Authentic makers sueing Cloners?

[Jman8]

Yes, but a trademark can become generic through lack of protection. An owner must register and litigate to protect a trademark. Again if you wish to own intellectual property it is on the owner to defend it. A failure to protect will be seen as the original owner intending/permitting it to become public domain e.g. open source/free. Not in the mood to dig up a USA reference, but this page utilized American examples and is spot on about legality. Trademarks vs. Generic Terms

Given the examples from the link you provided, what would be real world examples in the vaping world of a fanciful or arbitrary mark becoming a generic term? And to what degree do you see the original trademark holder being responsible for that (possibly rapid) transition into the generic term?

 

[Jman8]

Yes, but a trademark can become generic through lack of protection. An owner must register and litigate to protect a trademark. Again if you wish to own intellectual property it is on the owner to defend it. A failure to protect will be seen as the original owner intending/permitting it to become public domain e.g. open source/free. Not in the mood to dig up a USA reference, but this page utilized American examples and is spot on about legality. Trademarks vs. Generic Terms

Oh, and if you are in the mood, Coldrake has already posted in this thread links to US references on trademark and copyright. In your post here, and elsewhere, I see you not alluding to copyright. As I see it, the design (distinctive appearance) is a matter of copyright and if that design exists somewhere on paper, and is very specific (or technical drawing), that offers a significant amount of protection for who was originator of that design, when did the design originate. To enforce copyright protection would take legal knowledge, skills and a boatload of funds. All because, we live on a planet where people will violate it, knowingly steal designs and utilize own version of greed, lack of integrity, to capitalize on the success of another.

 

[rolygate]

If anyone has read all of this thread, I propose a special badge of honour.

 

[xwarp]

If anyone has read all of this thread, I propose a special badge of honour.

I read the 1st post, and the post above.

Will someone provide cliff notes?

 

[faile]

If anyone has read all of this thread, I propose a special badge of honour.

I'd like my badge, please!

 

[rolygate]

Yeah well gfx people have at it:

in the foreground, a fried brain (brain sitting in frying pan)
in the bg an angry crowd
in the air above, a fragmented text: W T F?
around the outer, text: I read the whole clone thread

on the obverse of the medal is: ...and I'm still no wiser

 

[Coldrake]

I read the 1st post, and the post above.

Will someone provide cliff notes?

Clones suck. Clones don't suck.

That pretty much covers it.

 

[HgA1C]

I do not have a mechanical mod, so am trying to grasp what you are saying. You appear to be saying that all mechanical mods are 1:1 copies of a screwdriver design? If yes, could you post a few pictures for those of us who are less familiar with mechanical mods, as I find this incredibly hard to believe.

If they use same internal parts, then without getting too technical or too caught up in legalese, I would see that as plausibly relating to patent, and if they are using same design, appearance of overall product, then I see this as relating to copyright, possibly to trademark. I currently don't see why we don't live on a planet where if you are using the same internal or external, you wouldn't want to share revenue with the originator, for say up to 20 years after original release. But as I do live on a planet where there appears to be great resistance to sharing revenue, then it seems like a whole bunch of players in the market, including some consumers, are exercising own level of greed and displaying lack of integrity.

The screwdriver is considered the original mod by many in the vape community. I think you can google images to see what I am talking about. I have been wasting too much time providing hard data as opposed to what you guys were claiming was conjecture. Please, use logic and hard data to back up your positions, instead of circular emotional reasoning or conjecture.

Also I hope all of your vw mods are authentic or licensed Evolv boards. Evolv owns the patent on VW e-cigs in the USA (see link). If they are not Evolv boards and VW mods, you at the moment are a clone advocate. Why do you think it has taken so long for Provape to come out with a VW Provari? Why do you think Innokin a Chinese manufacturer is partnering up with Evolv? There will be a change in the regulated market, because at least one of these innovators spent their profits to protect their product and innovation. I expect, Fasttech and others will stop selling VW in the near future, due to cease and desist orders and custom's confiscations. All it will take is Evolv, Innokin, and Provape to partner up to protect their market.

Patent US20130104916 - Electronic vaporizer that simulates smoking with power control - Google Patents

I guess claiming it is to expensive to apply for patents in the e-cig market is only valid for mechanical mods?

Given the examples from the link you provided, what would be real world examples in the vaping world of a fanciful or arbitrary mark becoming a generic term? And to what degree do you see the original trademark holder being responsible for that (possibly rapid) transition into the generic term?

Lets see e-cigarettes, e-cig, 510 ego thread, e-liquid, vape, and cartomizer are just a few examples of actual/potential trademarks that were not protected and now have been confined to generic status.

Oh, and if you are in the mood, Coldrake has already posted in this thread links to US references on trademark and copyright. In your post here, and elsewhere, I see you not alluding to copyright. As I see it, the design (distinctive appearance) is a matter of copyright and if that design exists somewhere on paper, and is very specific (or technical drawing), that offers a significant amount of protection for who was originator of that design, when did the design originate. To enforce copyright protection would take legal knowledge, skills and a boatload of funds. All because, we live on a planet where people will violate it, knowingly steal designs and utilize own version of greed, lack of integrity, to capitalize on the success of another.

Not really in the mood to dig through this insanely long thread, Especially since you are the one citing it, and you did not bother to take the time to quote said post.

However, I have not talked about copyrights as they are not relevant to clones. A drawing is copy-writable, a drawing of the product is copy-writable, a photo of a mod is copy-writable. The actual mod design when it is produced is not copy-writable. That again would require a design patent. Which must be applied for in the first year. Since the mod designer did/does not apply they KNOWINGLY make their design public domain. Evolv on the other hand, was intelligent. They stand to make royalties for the next 20 or so years.

Where can I register my product design to be protected - USA.gov Blog - United States Government Blog

 

[Jman8]

The screwdriver is considered the original mod by many in the vape community. I think you can google images to see what I am talking about. I have been wasting too much time providing hard data as opposed to what you guys were claiming was conjecture.

Well, if you are going to take the ultra lazy approach on item I asked you about, then I'll just note that there are umpteen posts on this thread that are not based on conjecture but instead on either sound reasoning, cited US legal documents, or both. As I've noted, I think three times now, Coldrake has cited US legal items pertinent to this issue, namely copyright, which I'm currently under the impression you don't even know how to spell.

Lets see e-cigarettes, e-cig, 510 ego thread, e-liquid, vape, and cartomizer are just a few examples of actual/potential trademarks that were not protected and now have been confined to generic status.

You are calling each, or any, of these fanciful or arbitrary trademarks? I see two of these as descriptive marks, and the rest as generic terms. From link you provided:

a. Fanciful Marks—coined (made-up) words that have no relation to the goods being described (e.g., EXXON for petroleum products).

You are claiming that e-cig is a term that has no relation to the goods being described, or that e-liquid is another example.

Arbitrary Marks—existing words that contribute no meaning to the goods being described (e.g., APPLE for computers).

You are claiming that cartomizer is an existing word that contributes no meaning to the goods being described.

Not really in the mood to dig through this insanely long thread, Especially since you are the one citing it, and you did not bother to take the time to quote said post.

Doing a thread search on Coldrake isn't all that challenging. In fact, right after you provide that evidence on the Screwdriver thing, I'll go ahead and cite Coldrake's post for you. Deal?

However, I have not talked about copyrights as they are not relevant to clones. A drawing is copy-writable, a drawing of the product is copy-writable, a photo of a mod is copy-writable. The actual mod design when it is produced is not copy-writable.

Pretty sure, you mean copyrightable.

A mod design is copyrightable and would be established, rather easily, if originator of that design has any drawings to establish that they created the design, and logged both themselves as author/originator and the date they created it, which most computer programs do automatically.

Again, Coldrake's information found on this thread provides this. Here is what I found on quick google search:

Sophisticated designers have been able to build copyright protection into products that may not otherwise easily lend themselves to such protection (whether under copyright, design patent, unfair competition, or trademark/trade dress theories) by designing the product to include copyrightable ornamentation not necessary to the basic function of the object. For example, while the shape or form of a table lamp is not generally copyrightable, a lamp that incorporated a ceramic statuette as its base, not necessary to the function of the lamp, was found to be copyrightable. This added design element thus prevents unauthorized parties from making and selling copies of that lamp and, very likely, copies of the statue as well.5 Conversely, in a case involving unauthorized copies of clothing mannequins, it was held that there were no “artistic or aesthetic features” that were “physically or conceptually separable from [the mannequins’] utilitarian dimension,” and thus the mannequins were not copyrightable.6 In the furniture example above, the court held that because the ornamentation on the furniture was not as much for the utilitarian purposes inherent in a bed, a dresser, or a nightstand as much as for the aesthetic choices of the designer, those aesthetic elements were copyrightable and thus the defendant had infringed by copying the furniture.

Copyright Basics

That again would require a design patent. Which must be applied for in the first year. Since the mod designer did/does not apply they KNOWINGLY make their design public domain. Evolv on the other hand, was intelligent. They stand to make royalties for the next 20 or so years.

Where can I register my product design to be protected - USA.gov Blog - United States Government Blog

IMO, and feel prepared to argue this as there may be discussion on this point, but design patent, trademark design, and copyright are all related to what we are talking about. Based on your wording above, I feel you wish to say it is only design patent that is applicable and be done with it. From the link you provided, noted above, it says:

Copyright exists the moment a work is created. Note that ideas and discoveries are not protected by copyright law, although the way in which they are expressed may be. Find out how copyright is different than a trademark or patent.

Last sentence is link that contains the following quote:

A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.

Bold emphasis mine, as I feel the items we've been discussing for about 150 of the 160+ pages of this thread are the goods where the design of the product is what is being cloned, and is blatantly being copied (i.e. product x clone - is how it is marketed). In almost all clone threads I've participated on, it is the design aspect that is the main point of contention, and it is with goods where there is ornamental type of designs that are being discussed, as to how much they were copied. It is rare, though does occur, as this thread as shown, that the pro-clone crowd wishes to talk about goods where (ornamental) design is not the main factor of consideration, as may be the case with say a cartomizer.

So, again, I am not a mod owner. I've seen pictures of some mods, and many of them look distinct to me. So distinct that when a clone is shown side by side, I cannot tell the difference between the two, but could tell the difference between those two objects and other mod devices that I've seen. If literally ALL mod devices currently being marketed looked exactly the same, then I could see how pro-clone crowd would have some legitimate point here, but as they are substantially different in design, yet virtually identical when cloned, then the design of the product is precisely the point up for discussion, and not the utility patent or internal parts, or incidental components (i.e. drip tips).

I further believe that if this point of copyright is disputed that I can find information online to back up my position and will do so if there is further contention on this point. I don't feel burning need to win on this point, because as I see it, we are talking about blatant rip off of design, usually far less than one year that it has been copied, and that design patent is not the only item that would legally cover the existence of that (type of) design.

With traditional counterfeit marketing, it is "buy this product that looks exactly like the original, but is not the original, though I'm selling it to you as if it is the original." This fits with standard definition of counterfeiting, and puts onus completely on the seller, as buyer is being deceived.

With non-deceptive counterfeiting, it is "buy this product that looks exactly like the original, but is not the original, and you the buyer are well aware of this fact." Buyer, therefore not deceived, and thus buyer plausibly culpable in the theft aspect that is inherent to counterfeiting. Buyer is actively supporting market segment that capitalizes on stealing original designs and selling copied products at lower costs to those aware of what precisely is occurring in the transaction.

 

[HgA1C]

Bold emphasis mine, as I feel the items we've been discussing for about 150 of the 160+ pages of this thread are the goods where the design of the product is what is being cloned, and is blatantly being copied (i.e. product x clone - is how it is marketed). In almost all clone threads I've participated on, it is the design aspect that is the main point of contention, and it is with goods where there is ornamental type of designs that are being discussed, as to how much they were copied. It is rare, though does occur, as this thread as shown, that the pro-clone crowd wishes to talk about goods where (ornamental) design is not the main factor of consideration, as may be the case with say a cartomizer.

Thank you for actually providing a definition of what you consider a clone. It makes discussion much easier when the target is not constantly moved. This may be a valid argument. Could you provide examples of cloned non-functional ornamental designs on products?

ETA:
All of my posts have been addressing function and product design. That IS generally what a clone is considered. Hence IBM-clone Pc's. Apparently, I should put a disclaimer in every post so that my time is not wasted. How about this?

Disclaimer: When referring to clones I am in no way shape or form discussing any identifying intellectual markings. I am merely discussing the 1:1 manufacturer of said product with no identifying marks, or artwork.

Would that be better?

 

[stevegmu]

The Nemesis design on the counterfeits...

 

[HgA1C]

The Nemesis design on the counterfeits...

Yes that is a trademark and the owner could legally pursue action. Believe it or not Fasttech is listening. The new squape reloaded clone comes with or without the logo. Note Squape reloaded style is advertised, even though it appears to be a high quality 1:1 clone.

$24.05 SQ-uape Reloaded Style Rebuildable Tank Atomizer (w/o Logo) - 5.2ml / stainless steel + PMMA tank / 22mm diameter at FastTech - Worldwide Free Shipping


Disclaimer: When referring to clones I am in no way shape or form discussing any identifying intellectual markings. I am merely discussing the 1:1 manufacturer of said product with no identifying marks, or artwork.

 

[HgA1C]

Honestly, I believe we as vapers could come together and get the logos, and trademarks removed from the products. If that is really the concern.

Disclaimer: When referring to clones I am in no way shape or form discussing any identifying intellectual markings. I am merely discussing the 1:1 manufacturer of said product with no identifying marks, or artwork.

 

[stevegmu]

They are still using the name...

 

[Jman8]

Thank you for actually providing a definition of what you consider a clone. It makes discussion much easier when the target is not constantly moved. This may be a valid argument. Could you provide examples of cloned non-functional ornamental designs on products?

Not being a mod user, this may be tough for me, and so I hope a pro-authentic person will assist me if I appear to falter.

But I am aware of the Hammer mod. So, I just did google search on that wording. And found the "hammer mod clone" in top 5 hits.

The shape of this device, and for sure the markings on the side, appear authentic to me. As in, of the other devices I've seen, this one seems substantially different in design to those. I'm guessing it functions very similar to other devices, but don't know really. As non-mod user, and not in the market right now, don't really care how it functions. When I pull up photo of the clone, it looks to be virtually the same shape (in all its nuances) and appears to have exact same markings on the side. The ornamental markings.

If for some reason this is poor example, I think I could provide others. I realize in some of these items, the clone maker could've actually come first or that the ornamental markings are blatant rip-offs of another artistic work. So, if that is true with the Hammer mod, then I may have chosen a poor example, but believe I could provide other examples.

 

[HgA1C]

They are still using the name...

Advertising as a Squape style product does not violate any law. They should note the trademark, but you can use other's trademarks when advertising. Look at generics they always say as compared to Advil(TM). Or something of that effect.

 

[smokinGAVIN]

That doesn't happen here in the Philippines. All medicines are required by law to use the generic names together with the brand. Doctors are also I think required to use generic names in prescriptions. When you go to a pharmacy, the buyer of the medicine is the one who chooses what brand to get.

 

[stevegmu]

I have never seen a generic with the name of the original on the packaging, but I don't take any kind of medication, so I really wouldn't know. I don't see sneakers at Walmart advertised as Nike style shoes...

 

[HgA1C]

Not being a mod user, this may be tough for me, and so I hope a pro-authentic person will assist me if I appear to falter.

But I am aware of the Hammer mod. So, I just did google search on that wording. And found the "hammer mod clone" in top 5 hits.

The shape of this device, and for sure the markings on the side, appear authentic to me. As in, of the other devices I've seen, this one seems substantially different in design to those. I'm guessing it functions very similar to other devices, but don't know really. As non-mod user, and not in the market right now, don't really care how it functions. When I pull up photo of the clone, it looks to be virtually the same shape (in all its nuances) and appears to have exact same markings on the side. The ornamental markings.

If for some reason this is poor example, I think I could provide others. I realize in some of these items, the clone maker could've actually come first or that the ornamental markings are blatant rip-offs of another artistic work. So, if that is true with the Hammer mod, then I may have chosen a poor example, but believe I could provide other examples.

Thank you and that is a good example. However it would probably fail as the base of the hammer mod acts as an improved method of storage.

Not trying to be difficult, but this topic is complex. Many invetors have tried to use this as a loophole as an end around to "patent" and protect their products. It is just difficult to actually implement product design copyright. It literally has to serve no meaningful improvement of function by design.

If your interested, I can give an example from the 1990's on video games where Sega failed at this trick. They had a lot of money and were fighting Nintendo for dominance back then.

Sega - Wikipedia, the free encyclopedia

Wikipedia

Sega versus Accolade[edit]
In 1992, Sega lost the Sega v. Accolade case, which involved independently produced software for the Sega Mega Drive/Genesis console. Accolade had copied a small amount of Sega's code to achieve compatibility with the Sega Genesis platform. The verdict set a precedent that copyrights do not extend to non-expressive content in software for which a system is required to run the software.[16] The case in question stems from the nature of the console video game market. Hardware companies often sell their systems at or below cost, and rely on other revenue streams such as in this case, game licensing. Sega was attempting to "lock out" game companies from making Mega Drive games unless they paid Sega a fee (something its competition has done in the past). Their strategy was to make the hardware reject any cartridge that did not include a Sega trademark. If an unlicensed company included this trademark in their game, Sega could sue the company for trademark infringement. Though Sega lost this lawsuit, all later Sega systems seemed to incorporate similar hardware requirements

Disclaimer: When referring to clones I am in no way shape or form discussing any identifying intellectual markings. I am merely discussing the 1:1 manufacturer of said product with no identifying marks, or artwork.

 

[HgA1C]

I have never seen a generic with the name of the original on the packaging, but I don't take any kind of medication, so I really wouldn't know. I don't see sneakers at Walmart advertised as Nike style shoes...

Ok, another example you may have seen is taste testing commercials. They often state 2 out of 3 preferred Coke to Pepsi in blind taste tests. Or something to that effect.

ETA
There is no point as everyone is already aware of Nike and their style. Again this is still a debatable topic but still very much in the gray.

Disclaimer: When referring to clones I am in no way shape or form discussing any identifying intellectual markings. I am merely discussing the 1:1 manufacturer of said product with no identifying marks, or artwork.