I found this very interesting especially as it relates to the monthly fight over the ethics of 3rd Party transforming figures that resemble well-known characters we like.

 

100% relevant and clear as Vox usually is.

100% likely to be lost on and have no influence on the behavior of the majority of the armchair ethicists and lawyers on the board.

 

Except the entire lynchpin of this video and subject is fashion DESIGNS are deemed useful items, and are not able to be protected.

That is correct. You cannot, for example, protect a button down collared shirt. Too common, and the design is one of practicality. You cannot protect a shape of something without a patent which takes too long to file with the seasonal nature of fashion. Etc...

What you CAN protect is trademarkable characters, names, logos, or even in some case identifiable color schemes (Tonka yellow, anyone?)

In other words, it's an interesting video, and good information for people looking to understand IP law and how it applies to the fashion industry.

As for relevance? Very little. The issue with KO and 3P toys is not the same as the fashion industry. The fashion industry fights, but cannot win because their IP is not legally protected (no "shape" or physical form is without a patent). With Transformers, the likeness of characters (color schemes, name, etc...) is the same as a logo or other trademark. If you go to court, and can prove to a jury or judge that people can confuse a KO red, blue, and silver truck robot with Optimus Prime, then it's a trademark violation.

Takara/Hasbro CAN protect their IP legally, but only if they defend it rigorously. Because they are not doing so, they are actually dilluting their own brand and trademarks. Which means eventually when they do start to file claims, their own past inaction on those trademarks will bite them in the ass. Possibly.

It's a complex subject, and lots of grey areas. Grey areas because, as I often repeat, it's not a violation UNTIL that trademark claim is filed, prosecuted, and agreed upon in a courtroom. It doesn't matter what WE think. Until they pursue the protection of their brand and trademarks, there IS no trademark violation to speak of. Just a moral/ethical choice we can each make on our own without the need of slamming people over the head on the forum every 2 days or so.

Good video. Thanks for the post.

 

Once more, for the peanut gallery:

 

I enjoyed and appreciated this Vox vid, because it demonstrates once more how some knockoffs or bootlegs or whatever are not trying to be sold and resold with packaging that imitates what they replicate.

While it is a slight difference—and I am not someone who keeps toys MISB, it is important to note that not all KOs are counterfeit. Though, I also think it’s dumb to keep toys sealed up since you might have a factory fresh broken or otherwise defective figure. So, I guess I can be a little forgiving of the MIB crowd.

And, I’d been thinking about the naming of knockoffs recently after looking up the name for Dalung Master and taking a spin through CollectionDX’s catalog of bootleg toys, some of which I once had. But, some bootlegs are originals that are just simplistic transforming toys, but imitate a previous figure. And, thus, it’s possible to iterate from the outside, like this ol’ thing... Mosquito Bot

Most of all, I just “love” all that whining from tha fashionista giving his congressional testimony. Maybe it’s just my biased invective, but I don’t think he has any solidarity with the workers who actually manufacture his luxury goods, let alone the conditions under which they are assembled.

 

Keep in mind, EVERYTHING I post is from a US perspective of IP law. Japan and China are two very different places. Designs have different types of protection, enforcement is different, etc... This is something that further confuses this debate here and elsewhere. Not all of us live in the same country, or share the same value and law when it comes to IP, what it is, and how it is defended.

Here's an interesting quote, pertaining to the necessity for a company to protect themselves and their designs BEFORE the counterfeit and KO copies hit the market. This is from an article with a Japanese perspective on IP law, and toy design SPECIFICALLY.

The article itself is a good read, but I don't know much about Japanese IP laws and practices, and it's clearly a website trying to sell a service. So take what you read with a grain of salt.

Toy industry | HARAKENZO World Patent & Trademark

It is interesting in how it appears that in Japan, design elements or entire designs CAN be protected under IP law, but those rights need to be applied for BEFORE the product is introduced to market, as they are ineffective if pursued AFTER the forgeries come to market. Similar to here, but almost reversed in some ways. (similar to patent laws, but very different from how we address trademark and copyright disputes)

 

That video covers knock-offs but it isn't much related to 3P products that aren't based on an existing physical product, which are products that are neither counterfeits nor knock-offs. THAT is the fact that's lost on some of the people here who go around claiming everything 3P creates is a knock-off and/or illegal.

Such 3P products may be based on a character from a comic book or cartoon, but they are original products. They are an entire step further removed from the issue than either counterfeits or knock-offs of existing products.

And provided they do not use a trademarked name or brand logo, they are not presenting themselves as officially-licensed products of that brand/IP, which would be a matter of misrepresentation.

 

I 100% agree with your third paragraph.

I think a case could be made that (what we call) 3P TFs are extremely similar to the video’s knock-offs.
They’re built differently (if only slightly), have different physical details, but strongly *evoke* or reference the “idea” or “essence” of an original creation that someone else came up with.

All in all, unless an item is counterfeit (presenting itself as the “real thing”), there’s not a lot of legal ground protecting the original creators of a product.

 

"the original creators of the character", you mean.

Going from a static image to an actual physical product is incredibly significant and purposely overlooked by those trying to equate that kind of 3P product with knock-offs and counterfeits. While a 3P MP, like for example Willis or Gundog, homages a character from a cartoon/comic from 30 years ago, it is a distinct and unique physical product. There is no pre-existing physical product that it is KOing or counterfeiting. All the design and engineering effort is done by the 3P themselves for their unique product. As long as they don't brand it "Hasbro/Takara Transformers" or "Hound", it's essentially impossible to attack it on legal grounds. And rightly so, given they created a brand new product from the ground up.

 

Both of these quotes are related, and incorrect.

The character itself is the trademark. The name. The logo. But also - the LIKENESS. You can change the name, remove the logos, but here in the US all the IP owner has to show in a courtoom is that your red, grey, and blue transforming truck can be CONFUSED for Optimus Prime.

But that isn't to say it's cut and dry. Much like everything else in the US legal system, it needs to go to court. They need to prove such confusion in the marketplace exists (could someone buy this toy, thinking it's Optimus Prime?). In addition precedence or dilution can be argued. It's up to Hasbro and the court to decide if it is, or is not, infringement. So it's a grey area.

But those of us using this to DEFEND the IP theft are being ridiculous. WE know it's Optimus Prime. Doesn't matter what name, logo, or branding you slap on the box. We're here collecting transformers. We know the characters 3P design, we know who they really are despite names, and the first thing most of us do is slap an autobot or decepticon logo on it. So getting on a soapbox and arguing grey areas to justify something we absolutely KNOW is trademark infringement is foolish.

I prefer to use the "clearly Hasbro doesn't care ... why should I?" argument to justify my purchase decisions.  

 

That's not me. I have no interest in an IP discussion. I'm only defending the fact that the 3P products I'm describing are not counterfeits or knock-offs like the trolls try to claim, because that requires an existing physical product that the product-in-question is somehow counterfeiting or knocking off. I think we're all on the same page there, as it is self-evidently true.

 

I am more along the lines of "Habrso doesn't care and even if they did IDGAF" lol

 

Counterfeits and knockoffs are just different types of IP theft. A 3P toy, when splitting hairs between KO and counterfeit, would be a knockoff. An actual third party company would be someone like Flame Toys, making licensed toys of Hasbro characters.

Your emphasis of "physical product" seems to neglect the fact that the character itself is a trademark. You wouldn't be suing over a specific toy, you'd be suing over the likeness of Optimus Prime. To do so, you need to prove same marketplace, and the ability to confuse one for the other. That's the tough argument they'd have in court, and that's the argument people have here. But like I said, once you buy that robot and call him "optimus" on your shelf, you're basically testifying that YES, it can be confused for Optimus. So buying that 3P product is pretty much an admission of trademark infringement.

So arguing KO, Counterfeit, 3P, 4P, it really doesn't matter. It's all IP theft. And as long as Hasbro doesn't care, I don't either. Toy sales to adults on the internet at high price points is NOT the marketplace Hasbro is worried about, or sustaining themselves in. We make a bigger deal out of this stuff than they do.

 

I felt the video was very informative and interesting.
carry on...

 

Nope, my emphasis is simply to correct the false claims made from time to time on this board about certain 3P products that are not counterfeits or knock-offs.
Your continued emphasis on IP theft seems to overlook that.

We don't use the term "third party" here in the strict legal sense. You seem to be hung up on that, so it may help to remember that we're not in a courtroom here, we're on a forum where "third party" widely and commonly means something different than the correct, formal use of the term. The products discussed in this forum are, by and large, not officially licensed products. Most of us use the term "3P" to refer to the products made by companies like Fans Toys, XTransbots, etc, out of convenience. Those are the type of products I have been discussing. Products not counterfeiting or knocking off some existing physical product.

 

Here's a good article explaining how copyright and trademark MAY apply (again, all on how Hasbro protects themselves) to a 3P original toy based on a character owned by Hasbro:

Copyright in Characters: What Can I Use?

Also read up on trade dress, which would also apply in 3P situations. Especially with brand identifying characters like Optimus and Bumblebee.

Another thing to remember is Hasbro has to be able to show they are USING these trademarks (or else they lose it - like when they had to stop using the name Bumblebee because they had no toy on market, and Mattel or someone released one with that name). So, for example, a release like a 3P Jazz (using a different name, of course) would be MUCH easier to defend, since Hasbro hasn't given us a toy Jazz in those colors and with that type of alt mode in a looooong time. A release like Magic Box Optimus would be far, far harder to defend since Hasbro continuously has that character on the market in many, many forms.

 

I'm not overlooking anything. 3P IS a knockoff. Just look at your video, where they point to many Knockoffs explaining they're not counterfeits because the design is changed. That is exactly what your 3P argument is.

What we call a "KO" around here would in fact be a knockoff of a TOY.
What we call a "3P" around here is a knockoff of a character.

The important thing to realize here is that to protect a specific TOY, you'd need patents. You can't trademark a specific toy. You can copyright SOME aspects, but not many. If Hasbro starts taking companies to court, it's not going to be over patents and copyrights. It's going to be about trademark and trade dress - the characters, and their likenesses. Are we on the same page? Creating an "original work" of an existing character is trademark violation, as long as the company owning the original trademark has ESTABLISHED that trademark, is using that trademark, and can prove your original work can be confused for that character.

 

You sound convincing, however the dictionary definition of a knockoff implies it must be knocking off an existing product:

Google: "a copy or imitation, especially of an expensive or designer product."
Merriam-Webster: "a copy that sells for less than the original; broadly : a copy or imitation of someone or something popular."

It's hard to sell for less than a product that doesn't exist at all. ¯\_(ツ)_/¯

A cartoon character is not something that in-and-of-itself is sold to consumers. It is a concept and a visual image. It is not a toy they can play with or a figure they can collect. It is not itself a product in the sense required to be capable of being knocked off. Nor is a cartoon character from 30 years ago truly a popular item in today's culture even in that format. Even a character like Optimus Prime that exists in pop culture today (Bay movies, etc) looks nothing like the OP character of G1 vintage. That said, yes of course you're correct about the IP issues around the characters themselves.

But IP issues are not what the trolls come here to bait about. They want to pretend that the 3P original products are ripping off some existing HasTak product that doesn't actually exist. Which is literally why the 3Ps like Fans Toys exist: They are creating and producing products for collectors that HasTak hasn't made. Products that don't exist. They aren't copying or KO'ing an existing product. Show me the Masterpiece Hound from Takara. It doesn't exist*. They may come out with one eventually, but products like Willis and Gundog came first (and by several YEARS) and went unchallenged. If anything, the Takara MP Hound release would be more easily claimed to be a knock-off of those 3P MP products than vice versa. Except to HasTak loyalists who pinch their nose at the mere mention of 3P MPs.

*Not yet in the consumer market, though it quite possibly will in a year or two. The point stands. We could use any other example of an MP that HasTak hasn't made, which is still true for most G1 characters thanks to Takara's glacial pace of G1 MP production and penchant for repaints/reissues of old molds over creating new G1 MP products.

 

I really want to end the back and forth man, but honestly you're confusing yourself.

There is no legal argument to be made about "knockoffs". It's a slang term. Legally, it's all intellectual property laws. In your video, you saw how hard it can be to defend against a knockoff of an existing product when logos and branding are removed. This is, for us, the KO market. And yes, it's hard to argue a toy design.

So eliminate "knockoff", "counterfeit", "KO", "3P", remove all these slang or misused terms. What you have left is Trademark, and a little bit of Copyright. The characters and likenesses (colors, design choices, things like Optimus' antenna, coloring, face mask, and other ornamental design choices). Covered by trademark and trade dress law.

You keep obsessing on the "physical product that exists" part of your argument. For the last time, I'll point out that Hasbro is not going to sue Takasa Tony because "their toy is our exact design" unless they have a patent on the transformation elements. Instead, they're going to sue and say "This toy is clearly Optimus Prime, and meant to represent Optimus Prime on the market".

The further you get from the trademark (name, logo, exact likeness), the further you get from trade dress (color, ornamentation, artistic design elements), and the further you get from copyright (names to some degree, backstory, or character/story elements), the more murky and harder to argue in court it gets.

I want to be clear, as I usually am - I'm not learning about IP law because I'm into toys and KO's, and learning tangentially to that. I've been heavily invested in creating IP the majority of my life, and because of that I've always tried to keep up on IP law. Mostly copyright, and a good amount about trademark. I've sat down with IP lawyers, created brands, created content, and LUCKILY have never been in a situation where I've needed to apply my knowledge to actually defend any of my property.

And yes, the fact that I care so much about IP, know so much about IP, and still buy KO toys and 3P products makes me a hypocrite. I'm well aware, and still enjoying my toy collection very much despite my hypocrisy.