Tuesday, March 20, 2012

Eden Foods vs. Eden Food & Herb

My wife had an online store named "Eden Food And Herb".  She was legally beaten into changing the name.

Below are the email exchanges between the "EDEN FOOD" attorneys and me, who sadly, was tasked with trying to allow her to keep her store name.

Looks like I'm going to be disbarred from legal practice.  But, since I never went to law school or got my JD, I guess it shouldn't hurt too much.

enjoy!

First shot across the bow





My wife asked me to respond, so I did.

from: Glenn Fishbine glennfish@gmail.com
sender-time: Sent at 5:37 PM (GMT-06:00). Current time there: 5:29 PM. 
to: BDavis@wileyrein.com,
 CKelly@wileyrein.com,
 ksikorapanza@wileyrein.com,
 mpotter@edenfoods.com,
 jhughes@edenfoods.com
date: Fri, Mar 9, 2012 at 5:37 PM
subject: Your Ref.: 79543-001

Mr. Kelly,

Thank you for your letter addressed to Ms. Flaherty.

It has been passed to me for resolution.

I am sure that you are well aware of the standard of "likelihood of confusion" described in Polaroid Corporation v. Polarad Electronics Corporation, which is the basis of your concern.

I am sure you are also aware of the "fair use" doctrine, specifically the affirmative defense that Ms. Flaherty is not using the term as a mark, but rather as a fair and good faith description of the good attached to it.

As you have noted, Ms. Flaherty operates from Eden Prairie, Minnesota, which from an affirmative defense perspective gives legitimacy to her use of the word Eden.  Granted the 261 live trademarks for the word or phrases using "Eden" there must be some other standard beyond your citation of live marks which establishes a likelihood of confusion thus making your request reasonable.

I might point out that there is no similarity between logos used by your client, and those used by Ms. Flaherty.  There is no similarity between look and feel of stores or products or product descriptions.

In fairness, we concede that Ms. Flaherty's store does in fact offer 97 products produced by your client, of the 11,000 in the store, and we will gladly remove those from our store catalog without complaint.

However, in the other matters you assert regarding possible confusion, we feel comfortable that any action warranted beyond removing your products from her store, there is no basis for any likelihood of confusion.

I would be willing to discuss this matter further if you think there is any basis for further action by your office.

If you still believe your position has merit, we would further entertain the option of selling you the name and the URL so you could expand your trademark position, but we regret that at this time we believe that actions taken by Ms. Flaherty beyond those listed here are without further merit.

Thank you for your time.



2nd shot across the bow


My reply

from: Glenn Fishbine glennfish@gmail.com
sender-time: Sent at 5:38 PM (GMT-05:00). Current time there: 6:33 PM. 
to: BDavis@wileyrein.com,
 CKelly@wileyrein.com,
 ksikorapanza@wileyrein.com,
 mpotter@edenfoods.com,
 jhughes@edenfoods.com
date: Tue, Mar 20, 2012 at 5:38 PM
subject: Re: EDENFOODANDHERB.COM

This is to confirm receipt of your letter dated March 19, 2012.

First, I would like to thank you for taking the time to call me to discuss this matter.  As I'm sure you know most matters can be resolved by a conversation.  Since you have chosen to respond via written communication rather than call to discuss this matter, then I can only construe that you might be contemplating setting yourself up for counter action under the the various malicious or monopolistic practices rulings.  Rather than cite case law, I'm sure that your client would be pleased to know that your behavior might seem to be a disservice to your client.

I further note that your hourly charges for your defensive services on behalf of your client certainly exceed the all time total revenue achieved by Ms. Flaherty, further laying to rest the possibility of confusion between names.  Were the name "Eden Food" of any commercial value in this context I'm certain her total earnings would be significantly greater.

As a clarification in case you wish to further waste your client's time and money, let me note that the rights regarding your trademarks, such as they are, are totally divorced from any rights you might have to URLs which you do not and cannot own nor claim.  Your declining of the offer to purchase the name is a separate matter from your declining the offer to purchase the URL.  They are not and cannot be linked, by again, separate case law which you can describe to your client at their expense.

Ms. Flaherty fully understands the position represented by you on behalf of Eden Foods and as a recognition of your obvious financial strength in pursuing this matter from a position of a large and powerful company intimidating or harassing a smaller company, Ms. Flaherty has changed the LOGO of her store and the name of associated links to her store.  The word "Eden" has been exorcised.

This is not an admission of acceptance of your position.  This is an admission of your ability to outspend and harass Ms. Flaherty who has better things to do than deal with corporate bullying.

We consider this matter closed and have deleted all Eden Foods products from her store.

Have a nice day.

Glenn



I guess I pissed him off.  cc'ing the CEO and CFO of his client.  Well, they should know shouldn't they?  So he sent this.



from: Kelly, Christopher CKelly@wileyrein.com
sender-time: Sent at 5:49 PM (GMT-04:00). Current time there: 7:34 PM. 
to: "glennfish@gmail.com"
date: Tue, Mar 20, 2012 at 5:49 PM
subject: Re: EDENFOODANDHERB.COM
mailed-by: wileyrein.com

Mr. Fishbine: We will review the changes and follow up. In the meantime, please let me know the jurisdictions you are admitted to practice in order for us to register appropriate objections to your insistence on communicating with Eden Foods directly. I look forward to hearing from you. CK 



Thursday, December 8, 2011

AMAZON self destructs

Background:
My wife has two web stores in which she sells name brand herbs, spices, and foods. (plug: Herb Store Food Store)

I decided to add checkout by AMAZON to her shopping cart. We use zencart as our e-commerce tool. It's pretty easy to use, and has tons of support including a plug-in module for AMAZON checkout.

My Actions:
I installed the product and followed the directions which include setting up an account with AMAZON. At 9:45 p.m., December 7th, a date which will live in infamy, AMAZON sent me my congratulations notification that I was approved for the program.

I proceeded to enter various test transactions to debug the interface. I switched to the SANDBOX mode at 9:46 p.m. so I could do so without actually completing a transaction. I got a nice email from AMAZON confirming my "welcome to sandbox mode"

Comedy Begins:

I run various transaction tests trying to learn how the interface works. In the middle of testing, I get this email from AMAZON at 10:22 p.m.

Hello from Amazon Payments.

This message is to let you know that we have blocked your Amazon Payments account and canceled any pending transactions.

We took this action because it has come to our attention that your Amazon Payments transaction(s) may be in violation of our Acceptable Use Policy and your Agreement with Amazon Payments, both of which prohibit the use of our payment service for any items, materials, or services that we have determined to be illegal or inappropriate.

To review our Acceptable Use Policy, please visit:

Amazon Payments > User Agreement/Policies > Acceptable Use Policy

In accordance with the terms of your agreement, Amazon Services, Inc., hereby terminates the term of the agreement effective immediately.

Any remaining funds are being reserved in your Payments Account and may be held for 180 days from the date your account was blocked. After 180 days or the completion of all pending investigations, the funds, minus any claims or chargebacks, will be made available for withdrawal. If you have further questions about your funds please write to amazonpayments-investigate@amazon.com.

While we appreciate your interest, the closure of an account is a permanent action. Any subsequent accounts that are opened will be closed as well. Please note that we take such actions for the protection of all Amazon Payments participants.


Regards,

Seller Performance Team
Amazon Payments
http:\/\/payments.amazon.com


Wonderment Begins:

I hit the appeal decision button on their website and in response to their questions reply:

Suspended for poor selling performance
------------------------------------

Well, you see, I'm trying to integrate checkout with AMAZON with ZENCART. I have the module installed and was testing to see how the payments worked. I had several errors unable to complete test transactions, switched to SANDBOX mode, and then I got your nice little note saying I must be selling illegal drugs and nuclear weapons or something.

Having failed to complete the integration testing, I regret to inform you that I was unable to complete any transactions, or my integration testing, thus, while I currently have no drugs or nuclear weapons in our current Herb, Spice, and Organic foods store, I will search e-bay for a supply.

Suspended for policy violation
------------------------------------

1. I have evaluated them. Having sold nothing, there's nothing I can change in my selling practice.

2. My plan of action is to appeal this decision, and see if you allow me to finish the integration. Failing that, I'll have this little episode twittered all over the planet.

Suspended for related account
------------------------------------

If it was, I'd love to know who or what they were.... I don't have any.

Additional information
------------------------------------

Yes, the chuckle factor is so high that it's definitely worth publication.

Results of my appeal:

This morning, they respond...

Hello from Amazon Payments.

Thank you for writing. We have considered your request for reinstatement. Upon careful consideration, we have decided your account will remain blocked.

Any remaining funds are being reserved in your Payments Account and may be held for 180 days from the date your account was blocked. After 180 days or the completion of all pending investigations, the funds, minus any claims or chargebacks, will be made available for withdrawal. If you have further questions about your funds please write to amazonpayments-investigate@amazon.com.

While we appreciate your interest, the closure of an account is a permanent action. Any subsequent accounts that are opened will be closed as well. Please note that we take such actions for the protection of all Amazon Payments participants.

Best regards,

Seller Performance Team
http://www.amazon.com
=============================

My thoughts:

I guess I won't use AMAZON checkout....

AND

Obviously this is a company on the path to self-destruction.

In my 30 odd years of working in computers, from programmer to CIO in a global company, I've never seen anything more lame.


Epilog:

I twittered this blog to a number of high profile tech bloggers and every AMAZON twitter profile I could find. Several retweets occurred.

Being a geek, I track all hits on all of my active web sites, and I find this sequence of events interesting...

December 9, 10:31 a.m. an amazon.com user enters this blog and reads this post, and only this post. 11:09 a.m. a user from amazon.com leaves this blog and examines several entries in one of my wife's web stores. At 11:27, then enters the other store mentioned in this blog.

Amazon users return at 11:48, 11:50, and 11:55

at 12:02 p.m. I get a note as follows from Amazon:

Hello from Amazon Payments.


We have reviewed this situation and decided to reactivate your account. You are now able to use the Amazon Payments service.

Regards,

Seller Performance Team
Amazon Payments
http:\/\/payments.amazon.com

The Amazon.com users return at 12:12 p.m. and then again at 3:20 p.m.

Meanwhile, I send a nice thank you note and ask them to please clarify how I triggered the account closure so I could avoid doing so again...

The hits keep coming... :)

Thank you twitter folks... the humans seem to have prevailed. More as it happens...


xyzzy1447

Wednesday, June 15, 2011

Fresh Fish


Be everywhere, do everything, and never fail to astonish the customer.

- Macy's Motto

A captive customer is a wonderful thing to have. It’s actually better than having a rich uncle who never forgets your birthday or Christmas. A captive customer is better because every time your captive customer has a headache, he comes to you for advice and aspirin. After you give him advice and aspirin, your captive customer goes away happy and never forgets to pay the bill that you send for the aspirin, the advice, and the surcharge fee for interruption of normal business services. I always thought a captive customer was a myth promoted by people who didn’t have to work for a living. However, there was this time, when I found out what a captive customer is, and how annoying a captive customer can be.

To set the stage, you have to imagine that you’ve been up ‘till 1 a.m. the night before in a Japanese bar acquiring the most incredibly bad hangover ever to grace the planet. Put in personal terms, I had arrived at the hotel barely in a condition to find the bed over the floor. Then, before I could properly settle into a good REM sleep, the stinking alarm went off at 6 a.m. I got up just about the time the wall stopped spinning, with about 45 minutes to shower, shave, put on my one and only wool three piece suit, and somehow, arrived at the train station at 6:45 a.m. so that I could be escorted to the airport for a flight to the Japanese city of Fukuoka. By some amazing state of grace, which today I claim is the raw strength of youth, I managed to show up at the appointed train station at the appointed time while several different Excedrin headaches contested for control over the inside of my skull. My keeper at that time was an engineer named Iijima, who’s English surpassed my Japanese by several thousand words. The only problem I had in understanding him came from a previous unfortunate exchange where we’d been discussing a particular kind of flower. In fact, it was a lily. At least, in English it was a lily. I’ve long since forgotten the Japanese word for lily. There is one problem with a lily to a native Japanese speaker. The Japanese language has no sound for the letter “L”. So, a native Japanese speaker will pronounce an “L” like an “R.” Mr. Iijima and I had spent a rather hectic time in a garden, each with our language dictionaries trying to understand what the other called this flower. Finally, as we reached some consensus on the flower, I looked up the word I’d been offered and said with surprise, “Oh! It’s a lily!!” Iijima looked at me with surprise and said, “Reary?” And I said, “Yes it’s really a lily!!” He looked puzzled and said, “It’s reary a riry?” I looked confused and lapsing in a moment of total non-conformity said, “Yes it’s really a riry.” I don’t think either of us knew exactly what was being said at that point, but we figured out that we were stuck on some kind of “L” problem and burst out laughing.

It was this same Mr. Iijima who met me at the train station and escorted me onto a 747 for the trip to the southernmost island of Japan, to the city of Fukuoka. Now Mr. Iijima had been with us at the bar the night before, and rather than take a 15 minute cab ride home the night before, and a 20 minute subway ride to the station in the morning, he had a full 90 minute train ride each direction, God willing that a train bothered to go to his home city at 1:30 a.m. I figure he thrived on the 2 or 3 hours of sleep he’d had the night before, whereas I was almost to the point where if my head split open spilling the dissolved remnants of my brain on the station catwalks, it would be a complete and total joyous relief. We sat on the plane, watching the nose camera giving pictures of the runway, and patiently waited for the stewardess to bring me some kind of green tea, which I thankfully used to inhale a half dozen ineffectual aspirin. Iijima watched me in silence for a while, and then asked, “How are you this morning Grenn-san.” My face split an attempt at a smile, which probably looked like I was about to bite him, and I think I grunted out a paragraph or two that sounded a lot like the word, “fine.” After about half an hour of flight, I turned to Iijima who was studying some notes for the upcoming meeting and asked, “Do Japanese have a sense of humor?” He thought about it for a long time and finally answered, “No, we are serious all the time.” I knew at that point what it meant to die and go to hell.

By the time the plane landed, I felt like there was a reasonable chance that I’d live through the day, until that is, I stepped outside of the plane. Fukuoka is a nice city of about 1.2 million souls nestled in a bay on the southern island of Kyushu. This is a semi-tropical city. At the time I arrived, it was probably 80 degrees outside with relative humidity in the 90 percentile. I may have mentioned that I’m from Minnesota, where at the same time of year, February, the temperature is known to not reach up to zero degrees for weeks on end. In Minnesota, it is the height of prudence to wear a wool three piece suit when venturing out doors, along with major amounts of goose down stuffed in nylon wrapped around for good measure. Stupid me. I hadn’t purchased a nice lightweight silk suit for the trip. The heat hit like the backside of a broom and almost knocked me back into the 747 where the temperature was a more suitable 55 degrees. Being good hosts, Iijima and the rest of our team guided me to a company limousine where the air-conditioning was turned to high for my comfort. As we drove away from the airport to our destination, Iijima looked at me and asked, “You know Grenn-san that Fukuoka is very famous for sea foods. What would you like for dinner tonight?” I answered as only I could at a time like that, “Surprise me.” Iijima smiled.

Our first stop was a restaurant for lunch. It is important to understand that many Japanese believe that a good sweat is much healthier than air-conditioning, so it is relatively rare to find air-conditioning even though it’s readily available. To support the idea of cooling, many Japanese will drink a hot beverage, usually a green tea, and then wave a fan in the more natural form of evaporative cooling used by land animals since they crawled out of the mud some 300 million years ago. I however, am a more highly evolved creature. I don’t sweat enough to cool a sock for a ken-doll. I found myself in a crowded restaurant, with an ambient temperature of about 85 degrees, no ventilation, drinking hot tea, wearing a three-piece suit, hung over, and can you wonder that I didn’t feel too good? In fact, things that had recently seemed clear to me, like windows and doorframes, started getting fuzzy. I spent some time with my English-Japanese dictionary and managed to convey that my vision was getting blurry and that this was not a good sign of prime health. Iijima responded by handing me a mint and suggesting I take a walk. I took a mint and took a walk. The walk, it turned out, was an excellent idea, for only a few yards from the restaurant was a hardware store with an active display of various air-conditioners that the less traditional Japanese could put in their homes. I found one that removed the most BTU and simply stood in front of it dropping therms as fast as the Freon cooled airflow could remove them. Too soon, it was time to go, and we piled back into the company limousine for our visit to the captive customer, the Fukuoka police department as it turned out. I looked back longingly at the hardware store display and promised myself, if I ever had a chance, I’d come back and buy that floor model for my very own.

This captive customer, the prefecture police department of Fukuoka had purchased almost everything in the world from my host, which was the NEC Corporation, known at this time as Nihon Denki (which meant Japan Electric). If there was an electron to be moved, it was housed in a box with an NEC label on it, and then handed to the customer in Fukuoka for payment. One of the most wonderful things NEC had sold to this captive customer was a large mainframe computer called an ACOS. In this day, a mainframe computer was the height of sophistication and engineering, and to pamper these multi-million dollar toys, massive amounts of air-conditioning were required to keep them from prematurely failing in the midst of their daily chores. In fact, as far as I can tell, the only room in the entire city of Fukuoka that had air-conditioning was the computer center where the ACOS was housed. Had I previously mentioned in this narrative that I was hung over, and over dressed and exceedingly hot? I spent an hour in that room asking every conceivable question about the computer, its use, how it worked, why the colors on the console were green, what that button did, how many pounds it weighed, you get the picture? They literally had to push me out of the room to get on to the meeting.

Ahh, the meeting. This was my whole purpose in making this trip. For reasons that I’ll never understand, I was the guest of honor, the American who had made the trip from Minnesota who was going to do some kind of software magic that would rid this fair city of crime and make it a safer place for humankind. I was introduced to my interpreter at the door, a gentleman who had been imprisoned by the British during the second world war, who had such a thick cockney accent that I didn’t understand a word of English that he spoke. Sadly, he didn’t understand a word of my English either with my southwest U.S. dialect. To this day, I believe the meeting would have gone far better if I hadn’t had this particular translator, but it was an honor to have one, even though neither of us had a clue what the other was saying. He escorted me into a large meeting room where about 30 people were arranged in a circle. Since everyone smoked, some smoking two or three cigarettes at a time, the room was stuffy, and hot, and way over in the corner opposite me, perhaps 50 feet away, someone had cracked a window and put in a small 5 inch desk fan to encourage air circulation in the room. I sat in my chair next to my interpreter and started wondering if removing my clothes would be considered a normal behavior for a guest from Minnesota.

The meeting droned on and on and on, as all meetings of 10 or more people do. It was followed by presentation after presentation with my interpreter occasionally mumbling things like “jolly well put” and “good show” amidst a mumble of other words that I couldn’t quite place. It was somewhat refreshing to sit there in that big plush leather chair, watching that fan turn way far away in that corner, until I noticed that I was still hot and had suddenly ceased sweating completely. Somewhere in the back of my mind I remembered the symptoms of classic heat stroke. This, I began to think to myself, is the end. I will simply fold into this chair, and no one will notice, and when they leave, I will slowly desiccate into a brown leathery form that will be indistinguishable from the leather of the chair. I will never be seen or heard from again and will spend the rest of my physical days on this earth supporting the overheated buttocks of strangers who’ve never been in an air-conditioned room. On the verge of becoming one with the chair, a semblance of sanity hit me. I leaned over to my translator and whispered. “I need water. I need salt. Now.” Amazingly, he looked surprised like he understood. He signaled one of the girls who always stand around meetings like this, who rushed over and took my order for water and salt. A few minutes later she returned with a small 6-ounce glass of water, and a small silver tray with a neat pile of salt in the center and a small spoon to the side. I spooned the salt into my mouth and drained the water and waited to see if I was going to lose consciousness or not. The answer, was… not. As I waited for the outcome, my interpreter leaned over to me and said, “You speak now.” I stood up, and with the certainty that no one in the room would understand a word I said, and the greater certainty that my interpreter would say what I should have said, I entered into a speech that probably resembled the jabberwocky in complete logical consistency and flow. I think I was there to discuss how a certain kind of statistical analysis would help implement preventative crime intervention programs, but as best I can tell, I rambled about the weather in Minnesota, the high price of Freon in Japan, and the wonderful climate that had been shown to me in the computer room a short time ago. I then said something like “thank you” and the room burst into applause. They had never seen a Minnesotan in a three-piece suit survive such a meeting before and my guess is the applause was a tribute to my survival to that point. I looked at my interpreter and asked in all seriousness, “What did I say?” To which he replied in all seriousness, “I have no idea.” At that point, I decided I love a captive customer.

It was now time for dinner. I was sweating again, and there was a breeze, and the temperature was now in the high 70s, and I could loosen my tie, and I actually thought I’d live through the day. What I hadn’t remembered was what I had said in the car when Iijima had asked, “What would you like for dinner?” Do you remember what I had said? I had said, “Surprise me.”

So off we went in search of dinner. In Japan, a restaurant is rarely in a building by itself. A restaurant is often found above or below something in a large building or building complex. We entered what in the U.S. would have resembled a large bank building and then walked down three flights of stairs into a cool basement restaurant where we sat on traditional tatami mats and prepared for a relaxing celebratory dinner. As I sat, the waitress brought me a glass of water, and then two more as I seemed to absorb each one within seconds. Iijima smiled at me with that typical Japanese smile that is lacking major dental care and said, “This is special restaurant.” I didn’t care, I had water, I was alive, and my tie was on the ground next to me. I managed a weak smile back and asked, “So what’s for dinner?” Iijima smiled at me and said, “Fish.”

Eating in Japan is often done without a chair. A small cushion is often used and you sit on the floor next to a table that is about 18 inches off the ground. It’s really easy to get used to that kind of eating style, and it’s hard to break the habit when you return to more western countries. However, sitting on the floor at a McDonalds to eat a big Mac and fries would probably get you arrested rather than respected for your internationalism. It makes you chummier to eat this way, and, it makes you closer in some sense to your food. Another thing about Japanese dining is that it tends to be lots of small dishes served in a series to give a sense of a banquet than can last literally for hours. Our first dish was a small porcelain cup filled with the standard Japanese seaweed in vinegar. Most Americans would think of it as soaked green thread. It’s quite good actually, provided you don’t chew. This preceded the main course.

The main course was brought in with great fan fair. You must picture this scene, a table with 6 adult males, one of them a foreigner, me, seated around a rectangular table on the floor of a small semi closed room in the basement of a bank building in a city of 1.2 million people living by the sea. Into this room, walks the waiter, carrying an extremely ornate wooden bowl perhaps three feet long by 2 feet wide. The bowl is carved monkey pod, and is carved in the shape of a fish, with each of the intricate details of the scale and fins clearly chiseled with great care. In the center of the bowl was a massive pile of crushed ice on to which had been piled the bodies of fish, on top of which were the thin slices of the fish, the sashimi, which were our meal. In Japan, eating raw foods, even fish, is a normal and actually quite appetizing thing. As the bowl was placed in the table, even I, the boy from Minnesota, was getting hungry and this looked pretty good. I reached for a piece of sashimi with my chopstick, and then noticed something, the fish underneath was looking back, and its mouth was opening and closing. Iijima looked at me and said, “This is very fresh fish.”

The thoughts that pass through your mind at a time like that, especially given the events of the last 24 hours are really very few. There’s nothing left to protest with. Nothing. I was totally drained. I ate some very fresh fish. After a while, the fish on the ice stopped moving, and I could start thinking that they weren’t so fresh anymore. The waiter returned after a few minutes and took the monkey pod bowl away and passed out small bowls of little round things. I asked the only question you should never ask when dining in Japan. I asked, “What is it?” Iijima looked at me in his fatherly broken toothed way and said, “Remember fish that was just here?” I nodded. He said, “This is son of fish.” Son of fish wasn’t too bad, as long as you don’t think about that little squirt that jets out of the eggs when you bite down.

I felt sure I could live through any meal at this point when the waiter brought in what distinctly looked like the heads of the fish. I didn’t bother to ask this time, it was the heads of the fish, only cooked this time. We dined on the cheeks which it turns out were quite good. Then the next course found its way to us. Somehow, they had extracted the complete skeleton of the fish, and deep-fried it into a delicious crunchy delicacy. Each of us got our own skeleton to dine on. And last but not least was the final course, which was a big bowl of soup for each of us, containing of course, whatever part of the fish we hadn’t previously eaten. In one sense, it was probably the most ecological meal I’ve ever eaten.

Of one thing I am certain. The captive customer paid for that meal.

Fresh shrimp


Advertising may be described as the science of arresting human intelligence long enough to get money from it.

- Stephen Leacock

Product discrimination is a very fine art. When two companies package sheets of soft folding tissues, perfect for blowing one’s nose when attacked by some retrovirus, it is hard with a fever of 103 to tell which package should be purchased. In fact, there may be no difference between the two packages. Sometimes, the difference between two products is a word that has a confusing meaning.

It was a dark and stormy night in the semi-tropical city of Tokyo. I was stuck there for several weeks with two of my engineers engaged in one of the many “oh by the way” projects that we had been summoned to perform. This evening was a Saturday evening, and our erstwhile bosses were out visiting their families for that four-hour Saturday evening period of the week where the wife reminds the husband how many children they have and what their names are and how to tell each from the other. We, on the other hand, were on our own, in search of a dinner that wouldn’t hold too many surprises for us.

To be an English speaking person in Tokyo is not all bad. To graduate from high school, the average Japanese has to study a 2,000 word English vocabulary. While few will claim to speak English, most will understand some English. Having been raised in the United States, most of us never had the exercise of learning a new kanji character each day since the first grade. Thus the street signs of Japan have this distinctly foreign and unintelligible look to them. However, if you start studying Japanese, you soon discover that the signs are really not so hard to figure out, especially the ones that advertise restaurants. Now I’m not suggesting that your average business traveler could swiftly tell the difference between an insurance office and a brothel, but I do contend that you could, within minutes, know the difference between a sushi restaurant and a Chinese restaurant. Every good Japanese restaurant has a display window in the front of the establishment that has a picture of the foods that are served inside. Only the blind would have difficulty finding food in Japan.

On this particular night, we were depending upon my weak knowledge of Japanese and the handy Japanese-English pocket guide that followed me everywhere. We had left the grounds of the New Otani hotel near the imperial gardens and had headed towards the nearest collection of buildings in search of…. Food.

If you are the boss in overseas travel, your employees tend to expect you to know what you’re doing. If you’re a Japanese boss, you are given a stern lecture by management, before you leave, that if one of your underlings comes to harm while on a foreign trip, you are responsible for their life, their family, their debts, and if need be, their burial. In the U.S. the boss is responsible for getting the tickets and making sure that everyone has a current passport. I was a somewhat better boss than most. I would actually try to make sure that my people had a good time on these trips. After all, spending 25 hours in transit followed by 18-hour workdays for two weeks is quite a shock to most people. It doesn’t cost much to be kind occasionally. So tonight, they asked me to find something different.

After wandering the streets for about an hour, with stops every few minutes while I referred to the Kanji guide, we settled on this nice little ground level restaurant that seemed to specialize in cooking at the table with these massive built in grills. Tonight, we would have something cooked. My fellow travelers, Tom and Dan settled across the table from me while I tried to figure out the menu we’d been handed. After a few moments, the waitress returned with an abbreviated short menu printed in English. Finding that only somewhat less difficult to understand than the Japanese language menu, we felt we had enough confidence to place our orders.

There was, however, one item, which is worthy of this whole discussion. Listed on the menu, was a list that looked like this:

. . . . .

Scallop ¥600

Oyster ¥800

Shrimp ¥700

Fresh shrimp ¥800

Crab ¥900

. . . . .

When it comes to product discrimination, one could ask, what is the difference between shrimp and fresh shrimp. Remember, you are in Japan at this point where a hunk of seafood that is more than 24 hours old is considered stale and inedible. Being the enterprising souls that we felt we were, we ordered one shrimp, and one fresh shrimp.

This style of restaurant is one of my favorite styles. The food comes to you on these little tiny dishes with bowls of flavoring sauces, and you with whatever finesse you can muster, cook whatever you like, however you like it done. Our waitress brought us our order, four pieces each on the plate of the best scallops I’ve ever had, some so-so oysters, little tiny tuna nuggets, and a dish each of shrimp, and fresh shrimp. She was careful to point out that the blue fringed dish was the shrimp, and the green-fringed dish was the fresh shrimp. Other than that, they looked the same. Each of us took a shrimp in our chopstick, dipped it into a barbeque sauce, and broiled it on the grill. They were delicious. Then, each of us took a fresh shrimp in our chopstick, dipped it into a barbeque sauce, and broiled it on the grill. The difference between the shrimp and the fresh shrimp was immediately obvious. The fresh shrimp was still alive and tried to escape from the grill. What an amazing difference one word can make in product discrimination.

The meaning of corporate alcoholism


I hate to advocate drugs, alcohol, violence, or insanity to anyone, but they've always worked for me.

- Hunter S. Thompson

Negotiation in Japan is in many ways very similar to having a team of army ants removes your skin one bite at a time in a hot blazing sun in the middle of the desert. It’s not that anyone is out to get you, or torture you, it’s more like, there’s always another angle on a problem that hasn’t been explored, yet. Always. The unwary American who thinks they’ve finally reached an agreement is merely preparing him or herself for a never ending series of what I call “oh by the ways.” This is when someone looks up at you with big round eyes (difficult if they’re Japanese, but possible) and says, “Oh by the way, what do you think about….” Eventually, though, the “oh by the ways” come to an end and you have an agreement, perhaps even a signed contract. The stupid American thinks the deal is closed. Nothing could be further from the truth.

In the Japanese context, you must understand the character of the person you have just married via contract. There’s always room for divorce, but if you stay in the marriage, you darn well better understand the limits of how far you can push the relationship, just in case you have to push, which you will. A contract, as we all know, is just a piece of paper. Without the people behind the signature, the contract creates nothing. Thus, the Japanese are quite right in wanting to know more about the people behind the signature. And they have ways of understanding completely whom they are dealing with.

The favorite character evaluation methodology is the bar. In the United States, a bar is one of these places where chairs line a counter and small booths may surround the bar as a sign that food may be served in addition to alcohol. There is usually some kind of music or television background turned up loud so that after a while, no matter how hard you try, you invariably grow deaf and lose track completely of whatever is happening in the conversation. In Japan, there are bars like that to cater to the western minded. That however, is not the kind of bar where business is consummated. The bar I’m thinking about is a special place. It’s right off a main business district that runs 24 hours/day. It’s brightly lit on the street day or night. You can see traffic jammed for miles around. As you walk you are bouncing off pedestrians and little blue mopeds with massive package hooks carrying home delivery sushi and sweet potatoes and pizza. You jostle under these crazily lit street signs that are a hodgepodge of English, and katakana and hiragana and kanji, which most Americans dismiss as “oriental”. Walls that have no windows are lined with these little post-it backed postcards of nude women with phone numbers and enticing statements that you wish you could read. Suddenly, your host of the evening smiles and says, “This is it.” You turn left into an alley that has plastic garbage cans on one side and a small 3-person elevator stuck into the brick wall on the other. A half dozen people crowd into the elevator with you, and you try to read the sign to see how many people can ride in the elevator. Instead of the traditional OTIS you see MITSUBISHI and a sign that looks like “6 λ” which translates to 6 persons. Since the elevator only holds 4, and there are 8 crammed in, you don’t know what to do other than inhale and try not to become intimate with the executive on your hip or the 16-year-old schoolgirl on your buttock. Five floors up, your host says “simasen…” and forcibly evicts you out of the elevator like a chicken bone popped by a Heimlich maneuver.

In the hallway, there are three doors, the one to the left, the one to the right, and the one you just came through. The right hand door is the fire escape, so you turn left under a 3-banner cloth and open the door on the left. Inside it’s like the den of a luxury house. There are two soft sofas in a step down configuration, a small wet bar to the left, curtains obscuring windows that were boarded up decades ago, and a unisex bathroom with directions printed in both English and Japanese. You don’t know it yet, but the toilet is not western style, which means that the seat is non-existent. There just a round porcelain aiming point about 1 inch off the beautiful tile inlaid floor. By the time you need to know this though, you really won’t care anymore.

The hostess runs from behind the bar as you enter shouting “simasen simasen” until she realizes that you’re an American, then she says, “welcome thank you,” and leads you to one of the sofas across from your host. As you settle into the plush soft sofa, out of nowhere, a remarkably beautiful young lady plants herself at your side, puts a bowl of peanuts in front of you, puts her arm around you, puts her beautiful face about 4 inches from yours and asks “what you like to drink?” If you’re happily married, at that point, you turn beet red out of embarrassment of all the thoughts that can go through your mind in less than 1 second. If you’re not happily married, at that point, you turn beet red out of embarrassment of all the thoughts than can go through your mind in less than 1 second. Since you take too long to answer, the girl says, “is whiskey ok?” and you nod hoping that you don’t have any embarrassing growths showing. She returns in a few seconds with a 12-ounce tumbler full of something, whiskey probably, and sits close snuggling. You suddenly remember that you’re with your host and look over to where he’s sitting with his girl smiling at you and he asks, “Do you like?” This is the beginning of the character evaluation. Anyone who is not a Mormon or in a substance abuse program will promptly drain that tumbler.

The evening is about 5 minutes old when you realize you’ve had too much to drink. What you don’t realize is that every time you take a polite sip from the glass, the glass magically refills itself, thanks to the girl who’s worked her way into your lap at this point. After an hour or so, your host, reminds you that you haven’t been to the bathroom in a while, and everyone scrambles out of your path as you zigzag the 15 feet or so from the sofa to the bathroom door. Once inside the bathroom, you have a chance to review what has just happened. Aside from the fact that you can’t remember how to get your zipper down, you realize that even in your wildest dorm days, you never had that much to drink in one hour, and you feel happy that when you finally do get that zipper open, you can see only one urinary organ instead of three. Your life is now operating at the lowest level of Maslow’s hierarchy of needs.

Back on the sofa, your host who has matched you sip for sip has the advantage since he comes here at least twice each month for the last 15 years. His liver is three times the size of yours, and he can live on 4 hours of sleep each night where you need 8, or 18 on this night. He’s asking the girls what they think of you. He has a mental check list of basic character points, such as whether or not you can keep a tune, did you confess to any personal indiscretions in your youth, did you snuggle too closely with your date-by-the-minute, and how dramatically does your personality change when you’re under the stress of having every neural pathway discharge at once? He then has the hostess call for a cab, knowing that when you slide out of the bathroom, the only fantasy you’ll have is that of either going into a sound sleep or vomiting non-stop for 15 minutes. The bar is not designed to handle either fantasy.

Meanwhile, back in the bathroom, you’ve only injured yourself slightly when you tried to zipper your pants without removing yourself from the pathway. The bleeding has stopped, and you feel ready to face your host. Opening the door, you breathe a sigh of relief as they herd you back into the elevator, down onto the street and into a waiting cab without even asking you to pick up the tab. Whether or not you throw up in the cab on the way to the hotel is left to your imagination. Only one part of the character evaluation remains to be discovered. Will you remember to be at the conference room promptly at 8 a.m. for a contract review, or will you oversleep?