The Ethics, The Law And Other Nuiscances Of Intellectual Property Infringement For Fountain Pens Users, Makers Etc.

[antoniosz]

The Wing Sung 601 is another one in the chinese Parker wannabees that have become widely prevalent in the pen market recently. Despite the design changes (i.e. the ink window etc), there are clear elements that appear to constitute intellectual property infringement. For example, based on https://www.fountainpennetwork.com/forum/topic/160565-35-parker-arrows/ the Parker clip arrow is based on trademark No 1178088 which was originally issued in 1932 but is valid today see http://tsdr.uspto.gov/#caseNumber=+1,178,088 and belongs to Newell Rubbermaid Inc. I am not a lawyer but it appears that we have a clear intellectual property infringement case. I am very interested in hear from all of you regarding the legal, ethical and other aspects of this issue, including the responsibility of ebay, amazon etc in assisting the sale of such products.

 

Edited January 16, 2018 by antoniosz

[Inkling13]

As they say, good artist copy, great artists steal. Hero is apparently infamous for this, copying both the Lamy Safari, and Parker 51.

I really don't have an issue with either one, being this:

If I want a Lamy Safari, I will get a Lamy Safari, not it's knock-off. They can make it all they want, but I'm not in a position to enforce it, but if I am to vote with my dollar, I'd buy a Safari 100 times over before buying a cheap knock-off that will only ever be measured against the real deal.

 

Secondly, the Parker 51. It's no longer in production, and being that Parker, now part of a giant conglomerate is unable/unwilling to go to protect its rights, so what are we to say?

 

Thirdly, Something needs to be done to keep companies on their toes. Make something special, hard to duplicate, and unique in this world. We really need to see what can be done, and without the imitators nipping at their heels, I am not sure what else would motivate a company more than a dent to their bottom line.

[inkstainedruth]

I think that if it's labeled as being a Wing Sung it doesn't fall afoul of laws about counterfeiting. And the ink window on the pen will probably get around any patent infringements (not sure about International patent law, but here in the US, patents are only valid for a set amount of time -- you can tell when a patent on a medication has run out because suddenly there will be much less expensive generics on the market; sometimes they're as good as the original, sometimes not...). I'm not sure what the law would be regarding trademarks (although, IIRC in the past China has been pretty bad in that regards, as well as for intellectual property rights).

I have what is probably a fake Hero 616. It's not a bad pen, but the nib is pretty scratchy. Someone gave me the pen, and it's probably worth the $1-$2 apiece price the person who gave me the pen paid for 10 pack on eBay.

I also have a Jinhao 599 (again, which someone gave me) which is clearly a knockoff of a Lamy Safari or Al-Star -- more likely the latter, since it has a metal body. For being a pen which is probably worth $5, it's not bad. And it taught me that I could get used to a triangular grip, which caused me to buy a REAL Safari -- which is a way better pen. So, it's a case of YMMV.

A friend of mine posted about these 51 Vac knockoffs on FB a week or two ago. My response? "I have REAL 51 Vacs.... Why would I need a 'fake'/knock-off one?" And, other than the cost of repairs, I got mine for pretty decent to exceptional prices: one of the Cedar Blue 51 Vacs I paid ten bucks plus tax for, because it had a cap for some third tier brand on it; the other one was $25 plus tax, and has a 16K gold-filled cap. So, while this one is a kind of interesting color, I doubt I'd buy one at any price....

Ruth Morrisson aka inkstainedruth

[Tefolim]

In the old patent law(1950s) in China mainl, patents are only protected for five years then patents are into public domain, which succeeded an older patent law in ROC time, which would give who the first localized foreign patent a five year patent.

Both of the two Laws were in the name of Protecting Instruction

[Parker51]

I believe that in the end this will all even out. Perhaps some Chinese Company will buy some storied brand and others won't respect the name and identifiers they bought.

Personally, I liked the Volvo 244 I used to own and would have no problem buying an Indian or Vietnamese made copy as long as the quality was there, it had modern airbags and got good fuel economy.

[DasKaltblut]

Fake news.

[Proto]

Looks good so I bought one.

[dcwaites]

The company that made the first functional, commercial fountain pen was Waterman. All other companies, including Parker and Mont Blanc, have copied features of that pen.

 

We should only buy Waterman fountain pens.

[Mech-for-i]

well first thing first, patent, and intellectual property is two different entity altogether. Anyone is entitled to his/her own right to their created intellectual property, say writing, painting, photos, but industrial, technical, and engineering design require patent and patent law is different from region to region and country to country. One thing though, principle is that patent cannot be granted to any ( too ) generic design nor one that's already present. Trademark is somewhat similar to a patent but a ( usually ) graphic design ( itself an intellectual property ) registered to represent a business entity or physical product ..

 

By that account , trademark can only be observed unless its been registered and not previously appearing on the market. The classic example recently must be the AMD Ryzen CPU, which AMD initially called it Zen, but of course the word Zen is too generic and they cannot expect to trademark it nor enforce it either even if registered. That's also why Apple must refer themselves as APPLE COMPUTER, not just Apple.

 

The said Q regarding the 601 then is a matter of design cue / element . Well ink window, sorry this cannot be patented as its a generic feature and certainly not Parkers only. The shape of the pen can be argued for but again unless this had been registered in China and having a valid patent its not upheldable. And of course its not and even if Parker would want to patent it it wold not hold going through the patent office application ( since too many other brand and model had this industrial design already both Chinese and abroad ). In fact that is the case with the P51 having so many copies even in countries that recognize US Patent like all the many Italian pens of this shape in the 50's; my understanding of the history is that Parker also themselves had no interest in enforcing that either.

 

The Arrow clip, now that's the interesting part. I do agree in the broad and sane term its absolutely a plagiarism in play. But the legal side is by the time Parker officially enter the PRC market and ( if they ever do ) register arrow clip as trademark, the others ( Hero, Wing Sung and numerous others ) had already been using the arrow clip for decades, effectively meaning that this arrow clip design was no longer unique. So by the principle Parker cannot actually enforce the trademarking the clip and that's also why many of those vintage pens got a different clip on their export version because those are going to market where the trademark is registered and enforced. A simple fact is that before the 80's PRC and the world are separate on these matters and anything prior to that time, one cannot realistically expect it backtracked. This same actually apply to many Indian pen which also use the arrow clip.

 

Sure personally I am absolute certain that this is no less a copy alright but this is pretty common in industrial design and products. Few products are actually uniquely new. Like other had said before even Parker are copying , their Duofold Centennial is no more a modern one styled copy from Waterman's early flat top .. from a consumer POV so long the Mfr do not try to post it as a Parker, and come clean saying its a copy and a Wing Sung I am OK with it. The business themselves can care about the actual trademark, etc etc .. its theirs .. and as for retail sites like eBay, Amazon, well they are no different than good old brick and mortar sop regarding this. Do they sell these posted as a Parker 51 Vacumatic; well they do not so its back to the same Q and issue with the business in concern.

Edited January 17, 2018 by Mech-for-i

[richardandtracy]

I talked this one over with one of the gentlemen who left Onoto a couple of years back.

I had noticed someone manufacturing and selling their Onoto 3000 plunger filler in Japan. Now, the Onoto 3000 filler mechanism was patented in 1905. The design was common in the late 190*'s, through to 1927. I didn't know the legal position & just let them know about it. The pen was not being sold as an Onoto, but unbranded.

 

The patents protecting designs need regular renewal in the UK, for a fee. Onoto had let them lapse even before the company ceased trading in 1956, and they expire after a period anyway (25 years I think, but it's not too long anyway). The design registration only lasts for a similar time with similar fees needed to keep the registration.

 

When it came down to it, provided the Japanese people making the Onoto 3000 did not use the Onoto registered trademark, they were doing it 100% legitimately even if every part was an exact duplicate of an Onoto part.

 

The age of the Parker Vac design means that it is now unprotected by patent regardless of whether Parker kept up on the fees. The net result is that even in the UK, the P51 Vac could be re-manufactured by other people completely legally & there'd be nothing Parker could do to stop them. So, a different size pen, completely re-engineered from the ground up using different materials... Not the slightest problem legally, or morally, if sold as 'Wing Sung' rather than Parker.

 

Regards,

 

Richard.

[twdpens]

I think to address this issue properly people need to understand the various forms of intellectual property, what they mean and how they may or may not apply in each case.

Patents protect inventions, not products (although a product may, of course, be based on an invention either in full or in part). To be granted a patent, the applicant must demonstrate that the idea is novel (ie no prior art) and non-obvious to those skilled in the art. It must also be tangible[1] and demonstrable (ie not a crazy thought-up idea that doesn't actually work). Patents are time-limited. Patents do not cover anything vaguely related to aesthetics.
[1] the USPO allows patents of non-tangible "inventions", eg software and business methods.

Registered Design (confusingly called Design Patent in the USA, but it's not a patent as it doesn't completely meet the points above). This protects aesthetic aspects of a product. Subjective, difficult to enforce but loved by American lawyers (especially those employed by the 2 biggest smartphone manufacturers). Also time limited.

Trademarks protect logos, wordmarks and other identities used by companies. Unlike patents, these can be renewed and hence are not necessarily time limited. Trademark laws can prevent companies from trading with logos or brand names that are confusingly similar to other products and services, especially those that are competitive or comparable.

Copyright protects, in general terms, "works of art" and writing etc. Copyright offers no protection for a product, apart from its associated documentation and promotional material. Copyright expires a number of years after the death of the creator. Copyright doesn't have to be registered, it is automatic, but the creator may need to prove ownership in a dispute.


In the case of the pen pictured above, it is clear (to me at least), that there is infringement of Parker's trademarked arrow clip (as stated by the OP). The shape of the pen and its fillng mechanism are irrelevant as these are simply inspired by a product for which no intellectual property exists today. We may not like it, but the manufacturer has done nothing illegal in those respects. However:

The Arrow clip, now that's the interesting part. I do agree in the broad and sane term its absolutely a plagiarism in play. But the legal side is by the time Parker officially enter the PRC market and ( if they ever do ) register arrow clip as trademark, the others ( Hero, Wing Sung and numerous others ) had already been using the arrow clip for decades, effectively meaning that this arrow clip design was no longer unique. So by the principle Parker cannot actually enforce the trademarking the clip and that's also why many of those vintage pens got a different clip on their export version because those are going to market where the trademark is registered and enforced. A simple fact is that before the 80's PRC and the world are separate on these matters and anything prior to that time, one cannot realistically expect it backtracked. This same actually apply to many Indian pen which also use the arrow clip.

So, if the pen in the photo is actively sold in regions where Parker has registered trademarks, they can take legal action against distributors and retailers. This doesn't appear to be the case in China, however, so it will be interesting to see how this one develops. It may be that the Chinese trademark office decrees that an arrow clip is so generic that no company can own it. I can't see Newell Rubbermaid liking that very much.

 

HTH,

 

Martin

Edited January 17, 2018 by twdpens

[Venemo]

Martin (twdpens) is correct about the legalities.

I would only like to add that whether the intellectual property is expired or not, China has a reputation of being nearly impossible to enforce such rights.

 

With regards to the actual pen:

There have been several topics on FPN about it already. Some enthusiastic users have already ordered and tried them. I don't recall seeing any overall positive comments, though.

What I'm afraid of is that it will be confused with the real 51 by some ebay sellers. It would be interesting to know how to distinguish between the two. Also for the sake of restorations, would be interesting to know which parts, if any, are compatible. Honestly, though, I don't think that the Chinese replica will match the durability of the original.

[inkstainedruth]

Martin (twdpens) is correct about the legalities.

I would only like to add that whether the intellectual property is expired or not, China has a reputation of being nearly impossible to enforce such rights.

 

With regards to the actual pen:

There have been several topics on FPN about it already. Some enthusiastic users have already ordered and tried them. I don't recall seeing any overall positive comments, though.

What I'm afraid of is that it will be confused with the real 51 by some ebay sellers. It would be interesting to know how to distinguish between the two. Also for the sake of restorations, would be interesting to know which parts, if any, are compatible. Honestly, though, I don't think that the Chinese replica will match the durability of the original.

 

Well, the ink window would be a dead giveaway to anyone remotely familiar with real 51 Vacs. Anyone spotting a listing that says that this pen is actually a 51 should be reported to eBay immediately.

Ruth Morrisson aka inkstainedruth

[WJM]

 

Well, the ink window would be a dead giveaway to anyone remotely familiar with real 51 Vacs

 

I'd call that an improvement over real 51 Vac.

[inkstainedruth]

Well, a friend of mine told me last night he's got one of these coming in the mail. So hopefully by this time next month (after the next pen club meeting here in Pittsburgh, I can report back on my impressions of the thing (as well as his).

I'm not 100% certain whether the ink window will be an improvement. It's not a full 360°, like on some Pelikans. And the little windows look way smaller than those on a Lamy Safari, which aren't actually, IMO, all that useful. And if the windows on the Wing Sung get stained, I don't expect it will be an easy disassembly: after all, on Pelikans you can remove the nib unit; while on Safaris, which are c/c pens, it's just a matter of unscrewing the barrel and removing the cartridge or converter if you have a leak.

As I said in another thread -- I'll reserve judgment on these pens until I see the one Karl is getting up close.

Ruth Morrisson aka inkstainedruth

[JayKay3000]

They've been making 51 copies forever. The only thing that bugs me is copying the Parker logo on the cap. At least it's obvious from the band it's not Parker.

 

I've tried some of the other 51 clones and have a 911 currently on a cargo ship, the last 51 clone was terrible with it's awful scratchy nib especially when I brought it the same time as buying a real used 51. I then tried another 51 and it was not half as good. Two years later I regret selling that good 51 as it was a good price and wrote perfectly. It had been worked on though so was probably better than factory.

 

If anything I would hope the ethics of a seller would prevent them from buying a fake and trying to sell it as original Parker with a $100 price tag. The Parker clones are sold in the traditional Chinese price range so that at least gives a buyer knowledge that it's not the real deal based on current market trends. Original boxes help weed out fakes as the fakes tend not to copy the packaging.

 

I'm tempted to try this Wing Sung 601. It may even be a good homage. I expect they're on a fine line. It's obviously a 51, but it's not got the same price tag. It's not trying to be the same quality otherwise it would cost far more and it's not even using the same nib width. It's using their own box and it's not referencing the Parker name on the pen. It's technically not a Parker 51.

 

But that Parker clip does bug me.

[matteob]

Everything is fair game in China: pens, swiss army knives even perfect knock offs of the Merkur Futur adjustable razor. I am not an expert in patent law but whether expired or not you cannot get judgment against Chinese makers easily though Victorinox recently won nearly 10 million damages and a recall from a company in the US marketing knock off saks. If the Parker's patent is still valid (no idea) and someone like Goulet marketed them there could be a case for litigation I guess.

[Aramchek]

Everything is fair game in China: pens, swiss army knives

I've a few SAKs: A many decades old Wenger which has now gone into retirement, one Victorinox and two Swiza, all three of which are really well made. I also have a Chinese SAK (CAK?) which I got from my mother that is useless junk, and I once had another Chinese one I made the mistake of buying once upon a time that actually disintegrated when I tried to use it!

[matteob]

Indeed thankfully most Chinese pens for the money and are pretty good and operate well. Those CAKs are and were (bleep): the tools either jammed or snapped or bent. I mentioned them because they are one of the most egregious knock offs.

[richardandtracy]

I have one or two ridiculous material choices in Chinese made items. In my house I have a repro cast iron Victorian fireplace, made from cast steel, so it conducts heat more than it should, expands more and rusts more. Should be cast iron.. I also have a small anvil made from cast iron, not steel. Iron, being brittle is not an ideal material for something being hit by a hammer. Should be cast steel.

 

However, both these items were made before 2010. Many Chinese pens I saw before 2010 were dire in some way. Since 2010, I get the feeling Chinese pens have improved dramatically, and really bad ones seem to be much less common. Both design quality and manufacturing quality have improved almost beyond recognition.

 

Regards

 

Richard.