Lawsuit filed by Montblanc

[jd50ae]

Fred,

>The Complaint again asserts that three capbands can only be used by MB: pish-posh.

gary

 

ps Thanks Deirde for linking to the Complaint.

 

 

Careful fella, that's some mighty strong language.

[RevAaron]

Major pish-posh on the three capbands. Sometimes, I'm surprised MB didn't sue Sheaffer when they did the modern Balance reissues. Maybe MB will sue me for having a Swan with three capbands in thin-thick-thin next. Woohoo!

 

The capband thing is outrageous. Copyrights are abandoned when they are not enforced- and MB didn't enforce them for the majority of the life of the Meisterstruck line- which should mean that they're now worthless.

Edited December 5, 2008 by RevAaron

[PigRatAndGoat]

http://www.stylophilesonline.com/09-05/09bees.htm

How does this pen fit into the whole thing?

[niksch]

http://www.stylophilesonline.com/09-05/09bees.htm

How does this pen fit into the whole thing?

 

 

That's a very good question, because isn't this similar in nature to the pen in question?

Edited December 5, 2008 by niksch

[Ondina]

In this case it is not a repair, but a significant custom modification of the product that is being sold, with the original branding still intact

. I see more cause on the remakes of Parker 51 that we know well here ( Chinese and Argentinians...). And what about the small makers that make customs pens and as RevAaron states with good sense of humor, whose shapes resemble Mb pens?. I don't know, is just that going after a humble guy seems to me that is intending to make noise and scare a part of the market that they can get a hold of. With all the counterfeits that their pens have, they would be better off controlling their knock offs.

 

 

[OldGriz]

http://www.stylophilesonline.com/09-05/09bees.htm

How does this pen fit into the whole thing?

 

It was most likely produce with the permission of Mont Blanc... so basically it is licensed by Mont Blanc

Classic Pens who are well known for their extremely artistic work done on pens from major companies would not take the chance of being sued...

This is where, IMO, the whole nut of the lawsuit lies.... the pen in question was not licensed by Mont Blanc... in other words they did not give permission to modify the pen...

[Titivillus]

http://www.stylophilesonline.com/09-05/09bees.htm

How does this pen fit into the whole thing?

 

I would say that the CP pen should also be destroyed as it does confuse people since you can see the cap bands and star.

 

 

 

[Titivillus]

.... the pen in question was not licensed by Mont Blanc... in other words they did not give permission to modify the pen...

 

And that is the scary part..what is a modification and what is not.

 

[Johnny Appleseed]

Software's not the typical case because it's more of a license model than a purchase model. Normal purchased items have the doctrine of first sale, which is what permits video rental companies, for example. It permits after-market modification of cars. It permits me to purchase a copy of Robert Heinlein's Friday, drive over it with my car a few times, and still re-sell it as a copy of Robert Heinlein's Friday. (Believe it or not, the last is a real-life example, though I was not the one who purchased the book, quite a few people have driven over it.)

 

If I go paint my car purple-and-white stripes and add extra bling to it, it doesn't change the fact that it's a Chrysler.

 

But there is a difference between buying for your own consumption and modifying a product, and buying to modify and resell. You could potentially get in trouble for buying copies of Robert Heinlein's Friday, making your own custom, hand-painted covers, and then sell them - especially if you sold multiple copies, or advertised it as a product, rather than a "used-book" type of sale. It would depend on a lot of factors, but if cover was intended to mainly be a package around the book, and the book to be read (as opposed to a piece of a sculpture), then it becomes more of an issue.

 

Also there is a difference between buying a pen and having an artist design an overlay for it, and an artist selling pens with the overlay already on.

 

Major pish-posh on the three capbands. Sometimes, I'm surprised MB didn't sue Sheaffer when they did the modern Balance reissues. Maybe MB will sue me for having a Swan with three capbands in thin-thick-thin next. Woohoo!

 

The capband thing is outrageous. Copyrights are abandoned when they are not enforced- and MB didn't enforce them for the majority of the life of the Meisterstruck line- which should mean that they're now worthless.

 

I think that trademark rules are a little fuzzy on this line, but that seemingly broad trademarks sometimes only apply when there is an apparent attempt to copy the appearance of another product. Sheaffer would be safe with a re-issue of an old 3-band design, because they could demonstrate it was a design they used in the past and it was not copying the design of a Mont Blanc. Where Montblanc could go after someone is for designing a pen that mimics the overall shape and styling of a Mont Blanc and includes the identical pattern of 3-bands. I doubt that they would prevail in a case against any-old 3-band design, it would have to be pretty specific.

 

But I am no lawyer.

 

John

[OldGriz]

In this case it is not a repair, but a significant custom modification of the product that is being sold, with the original branding still intact

. I see more cause on the remakes of Parker 51 that we know well here ( Chinese and Argentinians...). And what about the small makers that make customs pens and as RevAaron states with good sense of humor, whose shapes resemble Mb pens?. I don't know, is just that going after a humble guy seems to me that is intending to make noise and scare a part of the market that they can get a hold of. With all the counterfeits that their pens have, they would be better off controlling their knock offs.

 

The shape can resemble a Mont Blanc.... but put that "snowflake" or something extremely similar on the top of the cap and they are coming after you...

What makes anyone think that Mont Blanc IS NOT trying to control the counterfeit market of their pens....

The big problem in that market is not the sellers, it is the producers of the pens.... you can close down a 100 sellers and they will just come back with a different name...we see it all the time on eBay....

 

As for the Parker 51 clones we see, IMO I believe that because Parker stopped making the 51 over 30yrs ago they really don't care.... and most likely the patent on the design has already run out... As long as the pens are not called Parker 51s, as I believe this was a trademark, and only referred to as copies or fantasy pens... Parker does not go after them..

HOWEVER, I would bet that if someone started to clone the 51 as it was originally made in the same colors and caps and marked them as Parker 51, the company would go after them tooth and nail....

 

I have done shows with him and really don't think Roger is all that humble.... :roflmho:

 

[Johnny Appleseed]

In this case it is not a repair, but a significant custom modification of the product that is being sold, with the original branding still intact

. I see more cause on the remakes of Parker 51 that we know well here ( Chinese and Argentinians...). And what about the small makers that make customs pens and as RevAaron states with good sense of humor, whose shapes resemble Mb pens?. I don't know, is just that going after a humble guy seems to me that is intending to make noise and scare a part of the market that they can get a hold of. With all the counterfeits that their pens have, they would be better off controlling their knock offs.

 

The Chinese remakes are a little different. I imagine some of them, with the arrow clip, could be actionable if Parker had maintained trademark status on the arrow clip, etc. However, the overall designs are covered by design patents, not trademarks, and those expire after 17 years with other patents.

 

As for other pens with the shape of MBs, it would have to be a really close copy to argue for trademark infringement. The shape of a product, again, is generally covered by design patents, and then only if it can be argued to be an orginal design. Sheaffer was able to get a design patent on the balance because nobody had ever patented that tapered design, so they were able to defend it while the patent was active. But the MB cigar-shape is pretty common. However, if you mimmiced the profile, clip and the 3-band arrangement, they could probably go after you.

 

I think MB is clearly heavy handed in this case, but they may have some grounds for an infringement claim against the sale of the pen itself. Note that Don is not mainly upset about the claim itself, as the way that MB went about it.

 

John

[georges zaslavsky]

Reminds me some horror stories I heard years ago with Rolex watches.

[RevAaron]

I think that trademark rules are a little fuzzy on this line, but that seemingly broad trademarks sometimes only apply when there is an apparent attempt to copy the appearance of another product. Sheaffer would be safe with a re-issue of an old 3-band design, because they could demonstrate it was a design they used in the past and it was not copying the design of a Mont Blanc. Where Montblanc could go after someone is for designing a pen that mimics the overall shape and styling of a Mont Blanc and includes the identical pattern of 3-bands. I doubt that they would prevail in a case against any-old 3-band design, it would have to be pretty specific.

 

Well, the magic formula seems to be three capbands plus cigar shaped pen. Pilot and Sailor moved to a two-band design after threats from MB- not sure if it went to court. But it's not like Pilot hasn't been making pens with a very similar design for decades- they didn't just start to rip off a design. Frankly, the 14x series is timeless because it's a design that has been used and reused for almost 70 years, by a number of companies.

[sumgaikid]

Software's not the typical case because it's more of a license model than a purchase model. Normal purchased items have the doctrine of first sale, which is what permits video rental companies, for example. It permits after-market modification of cars. It permits me to purchase a copy of Robert Heinlein's Friday, drive over it with my car a few times, and still re-sell it as a copy of Robert Heinlein's Friday. (Believe it or not, the last is a real-life example, though I was not the one who purchased the book, quite a few people have driven over it.)

 

If I go paint my car purple-and-white stripes and add extra bling to it, it doesn't change the fact that it's a Chrysler.

 

But there is a difference between buying for your own consumption and modifying a product, and buying to modify and resell. You could potentially get in trouble for buying copies of Robert Heinlein's Friday, making your own custom, hand-painted covers, and then sell them - especially if you sold multiple copies, or advertised it as a product, rather than a "used-book" type of sale. It would depend on a lot of factors, but if cover was intended to mainly be a package around the book, and the book to be read (as opposed to a piece of a sculpture), then it becomes more of an issue.

 

Also there is a difference between buying a pen and having an artist design an overlay for it, and an artist selling pens with the overlay already on.

 

Major pish-posh on the three capbands. Sometimes, I'm surprised MB didn't sue Sheaffer when they did the modern Balance reissues. Maybe MB will sue me for having a Swan with three capbands in thin-thick-thin next. Woohoo!

 

The capband thing is outrageous. Copyrights are abandoned when they are not enforced- and MB didn't enforce them for the majority of the life of the Meisterstruck line- which should mean that they're now worthless.

 

I think that trademark rules are a little fuzzy on this line, but that seemingly broad trademarks sometimes only apply when there is an apparent attempt to copy the appearance of another product. Sheaffer would be safe with a re-issue of an old 3-band design, because they could demonstrate it was a design they used in the past and it was not copying the design of a Mont Blanc. Where Montblanc could go after someone is for designing a pen that mimics the overall shape and styling of a Mont Blanc and includes the identical pattern of 3-bands. I doubt that they would prevail in a case against any-old 3-band design, it would have to be pretty specific.

 

But I am no lawyer.

 

John

 

This was posted on Pentrace--www.klgates.com/newsstand/Detail.aspx?publication=2061

 

John

 

[Deirdre]

But there is a difference between buying for your own consumption and modifying a product, and buying to modify and resell.

 

True, and that's the sticky point on this.

 

I think that trademark rules are a little fuzzy on this line, but that seemingly broad trademarks sometimes only apply when there is an apparent attempt to copy the appearance of another product. Sheaffer would be safe with a re-issue of an old 3-band design, because they could demonstrate it was a design they used in the past and it was not copying the design of a Mont Blanc. Where Montblanc could go after someone is for designing a pen that mimics the overall shape and styling of a Mont Blanc and includes the identical pattern of 3-bands. I doubt that they would prevail in a case against any-old 3-band design, it would have to be pretty specific.

 

Nevertheless, they either sued or threatened to sue Stipula over the 3-band design on a shape that wasn't similar. See the Novecento here:

 

http://fuzzyorange.com/images/pens4s/100_4111.JPG

 

The Novecento trim was changed to that on the ballpoint to the right: a wide, connected band with a hump in the middle. Here's a better view:

 

http://www.fahrneyspens.com/ProductImages/XLarge/p193439e.jpg

Edited December 5, 2008 by Deirdre

[ViolinWriter]

Can I buy Montblanc pens, cut the bird splat off, throw the pen away, and then glue the splat to my home made pens?

 

And offer them for sale?

 

What is the pen? When does the product stop being the product?

The "splat" is trademarked as a "splat", whether applied to a pen, a piece of paper in a magazine, the booklet that comes with the pen, or whatever. So, don't attach any MB splat to your own pen. Unless, you are perhaps hankering to be sued...

 

 

In this case it is not a repair, but a significant custom modification of the product that is being sold, with the original branding still intact

. I see more cause on the remakes of Parker 51 that we know well here ( Chinese and Argentinians...). And what about the small makers that make customs pens and as RevAaron states with good sense of humor, whose shapes resemble Mb pens?. I don't know, is just that going after a humble guy seems to me that is intending to make noise and scare a part of the market that they can get a hold of. With all the counterfeits that their pens have, they would be better off controlling their knock offs.

 

The shape can resemble a Mont Blanc.... but put that "snowflake" or something extremely similar on the top of the cap and they are coming after you...

What makes anyone think that Mont Blanc IS NOT trying to control the counterfeit market of their pens....

The big problem in that market is not the sellers, it is the producers of the pens.... you can close down a 100 sellers and they will just come back with a different name...we see it all the time on eBay....

 

As for the Parker 51 clones we see, IMO I believe that because Parker stopped making the 51 over 30yrs ago they really don't care.... and most likely the patent on the design has already run out... As long as the pens are not called Parker 51s, as I believe this was a trademark, and only referred to as copies or fantasy pens... Parker does not go after them..

HOWEVER, I would bet that if someone started to clone the 51 as it was originally made in the same colors and caps and marked them as Parker 51, the company would go after them tooth and nail....

 

I have done shows with him and really don't think Roger is all that humble.... :roflmho:

MB has had the data, including shippers, import license numbers, vendors, and even more, delivered to them on a legal silver platter, and they have done nothing. As for design patents, which do run out, (vs trademarks on containers, shapes or design features that are so intrinsically bound to the representations of the products themselves), then there is still a point where the trademark guys can still come after you for infringement. That is, if they have been diligent in policing their marks in the first place, among other things.

 

Here, we have an individual who published a picture, a journalistic function, protected by the First Amendment. It was, if the report is believed, not an advertisement, not promotion of the allegedly infringing work nor any other way an action in concert with the allegedly infringing modifier of MB pens. MB would have gotten much further had they contacted first, asked for cooperation, and done what was expedient to find and then stop the infringing activity.

 

Then again, I could be bitter after spending postage, time and resources in helping MB stop, if they wished, infringers of their pen designs. Too bad I don't still have those files, thanks to rotten movers transporting me from point A to point B. And I'm a tad exasperated by IP lawyers who go in with a Howitzer when a nice letter would likely get them better information and the real bad guys.

 

BTW, I still have one of those counterfeit Rolex watches. It doesn't work any longer, but it's perfect down to the crown. It was a lovely exhibiy in a case from long ago...

[OldGriz]

MB has had the data, including shippers, import license numbers, vendors, and even more, delivered to them on a legal silver platter, and they have done nothing.

 

I would like to see proof of that....

[Johnny Appleseed]

MB has had the data, including shippers, import license numbers, vendors, and even more, delivered to them on a legal silver platter, and they have done nothing.

 

I would like to see proof of that....

 

In reading the rest of ViolinWriters post, I think she means she sent them to MB.

 

John

Edited December 6, 2008 by Johnny Appleseed

[Allan]

I just had to stop in here and tell you all that I have the utmost respect and admiration for everyone I have seen post so far. No one flying off the handle, no one jumping to conclusions, no one bashing either MB or RC aimlessly. I just came from the discussion on another message board where it seems that jumping to conclusions and bashing is the treat of the day. It sure is nice to see some intelligent, thoughtful, and respectful conversation and discussion.

 

I tip my hat to all of you.

 

Allan

[niksch]

Allan, I've not been very supportive of you over there, unfortunately. I just came back from that post 'over there' and realized you have been trying to bring some sanity to where none is to be found. I wonder what comments will be made if the situation is resolved and RC is found to be wrong?

 

I really wonder, however, how much productivity was lost in various business organizations today (2008-12-05) because members have been following this post here and at the other place.

 

Eric

 

I just had to stop in here and tell you all that I have the utmost respect and admiration for everyone I have seen post so far. No one flying off the handle, no one jumping to conclusions, no one bashing either MB or RC aimlessly. I just came from the discussion on another message board where it seems that jumping to conclusions and bashing is the treat of the day. It sure is nice to see some intelligent, thoughtful, and respectful conversation and discussion.

 

I tip my hat to all of you.

 

Allan

Edited December 6, 2008 by niksch