Friday, July 24, 2015

Trolling for Hate: This Isn't For You

I love listening to the Pen Addict podcast with Brad Dowdy and Myke Hurley.  Its not just that I love pens--I do.  I also like their banter--its great to be a witness to two friends chatting.  But there is another level to my enjoyment of the show.  As a guy with an enthusiast website I like hearing Brad and Myke's thoughts about products.  They are an enthusiast podcast.  Brad runs an enthusiast site.  I do these things too.  I have written about this before, but there is a bond among those that have an enthusiast mindset.

Recently Brad and Myke ranted against the positively overhyped Moleskine.  They were hit with a barrage of angry emails and the like.  For many the Moleskine is the epitome of the pocket notebook.  I used them for a long time.  Lots of other people still use them.  But over time I realized that I was more attracted to the idea of the pocket notebook than the actual pocket notebook itself.  Since then I have abandoned the Moleskine.  In fact I have abandoned daily carry of a pocket notebook all together.  I have some Doane books and some Field Notes stashed places, so I have easy access to them, but they are no longer part of my EDC.  

Their rant on the Moleskine and its response reminds of the response I received for reviewing the Kershaw Cryo.  In  many ways the Cryo is the Moleskine of the knife world--a product built on a hype train like no other.  It is a product that is made famous and popular not by its performance, but by the names associated with it.  The Cryo is a great knife when done correctly (see the Cryo G10),


but the original is a overhyped underperformer.  It is also the perfect knife for the non-enthusiast crowd.  As Thomas put it both in his written response and on the podcast--this knife is not for us. 

The Moleskine and the Cryo are not for us.  They are for the non-enthusiast.  Don't look for me to speak of them as lesser folks, hoi poloi.  They aren't.  They have different interests than enthusiasts.  They are concerned with other things, but what they like in a product, usually its price or its image, is the exact opposite of what we care about.  That's not a bad thing.  Being an aesthete or a snob is a bad thing, but relishing quality is not.

But enthusiasts don't have to be snobs to have good critical points about mass market products.  You know what?  The paper on Moleskines, the small black version, is wretched.  That's not a comment that comes from snobbery--its a fact.  There are many metrics and specs associated with paper and the Moleskine paper fairs poorly on that front.  The Cryo did so as well.

Here is the heart of the issue--true enthusiasts appreciate good quality and design regardless of price. Its not about $1,000 knives, its about appreciating quality and performance.  Show me a Cryo SS and I will point you to the Strobe--a similarly priced knife with better performance and better specs.  Brad pointed his readers in the direction of Fieldnotes or Rhodia pads.  Its not about price and its not about snobbery, its about quality.  

Brad's rant also reminds of Kyle Ver Steeg's rant on the Knife Journal podcast about Moras.


I have Moras in for testing right now.  They are good out of the box, but they do not stand up over time.  Sure they are cheap to replace, but again the ethusiast preaches the message of quality, durability, long term use.  This isn't about a flash in the pan.  Buying good stuff means that you consider how it will perform now and years from now  You consider how it will perform AFTER you have to fix it (as opposed to just throwing it away).

There is lots of stuff that is not for us the enthusiasts.  Its called junk.  This isn't to say that people that buy it are stupid, its simply to point out that there is better stuff out there.  I review gear to help folks find better ways to spend their money.  There is high value and there is cheap.  They are two vastly different things.  Enthusiasts know the difference. 

Monday, July 20, 2015

Cotopaxi Kilaminjaro Review

Hi! I am Anthony Sculimbrene, you might remember from such hate-filled, acerbic reviews as the Gerber Artifact or more recently the Topo Designs Day Pack.

Fortunately, no hate is needed here.  This is a minimalist style backpack that simply rocks.  Its not perfect, it still has a few problems that arise from its minimalist design, but it fixes virtually every problem that the Topo Designs Day Pack had. Simply put, if you are looking for an inexpensive (really, I review inexpensive gear too), minimalist pack, this should be on your list.  I know I am not the only one that it is tired of the uber tact'ed out look, with MOLLE and camo cargo shorts. If you fall into that category then you really should consider the Kilaminjaro as a day pack.

But before we get to the review itself, I think Cotopaxi's charity work deserves a mention.  I have said this before, but here is the deal--I don't care if the person that made the gear is the nicest guy or gal in the world or if he is the devil.  I evaluate gear, not the people that produce it (and yes, Shoeless Joe Jackson deserves to be in the BASEBALL Hall of Fame). But if there is something extraordinary or noteworthy, I am going to point it out.  There are some limits, limits that I have yet to have to draw, but I would not knowingly review something produced by a REALLY terrible person (I would not, for example, review something made my a known racist).  Maxpedition used to behave like petulant kids, so I pointed that out in the PFII review.  Mick Strider has some credibility issues, as us lawyers call it, so I pointed that out.  Well, Cotopaxi does things worthy of comment, but on the positive side of the ledger.

First, Cotopaxi donates a percentage of its revenue to charity.  They focus on education and poverty in the developing world.  To remind you of that all of their products have a "human life span" warranty--61 years, which matches the average human life span across the world (note the US average lifespan is around 74 years old).  Second, they have personally inspected the factory where their packs are made.  The factory is in the Philippines, and they have been there themselves.  Third, Cotopaxi has paired with Polartec to give away Adventurer grants worth $6000 each quarter for folks that have an awesome idea for an adventure that is both "epic" and gives back to the community.  Part of that grant includes a $3,000 donation to a charity of the adventurer's choice.  This isn't a reason to buy something, of course, but if your on the fence, it certainly seems like this stuff could be a tie breaker.

Here is the product page.  The Kilaminjaro costs $79.00.  Here is a written review.  There is a video review that shows up in Google, but its a broken link.  The only retailer is Cotopaxi itself.  

Finally, here is my review sample:


Twitter Review Summary:  The standard for minimalist day packs.  And a damn good value, too.

Design: 2

After the square-ish constricted shape of the Day Pack, the tombstone-style pack here is a welcome change, as is the placement of the organizer pouch and the small items pouch. Virtually everything is just better.  The minimalist aesthetic is still there--no MOLLE anywhere--but it has not so dominated the design that the back ceases to function only for the purpose of looking good.  There isn't as much, matchy-matchy cute colorations, like the blue fabric with red highlights, but I am of the belief that that is a good thing.  The less my bag stands out when I am in a crowd, the less it is likely to be the target of pick pockets.  I am also acutely aware of the lure that hipster gear has on us.  We are so close to that line and something like a cutesy pack just might be the thing that pushes us over the line.  

One note, the slim pouches for water bottles remain.  They aren't as bad as they were on the Day Pack, but they are still less than functional.  The shape of the pack really helps, but it is still not perfect.  You have to be awfully careful how you pack the bag to make sure the water bottle sleeves work correctly.  If you don't they end up being movie-star's-face-after-plastic-surgery tight.  If companies REALLY want that minimal look but still like functional water bottle pouches, how about a pleated design?  Its not enough for me to ding the pack a point, because they are better than the Day Pack's pouches, but it is still something you should be aware of going in.

Fit and Finish: 2

We are at the point where lots of bag companies make really good bags.  The lopsided stitching and ragged interiors are a thing of the past. Honestly the Kilaminjaro is as nicely finished as a Bihn bag, though it lacks the high tech materials of the Seattle-built carriers.  I have no meaningful complaints with its fit and finish.

Carry: 1

Sometimes you get spoiled.  Most packs today have a airy cushion of foam and mesh on the back pad, but here I think Cotopaxi tried to save some money.


As you can see there is no mesh and the foam is quite stiff (just short of "German luxury car front seat stiff).  There is a laptop sleeve in the main compartment that adds a bit of cushion, but overall this is not as plush on the back as either the Osprey or the Maxped PFII.  The other issue I had with the pack was the lack of a mesh back made this thing super hot in the summer time.  Hikes where the temp was above 70 degrees resulted in a tremendously sweaty back (TMI, I know, but you need to know these things).  I am a sweaty dude (again TMI), so nearly every pack does this to me, but it was well below average here.

Fortunately the rest of the pack was superb when being worn.  The shoulder straps were good and the sternum strap (which was included, screw you Topo Designs) was excellent and functional.  If you are really bothered by Swamp Back, drop the score here to a zero.  If not, it earns the 1 through some really great straps and weight distribution.

Materials: 2

Dyneema this ain't, but it is a bag full of perfectly functional stuff.  For a causal day pack, this is more than enough.  Nylon, cordura, and leather of various uses all work well here.  Again I miss the mesh/foam combination that makes the higher tech packs cooler on the back, but I don't think it is fair to deduct another point here.  This bag is just a bit more than half the price of the Topo Designs Day Pack and the materials are the exact same (that pack is not just junk, its a rip off).  Its not a Bihn, but for the minimalist/retro crowd, the materials are fine and the price is much more palatable.  

Accessibility: 2

With a horizontal opening for the small pack and a top mounted organizer pouch, the Kilaminjaro is amazingly accessible.  The  point of the minimalist pack is to cut down on all of the pouches and pockets that are both unnecessary if you pack intelligently and seem to gobble things up as if they were voracious eaters.  Here that minimal approach doesn't counteract accessibility.  A few smart choices and the Kilaminjaro is just downright awesome for what it is.  Its not a lay flat packer like the PFII, but for what it is, this is best in class.

Ease of Packing: 1

I think it is fair to say that with all of these small minimalist bags there is going to be some degree of pack Tetris going on.  You need to be careful how you fill it and how you zip it and that is just annoying.  The water bottle holders are a problem and a pack this small with a laptop sleeve is really annoying.  It may be easy to get stuff once the bag is packed, but getting it there is merely an average experience.

Pockets/Organization: 2

The Day Pack was beyond minimal--it was lacking.  Here with only one more pocket you get a lot of what you need.  I wish the laptop sleeve was removeable, but its not terrible.  At the worst it adds a bit of additional padding on long hikes.  This is a pack that can flex into a bookbag thanks the to laptop sleeve, but for me, as a day pack, I don't need this functionality.


The organizer pocket has a few nice touches--a key retainer, a horizontal mount for items with clips, like pens, knives, and flashlights, and a small sleeve perfect for a smartphone.  I really liked the few things in the organizer pouch.


All too often manufacturers make these organizer pouches so specific to given objects that when those objects become obsolete the pouch is useless.  That  was a problem I found with a lot of Tumi stuff.  When laptops stopped being carried a good 75% of the bag's functionality died.  Here by giving us a few things with lots of uses Cotopaxi ensures that the Kilaminjaro will be useful for a long time. 

Snaps/Buckles/Zippers: 2

Well, I have to say I think the Topo zippers are better, but they were the best I have ever seen.  Short of that high bar, the zippers here are very good.  I also like the quick release buckles, the snap together with an audible pop and they are easy to disengage.  Everything is very nice. 

One small, non-pointworthy criticism--I'd like more rigid leather used as a zipper pulls.  Paracord is no where near as floppy and it makes for an easy grab.  If Cotopaxi wants to keep using leather, which is fine with me, they need to be stiffer.   
Belts/Straps: 2

Given the budget, I like the trade off Cotopaxi made, going for upgraded straps over a foam and mesh back.  The reality is no backpack is going to be cool to wear, so the difference between bad and good is one of degree, but the difference between bad and good when it comes to straps is just incredible.  Here, the straps are very good:


The mesh and foam is comfy and the straps are shaped correctly.  They are wide and distribute weight across your shoulders nicely.  The sternum strap, while not bulky, is quite good, too.  Good choice Cotopaxi.

Modularity/Expansion: 1

There is a leather diamond-shaped attachment point, does that count?  Honestly unless your Tom Bihn (see here), figuring out how to do expansions on a pack with out MOLLE is really tough.  The one attachment point here is perfect for a carabiner (or in my case, the Leatherman carabiner tool).  Also, Cotopaxi doesn't even offer accessories, so any expansion is going to be done with other folks products.  This seems like an oversight to me, but when you are building a company it is probably best to get the core products out there first and then accessories (Prometheus Design Werx, did you hear that?  Accessorize SECOND).  Among its competitors, the Kilaminjaro is lacking in modularity, but it is a minimalist pack so you know that going in.  With that caveat, its about average.

Overall Score: 17 out of 20

I don't include value calculations in my scoring because I have no idea what is a good value for you.  That said, this pack is so good for so cheap that it is DEFINITELY a good value for just about everyone.  That score, a 17, does not include the $80 price tag.  If it did it would be much higher.  This is the minimalist day pack to get, in my opinion, ahead of some of the silly Jansport offers or the Herschel packs and light years, galaxy-spanning distances, away from the wretched Topo Designs Day Pack.

If you want a nice pack that can flex into a hiking pack or a bookbag and not make you look like GI Joe, the Kilaminjaro is a damn good choice.  And for $80, you'll have some cash left over to buy a knife or light to take with you on your trip.  

Friday, July 17, 2015

Cold Steel v. CRKT, Part II

DISCLAIMER: It is VERY early in the process, so any analysis at this point is really just trying tell you what to expect in the future.  There is a lot of things that still have to happen in the suit.  This is just a primer on the law and a brief look at what we know.  After checking with the right folks and doing some legal research, I think I am ready to analyze and comment on the merits of Cold Steel suit. As a reminder, I am a criminal lawyer and I do not practice civil or intellectual property law. The law is very specialized and complex, so my analysis here may be off base. If you practice intellectual property law or if you think I made some errors, as always, please comment (and for RD's sake as well as everyone elses, I NEVER delete a comment, even spammy ones, Blogger's spam filter may catch them, but I don't manually filter them at all).  Furthermore, I do not solicit or accept clients of any kind, criminal or civil. This is not legal advice, just analysis of a pending case.

Preliminary Matters

One thing that I think needs to be made clear that no commentator on CNN or MSNBC discloses--commentators are always at disadvantage because all we have are public records and filings. Virtually every commentator on CNN or MSNBC is in this same position when they are doing pretrial analysis, they just don't tell people. If legal commentators were privy to evidence held for trial, depositions, and interrogatories (pretrial spoken and written questions), the analysis would be better, but that stuff is usually confidential.

I reached out to both Cold Steel and their lawyer and asked for a comment.  I also invited their lawyer to come on to the podcast and talk about the suit.  In both instances the lawyer indicated that he had to check with Cold Steel first.  I think you need to know that Cold Steel's lawyer has been nothing but helpful and gracious.  Unfortunately, I have heard nothing back regarding a comment or a podcast guest.  I also reached out to CRKT and they told me:

"CRKT takes all legal issues seriously and our legal team is handling the case."

First some background. This is a federal suit with parallel state claims. The premise of the suit is that CRKT, through false advertising about the strength of its lock safeties, gained a competitive advantage over Cold Steel. This claim is filed pursuant to a federal statute governing false advertisement, among other things, called the Lanham Act. You can find the text of the statute here. You can find Cold Steel's complaint here.  The US Supreme Court has never address false advertisement under the Lanham Act directly and so the elements listed below are really culled from a variety of different federal district courts.  Until the US Supreme Court addresses Lanham Act litigation there is a large amount of inconsistency about how the elements are applied.  Finally, the elements themsevles, though cited in a wide range of cases, are not derived from the Lanham Act itself but from case law.   

Because the case is so early in the proceedings, a lot of this analysis is about telling you want to look out for in the future.  I split up each section into a bit of the law followed by attempt to figure out how the law is or will be applied in this case.  

Just so everyone is on the same page, there are a few legal terms I should define.  The moving party, or the party that initiated the suit (in this case, Cold Steel) is called the plaintiff.  The non-moving party, or the party being sued (in this case, CRKT) is called the defendant.  Damages is always measured in terms of money losses.  An injuction is a court order instructing a party to do something or refrain from doing something.  The fact finder is either the judge or the jury.  Elements are the parts of a claim that the moving party must prove in order to be successful.

There are quite a few hoops to jump through before you get to a trial in a federal civil case. These cases are monstrously expensive--billions of dollars are at stake some times. They are insanely complex and long--I know of one IP case that had over a million exhibits and took most of a decade to get to trial and will probably take another five years to finish the appeals. There are three main parts to the case--jurisdiction, summary judgment, and the merits. I will take them in turn, explaining what is happening procedurally and what it means for the case.

1. Jurisdiction and Venue

Before the case can start in earnest, in major cases, the parties fight over where the lawsuit is filed. There are two things to fight over--jurisdiction and venue. Jurisdiction is a necessary precondition for any legal cases--without it the case just dies. Venue is the proper place for a case to be heard. Think of it this way--in baseball you have to have a diamond to play the game, without it you aren't playing baseball. That's like jurisdiction. Also in baseball, by tradition, one team is the home team and the other is the away team. So in a game between the Red Sox and the Royals, it will be played either in Boston or Kansas City. It doesn't NECESSARILY have to be played there, but it will be because of tradition. Either Boston or Kansas City is the proper place for those two teams to play. That's like venue. There is a third placement of suit requirement, but it is so rarely used and the standard is so high, it isn't worth mentioning.

In very big suits, like the Apple v. Samsung suit, the parties jockey over jurisdiction and venue, trying to use legal arguments to get a case moved to a court that is seen as favorable to their side. Often times, these major lawsuits will end up in some small federal district court because that court's juries and/or judges are favorable to one side or the other. Juries in certain parts of the country just don't award big money damages. So tobacco companies want their suits heard there and they use jurisdiction and venue arguments to move the cases to those locations. These tactics also make it hard on small litigants, as they have to fly to remote places and pay for accommodations making the suit even more expensive than it would be. Moving cases around like this is called forum shopping.  It sounds like a lawyer trick (because it is), but among high end civil litigants its something to be expected and basically par for the course. 

What to Look For/What This Means in this Case  

Cold Steel filed the suit in the Central California Federal Court, which is their home court, as they are headquartered in Ventura, California. This could be because they don't want to play the forum shopping game or because they don't have enough money to play the forum shopping game.  We don't have access to Cold Steel's financial records, so any claim on my part related to motive would just be a guess.  

2. Summary Judgment Under 12(b)(6)

As a way to cut down on the cases that go to trial and to prevent the court from wasting time on frivolous claims, federal civil suits must pass through the filter of 12(b)(6), or Federal Rule of Civil Procedure 12(b)(6), full text here. This rule operates like a bouncer at a night club, it keeps out the riff raff. Often civil cases turn on what happens in a hearing on a motion for summary judgment filed pursuant to 12(b)(6). If the case survives, the non-moving party offers a better settlement. If the case doesn't survive, the non-moving party wins.

The standard for a motion for summary judgment is basically this--if no rational finder of fact could find in favor of the moving party, assuming all of the facts in its favor, the case is dismissed or thrown out of court. This standard is a bit complicated because it has two parts. First, the court has to assume all of the reasonable claims regarding facts made by the moving party (in this case Cold Steel) are true. Then, once it has done that, it needs to figure out if there is ANY POSSIBLE WAY the moving party could win. It sounds like a high standard and it is. The role of a jury is sacroscant in our court system and taking something away from a jury is something judges are very hesitant to do.

By the same token, anyone with a few hundred dollars can file a suit and so there has to be filter. For example, if someone filed a claim suing someone for damages and the non-moving party was dead at the time the suit alleged wrongdoing--that would be a situation in which, even if you assume all of the facts in the moving party's favor, no rational finder of fact could side with the moving party.

This is where all of the action is in federal civil cases. Summary judgment and the mandatory mediation resolve the VAST majority of cases. This is where lawyers put all of their effort. The strategic reasons are simple--for the moving party, surviving a 12(b)(6) challenge provides a huge amount of leverage and for the non-moving party, its an outright win.

What to look for:

Given that I would be tremendously surprised if CRKT didn't file a motion for summary judgment. Its almost an automatic move. So with that, let's look at the merits of the case.

3. On the Merits

After all of this legal maneuvering, the court will finally reach the merits of the claim itself. Jurisdictional challenges and motions for summary judgment are procedural preliminary matters. The merits are the actual substance of the claim (note, of course, that a summary judgment motion deals with the merits as well, but from a truncated point of view).

We now move on to the elements or parts of false advertising itself. In order to establish a claim under the Lanham Act for false advertising, Cold Steel must show the following:

1) the defendant made a false or misleading statement of fact in a commercial advertisement; 

2) the statement either deceived or had a capacity to deceive a substantial segment of potential consumers; 

3) the deception is material in that it is likely to influence a consumer's purchasing decision; 

4) the product is sold through interstate commerce; and 

5) the plaintiff has been or is likely to be injured by the statement.

These elements, though coming from historical cases, are used to decide matters pursuant to 15 USC 1125. Let's deal with these one at a time because, like all legal standards, they use regular words that are defined in a very particular way (or as lawyers call them--they are terms of art).

Element Four is not a big deal. It is a necessary precondition for federal involvement. Congress's powers to pass legislation are limited or enumerated by the Constitution and one of the ways Congress can act is if the matter involves interstate commerce, so the Lanham Act, like all legislation from Congress, needs to be born from one of the enumerated powers and here that power is the power to regulate interstate commerce. No one could dispute the fact that CRKT sells products nationwide and that is sufficient to show prove the interstate commerce element.

a. Element One

Here the analysis focuses on the statement itself and case law has broken statements down into two categories--literally false statements and true but misleading statements. They have different tests so they need to be explained separately.

A literally false statement, the target every false advertisement claim is aiming for for reasons I will explain in a second, is relatively rare. For example, in a sports car ad they claim that their car can go faster than the competition. This is something that could be a literally false statement. If you are marketing the new Hyundai two seater and you claim that it is faster than the Bugatti Veyron, well, that is something that be tested at the track. Literally false statements do not have the same problems with other elements that misleading statements do. For example, they do not, necessarily have to prove Element Three. This is almost always true when the literally false statement is made in the context of a named comparison, like the Hyundai v. Bugatti comparison. The courts assume materiality in these cases because one party is lying about the other party's product.

Misleading statements are different. Misleading statements are statements that are true in only the most minimal sense. For example, if a cereal ad said that the cereal contained "all of the necessary vitamins and minerals for a healthy diet" but in fact contained only tiny amounts of each vitamin and mineral, amounts so small they have no dietary impact it would be literally true but misleading. If the claim is one of misleading ads, the plaintiff needs to prove Elements Two and Three as well.

A few other things to note about Element One. First, the ad language is taken in context. Its not analyzed in a vacuum. For example, if an ad had two bottles of soda one with Coke's colors and the other with Pepsi's colors, but no words, that context could give rise to a "statement" under the Lanham Act. Second, language is given its everyday meaning. Words are defined as folks use them. For example, if a tax preparer says that it has "instant rebates" that means something different than "tax preparation loans" even if the small print and legal mumbo jumbo tells the consumer that these two things are the same thing. Third, puffery is not considered false advertisement. Puffery is the legal term for bragging about one's product without any specifics. For example, if one pizza chain says "Better Ingredients, Better Pizza" that's most likely puffery. However if they claimed their pizzas were "Better because they are 100% organic" that is something less likely to be deemed puffery. The terms are too vague to be defined sufficiently for comparison. They are also obviously marketing speak.

What to Look for

I don't think this is a case of a literally untrue statement because the wording is sufficiently imprecise to verify. I think the court will analyze this as a misleading statement.

In this case I think we need to start with the language itself--"virtual" and "fixed blade". I think that the word "virtual" here is important because it makes the ad language something less than a direct comparison or claim. Its a step away from "Better Ingredients." "Better" invites, by definition, a direct comparison between two things. "Virtual" means that something is like, but not exactly the same, as something else. It also does not describe how strong the relational similarities are. It sounds lawyerly, but I think, given the case law here, that "virtual" could be a big issue in deciding the case.

Second, I think that the Cold Steel suit and most online analysis of the case, assumes a specific definition of "fixed blade", namely something with a full tang or a knife designed with durability in mind. But that's not the right analysis. Fixed blade knives could many any number of things--a full tang knife, a stick tang knife, a decorative art knife that doesn't fold, anything...but I also think we, as knife nuts, have a specific conception of "fixed blade" knife that ordinary language does not have. "Fixed" generally means to hold in place, here the courts consult the dictionary to figure out ordinary meaning, and if that is the definition they find operative, then I think Cold Steel has real problems. A locking folder IS a fixed blade. The blade is "fixed" in an open position. There is nothing inherent in the language of "fixed blade" that describes strength or an essential property of resisting force. That's how Cold Steel differentiates between folders and fixed blades, but that is not necessarily how the majority of people, of which knife knuts are a small percentage, uses these terms. And even if the term "fixed blade" is given its knife knut meaning, its not clear to me what fixed blade they are talking about. I am sure there are fixed blade, stick tang knives that don't offer much advantage in the way of strength.

And finally, I am not sure that CRKT's language doesn't just constitute puffery--bragging. Its a lot more like "Better Ingredients" than it is HR Block's "Instant Refund" language. One is saying "We are awesome" and the other is outright tricking the consumer. And adding in the word "virtual" matters because it makes the comparison even less forceful than "Better Ingredients."

b. Elements Two and Three

These elements often collapse in on each other in most cases. They are treated as separate things because, in the case of literally untrue statements, materiality is assumed.

First, deception cannot be assumed. Just because the judge or jury finds the language tricky, that is not enough. The plaintiff must prove that someone was deceived or consumers are likely to be deceived and that deception influences purchasing decisions. Often, this is done by use of a survey.

Generally, survey data requires about 20% of surveyed consumers to be tricked. That's a lot of folks. Additionally, its not just that the consumers were tricked and that they bought the competition. In fact in the Better Ingredients case, the plaintiff (it was Pizza Hut v. Papa Johns) did have the 20% number, but the survey failed to distinguish between consumer reliance on the advertisement and prior consumer experience as motivation for the purchasing decision. The court reasoned that the survey failed because, well, consumers could have used their own experience to tell them Papa Johns was better.

What to Look For

Suffice to say, proving this element is a complex undertaking and at this point there is ZERO in the Cold Steel case to show that they have done anything like this.  Look for either survey information and/or financial data.  As I said before, we are not privy to all of the information and they may have survey data in their back pocket. For now though, we don't have it and analysis pretty much ends here.  If there is neither survey data nor financial data, the ballgame is over for Cold Steel.

c. Element Five

Here the court looks at actual data, unless, again, the statement is literally untrue and a named comparison. In that case, damage is assumed though the monetary components still have to be proven to recover actual cash.

A few points about damage. First, no court, ever, has held that the purpose of false advertising is to protect consumers. In fact, courts have ruled that consumers CANNOT sue for false advertising, only business competitors can. This goes directly to Mr. Thompson's statement about the motives for the suit. Caring about his customers fingers, from the perspective of the Lanham Act, might be good press but it is irrelevant. Courts also look at both monetary loss and damage to reputation. Finally, in rare instance of willful deception or extraordinary circumstances, which is exceedingly hard to prove, courts will award attorneys fees as well as damages, which is a huge thing, as the case could result in a complete windfall for the plaintiff. It is entirely possible for false advertising cases are resolved with just an injunction barring the use of the problematic ad and that no money is awarded.

What to Look For

This is not an named comparison nor do I believe it to be a literally untrue statement, so Cold Steel is going to have to show some financial data. Looking at the complaint again, we have nothing like this. As I said before, Cold Steel may have a bunch of stuff we don't know about, but they do not even reference actual monetary losses in the complaint. If they don't have financial data at all, like with the lack of proof of deception, the case will probably die.

3. Conclusion

At this point Cold Steel's pleadings are really insufficient to make out a claim of false advertising, but that is to be expected at this point in the proceedings. Its not that they couldn't make out such a claim in the future, but simply that what they have filed thus far does not match up with the elements even in the broadest sense. The complaint basically addresses only two of the elements, the first one (and only in a minimal fashion) and the fourth one, and does nothing at all with the other three.  If they want to avoid a 12(b)(6) judgment against them Cold Steel needs more. They may have all of the legal ammunition they need and they aren't releasing because of strategic reasons or filing deadlines specific to the court, but right now we don't have enough information.

Its important to note that this is very early in the process. The complaint is merely the mechanism to start the legal process. They don't HAVE to discuss all of the elements in the complaint, but it seems wise for them to do so if they can. If this is all we ever get, that's one thing, but as the case develops its possible that Cold Steel has both survey data and financial data ready to go. If they do and if they release it to the public, I'll revisit the issue.  For now this case is incomplete.  Maybe its just part of the publicity stunt angle that some businesses pursue or maybe they are waiting.  We'll have to see.

Sunday, July 12, 2015

Trending: Q2 2015

Three months ago I thought it would be fun to cull through all of the forum boards and Instagram posts and figure out what was hot and what was not.  Its nothing formal or standardized, but just my view on what everyone is doing.  This is the Q2 version of that list.

Trending Up

Jesper Voxnaes's Zoo of OPMTs

Dan and Andrew both noted that Jesper's table was overrun at Blade.  His Instagram is blown up every single time he mentions either his Snailor, Seahorse, Ping or Owl.

(Who took this picture?  I want to give credit and can't find the source.)

All of these share a few common traits--they are a single knuckle (as in brass knuckles) with some kind other tool, usually a bottle opener.  They vary in size, material, and finish.  Some have stamps on them, some don't.  And regardless of what they look like, how they are finished, or what they do, they scarfed up by the gear community like contraband ice cream at a weight loss camp.  I have to say, I just don't get this trend at all, but there is no denying its power.  I imagine we are only a few months away from a production version of one of the menagerie.  I was going to make a joke about a Voxnaes Pog, but he just released a "Challenge Card" of the Snailor, so Voxnaes beat me to the punch--from gadgets with almost no utility to a gadget with truly no utility.  The Snailor Challenge Card seems like a new bar for gear/custom maker magical thinking craziness.  I know I will look back on this statement very soon and laugh at how naive it was, but I really can't see anything being sillier or more of a waste than a Snailor Challenge Card.  Its right up there with the GITD Glass Octopus from PDW.  Pet Rock anyone?

Modern Neanderthal Podcast

Gear podcasts are hard to do on a consistent basis.  Look around and you will see that iTunes is littered with podcasts that are on hiatus--the Personal Armament Podcast, the Knife Thursday Podcast--so when a new one came out, I was all in, automatically.  The fact that Nick and Austin have good chemistry makes it even better.  Their willingness to tackle controversial subjects, such as high end Chinese knives, makes it all the better.  So when you get a chance, go give it a listen.  Its quite good.   

Spyderco Rassenti Nirvana

Speaking of the Modern Neanderthal podcast, their discussion of this knife stoked my fires a bit.  I was so worried when that happened because I thought there was a chance that the knife would come in at around $500 street price. 

Image courtesy of Arizona Custom Knives (this is a custom Nirvana)

Fortunately, some dealers have pre-orders up and it looks like it will be a much more manageable (though still pricey) $350.  The combination of the cool design and amazing machining has me hooked.  If it lives up to the hype, this could very well end up in my year end awards.  And the hype train is strong with this one.  Visit a forum and you will see everyone talking about this blade.  I just wish it were a bit smaller.

Jeff Hanko

Hanko has long been the Tritium Master, but his new line of Zirc lights, the Twisted Tridents, shows that he has some serious machining prowess too. 

Image courtesy of

They are gorgeous, limited in number, and already scarfed up by the gear collecting cognescenti.  Its lovely to see a new custom light that is an immediate home run.  

Trending Down

Handmade Knives

Perhaps it is because of the Snailor madness, but everywhere I turn I see guys that make really awesome knives making OPMT instead. Panchenko, Voxnaes, and a few others have heard the sirens song of profits seem to have shifted their focus to the much cheaper to make, much more profitable OPMT market.  Why bother with the build and rebuild process of a folder when you can have a design laser or water cut, do some surface treatments and sell it for $200?  A Lucas Burnley Cypop with some sort of difference that only matters to about five people in the world recently sold for $600.  That's not far away from his table price on his folders and the Cypop, for all of its curved surfaces, is not as complex to make as a folder.  Atwood's stuff has been in this price tier for a while and he makes OPMTs exclusively despite the fact that some of his folders were amazing.  But money talks and when you can make 5 times more money on an hourly basis, why bother with the time sinks that custom folders represent?  Let's hope this isn't a trend that lasts long.  It would be sad to see folks go the way of Peter Atwood and stop making folders all together.  

Prometheus Design Werx

Seriously, where is the good stuff?  Its been more than a year since Patrick Ma's second venture was made public and aside from the SPD A2 Badger and the Jigged Bone version of their traditional folder, not a single item from them has moved me to reach for my wallet.

The GITD Octopus was one level of stupid, but the Versa Bear silicone squeeze bottles are even worse.  Perhaps PDW has gotten too deep in the business school marketing class project and become obsessed with their brand and its many logos, mascots, and icons (bears, octopus, some triangular logo thingy) or perhaps lots and lots of hardcore operators have a burning need for bear-shaped squeeze bottles.  I don't know.  Whatever the issue, PDW needs to find itself or it will die a terrible death once the public has its fill of patches, branded baloney, and half-hearted cobranded customs.  It is not a good sign at all when many of their "limited run" knives are still available months after release.  This is not a problem TAD has with its cobranded hard goods.  Ma is perhaps the most talented gear designer in the business right now, but PDW is a lost brand.

Law Suits

Boy, if you want to make people mad, sue someone.  The condemnation of Cold Steel on the forum boards and generally everywhere folks that like knives gather has been strong.  I am not convinced it is universal, RD and Dan both weren't terribly offended, but a lot of folks in a lot of places are not happy. I personally think the suit is bad for business and consumers.  Let's hope this isn't a long term trend and that the suit goes away soon.  How about Cold Steel get back to making knives?  I awarded them my Company of the Year two years ago and they were close last year.  This year they revamped their entire line up, but that has received painfully little attention since the law suit was filed.  

From Last Time:

Trending Up:

Traditionals are HOT: Still Up

Still trending up.  With more Northwood's releases and Queen getting a shot in the arm, I don't see this going in the other direction for a while.

Tom's Choice is Everyone's Choice: Way Up

Ha!  You thought this had run its course.  Well, they came in went in the blink of an eye and made there way on to the forums in about fifteen minutes.  

Tain is Killing It: Still Up

Still Killing It.

ZT is King: Still Up

The ZT0450 has been sold out and restocked since April, but I don't think I was the only one that noticed the weird lockbar issue.  Its not enough to dethrone the king though.

Trending Down:

Custom Flashlights: Now Trending Up

Enrique has a new a flashlight coming.  After writing that sentence I had to be taken to the hospital as my Wanter broke.  That, plus Jeff Hanko's new light, the stuff shown on Taclite's Instagram and the WASP head from Torch Labs and we might just have a turnaround on our hands.  Oh and Sinner is making some nice, inexpensive stuff.  Keep it going folks.

Hinderer Herd Needs Thinning: Leveled Off

The prices on XM-18s in the secondary market have stabilized. Its much lower than it was at the peak of the Hinderer insanity, like 1/3 the cost, at around $425, but there are still too many Hinderer designs and Hinderer knives out there for them to retain anything like their value even a year ago.  Don't expect this to reverse itself either--Hinderer is opening a bigger shop.  The days of flipping XM-18s may be over, but for $425 that's not a bad knife. 

Where is the Middle: Still Down

Did you SEE Spyderco's IWA line up? 

See you in October.

Saturday, July 11, 2015

Utility Tools Battle Axe Review

The market for big choppers is exploding.  At the top end Busse has a siren's song playing, combining a proprietary steel and solid, if exaggerated, shapes to make some really amazing blades.  They are so amazing, in fact, that folks buy them without sheathes.  This strikes me as utterly crazy, but I will confess to many visits to the Busse site over the years, though I have never pulled the trigger.  At the bottom end we have companies like Schrade making inroads with some decent offerings including the Blade 2015 People's Choice SCHF36 and the Jessica X, a chopper designed by a YouTuber.  The middle of the market is still dominated by what are among the best buys in the cutlery world--the Becker series of knives.  For all of the design magic of the Becker blades, they could use a little more refinement.  That's where the Utility Tools Battle Axe comes in.

Here is the product page. The Battle Axe costs $175 in 1095, $225 in A2, and $295 in S30V.  There are upgraded sheath options, but they are either leather or nylon.  I'd love to see a kydex sheath with a Tec-loc or similar attachment point. There are no written or video reviews. Here is a link IM Outfitters, one of two retail outlets for the Battle Axe. 

Here is my review sample:


Twitter Review Summary: Works great after receiving more abuse than Lou Pinella gave umpires.

Design: 2

In my mind, all choppers are going to be compared to the Becker BK-9.  That is a a very high bar to meet, as the BK-9 is simply amazing.  But after a good deal of cutting, I can say that the Battle Axe is quite competitive.  There are places where it does better and places where it does worse.  Design is one of the places where the Battle Axe does better.  It is simpler, easier to use, and cleaner looking.  The  Battle Axe lacks the thumb ramp that the BK-9 does and frankly it is a better design for it.  Compared to a lot of other choppers--Ontarios, ESEEs, and the Beckers--the step up feature here is the full handles, as opposed to slab constructed ones.  This is a design feature that is definitely more difficult to pull off, but the benefit--fewer hotspots--is a big one given the way choppers are used.  I also like the simple look and feel of the drop point blade.  Choppers are a place where design flourishes magnify problems.  Because the blades are so intensely used, anything that departs from a pure functional approach, either causes problems or is revolutionary.  The margin of error between the two is very small.  Getting rid of recurves, thin tips, and clip points makes the Battle Axe all the better.     

Fit and Finish: 2

There is simply no question here--compared to the other choppers I have reviewed (which includes the Cold Steel Recon Scout, the Ontario RD-7, and the BK-9), the Battle Axe possesses a level of finish that few choppers have.  This, of course, is matched by the commensurately higher price tag, but in terms of grind, handle seams, coating, and other small details, the Battle Axe is on a different level from the rest of the choppers I have tested.   


Only the Spyderco Schempp Rock and the Fallkniven F1z (which is not a chopper) are in the same league as the Battle Axe.  I am very curious now to try some higher end choppers, stuff like the TRC Apocalypse, a Bark River Bravo III (how I wish Mike Stewart made a 2.5), and a Busse.  It seems weird to write this given that you are just beating the snot out of these knives, but a bit of refinement does make a difference.  It also reminds me that even when your knife is something you thump on, cutting is always a precision operation, given that the action is being done by a very small part.  Knives, even hard use outdoor choppers, aren't like shovels--the details still matter. 

Handle Design: 2

This knife has a very unusual handle construction among choppers.  Many have slab handles that simply sandwich the tang of the blade between two pieces of micarta, plastic, or G10.  It is a simple and cheap method of construction.  But it is also can produce hotspots over time (higher end slab constructed handles, like those on Bark River knives do not have this same problem).  If you take the scales off or if they loosen over time, the tang becomes exposed and the end result is a metal edge in the middle of where you grip the knife.  Its not a deal breaker for a knife to have slab constructed handles, but it is something that is all but required on cheaper knives.  Many, but not all, of these slab constructed handles are also very square.  

Here the handle construction is different.  Without taking part the review sample it is impossible for me to say for sure, but it appears as though the handle is either two slabs that fully surround the tang of the knife OR a hollowed out channel.  Whatever the method of construction, the result is a handle that is comfortable and easy to use.  


I'd prefer a more pronounced parrot's beak at the end of the blade, but that is the most minor of nits to pick. And just so you full tang people are assuaged, here:


As you can see from this shot looking down on the handle and spine, nary a piece of steel is visible.  Undoubtedly this is a more expensive method of construction and one, along with the very fine grind on the blade, is the reason this knife is much more than the BK-9 price range of knives.


That said, the extra cost is probably warranted as I found this handle to be among the best I have used in terms of grippiness and long term, hard use (such as splitting and batonning oak).  

Steel: 2

1095 is really an ideal chopper steel--super tough, capable of taking and holding a good edge, and, when coated, plenty corrosion resistant.  Even if they were the same price, I'd probably opt for 1095 over the S30V version.  S30V is an awesome steel, a better steel, but in application I am not so sure, especially if it is hardened to Crucible's recommended levels of around 58-60 HRc.  At CRK's levels around 56-57, it might work out, but at 58-60 it is just too chippy, especially when compared to 1095.  It sounds like a nostalgia statement, but 1095 has worked in choppers for a long time and my experience with the Battle Axe has proven it is still quite capable.  

I'd also note that in the role of chopper steel is not as important as grind and blade shape and here the Battle Axe proved that to me.  More on those points below.

Blade Shape:

Grind: 1

In woodworking, high end planes, customs and expensive production planes, come to the user with the expectation that the use will tune the cutting edge him- or herself.  To talk of "out of the box" sharpness is to speak gibberish.  So our fixation on factory edges is not universal across the cutting tool realm.

That said, the edge on the Battle Axe was especially thick.  Its not simply that this is a chopper, so is my BK-9, but even for a chopper its pretty thick at the edge.  My BK-9 has been with me for two years and I have sharpened it and I just had it mildly reprofiled, but even out of the box, it was thinner behind the cutting bevel and the cutting bevel was much wider, making for a superior cutting experience.  The edge here is just too thick, and I think the main grind itself could be a bit thinner too.  It got stuck more than once in material that the BK-9 plowed through.  Here is one such instance:


Personally, I am not so bothered by this, as I think this gives the user the choice of what to do with the knife, but in the modern climate of "out of the box" sharpness, the Battle Axe is too thick. 

Sheath Carry: 2

The knife comes with two sheath options, one nylon and one leather.  

The single benefit of nylon, so far as I can tell, is that it is light, conforms to your body, and is great in terms of carry.  Other than that I hate nylon, for reasons articulated below.  My experience with the Battle Axe in the nylon sheath is no different than other nylon sheathes.  It works and carries quite well. 


The leather one is a bit heavy, but actually quite good to carry.  It also has a drain hole, so even if it is raining, the sheath won't retain water while on your hip.  If you understand, going in, that leather is heavier than either nylon or kydex, then you will quickly realize that the this leather number is actually quite good when compared to other leather sheathes, at least in terms of how it feels on your hip.  


Sheath Accessibility: 0

While the leather sheath is beautiful and well made, both it and the nylon sheath are miserable when it comes to removing the knife.  This is not a one hand in or out knife.  The nylon sheath is worse, but both are substantially below par.

The nylon sheath's cardinal sin is the fact that it does not make clear which direction the knife should be inserted.  Furthermore, the plastic insert is so tight that putting the knife in the wrong way makes it very difficult and dangerous to remove.  My brother in law was up during the testing period for the Battle Axe and though he is an avowed non-knife guy the fun of a chopper was too much for him to resist.  After playing with the Battle Axe he put in back into the nylon sheath incorrectly and the fit was so tight that I had to use pliers and a bench vise to get the knife out.  Had that not worked I probably would have to destroy the sheath to get the knife out.

This is not merely a case of a newb mistake.  The design of the nylon sheath, which is an off the shelf model, not something made by Utility Tools, is just awful.  Without very little in the way of design-based instruction, its basically broken.  A press fit kydex model would be 100% better.  In fact, I am very tempted to have a kydex sheath made for the knife and try it out.

The leather sheath, which was made for Utility Tools, is better, but leather has some inherent limitations.  Unless the leather is very finely tuned for the knife your never going to get it to work as smoothly as kydex in terms of retrieval and replacement.  As far as leather sheathes go its about average in terms of accessibility, but average for leather is well below average given other sheath materials.  

I am not complaining here because the knife can't be deployed quickly (though if its possible to do, why not make a sheath that can do that?).  I am more complaining about the fact that using two hands both to get the knife in and out is cumbersome.  To put this in terms of folders, I find nail knick two handed openers to be fine, but imagine if the two handed open required you to tie and untie a piece of cord wrapped around the knife in addition to using two hands.  That's where these sheathes are. Its not about speed because most people never need lightning fast access to their chopper (or their folder for that matter), but it is about ease of use. 
Useability: 2 

The simple shape of this knife, coupled with a damn fine level of finish, makes the Battle Axe a joy to use.  The only thing that holds this knife back in terms of use, as I said above, is the especially thick cutting bevel and that problem only reared its head in very, very stubborn material.  In pine, with rope, and when doing general hacking, it was fine, but when pushed to the limit of what a chopper can do, such as splitting and batonning knotty red oak, the knife was slowed to a stop by the thick cutting bevel.  


The shape of the handle, the shape of the blade, and the nice touches, like an adjustable lanyard and the full surround handle scales made the Battle Axe quite excellent.  

Durability: 2 

The blade stock is monstrously thick, between 3/16 and 1/4 of an inch.  The handle scales are really locked in.  And the coating, which is leagues better than the coating on the chooppers one price tier down, was incredibly tough.  


I am confident that the Battle Axe will handle anything you throw at it.  Here is why--when splitting and then batonning that piece of red oak shown above, the knife got imbedded in the wood.  I am probably not too dissimilar from you are in this regard and I took this as a challenge from Mother Nature.  Instead of doing the wiggle maneuver to get the knife out I proceeded to beat the ever living shit out of it hoping it would plow on through.  My batonning stick, a double wrist thick piece of oak broke in the process.  I think switched over to an old shovel handle that I use in really stubborn instances (when I broke the shovel handle I cut it up for other uses, such as this).  I then broke that piece of wood.  It was only then that I decided to pull the knife out instead of pushing it through.  After some serious and sweaty work I got it free.  Honestly I pulled it out expect the Battle Axe to be twisted or irreparably damaged.  But it was perfectly fine, so undamaged that I have to consult the picture to figure out which of the two review samples it was.  Not even the coating shows significant wear.  

Again this is a place where the extra cost makes a difference.  None of the cheaper choppers would have faired that well and every other chopper I have used that had coating would have shown noticeable wear.  This is a beast of knife and short of purposeful abuse aimed at destroying the knife, I think it will handle whatever you dish out.  

Overall Score: 17 out of 20

The knife itself is actually very good, rivaling and in many ways surpassing the BK-9.  Only the thick cutting bevel holds it back.  The leather sheath is, for a leather sheath, decent, but both sheathes do very poorly when it comes to accessibility.  It sounds like a broken record to say this but like with virtually every fixed blade I have reviewed thus far, the stumbling block is not the knife, but the sheath.  Sheathes are just hard to do in runs sufficient for production scale knives.  I will probably have one of these knives fitted with a kydex number to see how it works out, but as they come from Utility Tools the knife is awesome (and with a bit of grinding could be amazing) but the sheathes are merely okay.  

This is a step up chopper in almost every regard and in that sense, its damn good.  The knife can really take a thumbing and thanks to the superior handle design there are no real hotspots.  This is a very good knife and if you have some extra dough and you are looking for a chopper, this obscure cutter should 100% be on your list. 

The Competition

The BK-9 is a bit cheaper and if you aren't willing to do some grinding, it is a superior out-of-the-box cutter.  If you can grind the edge or have someone do it for you, the Battle Axe is probably a better knife and that is a pretty impressive thing.  I love my BK-9 and for the money it can't be beat, but this chopper is so nice and so refined, with a little work it will be better than my benchmark chopper.