Tulsa: September 2021 Archives

See the end of this post for an update with the lawsuit's resolution.

Tulsa's Gathering Place, LLC, has filed a lawsuit in federal court against a family-owned coffeehouse in Shawnee, Oklahoma, 90 miles away.

The trademark complaint, filed on Friday, September 24, 2021, in the Western District of Oklahoma, claims that the Gathering Place Coffee Company is guilty of trademark infringement, false designation of origin and unfair competition, trademark dilution, common law trademark infringement and unfair competition, and unjust enrichment. The Tulsa big shots demand an injunction against the Shawnee coffeehouse, payment of any profits they've earned to the Gathering Place, triple damages, "corrective advertising," punitive damages, forfeiting their social media accounts, and paying attorney's fees.

While News on 6 and Fox 23 have covered this story, they've failed to note that this lawsuit is being brought by a public entity: The complaint states that Tulsa's Gathering Place, LLC, is a wholly owned subsidiary of the River Parks Authority, which is a public trust established by and benefitting the City of Tulsa and Tulsa County, under Title 60 of Oklahoma statutes.

Here are links to the complaint as filed, the cover sheet, the summons, and a notification to the U. S. Patent and Trademark Office. The case is 5:21-cv-00940-JD, TULSA'S GATHERING PLACE, LLC, v. BAYLY COFFEE, LLC., and is accessible via the PACER federal court records system.

The complaint lists two specific trademarks, which you can look up on the U. S. Patent and Trademark Office's Trademark Electronic Search System (TESS) (the system doesn't provide permalinks):

Registration No. 5,612,344 is a standard character mark (also called a word mark), the plain text phrase "GATHERING PLACE". This was registered on November 20, 2018, a year after the Gathering Place Coffee Co. in Shawnee opened for business. The goods and services associated with the mark are listed as:

IC 041. US 100 101 107. G & S: Gardens for public admission; Providing facilities for recreational activities, namely, boating, fishing, biking and skating; Providing facilities for educational training; Providing recreation facilities; Providing recreational areas in the nature of play areas for children; Providing sports facilities; Recreational park services; Entertainment in the nature of a water park and amusement center. FIRST USE: 20180810. FIRST USE IN COMMERCE: 20180908

Registration No. 5,788,797 is a design mark, registered on June 25, 2019, 19 months after the Gathering Place Coffee Co. in Shawnee held its grand opening. It has a Mark Drawing Code of (3): "DESIGN PLUS WORDS, LETTERS, AND/OR NUMBERS." Design Search Codes, a taxonomy used to describe design elements in words, are listed as:

• 02.01.33 - Grotesque men formed by letters, numbers, punctuation or geometric shapes ; Stick figures
• 02.07.26 - Groups, grotesque (having human features or attributes)
• 04.07.03 - Geometric figures or combinations of geometric figures representing a person ; Geometric figures representing a person ; Geometric shapes forming a person ; Person formed by geometric shapes
• 26.01.02 - Circles, plain single line ; Plain single line circles
• 26.01.21 - Circles that are totally or partially shaded.
• 26.01.30 - Circles, exactly four circles ; Four circles

This trademark is registered for the following goods & services:

IC 039. US 100 105. G & S: Boathouse services. FIRST USE: 20180810. FIRST USE IN COMMERCE: 20180908

IC 041. US 100 101 107. G & S: Gardens for public admission; Providing facilities for recreational activities, namely, boating, fishing, biking and skating; Providing facilities for educational training; Providing recreation facilities; Providing recreational areas in the nature of play areas for children; Providing sports facilities; Recreational park services; Entertainment in the nature of a water park and amusement center. FIRST USE: 20180810. FIRST USE IN COMMERCE: 20180908

IC 043. US 100 101. G & S: Provision of conference, exhibition and meeting facilities; Restaurant services. FIRST USE: 20180810. FIRST USE IN COMMERCE: 20180908

Note that the "first use" of these trademarks is over two years after the Gathering Place Coffee Co. in Shawnee established a Facebook page and more than eight months after the Gathering Place Coffee Co. held its grand opening. It's also interesting that the complaint omits any mention of the "FIRST USE" dates listed in the trademark filings, which would seem to show that the Gathering Place in Tulsa didn't use those trademarks until after the Gathering Place Coffee Co. was well established under that name.

The more distinctive and complex trademark involving a circle with stick figures is the only one registered in association with "conference, exhibition and meeting facilities" or "restaurant services." These goods and services are not associated with the simple word mark; only with the design mark. But the logos of the Gathering Place Coffee Company, posted on Facebook in January 2016 and still in use, bear no resemblance to the design mark registered by Tulsa's Gathering Place, LLC.

I suspect that USPTO would not have allowed the simple phrase GATHERING PLACE to be registered for "conference, exhibition and meeting facilities" or "restaurant services" because the phrase is a generic description for a place to meet and because the phrase was already registered in those classes (IC 043, US 100 101) to a Denver non-profit that provides services to the homeless, which had registered the trademark (Reg. No. 4266870) on January 1, 2013.

Jared M. Burden and Penina Michlin Chiu, both with Frederic Dorwart, Lawyers PLLC, are the attorneys listed on the complaint. The Dorwart firm is the legal arm of what Michael Mason has labeled "The Kaiser System," representing the Bank of Oklahoma and related corporate entities, Argonaut Private Equity LLC, the University of Tulsa, Kaiser-Francis Oil Company, the Tulsa Community Foundation, and the George Kaiser Family Foundation. Burden's bio says he has a bachelor's and master's in classics from Texas Tech; Michlin Chiu got her bachelor's in materials science at MIT. Michlin Chiu is listed as the attorney of record for both of the aforementioned trademarks. As an MIT alum who studied classics, I'm disappointed that people with whom I share an academic background are responsible for this lawsuit, which looks to me like a baseless act of litigious sadism rather than a genuine claim of injury. Classicists and MIT-trained engineers ought to have more dignity than to put their talents at the disposal of billionaire-backed bullies.

The Gathering Place Coffee Company held their grand opening on November 24, 2017, in downtown Shawnee, but its Facebook page was created on January 9, 2016, under that name, and the first post to that page was this "before" picture:

Here's a picture of the coffeehouse's facade posted on May 20, 2020:

The coffeehouse has a covered back patio and a back room that has been used for yoga and other classes and can be rented out for special events.

A recent news story published by the Citizen Potawatomi Community Development Corporation describes the coffeehouse's history:

Originally owned and operated by Ogee family descendant Aaron Hembree and wife Jamie, The Gathering Place Coffee Co. opened in November 2017. It quickly became a mainstay in downtown Shawnee for its high-quality coffee, teas, baked goods and creative, laid-back atmosphere.

The Ingrams moved their plant house and floral studio, Bayly Botanicals, into the adjacent store space in 2019, and the Hiltons operated Fed+Well Kitchen, baking and selling delicious desserts, pastries and more to the coffee shop's customers. As the Hembrees looked for new opportunities in 2020, the Hiltons and Ingrams decided to partner together and expand both businesses by acquiring The Gathering Place Coffee Co.; however, they needed an understanding lender to help turn their dreams into a reality....

They took over operations from the Hembrees after the CPCDC approved their loan in late 2020.

"I was just sold on them from the very beginning," [CPCDC Commercial Loan Officer Felecia] Freeman said.

"We're lucky to have this in our community. It's almost like a little incubator, being that it's got three businesses, and it helps get kids and others thinking, 'What could I do in this community?' I think that's a great atmosphere.'"

(The story above was published on September 7, 2021. I have a suspicion that a news alert on the term "gathering place" set in motion the lawsuit that was filed last Friday.)

The most recent Google Street View of the 400 block of East Main Street in Shawnee is from 2012, and it shows a distressed block of single-story commercial buildings at least a century old. I haven't been to Shawnee in quite a while, but I suspect the advent of the Gathering Place Coffee Co. has inspired revitalization in this once-unfashionable stretch of Main, several blocks from the downtown core.

Long-time BatesLine readers will no doubt recall April 2006, when Tulsa's DoubleShot Coffee Co. was threatened by Starbucks. At the time, owner Brian Franklin wrote:

I received a letter last week informing me that I am infringing on a trademark that Starbucks has had since 2001, "Starbuck's Doubleshot." The lawyers advised me to cease using the DoubleShot Coffee Company name, to shut down my website (http://www.DoubleShotCoffee.com), and to destroy everything I have which bears the "DoubleShot" name. Come read the letter yourself-- it's framed and hanging on the wall, over the garbage can.

At first I frowned, then I smiled, then I laughed, then I experienced a little anger and fear, and then I went back to vengeance and irritable laughter. As you know, I don't take kindly to people telling me what to do. After briefly discussing the matter with my lawyer, and a gaggle of other lawyers who regularly patronize DoubleShot (my DoubleShot, not the can at the gas station), I don't think Starbucks has a leg to stand on. Doubleshot is a generic industry term for two shots of espresso. They have no exclusive rights to it. But they will try to scare me and lawyer me out of business if we give them the opportunity.

DoubleShot Coffee Co. did not give them the opportunity. News of the threat gained international attention (e.g. articles in Consumerist, AnandTech, Age of Reason), and six months later, Starbucks' lawyer wrote to withdraw the threat.

The Age of Reason blog listed several other threats by Starbucks against small businesses, such as a coffeehouse named Sam Buck's (owned by someone named Sam Buck) and a brewer who made a beer called Star Bock, pointing out that even though most of the small businesses prevailed over the corporate giant's specious claims, "that did not stop them from incurring legal fees that nearly bankrupted them. A small privately owned company with half a dozen employees does not have the money that a company like Starbucks has at its disposal for legal and court costs. Sometimes just the threat of a lawsuit can wield results."

Brian Franklin's successful strategy: Publicize the threat far and wide (starting with local media) and inflict shame and embarrassment on the aggressor. The story even inspired a filmmaker to spotlight DoubleShot in a full-length documentary: The Perfect Cappuccino. DoubleShot continues to grow and thrive, now in a much larger location on Boulder Avenue.

Shawnee, a small city of about 30,000 souls, has a couple of other independent coffeehouses, but if Tulsa's Gathering Place, LLC, pushes forward with their suit, with the power and wealth of the Kaiser Machine behind them, Shawnee residents will lose an important gathering place. Tulsa has lots of gathering places, many great coffeehouses, and our belligerent leaders seem determined to deprive a little city of one of the few they enjoy. I'm reminded of the prophet Nathan's speech to King David. Because this suit has been launched by a public entity, the governing officials -- Mayor of Tulsa, the City Council, the Tulsa County Commission -- will all have the death of this little coffeehouse on their hands, as will the man whose money sustains Tulsa's Gathering Place. If they are capable of feeling shame, they should demand withdrawal of the lawsuit and make apologies to the Hiltons and the Ingrams and the City of Shawnee.

UPDATE: On October 5, 2021, Tulsa's Gathering Place, LLC, Gathering-Place-Coffee-Lawsuit-Dismissal.pdffiled a voluntary dismissal of the case. There's a funny, telling error in the dismissal: Attorney Jared Burden subtitles himself, "Counsel for Defendant BOKF, NA." I guess he forgot which arm of the Kaiser System he was representing. A "joint statement" was issued to the media the same day:

In an effort to both protect trademark rights and to defray costs of litigation, Bayly Coffee, LLC and Tulsa's Gathering Place, LLC announce they have reached a mutually acceptable agreement pursuant to which Bayly will license the use of the GATHERING PLACE trademarks from Tulsa's Gathering Place.

I'm happy that the Gathering Place Coffee Company will be able to continue to trade under the name by which the people of Shawnee have come to know and love them. I'm very happy that the Kaiser System bullies have been forced by public outcry to back down. They damaged the reputation of Tulsa's Gathering Place far more than the remote possibility of confusion with a pretty, popular coffee house 90 miles away. Maybe they will learn that the rest of Tulsa -- the Tulsa that exists outside of City Hall, the Education Service Center, and the non-profits -- is full of people of character, people who don't kowtow to the wealthy, people who don't respect bullies.