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Some of you may have noticed the semi-recent appearance of the brand
Cobi/Best-Lock on shelves at nearby stores. Toys R Us is, so far, the largest
carrier of the brand in the US, though at least one set has appeared at KB Toys,
and an arm of the Cobi/Best-Lock company distributed construction toys through
Sears/KMart as part of the Just Kidz in-store product line. The quality of
the Just Kidz stuff isn’t the greatest, but it’s pretty good. I’m not
thrilled with the minifigs, but the accessories, bricks, and great piece:price
ratio makes them worthwhile AFAIC.
Perhaps of greatest interest in this forum is the Pirates theme. I don’t have
a full set-count to give you, but at least two different ships have made their
way onto shelves recently. The standard retail price is $19.99 for 450 pieces,
and the plastic and minifigs are of very good quality, certainly on par with
LEGO. You may also get lucky and stumble onto an apparently widesepread pricing
error; I picked up several copies of the Black Galleon @ $2.20 each, though
neighboring sets in the product line were listed at the full $19.99 price. The
only downside (and it’s a big one, I admit) is that the sails are cheap mylar
and preposterously flimsy. But check out the minifigs in any case!
Pirate crew
(The beard on the second guy from the left snaps into a little notch on the
face--a clever innovation IMO!)
Reverse view
Profile
You’ll note that the noses on these figures actually protrude from the heads,
which I believe is new among clone brands. Mega Bloks offers a wide range of
sculpted heads, but these Pirates are the first I’ve seen that add a nose to a
standard-shape minifig head.
Nifty stuff, though YMMV of course...
Dave!
FUT. ot.clone-brands only
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In lugnet.pirates, Dave Schuler wrote:
But check out the
Wow. I admit I haven’t been following Best-Lock at all, but isn’t this insanely
close to copyright violation for the “likeness” of the minifig? Have their figs
always been so minifiggish?
DaveE
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In lugnet.off-topic.clone-brands, David Eaton wrote:
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In lugnet.pirates, Dave Schuler wrote:
But check out the
Wow. I admit I haven’t been following Best-Lock at all, but isn’t this
insanely close to copyright violation for the “likeness” of the minifig? Have
their figs always been so minifiggish?
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I’m not sure, to be honest. Cobi has existed for some time in Europe (based
in Poland) but has only become available in the US very recently, in the wake of
the Cobi/Best-Lock merger. Over at The Bloks
Forum we’ve been discussing this brand for a while. Apparently there’s a
large body of distinctive elements that pop up in a wide range of brands
(Oxford, Shifty, Cobi, Coko, ad infinitum), so it’s difficult to trace the
lineage of a particular part or even a particular brand. This style of minifig
appears to have originated in the pre-merger Cobi sets, and the fact that
they’re available in the US at all suggests to me that TLG’s patents must have
expired some time ago. The Just Kidz sub-brand I mentioned makes use of a
different minifig style but is still part of the Cobi/Best-Lock brand (the
logo appears on the instruction sheet but not on the box itself nor on the
bricks--weird).
I just realized that I have other Cobi/Best-Lock minifigs from one of the
military sets, and I’ll post a picture of them tonight or tomorrow. They have
the same squared legs (versus the rounded style of Mega Bloks minifigs), but
the heads don’t have a protruding nose.
For that matter, I’ll post a pic of the Just Kidz style of minifig, too.
Dave!
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In lugnet.off-topic.clone-brands, Dave Schuler wrote:
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This style of minifig ... suggests to me that TLG’s patents must have
expired some time ago.
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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).
I seem to remember having seen the minifig-style fig in the Chinese knock-offs
“Brick”/”Shifty”, but they were flat-out barred from sale in the US (for other
reasons primarily of course). Only ones I’ve ever noticed to date in the US have
been less minifiggy, I guess...
DaveE
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In lugnet.off-topic.clone-brands, David Eaton wrote:
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In lugnet.off-topic.clone-brands, Dave Schuler wrote:
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This style of minifig ... suggests to me that TLG’s patents must have
expired some time ago.
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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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Old Timers may recall the flap back in ‘99 over the
LEGODEATH image originally
crafted by “Froggy.” A brief (400+ post) thread on RTL can be read
here, if you’re interested.
I can’t remember what became of that whole issue, but clearly the image is still
available online, whatever that implies...
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I seem to remember having seen the minifig-style fig in the Chinese
knock-offs “Brick”/”Shifty”, but they were flat-out barred from sale in the
US (for other reasons primarily of course). Only ones I’ve ever noticed to
date in the US have been less minifiggy, I guess...
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I think it goes a step further--Brick/Shifty was ordered to destroy a whole
bunch of their rip-off clone bricks in a move that I would describe as
beneficial to the entire industry. Illegal knock-offs hurt LEGO and its
legitimate competitors alike!
Anyway, there’s a wide spectrum of minifigs of varying quality. Heck, Mega
Bloks has gone through half a dozen fundamental design changes all by itself,
much less all the other brands. The lineage gets confusing, as I mentioned,
with considerable apparent mingling among several brands. Clone-o-phile though
I am, even I can’t keep it all straight.
If you’re interested, you might check out RedBean Studios, which maintains a
repository of minifig-related images and info, drawing from LEGO and a host of
other brick-brands.
I’ll see about posting that aforementioned photo tomorrow, if possible.
Dave!
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In lugnet.off-topic.clone-brands, Dave Schuler wrote:
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Old Timers may recall the flap back in ‘99 over the
LEGODEATH image
originally crafted by “Froggy.” A brief (400+ post) thread on RTL can be
read
here, if you’re interested.
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Whoa, that was a blast from the past! I had only been online for the first
time a couple of months before that thread....
What an experience the WWW was as a newbie. And now 9 years have past.
</nostalgicpine>
FUT OT.OT;-)
JOHN
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In lugnet.off-topic.clone-brands, Dave Schuler wrote:
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For that matter, I’ll post a pic of the Just Kidz style of minifig, too.
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Here’s a
shot of three minifigs from the Just Kidz line of Cobi/Best-Lock stuff.
And here’s
a reverse angle of the guy on the far left. As you’ll see, the leg-holes are
square, in what I think is an inferior design; it takes more material out of the
leg, and the big square hole in the back is even more unappealing than a round
one, perhaps because I’m used to the round one for 30 or so years…
Additionally, the legs/feet are slightly rounded, and there’s a gap between the
legs that reduces clutch power when posing the minifigs on a plate or brick.
Here’s a
picture of the more LEGO-like minfigs. The backpack on the middle guy is
removable and fits perfectly on LEGO minifigs, by the way.
And lastly here’s a reverse shot of those same three guys. You’ll see that they’re close
to indistinguishable from LEGO minfigs, at least in terms of design. I’ll need
to check the interior of the torsos to see if they’re likewise similar to LEGO.
Even at a glance, though, one can’t help noticing the diversity in these
minifigs which eluded LEGO for so many decades! Still, I don’t know how/why/if
these are really permitted in the US, or if LEGO has simply lost the legal
standing to challenge them here.
Dave!
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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.
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.
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.
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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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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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.
This is at least how it’s been explained to me: the basis for overturning the
trademark status of the basic brick was that the brick’s design was ruled to be
purely necessary to its function (apart from the signature element of the logo
on the studs), and you can’t make a legitimately-competing product without
duplicating that function. So as far as that goes, I think trying to defend the
trademark on the brick is probably just staving off the inevitable, at least in
any country where the laws are set up to support market competition.
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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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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?
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Wikipedia’s got a decent primer on some of the ins and outs of shape trademarks
- I know citing a wiki isn’t exactly academically rigorous, but I don’t see any
reason to get all o.t.d. about it:
http://en.wikipedia.org/wiki/Trademark
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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And anyway these Cobi/Best-Lock minifigs might not
even violate trademark issues because they are similar to but not
indistinguishable from LEGO minifigs.
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From a legal standpoint, the issue isn’t whether they can be distinguished, it’s
the degree to which the similarity of design causes damaging brand confusion in
the mind of the consumer, and whether the design choices that lead to that
confusion can be justified by some aspect of fair use.
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.
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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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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In cases like that it’s not that the logos were sufficiently different, it’s
that candy cigarettes don’t compete directly with real cigarettes. If another
cigarette company had tried to use those logos you can bet there’d’ve been
serious litigation.
And that’s not to say there wasn’t - I don’t think candy cigarettes are a
high-investment industry, I’d bet you could make a quick profit in the interval
between putting the product on the market and having to stop production when the
injunction hits. People who want to make money off of training kids to smoke
don’t strike me as the types who probably have the strongest business ethics.
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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.
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? Regardless of the ultimate legality of
their actions, what they’re doing is counterfeiting.
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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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I don’t think that being found innocent of criminality is going to change my
personal beliefs about their motivations for these design decisions.
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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.
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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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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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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I believe that the major similarity is scale. More on this below.
<snip>
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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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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!
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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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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.
JOHN
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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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In lugnet.off-topic.clone-brands, Mike Rayhawk wrote:
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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.
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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
format. But that’s hardly a LEGO-original idea in any case--all kinds of toys
(and products in general) use a similar format. Or were you describing
something else?
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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.
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Thanks for making that distinction. I get frustrated when LEGO’s proponents
throw all clones onto the same “they’re rip-offs” pile, when in fact there’s a
wide range of brands with different strengths and weaknesses.
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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.
|
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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I’ve been giving this some thought, and I need to recant that point. The
sculpted-head Mega Bloks figures are IMO far superior to the standard LEGO
minifigs, and the recent highly articulated figures are in a category all by
themselves. I think when I used the term “pinnacle” I really meant “industry
standard,” which is hardly the same at all; in fact, if it were the industry
standard, then it’s clear that LEGO would be holding the reins on the design.
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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.
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?? They do? I admit that I have only about two dozen Best-Lock figures from
before the Cobi merger, but none of them have studs anywhere on them. In
fact, they don’t have leg-holes, the heads are cup-shaped, and the legs attach
by little clip-mounts at the hips. Is there a design with which I am (very
possibly) not familiar?
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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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Yeah, like I said above, I’ve been rethinking this point. How sure are you that
the LEGO minifig design is indeed trademarked and protected as such? As fond as
I am of clone brands, I don’t care to support a brand that actively engages in
unlawful trademark violation.
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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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Best-Lock prior to the Cobi merger is IMO awful. The bricks have very poor
clutch power, and they intermix with LEGO or Mega Bloks minimally if at all.
Post merger, Cobi/Best-Lock has improved markedly, and the plastic quality is
surprisingly good. You might be able to find a set on the cheap at TRU or KB
Toys. The Just Kidz line, which is a derivative of the Cobi/Best-Lock
merger, is of somewhat lower quality and uses a less LEGO-like minifig design,
but you can pick up at least three different sets for $5.00 each.
Incidentally, Larry Marak has pointed out to me that Cobi/Best-Lock does not
seem to make use of the 2x4 brick, which surprises me but appears to be correct
(based on a review of the sets I own).
Dave!
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In lugnet.off-topic.clone-brands, Dave Schuler wrote:
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In lugnet.off-topic.clone-brands, Mike Rayhawk wrote:
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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.
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?? They do? I admit that I have only about two dozen Best-Lock figures
from before the Cobi merger, but none of them have studs anywhere on them.
In fact, they don’t have leg-holes, the heads are cup-shaped, and the legs
attach by little clip-mounts at the hips. Is there a design with which I am
(very possibly) not familiar?
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These sound like MB
Command
Ops (Military) and Dragons (Fantasy) figs to me. I haven’t seen studs on
Bestlock figs’ backs either.
And I would heartily agree that Command Ops was just made for BrikWars.
And and I can’t say ‘BrikWars’ in a thread with Mike, without also saying
‘Thanks Mike’.
Thanks Mike.
Richard
Sill baldly going...
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In lugnet.off-topic.clone-brands, Richard Parsons wrote:
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These sound like MB
Command
Ops (Military) and Dragons (Fantasy) figs to me. I haven’t seen studs on
Bestlock figs’ backs either.
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I want so badly for this not to be true, because it would mean I’ve been
thinking of the wrong minifig this whole time, but I just dug around in my clone
bins and I think you’re right. I’ve got Best-Lock and military sets so
connected in my mind that I forgot that Command Ops was Mega Bloks.
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And I would heartily agree that Command Ops was just made for BrikWars.
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Command Ops is good for BrikWars, but for me nothing’s going to top the
first-year Dragons Battle Chests, before the Dragons factions started getting
overdesigned and silly. Nothing but humans, orcs, and the craziest piles of
medieval hand weapons for a couple of bucks. Genius! Even the
fully-articulated Pyrates figure packs didn’t excite me as much. I already had
plenty of pirates and skellies, but orcs are something I’d wanted for years.
In lugnet.off-topic.clone-brands, Dave Schuler wrote:
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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,
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Now I’m wondering if I mixed up the brands on that one as well, I should be more
careful about shooting my mouth off. I got an informal presentation four years
ago about why it’s important to close the window curtains in Billund; I got to
see old Lego dealer catalogs next to clone catalogs that I thought I remembered
as being from Mega but now I’m not completely sure. Whichever company it was,
every page layout was identical, with the individual models built as similarly
as the clone company could manage with its less extensive selection of elements.
Lego’s been given plenty of cause for legitimate paranoia over the years.
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Thanks for making that distinction. I get frustrated when LEGO’s proponents
throw all clones onto the same “they’re rip-offs” pile, when in fact
there’s a wide range of brands with different strengths and weaknesses.
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Really, I don’t think the whole “rip-off” thing would be such a big deal if the
clones in general weren’t so prone to quality issues. The two stories I like to
tell are about a girl I dated in college who refused to touch Lego because she’d
had such a bad experience in high school trying to build with Mega Bloks, not
caring at all that the two brands weren’t related; and the call I got a few
years ago from an old friend up in Portland who was in a rage at Lego because
he’d tried to build some of the early big Dragons sets and all the “Lego” pieces
kept popping apart by themselves (I don’t know if the Dragons element quality
has improved since then, but I have plenty of those first- and second-year sets
myself, and I can tell you that it takes an act of God to get some of those
elements to stay together). That’s just two people right in my immediate circle
of friends who were once excited about construction bricks but dropped out of
the market because of bad experiences with clones (although in the second case I
was able to bring him back into the fold with a little work).
I can understand if Lego and Lego fans are frustrated by competitors poisoning
the market that way; I was certainly tearing my hair the couple of times I ran
into it, and I don’t think any clone brand right now is completely innocent of
releasing poorly-functioning elements in at least one or two of its themes. I’m
happy to point out some of the things that a couple of the clone companies are
doing that I think are really cool, but I think I still feel fine about lumping
them all together into the “they’re rip-offs” pile at least in that one regard.
I’ll still need to pick up some of the post-merger Best-Lock bricks to see how
much their quality’s improved, though.
(Not that it matters for the purposes of the story, but this time I am sure that
it was Mega Bloks in both cases, since I’d been determined to track down the
specific sets that’d given each of them trouble.)
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How sure are you that the LEGO minifig design is indeed trademarked and
protected as such?
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You can see their trademark notices for it here and there - the first one that
pops up in Google is at the bottom of the
Star Wars
video game site. In regards to the big BrikWars painting, the word I got back
in 2003 was as follows:
“The MINIFIGURE is an icon for LEGO Company, and it is a proptected trademark
in many countries world wide. We also have a copyright protection for the
MINIFIGURE in many countries world wide. We take very good care of the
MINIFIGURE, and we do not license our copyrights and or any trademarks rights to
it.”
Reading this again, I’m kind of interested to note that it sounds like it’s a
trademark in some places and a copyright in others (or maybe both at once
somehow?). I’d like to see a list of which countries get which status.
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Dave Schuler wrote:
> I've been giving this some thought, and I need to recant that point.
> The sculpted-head [Mega Bloks] figures are IMO far superior to the
> standard LEGO minifigs, and the recent highly articulated figures are
> in a category all by themselves. I think when I used the term
> "pinnacle" I really meant "industry standard," which is hardly the
> same at all; in fact, if it [{were}] the industry standard, then it's
> clear that LEGO would be holding the reins on the design.
For myself, I really dislike the scuplted figures for a few reasons:
1. They just seem over accentuated - they remind me of Games Workshop paint
jobs (though I'll grant they use more subdued colors that GW uses).
2. They keep changing the style, which means they don't mix well. LEGO
minifigs from different themes mix pretty well, though the fleshies are a
bit disconcerting next to yellow figs.
3. They seem less customizeable with sculpted on clothing. I haven't looked
at them in detail recently to see how many pieces they come apart into, but
I appreciate LEGO's separate hair/hats, hands (though only 2 kinds of hands
currently, hook and regular), beards, capes (and other neck accesories), and
footwear.
#2 is a real killer for me. Since LEGO figs have not fundamentally changed
for ages, a huge diversity of population can be built and they will all look
good together.
Frank
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In lugnet.off-topic.clone-brands, Frank Filz wrote:
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2. They keep changing the style, which means they don’t mix well. LEGO
minifigs from different themes mix pretty well, though the fleshies are a
bit disconcerting next to yellow figs.
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Like any overdesigned element, it’s just a matter of finding good uses for them
- I find that Mega Bloks minifig parts fit in just fine if you mix them up well
enough with Lego minifig elements. I love using this torso for instance:
I usually save that kind of treatment for highlight characters, but some of the
Dragons suits of armor look just fine on the rank-and-file troops as well, for
instance, if you make enough of them.
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A further note on the difference between Just-Kidz minifigs and Cobi/Best Lock
minis (both made by C/block) the company apparently bought molds from multiple
sources when making their switch from old scale to Lego metrics after their
court victory in Germany. Cobi foot soldiers have body armor that clips onto
the mini, and can be used with any Lego mini, Just-Kids is painted on. Same
company, two different styles, released simultaneously.
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