The Energon Pub

I'm under no illusion that this may degenerate into the typical butting of heads and clashing of opinions, however I do feel it needs to be brought to the attention of all who have strong feelings one way or another. And yes I know that there will be those who won't change their opinions even if contradictory evidence was found on The Golden Disk but if a few could be better educated on the subject then who knows how it could benefit future views and discussions?

For those that do not know, NATO-BOT was one of the first ever to make and sell TF accessories, first for Alternators, then he made an Animated Prime Axe and a kit to turn Universe Roadbutster into something slightly more G1-ish. I'm not sure what he's up to these days but I take his words with more truth than most on these boards who weigh in with opinions (my own included).

Context for his posting can be found here

NATO-BOT wrote:Ok, so here's two cents from some one with a little experience with this particular subject. When I started proposing my BT/ALT add-on kits waaaayy back in the day before there was a Fansproject (2004), I was known as NATO2469 over on TFANS, I was among those who jump started this whole conversation when I swore up and down that I would eventually produce my BT/Alt Ironhide. I read quite a lot on trademark and copyright law, as well as a few books on the toy industry specifically. And I'm sorry to tell you but Scaleface is right. With the exception some of the strait mold copies (MP Prime and seeker KOs etc.) there is no IP infringement being done here. So long as the design is at least "15% different" and the name is not so close that it can be confused with Hasbro's IP it cannot be considered trademark infringement. Copy right only deals with the printed page or things that could be printed in the cases of digital media (and must be exact copies). Patents only effect ideas and processes and are very hard and time intensive (and thus almost never sought in the toy industry). Hasbro would have no legal claim, on FP and most of the other 3rd parties.

Since then I have learned that Hasbro considers the 3rd parties as "direct competition" not IP thieves. So take that for tidbit for what it's worth.

The link given for the MLP KO game shows an obvious use of exactly the same designs used the official Hub show (including hair, face shape etc.) had they designed their own little brightly colored ponies instead of using the show's ponies with different cutimarks there wouldn't be a problem. There are plenty examples of pink and purple pony toys out there that Hasbro has no legal claim on (including some with frilly designs on their flanks).

I can see his point and it explains a lot.

But I do wonder about products like IT's Quints. They're obviously based on the Quintessons. Is the lack of an official toy really preventing Hasbro from suing them? Are the Quints, either Arcee, or Hegemeon really 15% different than Hasbro's designs?

Gauntlet101010 wrote:I can see his point and it explains a lot.

But I do wonder about products like IT's Quints. They're obviously based on the Quintessons. Is the lack of an official toy really preventing Hasbro from suing them? Are the Quints, either Arcee, or Hegemeon really 15% different than Hasbro's designs?

Yes, completely, Hasbro's only golden ticket are the names.
But if you changed Arcee, to Arrcee, then it's completely different law wise.

The above is 100% right, unless you directly copy a product or figure, you are not in violation.

even iGear seekers, Enough is different from any current product or item that it's breaking no law.

People who think this is all infringement, have of course never payed attention to Japanese toys, where everything is robots, transforming, mecha, cars, planes, trucks.. it's all the same crap, other then a name, a exact character, and a license.

Bandai has a new line of transforming cars, that includes a purple GTR.
same as Alt. Bludgeon, is Bandai a 3rd party? Hell no!
Yamato and Bandai have been making Transforming Valkyries since Diaclone, does that make them KO's? the hell?

Add-ons have zero issues with the Law, they don't even infringe on anyone.

If anything iGear, FansProject, BTS, TFC, PE and the like are just smalltime, slightly annoyances in competition with Hasbro.
Until they hit a retail store, it's not competition.
The Reason they would not want them at a TF convention, would be simply
they are not under the "Transformers" banner. If I was Hasbro, and paying for the convention, I would not want competitive products there.
It's like taking a Star Trek to toy to a Star Wars convention.

Gauntlet101010 wrote:I can see his point and it explains a lot.

But I do wonder about products like IT's Quints. They're obviously based on the Quintessons. Is the lack of an official toy really preventing Hasbro from suing them? Are the Quints, either Arcee, or Hegemeon really 15% different than Hasbro's designs?

I'm not sure either. Based on the quote above, a case could be made that since the toys mimic nearly exactly animation designs that they could be confused for official Hasbro designs and thus could possibly be counted as IP theft. However I'm just grasping at straws since I'm neither a lawyer or even remotely educated on toy law.

So ... Apple suing, and subsequently winning against Samsung because the Galaxy was a rectangle with round corners just like the iPhone and people could get confused ... was because the Galaxy wasn't 15% different?

Frankly I think the only real winners here are the lawyers.

Burn wrote:Frankly I think the only real winners here are the lawyers.

I think we can agree on that.

Burn wrote:So ... Apple suing, and subsequently winning against Samsung because the Galaxy was a rectangle with round corners just like the iPhone and people could get confused ... was because the Galaxy wasn't 15% different?

Frankly I think the only real winners here are the lawyers.

Burn, nail meet head..

Lawyers always win..

Trademark infringement involves the determination of the probability of confusion by consumers between two marks. Similarity of appearance, phonetics, and meaning as well as channels of trade, direct competitiveness, strength of the famous mark, and evidence of actual confusion can determine trademark infringement.[1]

but...

A "key fact about trademark law is the difference between the ™ symbol and the ® symbol. The former requires no formal paperwork. You literally just add ™ to claim it. The latter requires an application with the United States Patent and Trademark Office that should include proof of sustained and exclusive use of the mark."[1] Using the "TM" mark does not actually confer any legal rights in federal law, but it may nevertheless help a business acquire secondary meaning concerning a specific mark.

Heh


also..

Looks like we have all been Using IP wrong..

Although most modern copyright systems do not treat copyrighted or patented materials in the same way as real property, the term "intellectual property" has gained prominence. For more on this subject, see "intellectual property"

IP is just the blanket of CR's and R's, and as shown before, TM doesn't hold a candle in the courts.

For the record, my personal dislike of 3rd party stuff isn't the whole "They're stealing from Hasbro", it's the fact that they're basing their ideas on characters created by someone else. These guys are clearly talented and i'd love to someone step up and develop their own line with absoloutely no similarities (other than the transformation CONCEPT) to Hasbro's stuff.

The truth is there is no law in writing that can satisfy either side of this debate. It's basically the Roe vs. Wade of the Transformers fandom. Any law ever placed would be dodged with loopholes like anything else that passes congress.

Rated X wrote:The truth is there is no law in writing that can satisfy either side of this debate. It's basically the Roe vs. Wade of the Transformers fandom. Any law ever placed would be dodged with loopholes like anything else that passes congress.

Absolutely. Business is business and 3rd parties as well as straight KO companies just wanna make some money by meeting some market demand that they perceive to exist. So even if the laws were clearer/more well defined and even allowed Hasbro to go beyond just suing the KO companies/producers and actually go after companies like TFC and FP, it wouldn't matter. 3rd parties and KO companies alike would find a way through.

It is what it is. I buy mostly Has/Tak Transformers, but I do have a few KO's and several 3rd party figures so I can't say anything against it. I do think that of all the 3rd party companies I'm aware of that FP is probably the one that, at least for the most part (i.e. aside from Defender), is the least borderline when it comes to anything one might even consider IP theft or even perceived theft of concepts (even theft/inspiration which wouldn't be enforcable anyway legally). Their take on things has been evolving a lot with their more recent releases which really don't look much like anything I'm aware of that Hasbro has ever produced in any of the TF lines. Of course, that also means that some fans may not see what they're creating as being suitable stand-ins for TF characters, but that's more a question of taste and perception I suppose (kinda like the whole Herc vs Giant debate, it's all opinion).

I still have a hard time believing that Hasbro/Takara can't do anything against the Impossible Toys line. I mean, I can see it being not worth their while, but being powerless? Those things are almost exactly like the animation model.

Mkall wrote:I'm under no illusion that this may degenerate into the typical butting of heads and clashing of opinions, however I do feel it needs to be brought to the attention of all who have strong feelings one way or another. And yes I know that there will be those who won't change their opinions even if contradictory evidence was found on The Golden Disk but if a few could be better educated on the subject then who knows how it could benefit future views and discussions?

For those that do not know, NATO-BOT was one of the first ever to make and sell TF accessories, first for Alternators, then he made an Animated Prime Axe and a kit to turn Universe Roadbutster into something slightly more G1-ish. I'm not sure what he's up to these days but I take his words with more truth than most on these boards who weigh in with opinions (my own included).

Context for his posting can be found here

NATO-BOT wrote:Ok, so here's two cents from some one with a little experience with this particular subject. When I started proposing my BT/ALT add-on kits waaaayy back in the day before there was a Fansproject (2004), I was known as NATO2469 over on TFANS, I was among those who jump started this whole conversation when I swore up and down that I would eventually produce my BT/Alt Ironhide. I read quite a lot on trademark and copyright law, as well as a few books on the toy industry specifically. And I'm sorry to tell you but Scaleface is right. With the exception some of the strait mold copies (MP Prime and seeker KOs etc.) there is no IP infringement being done here. So long as the design is at least "15% different" and the name is not so close that it can be confused with Hasbro's IP it cannot be considered trademark infringement. Copy right only deals with the printed page or things that could be printed in the cases of digital media (and must be exact copies). Patents only effect ideas and processes and are very hard and time intensive (and thus almost never sought in the toy industry). Hasbro would have no legal claim, on FP and most of the other 3rd parties.

Since then I have learned that Hasbro considers the 3rd parties as "direct competition" not IP thieves. So take that for tidbit for what it's worth.

The link given for the MLP KO game shows an obvious use of exactly the same designs used the official Hub show (including hair, face shape etc.) had they designed their own little brightly colored ponies instead of using the show's ponies with different cutimarks there wouldn't be a problem. There are plenty examples of pink and purple pony toys out there that Hasbro has no legal claim on (including some with frilly designs on their flanks).

I've been saying this for years. As long as the molds are unique Has/Tak has no legal leg to stand on, they don't own a patent on transforming toy robots. I've also pointed out that Has/Tak does the same thing with many of their alt modes. For that matter Classics Jetfire is a third-party Valkyrie, in this case Has/Tak is the third-party. I wonder if there was bunch of Macross fan rage when that thing debuted?

This is a no win debate because some people out there are more Hasbro fans then they are Transformer fans. If Hasbro buys the sesame street line, they all start collecting Big Bird. If Hasbro sells the Transformers franchise tomorrow, the sell their collections and roll with Hasbro like some fake ass corporate zombies.

Rated X wrote:This is a no win debate because some people out there are more Hasbro fans then they are Transformer fans. If Hasbro buys the sesame street line, they all start collecting Big Bird. If Hasbro sells the Transformers franchise tomorrow, the sell their collections and roll with Hasbro like some fake ass corporate zombies.

I don't think you actually understand other people's position on TFs.

But it IS the final word on things like City Commander and whether they're "right" to make 3rd party Transformers. At least legally. Although I still question whether it's the final word on the Impossible Toys type stuff.

I'm sure a lot of people will probably take issue with this, but I really think it just boils down to a pricing issue. I think if the third-party stuff was on par with Has/Tak pricing we wouldn't see all the rage. I think we run into a lot of "I want it, but I can't afford it, therefore I hate it". I know that's not the case for everyone out there who isn't a fan of the third-party movement, but I feel it's a major contributing factor to all the controversy.

El Duque wrote:I'm sure a lot of people will probably take issue with this, but I really think it just boils down to a pricing issue. I think if the third-party stuff was on par with Has/Tak pricing we wouldn't see all the rage. I think we run into a lot of "I want it, but I can't afford it, therefore I hate it". I know that's not the case for everyone out there who isn't a fan of the third-party movement, but I feel it's a major contributing factor to all the controversy.

agreed, It's more Jelly then an issue with legality, which it's obviously not.

Gauntlet101010 wrote:I still have a hard time believing that Hasbro/Takara can't do anything against the Impossible Toys line. I mean, I can see it being not worth their while, but being powerless? Those things are almost exactly like the animation model.

Doubtful Hasbro renewed the TM's and R's for random characters in the 1984 Movie, and into the 4th season before canceling the series. I think it's safe to say, Hasbro has no intention of ever making Cartoon accurate versions of the non-transforming characters from the vintage show.

Oh, I don't think Hasbro will ever make toys out of them or act on IT. I'm just of a mind that they must be able to do something if they chose to.

Are random designs up for grabs from anyone? While I might be able to buy that (somewhat) you also have Arcee and the Quintessons, which have been used subsequently in posters and comics after the movie. And Hegemon who is clearly based off G1 Megatron's animation model. And much moreso than something like Herc or Giant. Maybe his gun mode and transformation sequence protects him? Hm.

Gauntlet101010 wrote:

I don't think you actually understand other people's position on TFs.[quote]


Maybe I dont but Im sure you can enlighten me...

However, I can state my position on Transformers. I consider Transformers to be a cast of ever evolving characters that anyone can add on or homage it's existing 25+ years of fiction. I am a fan, not a stockholder. I dont see it as a "brand" or a "franchise" because those are corporate terms that have no relevance to being a fan. It's like saying every Penn State fan must be a Sandusky supporter because he was part of the team at one time. I dont collect G.I.Joe, Star Wars, My Little Pony and I have no personal connection to Hasbro as a company. They could sell any one of these "franchises" at any time. So my loyalty is with the Transformers characters, not whoever currently owns their copyrights or finances their most current reincarnation. It's hard to defend a bunch of guys in business suits who were probally in high school when G1 was born in 1984. The CURRENT Hasbro CEO's didnt create Transformers, they just inherited it.

Yeah, I get your position. But either you don't understand other people's or you're just being insulting on purpose.

Gauntlet101010 wrote:Yeah, I get your position. But either you don't understand other people's or you're just being insulting on purpose.

Im not sure who Im insulting other than a few Hasbro CEO's who profit on something they inherited because they werent with Hasbro in 1984.


However I honestly dont understand the position of "Pro-Hasbro" Transformers fans who are "Anti-Third party". I know you are not one of them, however maybe you can shed some light on what makes them tick...

I'm insulted by it, and I love 3rd party toys.

It's not about money or corporate CEO's and to use your analogy of a sports team or college, 3rd parties and KO's alike would be like a bunch of guys dressing up as players from Penn State but aren't actually from Penn State, just a bunch of guys pretending to be.

That's the difference between 3rd parties and actual licensed products. It doesn't matter how much they homage/look like something, unless they are actual licensed "Transformers" products, they are NOT in reality Transformers, they are transforming robot toys (likely inspired by) the Transformers franchise.

That's not a bad thing either in my opinion. Thanks to both 3rd party and KO companies I've been able to add pieces and characters to my shelves that the actual Transformers franchise (be it Hasbro, Takara or anyone who got a legal license for their characters/franchise) would have never created or provided to fans like me who wanted them.

Purple seeker? Hasbro: "NO!" Takara: "NO!" CHMS: "Sure, here you go !"

Same with the third party Devastators and everything else. I look at them on my shelf as part of MY Transformers collection, but I am NOT delusional enough not to realize that in reality they are not actual Transformers. They are transforming robot toys that happily resemble characters from the official Transformers franchise which I'm a fan of.

I am not anti-3rd party, or even anti-KO (I did buy a KO Henkei Wildrider after all ), but I also know the difference between what makes something an official piece of branding/licensed product and what makes it a 3rd party, unlicensed homage or knockoff of something else.

What I choose to spend my money on and put on my shelf is my business, but don't assume that all 3rd party fans (such as myself) think like you do, because we don't. And if I were kissing the corporate butt of Has/Tak, then I wouldn't have spent the thousands (yes, I said THOUSANDS) on 3rd party toys and KO's that I have and even more that I plan to in the future.

Gauntlet101010 wrote:Oh, I don't think Hasbro will ever make toys out of them or act on IT. I'm just of a mind that they must be able to do something if they chose to.

Are random designs up for grabs from anyone? While I might be able to buy that (somewhat) you also have Arcee and the Quintessons, which have been used subsequently in posters and comics after the movie. And Hegemon who is clearly based off G1 Megatron's animation model. And much moreso than something like Herc or Giant. Maybe his gun mode and transformation sequence protects him? Hm.

Not at all, Megatron will never be on retail shelves as a accurate handgun, Hasbro wouldn't need to worry about confusion between their Megatron, and "Hegemon". You don't even have to get further into the other differences.
Unless they have a product, or character they are currently using, who looks like a grey Walther P38, Hegemon stays clear of legal trouble.

Arcee - well that's debatable, if you had a animated Arcee, next to say iGear's, then its possible to be confusing to a consumer, as they are both white and pink female robots to futuristic cars. Herc and Giant, are too broad of a range, but assuming Hasbro ever puts out a less poopy Devy that uses g1 style modes, in green, then you might have had a problem, but once again, they don't have any products like that out.

One thing I think we don't understand is, TM and R, is only for current items.
Hasbro can't walk into court and say "our Megatron from 20 years, that we will never sell again, looks like this Hegemon fellow who isn't available anywhere but some e-tailers"

Now.. iGear comes out with a Purple KO of Weaponizer Prime, called "Derpimus Prime" now you have a issue.

This is a no win debate because some people out there are more Hasbro fans then they are Transformer fans. If Hasbro buys the sesame street line, they all start collecting Big Bird. If Hasbro sells the Transformers franchise tomorrow, the sell their collections and roll with Hasbro like some fake ass corporate zombies.

This is insulting to people who prefer official TFs. You're calling them zombies and belittling their love of the franchise because you don't agree with how they perceive the franchise. Without any provocation too.

So, either you actually believe this, and don't understand other people's point of view, or you do understand it and choose to insult them.

However I honestly dont understand the position of "Pro-Hasbro" Transformers fans who are "Anti-Third party". I know you are not one of them, however maybe you can shed some light on what makes them tick...

Well, it's pretty easy to understand people who are pro-Hasbro and anti 3rd party (and bear in mind not all people who are pro Hasbro are anti-3rd party).

Hasbro (and Takara) made the Transformers. Regardless of whether you agree or not with this statement you cannot question that the vast majority of people see this as true. So Hasbro (and Takara) hold a place in people's hearts as the people responsible for the franchise the care about.

3rd party products, essentially, ride on their coattails. Their entire business model is build on people recognizing their toys as updated / batter versions of any given Transformer and buying them. But these companies; they didn't create Optimus Prime or Megatron or ANY of the characters they're using as a basis for their products.

Essentially, they're befitting from someone else's work. And the people who did do the work aren't getting any reward for these new products. Fundamentally, they see this as unfair. And it's an unfairness to those who created something they really care about. And this is where dislike can set in. Company A is ripping off Hasbro's (and Takara's) characters and some people just aren't happy with that.

And there's also a segment who feel that the 3rd party market as a whole is a ripoff. That the toys just aren't worth what they're being sold as and that they, as consumers, are being ripped off. These people thinks TFs of all striped ought to be sold at retail prices regardless of who makes them and that anything more is a ripoff.

And there are others who are indifferent to the 3rd party scene. Regardless of your point of view Transformers is a brand, and that brand is owned by Hasbro and Takara. It's not right to say they are Hasbro fans. A fan of official TFs may not care at all for Star Wars or My Little Pony, which are other Hasbro products. They are fans of the FRANCHISE. 3rd party products fall outside of their area of interest. Yes, Giant (for example) looks like Devestator. BUT we all know he's actually not Devestator. To fans of3rd party products this doesn't matter. But to fans of THE FRANCHISE it matters a great deal! To fan of THE FRANCHISE TFs are limited to official products (of which there are a great number).

The transformers FRANCHISE includes things like the movie, Cybertron, Animated, Classics, G1, etc. It does NOT include 3rd party products like Giant or Hegemon. Giant and Heg may be modeled after TF CHARACTERS, but those products do not belong to the Transformers FRANCHISE.

There's many reasons to limit yourself to the franchise. Primarily, for completionists, there's an actual, definable, goal. You can, for instance, aim to collect all toys from the Cybertron line. You cannot really aim to collect all 3rd party products. I mean, sure you can aim to collect every Fansproject toy ever made, but where's the line for the 3rd party when you have Shapeways kits, sticker sheets, and privately made kits made by individuals? Some products aren't even readily available to us (like Eagle's stuff). There's not a hard and fast line with 3rd party products where you can say you're collection's definitive.

This is not quite the same as dislike. To dislike involves a strong feeling. This attitude is more like apathy. Although I can see how such people can begin to dislike the scene when things they care little about overwhelm (unjustly, in their mind) the stuff they do care about.

And of course some people cannot afford and, therefore, hate. Some people are like that.

This is not really a debate. I am simply explaining reasons I've seen from people who dislike or are indifferent to 3rd party products. Stating disagreement is counterproductive. Obviously you disagree. Rather, this is what other people think and it's best to just kinda see things from their point of view.

This is really getting away from the point of the topic; explaining the legality of the 3rd party products, which is pretty helpful to know. So I don't want to get too involved with debates, especially since I'm very much pro 3rd party (although I am also pro-Hasbro/Takara).

Rated X wrote:

Gauntlet101010 wrote:

I don't think you actually understand other people's position on TFs.

Maybe I dont but Im sure you can enlighten me...

However, I can state my position on Transformers. I consider Transformers to be a cast of ever evolving characters that anyone can add on or homage it's existing 25+ years of fiction. I am a fan, not a stockholder. I dont see it as a "brand" or a "franchise" because those are corporate terms that have no relevance to being a fan. It's like saying every Penn State fan must be a Sandusky supporter because he was part of the team at one time. I dont collect G.I.Joe, Star Wars, My Little Pony and I have no personal connection to Hasbro as a company. They could sell any one of these "franchises" at any time. So my loyalty is with the Transformers characters, not whoever currently owns their copyrights or finances their most current reincarnation. It's hard to defend a bunch of guys in business suits who were probally in high school when G1 was born in 1984. The CURRENT Hasbro CEO's didnt create Transformers, they just inherited it.

This is all kind of irrelevant, Hasbro CEO's pay up every so many years to keep important copyrights and Trademarks they will be using currently and in the future. Every name, and likeness runs out of time, and unless you renew, you don't get it back. They inherit nothing, it's been paid for over the course of 20 years. The only backwards ass thing, is that the 3P companies are not trying to protect their IP, so lets say Hasbro buys the copyright and Trademark for Devastator, and in the description says "Combiner construction equipment in green".. now **** hit's the fan.

running with the Penn State Example, the only thing they can do is copyright "Penn State" and the logo. That means no one can make shirts that have that specific logo, or "Penn State" without licensing. However if you wanted to make a shirt, that had a players name, and used the same colors, with the same basic design, void of the logo.. your golden.

The reason why Hasbro hasn't gone after these guys, is because they are small fish in a pond. if Hasbro wanted to crush them, they would, but it would cost money, more money then 1% of what they loose from the few of us that actually buy 3P stuff. Trust me, it's a small number.
While Hasbro says they are aggressively protecting their IP, It means they are watching for KO'ing/bootlegging of current product that has retail presence, and could confuse consumers at the retail level. if They were really worried about Hegemon, they would copyright and trademark the design and function.. but they don't? why? because thousands of dollars in fee's, vs. 0$ lost.. well that's just smart business.

RodimalToyota wrote:Hasbro can't walk into court and say "our Megatron from 20 years, that we will never sell again, looks like this Hegemon fellow who isn't available anywhere but some e-tailers"

But that's my sticking point, right there! G1 Megatron isn't from 20 years ago. Not really. He's been reissued several times by Takara (most recently by DotM, and let's not get too hung up over the differences between Hasbro and Takara) and they've made the mini G1 Megs as part of the Universe line.

Plus G1 toons have been on the air relatively recently, and the DVDs of the episodes are still readily available. In fact that very model is used as recently as the new TF Regeneration one comics. So, unlike background characters from TFTM, the image of G1 Megatron is still widly associated with the franchise.

But you say that, despite the very wide use of the G1 Megatron image ... Hegemon is still in the clear because his alt. mode is sufficiently different and because they don't have a physical product *exactly* resembling this?