The response to the first part of this series was good. I appreciate the feedback over email and on Twitter. I am also thrilled that there weren't too many errors in the content itself. So let's look at the other IP white meat: trademarks. Again, this isn't legal advice. I am not an IP lawyer. In fact, very little of my legal training went into writing these articles. None in fact. It was basically stuff cobbled together from Google, the USPTO, and Wikipedia.

Trademarks

Trademarks are different than patents. Patents are intended to protect inventions. Trademarks are designed to protect a company's identity. You trademark items that are associated with your brand, like your logo, your slogan, or other distinctive characteristics of a company. You can also trademark other things that are distinctively associated with a brand. Burberry had a trademark on a pattern of plaid while NBC has a trademark on the three tone sound, called the NBC chimes ("N...B...C" or even more abstractly, three descending notes). The key with trademarks is that they are established by using them. They are protected to the extent that they are used. Once they fall out of use, they are unprotected. For example, if you trace the lineage of Ka-Bar back far enough you will find that the company (not called Ka-Bar then) used a trademark "Tidoute" for their knives. When the original company that owned the facilities where Ka-Bar is now closed down, that trademark fell out of use. It remained dormant until Great Eastern Cutlery started using it again. The trademark switched from one company to another because it was in use, out of use, and then in use again.

Additionally, if a trademark is so widely synonymous with a product or class of products, it can lose its protection. For example, Kleenex is a trademark on the verge of losing protection, also known as genericide (a pormanteau of generic and suicide), because it is synonymous with tissues. Trademarks do not expire and they can be licensed (like Lucas licensing Star Wars to toy companies). Finally, trademarks can be geographically specific AND industry specific. It may not be infringement for two companies to call themselves the same thing (or similar sound things) if they are in different industries, like Lexus cars and Lexis legal research services, or if they are in different parts of the country.

The story on the Internet, though there is little documentation to support this (even when you search under Sal's real name Louis S. Glesser; I search both the Patent and Trademark Office for any combination of the following: Sal Glesser, Louis Glesser, Louis S. Glesser, Eric Glesser, Gail Glesser, Spyderco, Spyderco Knives, Opening Hole, Deployment Hole, Byrd, Byrd Knives, Comet, Comet Hole, and Spyderco Hole and I got nothing, except for the Bali-Yo patent; remember though that a trademark need not be registered to be protected, so finding nothing doesn't mean that there is no trademark, just that it is not a registered one), is that Spyderco had a patent for the hole opener and then filed for a trademark once the patent expired.

It is certainly the case that within the knife industry, the hole is treated like it is subject to a trademark, as many custom makers license the hole (rumor is that the licensing fee is donated to a Denver childrens hospital because Sal is da man). For that reason, I'll assume the story is right without being able to find the documentation to support it. The Spyderco trademark is the hole as a method of opening. Their site indicates that there is a lot of associated features that go along with this, but this is somewhat unique, as trademarks are designed to protect brand identifiers and not inventions, though I think at this point the opening hole is both.

Counterfeits, Clones, and Homages

All of this background leads us to the meat of the issue--counterfeits, clones, and homages.

Before we get to that there is a rule of thumb that seems important to mention--a piece of intellectual property is valuable only to the extent that you can defend it in court. If you are small company, like Spyderco, all of the patents and trademarks in the world won't help you if you can't afford to fight the big guys in court. Take the Spyderco hole for example. There are a number of legal arguments you could make attacking the trademark. You could claim that because other holes are used as opening devices, the hole is not uniquely associated with Spyderco. You could point to the fact that a few Spyderco knives don't even have a hole (the Jess Horn for example). You could also claim that the hole as a trademark is really just an improper extension of the patent that expired. I am not sure the merits of any of these arguments, but as a lay person I can see them being something big companies could say in litigation with Spyderco and if Spyderco doesn't have the money to fight those fights, even if they are the "rightful" holder in the minds of knife knuts around the world, they lose. IP is valuable only to the extent you can protect it. The proof of this is just how aggressive and litigious Mag Light is. They have engaged in legal action with many companies for things as insignificant as wording around the flashlight bezel. But they win and they sue because they have the money to protect their IP.

Let's get one thing out of the way, right away. You cannot sue someone for making a knife that looks like yours unless they copied something that you patented or something you have trademarked. The fact that the San Ren Mu 704 LOOKS like the Sebenza is not enough. It may be a clone but clones, absent infringement, are legal. The problem with a lot of stuff out there is that it doesn't merely LOOK like the item, it claims to be the item. That is a counterfeit. A Kevin Johns Hinderer often has Hinderer's logo on it, which is trademarked, and the Hinderer Overtravel Stop, which is patented. Here is the REAL DEAL:

Both things constitute a violation of intellectual property rights. But there are two problems associated with enforcing the rights--first, Hinderer is a small company and the deep pockets principle comes into play; second, it is hard to enforce IP rights internationally. As such the Kevin Johns stuff does appear to violate Hinderer's IP rights, but there is little that can be done about it. Additionally, it is important to distinguish between stuff that infringes on IP rights and stuff that is contraband. The Kevin Johns stuff, so long as it comports with local knife laws, is not contraband--that is it is not a crime merely to possess it. I found that lots of people don't know the difference between civil and criminal actions and most IP issues are civil in nature, especially possessing counterfeit products (counterfeit money or government documents is an entirely different matter). It may be a crime to sell it, as there are laws that criminalize trademark infringement, but it is not a crime to possess it, simply because it is a true counterfeit.

And so we get to the distinctions that matter. Kevin Johns Hinderers are counterfeit--they look like the real thing and claim to be the real thing, but aren't and are not licensed copies. The San Ren Mu 704 is totally different. It is a clone (or rip off) of the Sebenza, but does not claim to be the real thing. Absent some infringement, it is perfectly legal to make and sell. It may be distasteful, but law and morality are two different things (for good reasons--you don't want my morality to govern your actions anymore than I want yours to govern mine).

Then there are the homages. The Scott Cook Lochsa is an homage to the Sebenza, albeit a much upgraded one. It looks like the original, but not exactly like it and does not claim to be the original. This is not only wholly legal, but it actually one of the ways art and design propagates.

Interesting IP in the Gear World

There are a bunch of IP rights in the gear world that are interesting. Here is my take on some of them:

Emerson Wave: The patent runs out sometime between now and 2017. After that it will be interesting to see what happens. Hopefully Ernie has a plan and perhaps he will follow in Spyderco's footsteps and parlay the patent into a trademark if he hasn't done so already. I would imagine that the expiration of the patent is, perhaps, one of the reasons why we are seeing the Emerson/KAI collaborations in 2014 (which is the earliest the patents could expire). Note also how the Demko patent on the "waveable" thumb plate seems to be very close to the actual Emerson patent. Both are patented though.

Case Sodbuster: Of all of the IP in the gear world this is, without question, the most dubious from a legal perspective. Case trademarked the name "sodbuster" but apparently the Trademark office was asleep at the switch and ignored the facts. First, the sodbuster pattern is old. It did not originate with Case, neither the pattern nor the name. The Eye Brand of Germany is likely the original user of the name "sodbuster". Nor did it ever fall out of use. Sodbusters of various brands have been made almost continuously for at least 80 years. But for whatever reason, the Trademark Office granted Case's application and now no one can say they make a Sodbuster other than Case.

Kit Carson Flipper: Well there is no way to trademark the flipper and there is probably no way to go back and patent it, but this the perfect example of what happens when an invention is released into the wild without intellectual property protections--nothing bad happens for the consumer (though I would imagine Kit would like the royalties from everyone and their mother copying his idea). I wish Kit Carson would get more money and recognition for his design, but in reality the average gear geek has benefited from the fact that the flipper wasn't patented. This is a perfect case study in why intellectual properties aren't necessarily all a good thing. Its complicated. On the one hand inventors get credit and profit from their inventions. On the other, those inventions can get stuck with one company and that company uses the exclusivity a patent or trademark creates to charge way more than the product is really worth. This says nothing for the patent troll battles that clog up the courts and stifle innovation.

Stan Wilson Bolster Flipper: Take a peek. This is the coolest thing I have seen in knives in years. Run, do not walk to the patent office, Mr. Wilson. Copy cats are looming in the offing, once they can figure out how you did this.

If you are an inventor and want to secure your property rights, there are lots of folks, IP lawyers, that can help you. There are also organizations that will buy your patents. There are organizations that will take a percentage of profits from your patent in exchange for providing defense of the patent in court. There are law firms that specialize in patent applications and different firms that specialize in patent litigation. There are similar firms for trademarks, copy rights, and trade secrets.

Hopefully this information will give you some perspective on the gear we love and how big money and big business will try to exploit IP rights as our little corner of the market goes from mom and pop to global corporations. Let's hope that the Spydercos of the world survive and benefit from the ingenuity while at the same time great innovations get into the marketplace naturally and cheaply, like the Carson flipper.

If you are interested in more looks at the business side of gear, let me know, either in the comments or by email (everydaycommentary at gmail dot com, in the usual format).