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In lugnet.off-topic.clone-brands, Mike Rayhawk wrote:
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In lugnet.off-topic.clone-brands, Dave Schuler wrote:
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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.
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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 a sign of things to come however.
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There may be another variable at play in those northern European cases; as far
as I’m aware, LEGO maintains a de facto stranglehold on many of the markets
there, so competitor brands are denied entry altogether. It seems that LEGO has
secured itself a means of leverage if it can thereafter claim that further
protections are necessary to protect their trademark; in the countries where
both brands have been sold on more-or-less equal footing, I don’t believe that
LEGO has won a case against Mega Bloks (though I may easily be wrong).
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The majority of rulings against LEGO have found that such designs--being
functional in nature--are subject to patent law rather than trademark.
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On the brick itself, that’s right (although still not yet in all countries).
But the minifig’s a different story; there are any number of design solutions
to making a human figure in a construction-brick world, so the “functional”
argument doesn’t apply in the same way. There are functional aspects to
the minifig which can’t receive trademark protections - holes in the back of
the legs allowing it to sit on studs, hands that grip a handle of x dimension
- but the signature aspects without a specific functional basis can be
protected: the shape of the elbow, the way the wrist connects to the hand,
the rounded cylinder of the head.
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Well, how different does it have to be? I can post detailed pics of the
Cobi/Best-Lock minifig components separated and placed side-by-side with LEGO
equivalents, if that’ll help. I know, for instance,that the shape of
Cobi/Best-Lock is different (can’t hold a 1x1 round from beneath, for
example), and the shape of the arm is subtly different otherwise AFAIK. What’s
the threshold for “too similar” in shape?
For that matter, might they have tried too late to protect their trademark?
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The shape trademark, as far as I understand, isn’t related to the graphics
printed on it. (I don’t think the Lego smiley graphic is trademarked at all,
based on how freely they make changes to it, although I can’t say so
conclusively.)
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Again, though--how different do they have to be? Cobi/Best-Lock heads don’t
have the hollow top-stud, and I think I mentioned that the Pirates, at least,
have distinctly protruding noses.
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In Mega Bloks’ victory in Canada, there was a “clear finding” that the
duplicated brick design caused genuine and damaging brand confusion among
consumers, but it was judged irrelevant in the face of the functional
argument. (I know you’ll want a citation on that, but my quick googling isn’t
pulling up anything stronger than the Lego press releases, so take it with a
grain of salt.
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Nah, don’t bother--I’ve read that court case. It should be added that part of
the violation occurred as a result of a visible graphic on Mega Bloks boxes
that declared “works with LEGO.” This was removed and has been absent for over
a decade--some brands still use a “works with other brands” graphic or something
similar, but LEGO isn’t named specifically.
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I’ve heard crazy numbers bandied around from that case - that
over forty percent of Canadian consumers buying Mega Bloks either believed
that they were actually buying Lego products or that Mega Bloks was a
division of Lego. That’s just remembered hearsay though, if someone can
locate the official finding-of-fact documents I’ve been wanting to get a look
at them for a long time.)
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Isn’t part of that LEGO’s fault, though? Mega Bloks doesn’t market itself as
LEGO, and I’ve never seen a single store flyer or promotional that equated the
two. If a consumer can’t tell a Harley from a Honda, is that Honda’s fault?
I’m asking sincerely--to what length must a product go to ensure that no one
thinks that it’s something else?
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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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“Made in imitation so as to be passed off fraudulently or deceptively as
genuine.” As a designer I’m used to using the word “counterfeit” in its
more precise sense. Counterfeiting isn’t necessarily a criminal act, just a
grossly unethical one.
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But it’s still an accusation that needs to be borne out, because it unavoidably
implies willful deceit. It seems entirely possible to me that other brands have
identified the minifig design as the pinnacle and are simply using the same
configuration. I suspect that’s why all construction brick toys use a 2x4
brick--it’s the best design.
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Best-Lock had a fine design that was already vaguely similar to the Lego
figure, but they’ve just changed it to be much, much less distinguishable.
Why? Those changes have no functional benefit over the previous design. Is
there even one possible advantage to the redesigns, other than to make the
figures more easily confused with a Lego product?
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Do you have much experience with the old style of Best-Lock minfigs? They’re
grossly inferior to LEGO or Mega Bloks figures for a number of reasons. The
move to the Cobi design is a clear improvement.
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Regardless of the ultimate
legality of their actions, what they’re doing is counterfeiting.
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Only (by your definition) if they’re trying to deceive or engage in fraud, and
that’s the part that’s yet to be demonstrated.
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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.
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Sure, but have they been producing them in this market? The systems of law
are different in every country. Releasing Cobi bricks in Poland is a whole
different legal animal than releasing them in the Americas or other markets.
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Cobi has been available in much of Europe for at least several years. As I
recall, they had some distribution in the UK and elsewhere, so it seems that
litigation should have occurred by now, if it’s going to. After all, the
Shifty/Brick case has come and gone while Cobi has been sitting on the
shelves of Europe.
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I’ll qualify everything here by saying I’m not a lawyer, and I’m not privy to
the non-public legal details of these cases. I’m just some guy on the
internet, and I think everybody knows how seriously to take the wild
diatribes of some guy on the internet. What I am, though, is a professional
designer, so I do have some insights and opinions about things like this that
other people might not, and I try to share those to the best of my
understanding. And in the case of Cobi my personal opinions are pretty
strong.
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Well, what if they abandoned their minifig design? Would you be able to assess
the brand on its own merits, or have you made up your mind altogether?
(This is a fun discussion for me, by the way. Thanks!)
Dave!
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Message has 1 Reply:
 | | Re: Cobi/Best-Lock
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| (...) I believe that the major similarity is scale. More on this below. <snip> (...) Surely you are not implying that it is just as easy to distinuish a red Mega Bloks 2x4 brick from a red LEGO 2x4 brick as it is a Honda from a Harley! (...) I don't (...) (17 years ago, 11-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 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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