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I’m heading off on a business trip in the morning, so I can only give this a
real brief reply -
(meaning it’ll be just as long but I’ll have put less thought into it -)
In lugnet.off-topic.clone-brands, John Neal wrote:
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I don’t buy that argument for one second. Even if it were the best design,
why use the same metrics? By making their products compatible with LEGO,
they are deliberately confusing the customer. They know only all too well
that the same toy using different measurements wouldn’t sell nearly as well
as it would if it were indistinguishable from LEGO in proportions. They are,
in essence, profiting off TLG’s patents. There is no compelling reason why
clones should be legally allowed to share TLG’s patented metrics. They
should be forced to create their own unique ones.
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I have no objection to clone brands using the same metrics, especially since the
associated patents have all run their due course and expired. Lego got the full
advantage of the patents while they lasted, and 25 years seems like a pretty
reasonable patent lifespan to me. Yeah, off-brand 2x4 bricks cause consumer
confusion, but I think that in the end there’s a benefit to the consumer overall
from having competing options in compatible metrics, and for the most part the
courts seem to have been of the same opinion.
I think Lego benefits as well, to a certain degree - the example I that always
like to point to is, look at how stale Lego’s design and business practices were
getting at about the time Mega’s Dragons hit the scene. Lego badly, badly
needed the kick in the pants that Mega’s legitimate competition provided.
In lugnet.off-topic.clone-brands, Dave Schuler wrote:
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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?
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It’s a fuzzy measurement - the plaintiff has to show that the similarities are a
direct and demonstrable cause of identity confusion. Once that’s done, there
are mitigating factors either way in assessing the punitive measures - whether
the confusion was deliberate, how much the plaintiff is damaged by the confusion
(apart from the basic damage to their trademark itself, which has legal status
as industrial property), how much the defendant profited by the infringement,
and whether the infringements resulted from legitimate design motivations (e.g.,
if the minifig’s functions cannot be duplicated in a different, non-infringing
minifig). In the end, though, all that has to be demonstrated is the confusion.
That is, assuming the trademark is really a trademark and doesn’t turn out to be
just a patent.
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For that matter, might they have tried too late to protect their trademark?
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Popular wisdom is that nothing occurs on the face of the earth that they don’t
challenge, as long as the country has any kind of court system in which to make
challenges. Obviously that’s not completely true, since I’m still passing
around Lego pictures (although not selling them) without any hassle. But just
because you’re not hearing about the legal actions doesn’t mean they’re not
still processing along in the background.
Regardless, how well they’re defending the trademark in Europe has no bearing on
the status of their trademark defense in the U.S. market.
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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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Kind of off the subject, but Mega Bloks did used to go in for some pretty openly
deceptive marketing practices in their earlier days - see if you can find an old
Mega catalog and compare it to the Lego catalog from the same product season.
But they’ve definitely come into their own in the last bunch of years, I
wouldn’t try to deny that they’ve become a very legitimate competitor in the
field on the strength of their own design work.
Defining the lengths that products have to go to to identify themselves is the
reason trademarks exist. A motorcycle isn’t a trademark, but the Honda logo is.
If Harley Davidson starts making motorcycles that look identical to Hondas,
there’s no issue, because their bike will still have the Harley Davidson logo
and the Honda bike will have a Honda logo. But if Harley starts copying the
Honda logo itself, it’s a totally different story.
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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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Having spent a lot of time designing around the minifig, I can tell you that
it’s not the pinnacle at all, except maybe as a pinnacle of late-Seventies Norse
design fashion at the tail end of Modernism. There are so many aspects of the
Lego minifig that are a design headache. Lego’s just backed itself into a
corner where they can’t mess with it or else they risk damaging its trademark
status, if you remember the discussions that were going around a few years back
about why the Yoda minifig couldn’t just have had a regular minifig head with
ears attached. (Now if only they’d trademarked classic gray.) I think the
direction Mega is going with the mini action figures has a lot more potential
for approaching a ‘pinnacle,’ from a strict design standpoint.
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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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I’ll take a second to point out the ‘brikwars’ in my e-mail address up there,
and mention the fact that Lego doesn’t make army sets! I like the Best-Lock
figures just fine, especially the fact that they put studs on the torso backs.
I don’t have any experience handling the Cobi figures directly, but from a shape
standpoint I don’t see any special functional advantage. Or I should say, any
advantage they gain from copying Lego details could have been just as easily
gained with a non-infringing design.
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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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As I see it, intent to deceive is apparent from, as far as I can tell, the
complete absence of any other plausible motivation. But like I said, I haven’t
handled the new figures myself, so I’m not sure what you mean when you talk
about a “clear improvement.”
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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?
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That’s hard to say. I love the look of those new pirate ships, but a lot
depends on the quality of the bricks, whether they fasten well enough to hold
together in large constructions. I’ve only ever bought Best-Lock to get the
flashy elements to add to Lego models - army figures, military weapons, nets and
sandbags etc. - I haven’t had a lot of luck getting their actual bricks to stay
fastened, especially not in large numbers.
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Message has 1 Reply:
 | | Re: Cobi/Best-Lock
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| (...) Not sure when you mean--can you be more specific? I have Mega Bloks catalogs dating back to 1993, and they've never struck me as deceptively similar, except insofar as they feature pictures of the various sets arranged in a large display (...) (17 years ago, 16-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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| (...) 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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