RE: [Paddlewise] Nadgee, Max, Boat Copying

Peter Treby [mailto:ptreby_at_ozemail.com.au] wrote:

>>>>>>>This thread is running several issues, the three I
want to pick up being:

1.    The general protection of sea kayak designs,
or lack of it,<<<<<<<

It is my understanding that new designs can apply a design patent but older
designs (before the new law was passed) have no real protection at all.
Their is nothing I can legally do about it, but that doesn't mean I have to
shut up about it, does it?  A Nadgee competitor who has seen both boats
firsthand even offered to pay for an ad in Oz exposing the Nadgee as a copy.
I did not take him up on his offer because I have sold only a few kayaks in
Oz and did not consider the Nadgee as competition unless it started showing
up in my markets. The builder convinced me that wasn't likely to happen.

>>>>>>2.    The specific instance of the Nadgee vs.
Mariner<<<<<<<

You have either been mislead or are trying to mislead the readers about
this. Amid all this lawyer mumbo jumbo and misleading implications you
offer, did you ever say absolutely that the Nadgee builder did not use the
Max lines from Sea Kayaker magazine as his basis for the Nadgee Expedition's
hull? Did you ever say that said builder didn't harden the chines on his
prototype upon learning that the Max's chines were much harder than those on
his prototype? If you have been mislead by the builder, I suggest you ask
around to find others who might be in the know about this before continuing
to deceive Paddlewisers.

>>>>>3.    The side issue of lawyer bashing. Commentary
on this one is leading away from sea kayaking
issues, so I won't fuel the fire, but I do get
annoyed at idle snipes at lawyers. As Gordin
pointed out, people are prone to casually slag off
at lawyers in general, then rush to their own
lawyer when trouble strikes.<<<<<<

Lawyers are paid to make a good case for their client, not to discover the
truth. In fact, if the truth is inconvenient for their client the lawyer
does everything they legally can to obscure that truth (or to make a good
case that it doesn't really matter). Many become very good at it. I
compliment you on your legal skills, but why don't you cut the B.S. on
Paddlewise. I'm talking about the hull of this kayak. How the deck has been
changed or the cockpit sizes differs etc. etc. is just so much obfuscation
of the real issue.

>>>>>>>>Nadgee vs. Mariner, and general boat design
protection:

>>>>>>Message: don't bitch about your imitators, outdo
them.<<<<<<

I couldn't agree more.


>>>>>>>Although the best way to compare would be placing
a Nadgee beside the closest Mariner design and
measuring<<<<<<<

No, the best would be to take cross sections of both kayaks and match them
up. It is easy to make a kayak longer or shorter, just by increasing or
decreasing the distance that you put those cross sections apart.

>>>>>>I have no doubt in my mind that the
Nadgee is so different as to be a different boat,
and not so close to any Mariner as to be a
thoughtless ripoff.<<<<<<

You should do a little more research before you loose your ability to doubt
anything.

>>>>>> The rest of the boat is very different. It has three
bulkheads, VCP hatches, a day hatch, a fitted foot
pump, perimeter decklines on the foredeck, an
offset rear oval hatch to allow the spare paddle
to be fitted and left in place, a much smaller
cockpit opening, recessed deck fittings.<<<<<<

All true, but the hull design is what was ripped-off.

 >>>>>>The hull
does not have a distinctive ridge or runner like
stern keel, rather it is faired into the hull
shape.<<<<<<

That is an outright lie. However, the very distinctive ridge or runner in
the stern quarter is a little narrower on the Nadgee. Very likely this is
because the Sea Kayaker cross sections which were copied weren't quite
perfect so rapid changes (like hard chines) aren't rendered well. You
obviously haven't seen a Max, the runner is also blended into the hull. In
profile the distinctive runner on both kayaks is almost identical, very
little rocker and then the runner curves up quickly near the stern and ends
(out of the water) in a T shape in both kayaks. Some Mariner models (Max,
Express, & Elan) and the Nadgee are the only two kayaks in the world that
I'm aware of (and I'm aware of most of them) that look like this.

 >>>>>>Whatever variations the custom-built
Nadgees have, including rudders on many, custom
fitted bulkheads and variations, they fit
Australian seaworthiness standards, and are
designed to do this. No Mariner boat fits these
standards, the conspicuous problems being lack of
a hands-free pump, and no decklines around the
foredeck.<<<<<<<

How did these become "problems" rather than differences? The foot pumps I've
tried in kayaks all ended up giving me cramps in my foot or calf. There are
deck lines on the foredeck of all our kayaks.

>>>>> I expect Matt to say these are mainly
fit-out differences, but when they are all built
in, they add up to making a different boat. A boat
is not just a hull shape, and in any event, the
Nadgee hull shape diverges from Mariner boats.<<<<<<

Trying to have it both ways again are we?

 >>>>>It was never intended by its designer to be a copy of
any Mariner boat. His design process was paper and
pencil, build a test boat, modify it, refine it,
and after lengthy testing, arrive at the Nadgee.<<<<<

So that's how he blew up the cross sections from the magazine. Was it an
overhead projector he used to project them onto the paper so he could trace
them with a pencil at near full size? Well no, it was actually a copy
machine with a zoom function. So then just how did the pencil get used?
Why don't you ask to see the original set of cross sections he drew with his
pencil, blow up the Sea Kayaker cross sections with an overhead projector
and see if they are the same? You might question him in your lawyerly
fashion about the basic process of drawing the lines of a boat beginning
with the ideas in his head and then lofting and fairing them. I'll bet you
could nail him to the wall in court with those kinds of questions because
the odds are he can't tell you because he never did it.

>>>>>>He has lately stated that he has never seen a Max
in the flesh, and only seen two pictures of the
Mariner Max in Sea Kayaker, and one of its hull on
the Mariner website, only after finishing the
Nadgee. I wonder if your attitude hasn't changed
since you passed on the message to "wish him luck"
(circa 1995)?<<<<<<<

I know of no picture of the Max hull ever appearing on our website. Are you
confusing this with the XL picture? 1995 was the year the Max was reviewed
in Sea Kayaker so the Nadgee builder couldn't have even started building the
prototype until then as he didn't have any plans yet. I first saw the Nadgee
in 9/2002 and believe it wasn't in commercial production until 1999. I
didn't paddle it until 9/03. I first tried to contact the builder in Dec.
2002 and he finally responded in Jan of 2003.
You are right about how many pictures he saw before he started though, that
would be the top view and the profile view in the Sea Kayaker review (along
with them was the all important cross-sections he used that you have
carefully avoided mentioning here). He would never have been able to make a
good copy looking at pictures (or even looking at the boat itself and just
taking a few measurements). If you want to make a good copy you need to
either splash the hull (make a new mold directly from it) or, if you don't
have the hull to mold, the next best way is to start with the cross
sections.
My attitude hasn't changed and I don't believe I wished him luck at the time
(only "a good new year"). I no longer have any good reasons, that I can see
now, not to talk about it (as I did have then). I'm about to retire so it
won't likely be my problem even if it is imported. At the time I was in
contact with the Nadgee's builder I hadn't yet paddled the Nadgee to
discover that it wasn't as good as I had imagined it would be, while looking
at the hull, before I paddled it (and there seemed a real risk I might be
having to compete against my own design in our marketplace). I chose to stay
on good terms with the builder so that I might become the distributor if it
was going to be imported to the U.S. Much like I chose to stay on good terms
with the builder of my kayaks (NWK at the time), even though we didn't like
what they (the previous owners of NWK) were doing to compete and had there
been other good alternatives readily available to get as good or better
hulls and decks built locally we would have probably taken our business away
from them far sooner than we eventually did.
Remember, I didn't bring this subject up out of the blue on Paddlewise. I
had realized from what you (Peter) were saying in the kayak "trim"
discussion about your own kayak meant that your kayak was likely a Nadgee
and therefore would be just like my Max in regards to maintaining its trim
when adding a gear load (and therefore your trim finding method wouldn't
even work correctly even for you because of that). Actually, it looks to me
that you are a very competitive personality type (and have certainly found
the right occupation--were you not also a competitive--class 14 level was
it--rock climber as well?). I'd guess that not liking to be shown to be
wrong in public, you chose to drop that trim discussion abruptly when you
realized you were wrong and then chose to attack me, with all your lawyering
skills sharpened, on a different front at the first opportunity. Steve soon
provided that opportunity when bashing sliding seats, probably in
retaliation for me pointing out that skegs in general had a thousand times
the failure rate of the sliding seat (when someone lumped them together as
both being failure prone mechanical devices). Although you had never seen a
sliding seat you went for the jugular anyway and I recognized the lawyer
type tactics and correctly guessed your profession.

>>>>>>I am surprised to hear you (Matt) claiming that
you would be upset at a Nadgee created in your
market, when you have apparently done little about
NW Kayaks, a couple of suburbs away from you. NW
Kayaks hull design method, filling your mould with
foam, hacking into the foam, then creating a boat,
is closer to a flop mould ripoff than a designer
in Australia using a SeaKayaker review along the
way to creating a his boat.<<<<<

While the Escape was originally our design it was inadvertently changed some
(don't paint a plug black after putting a bunch of shrinkable filler on it
and leave it out in the summer sun) in the plug fairing process by NWK and
they owned that model's mold and had a license to sell that model to anybody
they wanted. So you are wrong, that wasn't our mold they filled with foam. I
think my previous paragraph explains why we did little about "flattery" from
NWK even though we would have liked to many times.

>>>>>The Nadgee's designer
is no crook in this or any other respect. He is a
hard working craftsman who makes high quality
boats, and who has developed a number of very
practical new features on his boats, not seen on
yours, and which, if both boats were available in
the same market, would make me lean towards the
Nadgee.<<<<<<

Did he start with the Max lines or not? Did he pay for them if he did?
Yes, if you never paddled both of them (like I have) you might well lean
that way. Your loss for making decisions without more evidence.

 >>>>>>Why don't you adopt these features for
your boats? I would be surprised if Mariners
fitted with bulkheads, day hatches, thick
perimeter decklines, and a good foot pump, did not
sell, and maybe very well. Look at how many sea
kayaks with the three hatch arrangement are
selling. It is a good, practical arrangement. The
addition of these features to the type of hull you
have developed, a rudderless hull that works,
creates a new and better boat.<<<<<<

Day hatches are a fad, but now that they have become popular (and many
manufacturers have jumped on the bandwagon) many more users are discovering
that while it looked to be a good idea on paper that third bulkhead severely
impacts their useable storage space (and many who have them have told me
they don't like them). I might sell more kayaks with them but I wouldn't be
doing my customers any favors by doing so. Recessed deck lines are hard to
get a hold on because they are pulled down into the deck every few feet. I
also dislike the bumps the recesses make in the storage space and especially
in the foot area of many kayaks (more so when a nut to hold the fitting in
the recess also sets on top of those big inward bumps). In general recessed
fittings are not as strong as the nylon eyelets we use and they can't
usually be repositioned (since they are in the mold) to customize the deck
arrangement for an individual customer.
The bow painter on our kayak functions as a far easier to grab deck line
(than a recessed one). We can (or the customer can later) easily add
(unnecessary in my opinion) perimeter deck lines to the bow for any customer
that wants or needs them. I don't like cramps in my foot or legs when
kayaking.

>>>>>>>You say you have no problem with someone making a
kayak like the ones you have designed. So your
objection is really that they shouldn't do this by
the easiest method, say by flop moulding (=
splashing a hull). Like whether a boat is a copy
or is sufficiently different to be regarded as a
new boat design, we are talking about a question
of degree and asking what constitutes an unfair
copying method. Would you object if a boat
designer, admiring your designs, looked at the
hydrostatics supplied on your website or in
Seakayaker, then arrived at an identical hull
shape to a Max without enlarging the lines in a
photocopier? I find this sort of fine
discrimination about the method of take-off a
little artificial and unreal. It is easier to say
either that a boat shape has legal protection, or
it does not, and if not, anyone may copy it, by
whatever method they choose. At the moment, it
appears there is no legal protection, so free for
all applies. You win if you still make the best
boats and out compete the mimics. That situation
ends up with greater potential for the best boats
to be developed.<<<<<<<

I might not like it if a competitor made a kayak nearly identical to one of
mine by your proposed method. In a sense if he was able to get it identical
(highly unlikely) I'd say he certainly lacked any originality but at least
he didn't also steal our considerable labor in lofting and fairing the hull
as well but did his own. The fact is that very few would be capable of
copying a design accurately by your proposed method. Even if they did all
the physical work themselves (other than the conceptual and experimental
work we had done for them) if the kayak looked nearly identical most of the
public would assume that a hull had been splashed and also assume the
copy-cat was a crook. That is why most design crooks make cosmetic changes
to the core design to try to disguise its true origins. most of the public
is fooled but a designer knows his design intimately and can still recognize
it in the copy.
I disagree with your last sentence. What fool is going to put in years of
work developing a product that he knows will just be ripped off by some big
deep pocket company if he is lucky enough to make it a success after all his
hard work. If the originator doesn't proceed then everyone loses.

>>>>>>In a wider sense, all progress is based on what
went before. Matt didn't have to invent the naval
architecture principles laid out by Froude from
scratch, nor the mathematical methods used in
calculations, etc. No doubt Matt can say that he
has had a considerable hand in applying these to
sea kayaks, but his designs rest on a whole body
of prior knowledge.  The complaint is really,
"Please protect my bit of originality from
competition". There is a good public policy reason
for some protection of highly original ideas: to
give back some return for the costly investment in
developing those. But even patents and copyright
don't last forever. I think originality which
falls short of very high level originality, should
be open to copying and improvement, for the
competing public policy reason that competition
promotes better and better designs. The real
protection is to out-compete the clone factories.<<<<<

After his closing arguments the defense rests. Yes, copying and even
splashing may all be legal, but it is not ethical, and you know it (but
chose to take the case anyway).

Here is a website that says it is copyrighted to us and implies that the
reader who found it by typing "Mariner Kayaks" into Google has arrived at
our website. We had nothing to do with it. Is it legal? I don't know. Is it
a fraud? You bet. A few years ago I complained (but just try to figure out
who is really behind this) and sent notice of it to several other
manufacturers who were also effected (bigger companies that probably had
lawyers on retainer who might convince them to stop this sort of thing). I
just checked. Nothing has changed.
http://www.navydiver.net/inflatable-kayaks/Mariner-Kayaks.html

Matt Broze
www.marinerkayaks.com
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