Of Copyrights, Patents, Trademarks, and Intellectual Property

[leatherman]

I've got a lot to write about this subject, its been sitting on the back of my mind for quite some time. I think its time to have a good intelligent discussion about this issue.

This is an opportunity for those who have been in the business for some time, and come up with things that they consider unique in a profession where its not easy to come by. Recently a thread came up with a comment that since something was copied a lot that somehow made it ok to go ahead with the project. One of the craftsman in question has a Patent on the object. I would think it would be a good way to get into a lawsuit to copy that particular item.

More to come from me as I had a semester in college all about copyright and its meaning in the art world. Intellectual property is right up this same lane.

My question, how is it ok to copy someone's unique work or portion of said unique and or protected work without license or permission (blessing) of the originator and or owner.

I really have to get back to work, but I will check in here often. Please guys, keep it civil, I will NOT let things get out of hand, warnings and infractions will fly if they do. This needs to be discussed, but it needs to be done in a civil manner.

 

[RWT]

If it is for personal use I see no issue. If you attempt to profit from it then agreements need to be made between the parties.

 

[Barabus]

Leatherman,

I am a US Patent Attorney. You are "painting with a broad brush". Often these question are highly fact specific. For example, independent creation is a defense to copyright infringement but not to patent infringement. The coverage of these laws and resulting rights begs background facts. The "knife art" are very crowded and this lends itself to narrow rights, in general. If you have something specific then feel free to pm me.

 

[SchweetGuitars]

Agreed! If its for personal use or no monetary gain i'd say its the upmost complement to the original owner. Imitation is the sincerest form of flattery.

 

[sheathmaker]

I will quickly defer to the Patent Attorney, who posted above and offered to help specifics by PM.

As I understand it the language for a patent, and I paraphrase, it states that the patent is not intended to offer the patent owner the right to make the "thing", but instead the right to keep someone else from making the same "thing". It goes into more detail by saying he, the patent holder, has the right to keep someone from making, using, selling or importing into the United States, the "thing". US Patents are only good WITHIN the United States.

As I personally interpret the foregoing in the most strict sense, the making and using part precludes making the "thing" even if it is for personal use and no monetary gain takes place.

I am not an attorney, I don't play one on TV, and I did not stay at the Holiday Express last night. This post should NOT be taken as legal advise.

Paul

 

[leatherman]

So far so good! A huge thank you to those who have replied so far!

Leatherman,

I am a US Patent Attorney. You are "painting with a broad brush". Often these question are highly fact specific. For example, independent creation is a defense to copyright infringement but not to patent infringement. The coverage of these laws and resulting rights begs background facts. The "knife art" are very crowded and this lends itself to narrow rights, in general. If you have something specific then feel free to pm me.

Thank you, I appreciate that more than you know.

Yes, very much the broad brush indeed. There is a difference in a work of art and the work of a craftsman. My art work is mine and mine alone, anyone reproducing it for any reason without my express consent is going to be hearing from me. But the work of a craftsman is a bit different, to a point.

Personal use, those who pointed that out are totally correct. But, advertising your intent to use a protected item is questionable as it opens you up to doing it again for profit. Narrowing that brush a little, and as Paul pointed out a Patent is total protection, though for a period of time unlike a Trademark.

Honor, ie, knowing that the design is something that defines that maker, is an issue that comes up over and over. That covers the Intellectual Property to a point. But honoring that maker by seeking the approval to use that design feature goes a long way in keeping the peace in our little community. I could point out features that make each maker unique, in other words defines them on sight, but that might open some old wounds. Maybe features of knives might be easier, I once pointed out a makers sheath as the original, but it ended up it was made my another. The maker was a little put off and embarrassed.

Falling asleep at the computer again, I am encouraged by the responses so far, lets keep the discussion going!

 

[Cypress]

It should be said that trademarks are not any less of a reason for copying protected works. Trademarks are plentiful within the knife community, as some makers are identified by certain "features". Think the Spyderco hole, or the Busse hole. The latter, being a trademark, has prevented makers from producing some knives.

The reasons to gain a trademark over a utility patent (what the public generally thinks of when they hear "patent") are many. Trademarks are WAY cheaper and easier to obtain. My firm charges less than $1000 for trademark registration (includes filing fees), but well over $5000 for a utility patent. The utility fee does not include the invitable office actions or maintanence fees, of which are charged hourly... I'll keep that rate a secret, but it ain't cheap. For a small knife maker, the trademark can be used somewhat in lieu of a patent, saving thousands of dollars and still gaining IP protection.

Just remember folks, the highest paid attorneys are IP litigators. It is in your best interests to not to be on the wrong side of that suit.

 

[Bigfattyt]

I took IP law in Lawschool. That means I know slightly less than most about it.

I got a decent grade. But in real world examples, that just meant I ran a bit faster than some others, who got eaten by the bear.............


I spent a lot of the final (entire grade) with a look of confusion and sorrow on my face.

 

[leatherman]

It should be said that trademarks are not any less of a reason for copying protected works. Trademarks are plentiful within the knife community, as some makers are identified by certain "features". Think the Spyderco hole, or the Busse hole. The latter, being a trademark, has prevented makers from producing some knives.

The reasons to gain a trademark over a utility patent (what the public generally thinks of when they hear "patent") are many. Trademarks are WAY cheaper and easier to obtain. My firm charges less than $1000 for trademark registration (includes filing fees), but well over $5000 for a utility patent. The utility fee does not include the invitable office actions or maintanence fees, of which are charged hourly... I'll keep that rate a secret, but it ain't cheap. For a small knife maker, the trademark can be used somewhat in lieu of a patent, saving thousands of dollars and still gaining IP protection.

Just remember folks, the highest paid attorneys are IP litigators. It is in your best interests to not to be on the wrong side of that suit.

Thank you! That is very good information to know. I do have a couple of questions on the specifics of how to Trademark an item. Is there a web site I could visit for the information or is it best to ask you directly?

 

[Cypress]

Pm sent

 

[Kiah]

I don't see the issue if it's for personal use, but I suppose I can see how help with back-engineering something looks a bit odd (then again, I'm not sure how it could be hard enough to figure out that one needed to ask).

Personally, I work on the philosophy that whatever stroke of genius I have has most likely been stroked before. I won't knowingly do a particular "thing" if it's someone else's "thing" (even if that thing has been around longer than them), but I'm not gonna get huffy if I see someone doing something I think is a little too close to my own work. I'm sure there's a line somewhere when it becomes blatant copying, but the moment I start threatening to sue people for something akin to putting a hole in a blade guard I'm heading to Peru and reevaluating my path in life. Just my opinion.

 

[sheathmaker]

Kiah, I agree wholeheartedly with your philosophy, but I think that, under the rule of law, "not seeing an issue" may not be a viable defense if one were to find themselves on the wrong side of a law suit. The very reason we see "leagaleze" language is to eliminate as much as possible independent interpretation, and the patent language does say (once again paraphrased) MAKE, sell, USE, or import. Those two capitalized words are what I'm referring to regarding personal use.

I think we all agree that copying a previous idea will not get you into trouble IF there is not a patent or patent pending in place, although in some cases a gentlemen's agreement might be nice just for the sake of peace and goodwill, I would think a License Agreement to produce would be very prudent if there were a patent.

The Busse Trade Mark hole is another issue entirely, and deals with trade marks as opposed patents.

Once again, I am not now, nor ever have been an attorney, but I do have coffee every morning with two of them. DO NOT take anything in this post as valid legal advise.

Paul

 

[Barabus]

Kiah, I agree wholeheartedly with your philosophy, but I think that, under the rule of law, "not seeing an issue" may not be a viable defense if one were to find themselves on the wrong side of a law suit. The very reason we see "leagaleze" language is to eliminate as much as possible independent interpretation, and the patent language does say (once again paraphrased) MAKE, sell, USE, or import. Those two capitalized words are what I'm referring to regarding personal use.

I think we all agree that copying a previous idea will not get you into trouble IF there is not a patent or patent pending in place, although in some cases a gentlemen's agreement might be nice just for the sake of peace and goodwill, I would think a License Agreement to produce would be very prudent if there were a patent.

The Busse Trade Mark hole is another issue entirely, and deals with trade marks as opposed patents.

Once again, I am not now, nor ever have been an attorney, but I do have coffee every morning with two of them. DO NOT take anything in this post as valid legal advise.

Paul

This stuff is highly complex. For example, both KIah and Sheathmaker could be argued to be correct based upon whether the experimental use defense to US patent infringement would apply. In other words, I am experimenting in my one man shop in a non comericial way. Throw in the mix that you have trade dress rights, design patents and some state IP specific rights in addition to US ulitlity patent, US copyrights, and US Trademarks. Then add the international component. This is the reason that most questions are highly fact specific and "broad brush" conclusory understanding can lead to big mistakes.

 

[Kiah]

To clarify, I was more referring to a personal opinion on use from my perspective. There are hamsters that know more about actual copyright laws than I do.

 

[leatherman]

Everyone, this is a fantastic discussion so far, please lets keep it up!

As far as the two issues involving holes, well, they are both trademarks that are whats considered unarguable, a better word is there and its not coming to me. but basically if a maker uses said mark consistently for a set amount of time (say ten years) the trademark becomes non contestable (hey! I think thats the term! eh probably not knowing me) So basically trying to use said mark with an explanation that "its simply a hole" would not hold water in court. Both trade marks are very specific and very easy to defend. Heck, if I had such a recognizable mark like that, I'd kind of want to protect it too. Think Nike swoosh or the Coke bottle, they're just shapes right?

My logo, and certain names that I use for my work are solely mine, yes I've had to ask a couple of people to stop using them. But for me its something I dont want people to get confused. Yea, its happened, and its no fun to deal with.

 

[Barabus]

Leatherman- I think the word you are searching for is "incontestability"- it is based upon registration and continuous use for 5 years plus filing an application to make incontestable with the USPTO.

see below...

15 USC §1065. Incontestability of right to use mark under certain conditions
Except on a ground for which application to cancel may be filed at any time under paragraphs (3) and (5) of section 14 of this Act [15 USC 1064(3), (5)], and except to the extent, if any, to which the use of a mark registered on the principal register infringes a valid right acquired under the law of any State or Territory by use of a mark or trade name continuing from a date prior to the date of registration under this Act of such registered mark, the right of the registrant to use such registered mark in commerce for the goods or services on or in connection with which such registered mark has been in continuous use for five consecutive years subsequent to the date of such registration and is still in use in commerce, shall be incontestable: Provided, That--

(1)

there has been no final decision adverse to registrant's claim of ownership of such mark for such goods or services, or to registrant's right to register the same or to keep the same on the register; and
(2)

there is no proceeding involving said rights pending in the Patent and Trademark Office or in a court and not finally disposed of; and
(3)

an affidavit is filed with the Director within one year after the expiration of any such five-year period setting forth those goods or services stated in the registration on or in connection with which such mark has been in continuous use for such five consecutive years and is still in use in commerce, and the other matters specified in paragraphs (1) and (2) of this section; and
(4)

no incontestable right shall be acquired in a mark which is the generic name for the goods or services or a portion thereof, for which it is registered.
Subject to the conditions above specified in this section, the incontestable right with reference to a mark registered under this shall apply to a mark registered under the Act of March 3, 1881, or the Act of February 20, 1905, upon the filing of the required affidavit with the Director within one year after the expiration of any period of five consecutive years after the date of publication of a mark under the provisions of subsection (c) of section 12 of this Act [15 USC 1062(c)].

The Director shall notify any registrant who files the above-prescribed affidavit of the filing thereof.

 

[leatherman]

Thats it! Yea, the contact cement fumes are not good on the ol memory.

 

[Diomedes Industries]

I think we should clarify something. (I am speaking as a Philosophy Professor - so excuse me if my mind goes in predictable directions.)

I think we need to separate the discussion into what one thinks is moral and what is legal.

It seems that we are trying to answer both of these as if they are the same.

Many laws have nothing to do with morality (driving on the right hand side of the road is no moral than driving on the left) and much morality has nothing to do with legality (it may be legal to allow my son to ride in the back of a truck over 16 years of age - but I may not deem it moral).

TF

 

[leatherman]

It may be a little mixed, but its in one thread to keep the info in one thread.

But yea, thats one thing that hasn't been touched on much yet. Its seems to be a polarizing subject.

 

[David Stifle]

One of the most recognizable blades I know is the Don Fogg/Jimmy Fikes Dragonfly. I don't think either man patented this unique design, but if they didn't they probably should have. It's customary among all the knifemakers I know to ask Jimmy for permission to use his design, which he cheerfully gives. My point is this is a distinctly unique design, so wouldn't it have fallen into the "patentable" arena? Sorry if this isn't quite on point, I'm trying to follow along. Picture attached for reference.