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In lugnet.off-topic.clone-brands, Mike Rayhawk wrote:
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In lugnet.off-topic.clone-brands, David Eaton wrote:
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Hm. I was under the impression that even just the *image* of a minifig was
un-marketable thanks to copyright. I seem to recall that Mike Rayhawk was
prevented from selling his BrikWars artwork for that reason (although I
don’t think he ever tried to push the issue, since he has a vested interest
in not annoying the company).
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It’s about trademark rather than copyright - the minifig is legally
recognized to represent the Lego company, it’s not just one of their designs
or intellectual properties. From a legal standpoint, using the minifig is
equivalent to using the actual Lego logo on your product.
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That’s an interesting argument--do you have a citation? I ask because I believe
that the patent on the minifig design has expired, and previous arguments by
LEGO re: the “trademark” status of their pieces have failed. The majority of
rulings against LEGO have found that such designs--being functional in
nature--are subject to patent law rather than trademark.
Beyond that, I’m not sure how trademark status would even apply, unless we’re
supposing that any minifig-style design belongs to LEGO. That is, since
LEGO has long since moved beyond the “smiley-face” minifig design, it no longer
seems reasonable for them to claim it as the figurehead image of the company.
Further, does the trademark apply to the smiley-face or to the minifig as a
whole? And anyway these Cobi/Best-Lock minifigs might not even violate
trademark issues because they are similar to but not indistinguishable from LEGO
minifigs. I’ve seen “candy cigarettes” with labels designed to look very much
like Marlboro or Camel, but still sufficiently different to avoid issues of
trademark violation. The same might be true here.
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Besides having a vested interest in not annoying the company, I also have a
vested interest in not diluting the trademark. If I did so, then in a case
like this, Best-Lock would be able to use my work as supporting evidence in
their defense when Lego sues them for their counterfeits. And then nobody
wins.
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Let’s not throw around the word “counterfeit” prematurely. If these
Cobi/Best-Lock minifigs are indeed being legally produced and distributed (and
we must presume innocence, after all), then it’s libelous to call them
counterfeit.
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If I had to guess, I would say that Best-Lock probably acquired the Lego
counterfeit molds as part of their merger, from some part of the world where
a trademark doesn’t have the same legal protections. The big cost for a
company like Best-Lock isn’t in producing the plastic bits, it’s in making
the molds for those bits, so if they’ve already got the molds through the
merger anyway, it costs them comparatively little to make a legal opportunity
bid to hit Lego while they’re down by pumping out shipments of fakes.
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There you go again with accusations--yikes! If this goes to court and
Cobi/Best-Lock is found to be acting legally, will you post here to retract
your accusations of counterfeiting and fakery? Yowza!
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Obviously Best-Lock knows they’re going to get sued. They really didn’t
leave Lego a lot of choice with such an obvious affront, so they must think
the chances are good for gaining some long-term advantage by taking the case
to court. Lego’s legal position has taken some big setbacks outside the U.S.
over the last couple of years, and Lego’s recent financial belt-tightening
hasn’t been a big secret either, so in Best-Lock’s eyes there may never be a
better time to force legal action with the goal of winning some loosening of
the restrictions on counterfeiters.
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That reasoning breaks down a bit when we consider that Cobi has been producing
these sets and minifigs for several years, and other brands have likewise been
producing similar minifigs. Sure, the Shifty/Brick brand has gotten royally
(and correctly IMO) spanked for bootlegging, but I don’t believe that the
minifigs were the make-or-break issue in that case as much as other
patent-protected pieces were.
Of course, IANAL, so if I’m wrong in all of this I will happily recant my
arguments here.
Dave!
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Message has 1 Reply:
 | | Re: Cobi/Best-Lock
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| (...) It's a little misleading to say their arguments have 'failed' - the same arguments that got shot down in Mega Bloks' Canadian home court are still doing just fine in the courts of northern Europe. I think the big loss in Germany is going to be (...) (17 years ago, 10-Jan-07, to lugnet.off-topic.clone-brands, FTX)
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Message is in Reply To:
| | Re: Cobi/Best-Lock
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| (...) It's about trademark rather than copyright - the minifig is legally recognized to represent the Lego company, it's not just one of their designs or intellectual properties. From a legal standpoint, using the minifig is equivalent to using the (...) (17 years ago, 10-Jan-07, to lugnet.off-topic.clone-brands, FTX)
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