Authentic makers sueing Cloners?

[bigdancehawk]

You're right, IF the claimed trademark is registered..

BTW, have you ever looked up just where a lot of these Logos and Names come from? (hint: they wouldnt be able to get them registered )

Nope.

Trademark protection is based upon use, not registration. The subsequent use by a third party of a confusingly similar trademark — whether registered or not — in interstate commerce may constitute a violation of the Lanham Act, 15 U.S.C. 1125(a). See, e.g., Crystal Entm’t & Filmworks, Inc. v. Jurado, 643 F.3d 1313, 1320 (11th Cir. 2011).


To prevail in a trademark infringement action under the Lanham Act, 15 U.S.C. 1125(a), the plaintiff must demonstrate 1) that it was the first to use the trademark in the same market; 2) that its mark is valid; and 3) that the defendant’s use of the contested mark is likely to confuse consumers. See, e.g., Popular Bank of Florida v. Banco Popular de Puerto Rico, 9 F. Supp. 1347, 1353 (S.D. Fla. 1998).

Marking Your Territory: Your Unregistered Trademark May Still be Protected by the Lanham Act | Kluger, Kaplan, Silverman, Katzen & Levine, P.L.

 

[Midniteoyl]

Nope.

Trademark protection is based upon use, not registration. The subsequent use by a third party of a confusingly similar trademark — whether registered or not — in interstate commerce may constitute a violation of the Lanham Act, 15 U.S.C. 1125(a). See, e.g., Crystal Entm’t & Filmworks, Inc. v. Jurado, 643 F.3d 1313, 1320 (11th Cir. 2011).


To prevail in a trademark infringement action under the Lanham Act, 15 U.S.C. 1125(a), the plaintiff must demonstrate 1) that it was the first to use the trademark in the same market; 2) that its mark is valid; and 3) that the defendant’s use of the contested mark is likely to confuse consumers. See, e.g., Popular Bank of Florida v. Banco Popular de Puerto Rico, 9 F. Supp. 1347, 1353 (S.D. Fla. 1998).

Marking Your Territory: Your Unregistered Trademark May Still be Protected by the Lanham Act | Kluger, Kaplan, Silverman, Katzen & Levine, P.L.

Correct, and I have said that many times myself..

HOWEVER

Customs cannot stop the importation of copied Trademarks without the claimed owner registering it first. If its not registered now, then the claimed owner will have to go to court to prove he is, in fact, the claimed owner (as you posted about above), and then get it registered. Until then, there is nothing the US or Customs can do.

So , yes, if the claimed Trademark is registered

 

[Asbestos4004]

Well, here goes. My thoughts on this subject are ever evolving. I mention that because some of you have been around for awhile could find some of this contradictory. When I started using mechs and rebuildables, all I bought were clones. There was just no way I was going to spend $250-$500 on a mod, when I could get a reasonably built clone for $40. It just didn't make any sense to me. I participated in LOTS of these threads, read all of the arguments both ways, and decided that IF mod makers started selling some authentics in the $100 range, I would give one a try. Why? I don't know, really. I guess i always felt like the "It's just a metal tube" argument didn't really ring 100% true. If it's just a metal tube, then why do I want THIS metal tube. If there IS something that I particularly like about THIS metal tube that sets it apart from all of the others, then there is an inherent value in that. It doesn't matter if it's looks, functionality, etc. If it were just about having a functional piece of equipment, a Magneto would be fine. But I didn't want the Magneto, I wanted the Nemesis. If i just wanted the metal tube, then why get a clone with logos? Why not a logo less model? But still, there is the issue of price.

So a couple of months ago there were several authentics hitting the market in the $100 +/- range. I decided to put my money where my mouth is. I now own 4 authentic mechs, and 4 authentic rda's. I paid what I thought was a REASONABLE price for them, and I would not have paid more than I did. I still use my clones at work where I won't be all that bothered if I drop one. And I haven't gone Anti clone.

I've never had an issue with companies trying to protect their product, even if I had bought one of the items in question. If I made a product, I would want to do the same thing. But then this whole Kryptonite ECC thing happened, and it REALLY ...... me off. So I'm suppossed to buy authentic products, support real people, etc? I'm sorry that one red cent of my hard earned money went to a company that acts like that in public. Protect your product, but don't behave like an animal to do it.

So now I'm trying to be an educated consumer. I watch for products that I like, that I think are reasonably priced, and then I watch how the company behaves. I recently ordered a Super T Workhorse, and if the reviews I've seen are even close, it will be an amazingly well spent $69. I had my eye on the Flagship by SMK for a couple of weeks. $99 with an innovative ball bearing switch assembly, sounds good. Then the word went out this weekend that they had already been cloned, and I really liked the way the handled it. Into the cart it went. I want to buy products that I like, and if i'm going to pay a bit more for it, I want to like the people that I'm supporting as well. Conversely, if Kryptonite released the end all be all greatest mod of all time for $50... i wouldn't buy it.

I can't make decisions for any of you, tell you what's right and wrong, etc. But at the end of the day, don't make excuses, own it. Whatever your reasoning for YOUR decisions.

Included quote because it's worth re-reading. Always good stuff, JakeBailey...thanks dude.

 

[nukleusx]

I would love to buy originals, but there is no way I'm going to spend $200 for a device that should cost maybe $60 (and lets be honest, most of the times it's nearly impossible to get your hands on an original anyway). I don't think anybody is losing sales due to the clones that are available.

This goes back to what I said in my post... The person who makes it sets a price for it. That price isn't what someone else thinks it should be (unfortunately), though what the manufacturer sets it at. I can guarantee you this probably won't change on higher end stuff. Though as everyone is seeing, prices are dropping as more companies step up to the game with entry-mid level equipment for less cost to the consumer seemingly by each passing month.

I agree with the point of "nobody losing sales due to clones that are available" based on the fact that the original 1000, 2000, 5000, etc of the particular model are already purchased. People who want them, have them. Idiotic flippers who want to try and make $$$ off someone who didn't get one when available, have them. The rest of the crowd who wants them but cannot have the authentic for whatever reason (weather its the fact they refuse to pay the MSRP, the flippers demanded price, etc etc etc) can buy the clones. It works out for everyone really. The authentic maker sold all of his batch and made all the money on that particular mod. He should quit complaining and make his next item.

Granted one particular case I know of, one higher end authentic maker makes a nice unit that is not a limited edition, so when clones pop up, I can see the only reason people go for the clone is they don't want to pay the authentic price...

Personally I have no problem with people who buy clone items. I don't do it. Though that is a personal choice. I have, and had a bad experience (after having owned authentics already I thought I'd give it a whirl) and that one bad experience was enough to keep me on the authentic end. Some of my very close friends buy clone stuff and I jeer at them but jokingly.


Sent from my Stingray red Copper via fart-to-talk.

 

[dr g]

The OP is wrong about business, wrong about clones ... wrong about everything really.

One concept I think everyone in this debate needs to understand, though, is that clones do NOT save money or reduce prices.

Cloning is done to ADD value to a product, so a clone will always be a higher price than a competitive non-clone product.

As for the rest, the West would do well to realize that so-called free trade is only driving the western labor market down toward third world standards. It is not a good thing for China's labor to be leveraged against western counterparts.

We as consumers have a large say in things. Supporting domestic manufacturers is not only a question of ethics but economics. $200 may seem like a lot for a mod but it is affordable on a middle class income, and I gladly would accept that price and a middle class job, than to pay $20 and lose my middle class job.

 

[Ed_C]

One concept I think everyone in this debate needs to understand, though, is that clones do NOT save money or reduce prices.
Cloning is done to ADD value to a product, so a clone will always be a higher price than a competitive non-clone product.

This doesn't seem to be the case. A quick comparison of clone vs non-clone mods from China would show that they are both in the same price range. If you were to argue that clones are more popular, that does seem to be the case.

 

[Heavyrocker]

How do we know the orginal makers of mods are not milking us all by pretending to be ''sold out'' and made agreements with China to sell copies and call them clones.When it comes to cash,every trick in the book is used.This technique causes a feeding frenzy.

 

[Ed_C]

How do we know the orginal makers of mods are not milking us all by pretending to be ''sold out'' and made agreements with China to sell copies and call them clones.When it comes to cash,every trick in the book is used.This technique causes a feeding frenzy.

Well, since there's no reports or evidence to support this idea, it's purely speculation. Many of the companies that make mods are small start-ups, who I think would be more likely selling everything they can make as opposed to orchestrating something like what you suggest. While some high-end mods are hard to get, there's quite a few established companies who have a, more or less, stable production,

 

[dr g]

This doesn't seem to be the case. A quick comparison of cone vs non-clone mods from China would show that they are both in the same price range. If you were to argue that clones are more popular, that does seem to be the case.

You are probably not comparing likes to likes. In order for a non clone product of the exact same specification to compete with a cloned device, it has to be less expensive, or at least no more expensive. Again if cloning did not add value, it would not be done.

The point here is that China is perfectly capable of creating and selling a competitive device technologically but it would have to sell it at a lower price if it did not leverage the clone branding.

 

[Ed_C]

You are probably not comparing likes to likes. In order for a non clone product of the exact same specification to compete with a cloned device, it has to be less expensive, or at least no more expensive. Again if cloning did not add value, it would not be done.

The point here is that China is perfectly capable of creating and selling a competitive device technologically but it would have to sell it at a lower price if it did not leverage the clone branding.

I stand by what I say. It does seem to have an added value to the manufacturer as they seem to sell more units. But it's also in their best interest to offer non-clones, as some people are opposed to clones.You can sell a $30 clone to people who want clones and a $30 non-clone to those who are opposed to clone. This just increases your market.

 

[dr g]

I stand by what I say. It does seem to have an added value to the manufacturer as they seem to sell more units. But it's also in their best interest to offer non-clones, as some people are opposed to clones.You can sell a $30 clone to people who want clones and a $30 non-clone to those who are opposed to clone. This just increases your market.

The clone manufacturers don't give a .... about people who are opposed to clones. And that's the point, in order to sell the same units, non-clones have to be priced lower.

Please provide some examples.

 

[AzPlumber]

The OP is wrong about business, wrong about clones ... wrong about everything really.

One concept I think everyone in this debate needs to understand, though, is that clones do NOT save money or reduce prices.

Cloning is done to ADD value to a product, so a clone will always be a higher price than a competitive non-clone product.

As for the rest, the West would do well to realize that so-called free trade is only driving the western labor market down toward third world standards. It is not a good thing for China's labor to be leveraged against western counterparts.

We as consumers have a large say in things. Supporting domestic manufacturers is not only a question of ethics but economics. $200 may seem like a lot for a mod but it is affordable on a middle class income, and I gladly would accept that price and a middle class job, than to pay $20 and lose my middle class job.

If not for China we would not have an Electronic Cigarette market and we would all still be smoking or trying to quit with other options (some may have successfully quit). With this in mind China created this whole market and the numerous middle class jobs that go along with it.

 

[Ed_C]

The clone manufacturers don't give a .... about people who are opposed to clones.

Please provide some examples.

These three companies make both clones and non-clones.
Seeker (EHPro)
Helmsman (HCigar)
Segelei

Granted they sell more clones, but why not expand your customer base by offering products to people who don't want clones?

Youde and Smoktech make non-clones in the same price range as the others.

 

[crxess]

ARGUE ALL YOU LIKE

If People did not want Clones/Replicas China would NOT be cranking them out.

KEEP Blaming the Manufacturers for supplying Customer Orders.

Vietnamese Dyson Vac at 1/2 the Price anyone?

 

[Ed_C]

ARGUE ALL YOU LIKE

If People did not want Clones/Replicas China would NOT be cranking them out.

KEEP Blaming the Manufacturers for supplying Customer Orders.

Vietnamese Dyson Vac at 1/2 the Price anyone?

I'm not sure who's saying that the Chinese are forcing people to buy clones.

 

[dr g]

ARGUE ALL YOU LIKE

If People did not want Clones/Replicas China would NOT be cranking them out.

KEEP Blaming the Manufacturers for supplying Customer Orders.

Vietnamese Dyson Vac at 1/2 the Price anyone?

This is not and never will be an argument or proof of anything. There will ALWAYS be a market for people wanting to get more for less. The question is always, what is the point at which that either becomes unethical, illegal, or damaging to the markets on either side of the trade.

Flat out theft is the ultimate expression of getting more for less, it's literally getting something for nothing. So clearly there are boundaries to how much we can and should accept of this.

These three companies make both clones and non-clones.
Seeker (EHPro)
Helmsman (HCigar)
Segelei

Granted they sell more clones, but why not expand your customer base by offering products to people who don't want clones?

Youde and Smoktech make non-clones in the same price range as the others.

You are not comparing likes to likes. Non-clones always have selling points to make them competitive. Better specs, lower price, etc. Again cloning adds artificial value, that is why it is done.

 

[Midniteoyl]

The needs of the many out weighs the needs of the few... or one

We are feeding hundreds in China instead of 1-4 in the US...

 

[dr g]

The needs of the many out weighs the needs of the few... or one

We are feeding hundreds in China instead of 1-4 in the US...

I know this is a joke, but there is a nugget of truth and the implications are frightening if you think about it. That's where we're headed if we as consumers don't realize how the Chinese market affects western economies.

 

[snork]

Not all modmakers are Ameravape buffoons or abusive ECC gestapo. Consider the words of my favorite guy in this thread:
http://www.e-cigarette-forum.com/fo...93757-other-thoughts-clones-counterfeits.html

It's easy to whistle out our asses in threads like this and pretend to know stuff. Unless you're actually doing the work though, you are just whistling out your ....

 

[Midniteoyl]

It was a joke, but I also thought about that while typing it..