Matt wrote: >Spoken like a lawyer. To use someone else's design (or a boat they >designed--without mutually agreed compensation) as the basis for making >modifications (whether improvements or not) is theft of the time and effort >of the original designer. Interesting point since one can easily find points of departure in almost any design. I have a picture of a sambuk from Port Sudan with hard chines aft, asymmetrical hull, and skeg. The picture dates from before 1946. I don't think Matt copied the design but one can see the problem in determining what constitutes "using someone else's design as a point of departure" or simply employing certain commonly used features either singly or in concert. The courts freq uently face this problem. Sometimes what seems obvious to designers seems less obvious to the judge (or jury) who may have little or no background in design. A few buckets of body putty and one can easily disguise a hull to the untrained eye. This, of course, differs from a "splash" where a mold gets made over an unaltered boat. >While in the >past there may have been little the designer can do legally, they have had >their hard work converted to the enrichment of the person stealing their >original design. For a designer the question frequently boils down to "How much will I willingly spend to prosecute?" and "What chances do I have of winning?". Here in Canada it may cost up to $30,000 to get in the courthouse and then you have no assurance of winning. In the canoe and kayak business the royalties rarely make pursuing a prosecution worthwhile even if you have an "air-tight" case. My lawyers have always recommended sending a strongly worded letter and then, if you get no satisfaction, drop it. Surprisingly enough the strongly worded letter has worked for me. When it doesn't I take Steve Scarborough's advice and just design a new boat because it takes less time and bother. > Since the >copy-cat didn't do the mental work in the first place (and as a result is >unlikely to have nearly the same understanding of the original) it is very >unlikely that the result will be an improvement on the original. True enough when done by unprincipled builders but many designers use the work of others as a basis for their designs. The evolution of racing sailboats provides ample evidence of this. As Newton once said, " If I have seen further it is by standing upon the shoulders of Giants". Mind you, building on the ideas of others differs considerably from simple theft. > Does that formerly unique hull bottom, rib keel, >hard chine, and radical Swede-form shape look a little familiar to you? If >so, then the Max hull should look even more familiar than that one. In the cases that I know about the courts have asked, "Is the combination of features unique?" The overall design may claim a unique nature but did no other boat precede the one in question with this combination of features? You can see how these things get bogged down in one side saying "You stole my design." and the other saying "I modified it enough so it has become a new design." Yes, but my conbination is unique." So you say but what about such and such which looks pretty similar." etc etc etc The issue raises other possible problems. Consider this possibility. Builder Sleaze Boats copies your design (closely). A buyer using the design drowns and the family sues both Sleaze Boats and you arguing that your design caused the problem. You argue that Sleaze stole your design. The plaintiff's lawyer says, "So you admit it is your design? Yes, Sleaze stole the design but he stole it in good faith. He used it because you said it was a good boat. If you had not promoted the boat so well he would have used some one else's design. That he stole the design does not get you the designer off the hook for poor design work" (This is the ame lawyer who won the judgement for the lady who spilled coffee in her lap) How does the judge know it was your design? Why, you said so on the internet. Absolutely scary. Anyway, the issue poses interesting problems. How much change constitutes enough change to claim a "new" design? How would one measure it? The naval architecture business has puzzled over this for many years without much satisfaction. Cheers John Winters *************************************************************************** PaddleWise Paddling Mailing List - Any opinions or suggestions expressed here are solely those of the writer(s). You must assume the entire responsibility for reliance upon them. All postings copyright the author. Submissions: PaddleWise_at_PaddleWise.net Subscriptions: PaddleWise-request_at_PaddleWise.net Website: http://www.paddlewise.net/ ***************************************************************************
John writes: > The courts frequently face this problem. Sometimes what seems obvious to > designers seems less obvious to the judge (or jury) who may have little or > no background in design. A few buckets of body putty and one can easily > disguise a hull to the untrained eye. This, of course, differs from a > "splash" where a mold gets made over an unaltered boat. John, when you say the courts frequently face this problem, do you know of cases brought to enforce boat design rights? Or are you speaking more generally of patent and other rights? I would be interested to read cases related to boat designs. >Mind you, building on the ideas of others differs considerably from simple theft. And building on earlier design ideas was exactly what happened with the Nadgee, which as Matt noted, has different handling from the Mariner Max, and is a different boat, developed by its maker, and in no way a simple copy of the Max. > The issue raises other possible problems. Consider this possibility. > Builder Sleaze Boats copies your design (closely). A buyer using the design > drowns and the family sues both Sleaze Boats and you arguing that your > design caused the problem. You argue that Sleaze stole your design. The > plaintiff's lawyer says, "So you admit it is your design? Yes, Sleaze stole > the design but he stole it in good faith. He used it because you said it was > a good boat. If you had not promoted the boat so well he would have used > some one else's design. That he stole the design does not get you the > designer off the hook for poor design work" > (This is the same lawyer who won the judgement for the lady who spilled > coffee in her lap) Maybe in the USA, but in Australia, the example you give is quite beyond any likely outcome in a court. There are so many contributing factors to a kayak death or accident that it would be a brave plaintiff's lawyer who tried this one. Boat designers should not lose sleep worrying about such far fetched possibilities. Here, for example, is a case of sound judicial reasoning rejecting an injury claim at a sports event: http://www.ieabrokers.com.au/crowdcontroljuly2004.pdf Courts are not a pushover for any claim to get through, and appeals courts fix up rubbish. The Liebeck / McDonalds coffee spill case is so often used as an example of a supposedly frivolous claim succeeding, that it would be as well for you to look at the facts which persuaded the jury, say here: http://www.kentlaw.edu/classes/rbrill/TORTS-FALL2002/evening/sup_mat/coffee.html Read that and see if you still suffer the same litigation paranoia. Cheers, PT *************************************************************************** PaddleWise Paddling Mailing List - Any opinions or suggestions expressed here are solely those of the writer(s). You must assume the entire responsibility for reliance upon them. All postings copyright the author. Submissions: PaddleWise_at_PaddleWise.net Subscriptions: PaddleWise-request_at_PaddleWise.net Website: http://www.paddlewise.net/ ***************************************************************************
Jackie: The examples you gave of shakedown suits as at http://www.bizjournals.com/sacramento/stories/2004/02/02/editorial3.html seem to be a particular problem in California, not a widespread situation, thankfully. Reading these examples, I wondered why the small businesses threatened with frivolous actions, or their insurers, don't just get some spine and stare down the threat. Hopefully this situation is not directly related to any kayak manufacturer or retailer in California. Have you heard of anyone involved in the commercial side of canoes/kayaks facing a "shakedown" suit? Are shakedown suits possible anywhere else in the US? I won't guess any further as to the law outside my jurisdiction, but I remain confident that the hypothetical situation suggested by John would not get a plaintiff anywhere in Australia. Doug: "Deep brace: - - What we all do while holding onto the left and right chair arms when clicking on a post that contains the signature of a certain litigious non-syncretistic individual from down-under. :-)" I'm sure you can find the delete button pretty quickly these days! I don't know about non-syncretistic (so I had to look it up). Let's syncretise against the common enemy of nonsense and unchallenged received wisdom. Cheers, PT *************************************************************************** PaddleWise Paddling Mailing List - Any opinions or suggestions expressed here are solely those of the writer(s). You must assume the entire responsibility for reliance upon them. All postings copyright the author. Submissions: PaddleWise_at_PaddleWise.net Subscriptions: PaddleWise-request_at_PaddleWise.net Website: http://www.paddlewise.net/ ***************************************************************************
> I'm sure you can find the delete button pretty > quickly these days! I don't know about > non-syncretistic (so I had to look it up). Let's > syncretise against the common enemy of nonsense > and unchallenged received wisdom. > > Cheers, PT What, no nonsense or unchallenged wisdom? That would silence world/national/local politics, world religion, most of Paddlewise, and all my drinking buddies. How fun would that be? :-) Doug Lloyd Victoria BC *************************************************************************** PaddleWise Paddling Mailing List - Any opinions or suggestions expressed here are solely those of the writer(s). You must assume the entire responsibility for reliance upon them. All postings copyright the author. Submissions: PaddleWise_at_PaddleWise.net Subscriptions: PaddleWise-request_at_PaddleWise.net Website: http://www.paddlewise.net/ ***************************************************************************
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