Re: [DML] DMC and Trademarks

[Marc Levy <malevy_nj@xxxxxxxxx>]

Thanks for giving me something to do on a Sunday evening where some sporting event has made it pointless to watch TV.  :)

Response below; (Hit DELETE now if you don't care..  I don't want a bunch of people whining that this discussion is wasting their time).

Otherwise, grab something cold to drink, scroll down, and read on!! 

--- On Fri, 2/5/10, james <james@xxxxxxxxxxxx> wrote:

<SNIP>

> Let's look at it from another perspective...what does
> Diamond Select do with
> the profits from the sale of this BTTF car? Re-invest it in
> the DeLorean
> community? Of course not! When DMC (Texas) is able to
> license the logo for
> use on a product like this (i.e. Hot Wheels, Sunstar, The
> Hundreds, video
> games) that money goes right back into the DeLorean
> community in the form of
> reproduced parts and better availability of the same. Which
> would you rather
> have - a toy car with the logo on it, or a part that might
> otherwise go
> unavailable for lack of funds?

Are you saying that DMC (Texas) is registered as a 501c3 organization? 

It is in DMCH best interest to keep these cars running, and maintain (or increase) their value. It is not a charitable endeavor. 

While I agree, the company you work for has made investments in to new/reproduction parts, I am sure you and your associates spend a great deal of time reviewing the budget of each project and before making an investment have a high confidence that it will be profitable for the company.  DMCH is a company that is motivated by profit, which is a GOOD thing, but please don't paint the company as anything else.  Good business practice dictates that each project is evaluated on it's own merit, so I have my doubts that someone at DMCH would say "Sure, we will lose money on reproducing part XYZ, but we can just subsidize that with the money from Sunstar".   If that was the case, the Sunstar money could have been used to produce the headlight switches instead of asking the community to pre-purchase them, right?  :)

> In regards to the DMC logo trademarks and our ownership of
> them...we've
> spent tens of thousands of dollars on IP over the past
> ten-plus years and
> are very confident of our position. As part of the purchase

...  Due to the lack of anyone willing/able to dispute it.

> of the remaining
> NOS parts from KAPAC in 1997, DMC (Texas) also acquired the
> exclusive rights
> to improve/reproduce DeLorean parts from the original
> engineering drawings
> and distribute NOS DeLorean parts.  No one in the past

Best I can tell, KPAC never owned the IP (Intellectual Property).  For sure they did not own the trademarks..  But it is clear in your statement here that you are NOT claiming DMCH purchased THAT SPECIFIC item from KPAC (or anyone else).

I am also not aware of any "rights" to "improve/reproduce DeLorean parts"...  Or parts for ANY vehicle.  I have found no evidence that there is legal restriction to produce, reproduce, or improve on parts for any car.  Sure, the drawings may help but there are other copies floating around.... and they can also be easily reproduced.  The drawings themselves represent no legal ownership (as far as I can tell) of anything other than the paper they are printed on.  Feel fee to provide evidence to the contrary.  

If there was some legal way to stop someone else from producing parts for the DeLorean, I am confident that these "Exclusive Rights" would have been invoked long ago to shut people like John Hervey down.  Last I checked, he is still selling parts for DeLorean cars.

James, could you please clarify your statement that DMCH "also acquired the exclusive rights to improve/reproduce DeLorean parts"??
 
> 27 years has put
> anywhere near as much a time/effort/capital into the
> DeLorean brand as
> Stephen Wynne. No one in the past 15 year years has put as
> much
> time/effort/capital into the DMC brand. He basically took a
> name that was a
> symbol of failure, and as a company we legally and openly
> applied for
> trademark protection for the logos that represent the brand
> and after
> investigation by the USPTO were granted these trademarks.

Again, no dispute on any of this.  But be honest that the motivation is PROFIT.  Again, nothing wrong with that but I feel you are trying to put a halo over the DMC trademark now.  :)

DMCH provides a great service to the DeLorean community, and in any of our discussions/disagreements over the years I have been careful to focus on the specific topic at hand.  IIRC, history has demonstrated that my position was proven "correct" in most of our disagreements.  (SonnyV, and door pistons come to mind...)

As I have said before MANY times, the USPTO will grant anything to anyone.  It is a claim.  That claim can be disputed, and in casual conversation have asked 3 lawyers about this situation.  Each one agreed that if someone were to dispute the claim during the registration process, it would have never been granted.  Furthermore, if someone were to dispute it now they would have good odds of winning if they could prove they were using the trademark prior to the DMCH claim.  I have also been told that as time marches on, the odds of winning such a law suit drop.  Sort of like "squatters rights".  It is possible at this point a challenge to the claim would fail (due to the time factor), but that does not change the ethical issue.

<SNIP> 

> For years people have used the internet bully pulpit to
> question the
> legality and ethics of this action. But none have the
> stepped forward to
> actually make a legal issue out of it. If our lawyers are
> wrong, it's up to
> someone else's lawyer to prove it. If we're right - and all
> legal work and
> USPTO actions to date say that we are - then to be honest,
> I'm afraid that
> there will *still* be individuals who disagree and will
> never be pleased.

Re-read this James, who sounds like the bully??   The big powerful company that has lots of financial backing, and most (if not all) of the power in the DeLorean community?  Or an overweight balding guy sitting in bed at a computer keyboard arguing for what I believe is morally right?  

The company you work for took art work that clearly pre-dates them (so they did not create it).  You also make no claims that it was purchased from whoever owned it before.  Therefore, how can DMCH own it?

Why not tell the story of how all this came about?  How did DMCH come to own the trademarks?  We know all of the parts were purchased from KPAC, we also know that DMCH got lots of drawings and other goodies in that purchase.  But, what about the trademark?  

The way I see it, DMCH took advantage of (BULLY) their financial situation and monopoly in the community.  Someone at DMCH had the idea of quietly registering the "stylized" logo (with the outline) since it had never been registered before (the logo on the front of the car was registered and DEAD) although it does appear on a number of DeLorean documents from the late 1970's.  Anyone who may possibly have a legitimate case to dispute the claim, or the financial means to fight it, is someone who now probably relies on DMCH for their livelihood.  Sure, they could win the case but I doubt you would supply them with parts anymore.  

Since then, I have been told that an individual re-registered the DMC logo on the front of our cars.  I think even you (James) were surprised that this could happen because the USPTO could see in their own database that this trademark was already "DEAD".  I think this demonstrates the due diligence at work at USPTO. To say "USPTO actions to date say that we are" is kinda humorous.  

In Las Vegas this year, you told me DMCH made a deal with the new owner of the DMC trademark (as it appears on our grilles).  Assuming this is true, I have to admit I like the fact that the company you work for is at least remaining consistent in honoring someone else's claim for something they did not create or buy, and just CLAIMED they owned by filling out some paper work and sending a filing fee to USPTO.

Since that conversation in Vegas, I went back and checked the USPTO database and found that DMCH is now also claiming ownership to the "De Lorean" on the rear bumper of the car.   I guess the licensing for the DMC trademark have been so lucrative, why not double that?

As I see it, This is exactly the same thing as "squatting".  In some places that may still be legal, but I think most of us know it is unethical. 

> Interestingly, however, those that talk the loudest about
> it invariably have
> no interest other than making noise.

By "no interest", you mean "no profit"??  Anyone who wants to buy the Diamond Select toy is impacted by this nonsense.  

> In the end, for me at least, it seems that the people who
> are the most upset
> about it really have academic interest at best. The people

"Academic interest"?  or "no other interest other than making noise"??  Which is it? 

How about, speaking up for what RIGHT?

> who do have a
> financial interest either work with us or find a
> workaround. We're eager to
> work with the former, and I've not yet seen one instance
> where working with
> us did not lead to better financial results for them in the
> form of greater
> sales volume numbers and exposure.

"Better financial results".  I am glad you finally stated the motive behind all of this.  :)

But, back to the point at hand.  Do you dispute the DMCH ownership claim for the trademarks are anything other than "Squatters Rights"??  If you admit this is the case, then it is up to each individual to decide if "Squatters Rights" is something they agree with or not. 



 



      


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