal. I could name a fingerling potato either from Tom's material, my own ( from heirlooms and various crosses) something like
"petite bite de Baumaux", or "Baumaux's small dick" and so on.

We could do the same with other numbered accessions from genebanks, as an exemple.

They would sure get an instant following in France

[tatermater]

Thanks, Michel

Since we were both in France at the same time, we know full well we were on solid ground fighting the Baum-aux brand. If you type in Bau and Maux you come up with Beam evil. So Evil Beam potatoes and/or tomato varieties would be cool. Baum-aux (To the trees)is a suggested spelling for Baumaux.

I have not heard received any emails from Dominique except a link to a 13,000 year old potato site in Chile.

Tom Wagner

[pugs]

First, just when I think companies can't get any lower, I'm proved wrong.

Second, I thought I was the only one on this board that knew of the SCO vs the world story. Seven years with no case and they are still in court. Just amazing. At least Germany slapped them down hard.

Pugs

[PatrickW]

There's a petition, if anyone want's to sign it: www.cyberacteurs.org/actions/presentation.php?id=40

Click on 'Signer le pétition'

In the stared fields enter your first name, last name, zip code and 'city, state' (for Ville) and email address (don't give a valid one unless you want to get spammed in French). For Pas enter your country. Don't check any of the boxes. Click on 'Signer le pétition'. The page it brings you to is just a confirmation page where you can enter in your friends email addresses and ask them to sign too, I suggest ignoring it and then you are done.

[tatermater]

What it looks like in some form of English.

Petition : SUPPORT HAS THE ASSOCIATION KOKOPELLI
Petition posted on-line the 19/01/2010

She come to an end the: 31/12/2010

To protest the presumptuousness of Baumaux that deposited the brand "Tomato KOKOPELLI" while it filed a process against the association of the same name, we hear, by the signature of this petition, show that the existence of this one and his notoriety has nothing to the corporation Baumaux, and was well real before all deposit of brand by this corporation.

[There were 10215 participations to this Petition]

in the spring 2007 500 of had participated you in the country "" without GMO let us sow"
www.cyberacteurs.org/forum/viewtopic.php?t=3300

to the first quarter 2008, you had been 13000 to participate in the cyber @ction 244 in favor of kokopelli
www.cyberacteurs.org/archives/archive.php?id=214

The lawful conflict opposing Kokopelli to the corporation Baumaux took a new turn
In his spring catalog 2010, the corporation SEEDS BAUMAUX proposes to the sale, in page 490, a mixture of 15 varieties of tomatoes that his leader chose to call "TOMATO KOKOPELLI", this name being followed by a small sign © indicating that it is brand owner.
the continuation of the communiqué of the avocate of Kokopelli
www.cyberacteurs.org/forum/viewtopic.php?t=7234

We propose yourself to sign and let the petition sign around you.

Petition text:
PETITION OF SUPPORT HAS THE ASSOCIATION KOKOPELLI FACE HAS THE PROVOCATION OF BAUMAUX

I testify here to have knowledge of the association KOKOPELLI, of his name and of its activities of broadcasting of the biodiversity semencière well before all deposit of brand by the corporation Baumaux.
In this international year of the biodiversity, this action has, more than ever, continue. While signing this petition I am anxious to bring my support to the association KOKOPELLI and allows for him itself to claim some if that was necessary.

Petition : SUPPORT HAS THE ASSOCIATION KOKOPELLI

Petition posted on-line the 19/01/2010

She come to an end the: 31/12/2010

To protest the presumptuousness of Baumaux that deposited the brand "Tomato KOKOPELLI" while it filed a process against the association of the same name, we hear, by the signature of this petition, show that the existence of this one and his notoriety has nothing to the corporation Baumaux, and was well real before all deposit of brand by this corporation.

[There were 10215 participations to this Petition]

in the spring 2007 500 of had participated you in the country "" without GMO let us sow"
www.cyberacteurs.org/forum/viewtopic.php?t=3300

to the first quarter 2008, you had been 13000 to participate in the cyber @ction 244 in favor of kokopelli
www.cyberacteurs.org/archives/archive.php?id=214

The lawful conflict opposing Kokopelli to the corporation Baumaux took a new turn
In his spring catalog 2010, the corporation SEEDS BAUMAUX proposes to the sale, in page 490, a mixture of 15 varieties of tomatoes that his leader chose to call "TOMATO KOKOPELLI", this name being followed by a small sign © indicating that it is brand owner.
the continuation of the communiqué of the avocate of Kokopelli
www.cyberacteurs.org/forum/viewtopic.php?t=7234

We propose yourself to sign and let the petition sign around you.

Petition text:
PETITION OF SUPPORT HAS THE ASSOCIATION KOKOPELLI FACE HAS THE PROVOCATION OF BAUMAUX

I testify here to have knowledge of the association KOKOPELLI, of his name and of its activities of broadcasting of the biodiversity semencière well before all deposit of brand by the corporation Baumaux.
In this international year of the biodiversity, this action has, more than ever, continue. While signing this petition I am anxious to bring my support to the association KOKOPELLI and allows for him itself to claim some if that was necessary.

Tom Wagner

[tatermater]

Since I am on a first name basis with Blanche, maybe I could get a better translation than this rather awkward translation. But I know she, Blanche, will do a great job. This attorney is my favorite Kokopelli contact.

A communiqué of Blanche Magarinos-Rey, Avocate of Kokopelli

In his spring catalog 2010, the corporation SEEDS BAUMAUX proposes to the sale, in page 490, a mixture of 15 varieties of tomatoes that his leader chose to call "TOMATO KOKOPELLI", this name being followed by a small sign © indicating that it is brand owner.

This initiative, from a notorious judicial opponent, sowed the doubt and the confusion in the spirits of the adhesive, customers and getting along association, that asked what an explanation is given on the reality of this incomprehensible one and absurd assimilation of the tendencies.

In fact, the initiated process since December 2005 by the corporation BAUMAUX against the association KOKOPELLI always is in course. In this one, aujourd’hui to the call stadium, BAUMAUX is done rectifier of wrongs and, without being able to show no harm linked to the association activities, claims the strict application of the legislation on the seed inscription to the official catalog. Taking thus the role of the Public Ministry, and going out of the framework of the disloyal competition on which it claims to base himself, it puts back thus in scene the sad process that took the State against the association KOKOPELLI during more than four years, and that concluded itself recently, in final Court of appeals, by the association condemnation to more than 17,000 € of fine.

Happy no probably of the conditions of execution of this condemnation, that saw certain members of the government to qualify of "public service" the work of KOKOPELLI and the State to renounce, to this day of the less, to fine recovery, the corporation BAUMAUX claims aujourd’hui to the association some 100,000 € of damages, as well as the suspension of its activities.

This is therefore a true determination that undergoes here, by this new process, the association KOKOPELLI.

But the brand deposit "TOMATO KOKOPELLI" by his own opponent constitutes a new step in this crusade against the work of broadcasting of the agricultural biodiversity and autonomy semencière that realizes the association.

Now, pieces of information take with the National Institute of the Intellectual Property, the brand deposit "TOMATO KOKOPELLI" by the corporation BAUMAUX dates back to October 31 2007, be when the process initiated by this one beat his full one in first instance.

For this brand recording, the corporation BAUMAUX not from that time will be able to deduce of his good faith, this is an evidence. Worse again, realized in the intention to harm, it must be considered as frauduleux, to the direction of our jurisprudence in the matter.

But which is more serious, in the measure where the association KOKOPELLI profits, to not some to doubt, of a "marks notoriously known", this recording could equally be constituent of an act of forgery, that is a penal offence punished of four years of imprisonment and of 400,000 Euros of fine.

One wonders therefore on the reasons that pushed the corporation BAUMAUX to such extremities.

In final, this extreme gait resembles itself pure and simple provocation, to which the pacifism of KOKOPELLI hesitates to reply. Nevertheless, the corporation BAUMAUX maybe foresaw, in the framework of a new judicial procedure, to forbid to the association to use his own name …?

At last, and to crown the all, it is again distressing to note that the registered trademark by BAUMAUX the was for two categories: the seeds, on one hand, and the products phytosanitaires, other.

Then, Mister BAUMAUX, for when did you program the go out of the "Pesticides KOKOPELLI"?

Blanche Magarinos-Rey. Avocate of Kokopelli Avocate to the Bar of Brest

[PatrickW]

Maybe this is obvious to all or most of you, but just in case maybe I can try to explain it a bit. I'm not any sort of expert on this kind of thing, this is just my understanding of what's going on. I welcome any and all criticisms and corrections!

The issue at hand with Kokopelli seems to be if they can prove they were using the name in the past. My guess is this has to be in a commercial sense, so there has to be financial records and probably some evidence of commercial viability, but I'm not sure of this.

We all know they were, and Kokopelli can certainly produce lists of customers and others who will vouch for them, like the petition I linked to above, but in a French court this is not probably not proof. Baumaux for example might say they don't believe all of these tens of thousands of people are telling the truth, and ask for proof of their claims. Kokopelli must really prove in an undisputable way that they existed previously, and this is made all that much more difficult because their seed selling activities are illegal.

The most common way to prove something like this is with a police or court action. For example, the lawsuit Baumaux filed against Kokopelli last year is at least proof that Baumaux knew Kokopelli existed, but it's probably not proof in and of itself of the existence of Kokopelli.

If Kokopelli can find a way to undeniably prove their previous existence, they can probably fairly quickly and successfully challenge Baumaux's right over the use of the name, and the matter will end. I don't think this will cost Kokopelli much money to do if it is straightforward. I also don't think Kokopelli will be able to do this.

If Kokopelli can't do this, then Baumaux can challenge Kokopelli's right to use the name. Again, this is likely to be difficult and expensive for Baumaux, but they do have grounds for doing it. In this case what they would likely do is just slowly over time take small actions against Kokopelli, intended to harass them and cost them money, but not with the intention of winning anything in the end. It's certainly not out of the question however that Baumaux could get a judge to order the complete shutting down of Kokopelli.

Really, in this situation, Kokopelli almost certainly has nothing to gain but the right to survive, and everything to lose.