Copying Pen Designs

[mke]

There are regularly comments and wild and heated discussions that a certain pen has been copied by this and that company.

If someone makes a pen in a new design and starts selling it, everybody can copy it freely because the design became public domain upon the publication(selling start) - isn't it so?

It is different of course if the manufacturer has obtained a design patent or has registered the design. [A good overview can be found here btw: LINK.]

 

Please don't mix ethics (what someone should not do) and legal stuff when replying.

 

Thank you for educating me.

Edited January 18, 2020 by mke

[Pickwick]

Copying original pen manufacturers designs by other makers has probably been going on ever since the advent of the fountain pen. Particularly when a design was becoming popular. The outstanding one was the Parker 51, albeit other pen makers made slight alterations the basic design concept was the same.

 

There doesn't appear to be any evidence that Parker attempted to enforce a patent design on their pen probably because of their own outstanding success in quality production.

 

I'm unsure whether a precedent hadn't been set for enforcing a patent design starting at the turn of the last century. I did some research on some eyedropper pens I had acquired made the first decade of the 20th century. these pens had the same herring bone pattern and size but the gold nibs had a different name engraved on them. I discovered the barrels and caps of these pens had been manufactured by a company in Massachusetts of their own design and not custom made. These were sold on to jewelers in Boston and New York who made their own gold nibs

and either silver or gold overlays, sometimes individually custom made.

[txomsy]

Think clothing and fashion.

 

Every season we see all designers producing new designs in "the colour of the season", "the fabric of the season", "the style of the season"... and I do not mind "warm in winter, light in summer", I mean all have almost the same shade of "red", "green", "sienna", whatever....

 

That seems to work to their advantage. Synergy is it called, I think.

 

In medioeval Europe, it was customary that all professionals of a trade would sit next to each other in the same street, so you have "Tailor's street", "Pottery Lane", and the like in almost any town. Seems there was some advantage in that.

 

When I went to Leon (Spain) --I think, or it may have been La Rioja, or maybe all-- they had the "wet district" where all bars clustered. One would think it would be better if they were evenly spread to catch the locals.

 

However, that wouldn't work so well: when all of the are clustered, all clients see all the offer. Nobody wants to eat the same food, dress the same clothes, eat on the same dish... every day. We all like a little variation. That means you get a chance for everybody seeing your product and maybe buying it. If you isolate yourself, then only those who really want your product, and badly want it, will bother to get it.

 

Thinking of fashion and pens. If each maker makes its own differentiated design, then you will only get those designs that a) clearly appeal to you b ) are available at your local store and c) you can pay. By copying each other you can find most designs everywhere. If you want quality, you can get it, if you want cheap, you can... If you make expensive, quality of cheap pens, you'll be certain to get them bought by anyone who looks for them.

 

My point is that in fashion, leisure, and practically most goods, it is better to specialize in craftmanship (which is what really sets you apart) and price than on design. Any design will be terribly appealing (because of novelty) the day it comes out, but that will fade in a matter of time.

 

Yeah, bell-shaped pottery endured centuries. But communications were terribly slow then. In modern time, design fades usually in a matter of years, months, and most often even weeks (Zara, I am told, recycles designs every couple of weeks).

 

I agree that designs, like literature, painting, drawing, arts, etc... are worthy of protection and the author should get due recognition and rewards.

 

But in the modern world, the reward is usually that a company orders the design and pays for it, produces it and discards it in a matter of (days, weeks, months, seasons, years.... you name it), and usually counts on copycats to increase awareness, reduce advertising costs, and increase its own perception by clients (who will identify them with R+D, innovation and quality).

 

That is also why you have patent and copyright expiration.

 

 

I'm not saying it is good. Only that -sadly- it is a fact of life.

Edited January 18, 2020 by txomsy

[sandy101]

Here is an example of how the UK courts ajudicted patents when it comes to pen design.

 

The Miles Martin Pen Co (UK manufacturer of Biro's design) took other UK biro manufacturers to court claiming that Miles had an exclusive license from Biro to make abd sell ball point pens in the UK. The UK court ruled that ballpoint pens in themselves were not patentable, because they had been designed before Biro came along, but the capillary method Biro had used to control the ink flow was, So, other manufacturers were able to make ballpoint pens without infringing Biro/Miles' patent, as long as they did not use a capillary tube between 0.5mm to 3.5mm in diameter to control the ink flow.

 

Details of the case are summarised here; https://www.retrowow.co.uk/retro_collectibles/pens/ballpoint_pens.php

[Mech-for-i]

Patent and Copyright aside ... the act of copying or ushering similar / same / almost the same design on any production good is not new and its just down right common in modern day industrial capacity ... we had to understand there is a difference between industrial design vs a piece of literature, a piece of music composed , or a painting cause the product or the value of the latters are in itself the pieces, where the value of any industrial design do not actually lie in the design itself but the product its bestowed on.

[corgicoupe]

Just look at today's cars. They all look pretty much the same in profile, which is why the grills are protected. Jeep complained about the Hummer grille and BMW watched the Pontiac grill carefully.

Edited January 19, 2020 by corgicoupe

[Bibliophage]

The biggest spat I've seen about companies 'copying' a pen design is the Chinese companies (Wing-Sung, Hero, and Jinhao in particular), "copying" the Parker designs. (and Sheaffer nibs)

 

I keep pointing out that the designs being copied are over 50 years old, well beyond patent protection, and the company(ies) owning the patents in question _doesn't make the pens anymore_.

 

As far as I'm concerned, once the original company/owner/creator has ceased doing anything with the product, copyright and patent should end, and it becomes public domain. (For an example, the Tolkien estate has never stopped releasing copies of his works, derivatives, and licenses. Microsoft, on the other hand, has totally abandoned DOS, Windows 3.1, Windows 95, 98, ME, NT, 2000, 7, and Vista. They've even publicly said they're abandoning those platforms. So they should provide all the code to anyone who asks, for a reasonable sum to pay for the copying. )

[silverlifter]

Being granted, and enforcing, a patent is an expensive investment. Many smaller businesses instead invest in the quality of their product, their marketing and their R&D and try an maximize revenues that way, rather than relying on lawyers to keep the competition at bay.

[Karmachanic]

My theory and I'm sticking with it. Generally there are two basic designs from which all others evolve. Parker Duofold, and Sheaffer Balance.

[Parker51]

People can copy others work only so long as the rules of the society allow this.

 

If there are rules against this, then no they can't.

 

If one is within a place without rules, then one must negotiate the copying with the originator of the design so as to avoid the possible negative reaction (for when there are no rules, violence can be a responces to theft) by the originator, but it is highly unlikely that anyone could or would have the time or resources to design and make a pen in a place without rules as those places do not have economies or knowledge bases which are needed to allow for this type of activity.

 

So, it comes down to what the rules are and how they are enforced. If one copies a pen, including the markings identifying the pen it is called a counterfeit product. Under current rules in many places, including North America, counterfeit products are subject to impoundment and destruction with the counterfiters subject to significant penalties including possibly both incarceration and financial.

 

If someone is harmed due to the counterfeit, not an issue regarding pens, penalties can be very severe. It is my understanding that some counterfiters in some places have caused so much harm, killing so many people that the death penalty has been discussed as the appropriate penalty or life imprisonment. This most frequently happens in regard to pharmacuticals, as typically only the appearence of that product is copied, not the essential components.

 

In regard to pens, when someone superfially copies the appearance of a pen without also copying all aspects of the pen, then typically an inferior product is produced. The counterfeiters make a profit by not paying for the work done to design the pen, to market the pen and they typically do not pay for materials used to make the origonal, they typically substitute lower cost materials which are not designed for use or longevity, only for deception so a sale can occur. This results in the buyer not only loosing the their resource (money), but also the work they did to get that resource and to make the purchase, and they are left with garbage.

Edited January 18, 2020 by Parker51

[bemon]

I'd say tributes and nods to successful designs have existed for ages. Beyond that, and aside from some brands that go outside the box like Visconti there aren't that many different ways to design a comfortable pen. So it may even be hard to avoid "copying" a brand that's simply been there first.

 

My issue is blatant counterfeits and sellers who market cheap pens to the uneducated. I keep seeing for example a seller on Kijiji who's hawking Jinhao's for $30 and calling them "luxury fountain pens from England". The pictures look good, and maybe the price looks right to someone who's looking for their first "nice" pen. But the misrepresentation bothers me and cheap copies make that sort of behavior easy.

Edited January 18, 2020 by bemon

[Mech-for-i]

My theory and I'm sticking with it. Generally there are two basic designs from which all others evolve. Parker Duofold, and Sheaffer Balance.

You mean a straight rod and a Tapered rod .. well they had been there way before fountain pen .. and is it not Parker Duofold simply a copy ( in the broad sense ) of the hen quite simply all over the places Flat Tops

[Estycollector]

Reminds me of Haydn's Variation on a Theme...

 

Just thinking out loud, there are only so many variations possible, Long, fat, slender, round, square, etc. All must be able to be held and hold a supply of ink. Various material are used to produce a pen, but only so many exist. No one is making up of cast iron I think.

 

I'm also into vintage shaving where the early designs were constantly evolving and patented. I see pens the same.

 

One person's need is another person's luxury and one person's luxury is another person's need. Who can say a Wing Sung 601 is not as good as a 1940's Parker if it is reliable and works to accomplish a needed function to communicate, Several American companies went to the hooded nib, not to copy Parker, but to accomplish a need for the pen not to stop working.

 

Fill systems like the Parker and Shaeffer snorkel while wonderful, have not endured as well as the simple lever fill. Lots of makers used the lever fill.

[como]

Even though copying in pen design is as rampant as elsewhere such as fashion, I still highly appreciate the original creativity that achieved an iconic status: Parker Duofold, Parker 51, Wahl Eversharp Doric / Omas Faceted, Montblanc 149 etc. Even though Omas and every other European pen maker initially copied Parker Duofold, in the end it’s its own design overhaul that established its status in pen making history. Of course there is debate about Doric and Omas faceted, who copied whom first, but needless to say that both pen designs have strong identity of being who they are. As a brand, doing “me too” is just not interesting.

Edited January 19, 2020 by como

[txomsy]

While I agree on most said, let us not forget that sometimes counterfeits aren't.

 

When I see sunglasses by "Rey Bahn" I know they are not Ray-Ban. I cannot say they are counterfeit. I hate that they look so close (even the font used for the name and the name). But there are countries where you can claim they are "confusing", yet not counterfeit: i.e. they are designed to lure the buyer into thinking they are getting the real thing. Much like if you decided to set up a fast food chain called 'MacDonalds' (note the extra 'a'). You do not claim their food is counterfeit, you claim they are doing unfair competition.

 

Then you have counterfeits, which look exactly (or almost) like the original item, down to the branding, logos, etc... produced in cheap materials and trying to be passed for the real thing, like counterfeit Montblancs, Swarovsky glass, "High-couture" clothing, purses and complements... which I doubt anybody would deny they are absolutely wrong. They steal from the real brand, they steal from buyers, and the should be punished.

 

And then you have the real thing re-branded. This happens typically when the brand holder subcontracts production to cheaper producers to save costs. Some times the actual producer will have excess product that the brand-holder decides ultimately not to pay for (because e.g. demand was not as high as expected) and the producer is left with unbranded excess stock that must be either destroyed at the producer's expense or recirculated with a different name. Usually major brands will have some kind of agreement to deal with this (I will order according to my projections but will only pay for what I need, and you can do with the excess production as you wish as long as there is no way the product is sold with my brand or cannot be confused with or connected to my brand). Or may be the same brand disposes of excess stock through outlet stores or using a less well known branding owned by them too. The reasoning is that people buys a purse from, say, D&G for the brand more than for the quality, and that the same purse sold as, say, "Tom, Dick or Harry's" will not be attractive. Or that if it is from last season it will be less valuable than the new designs.

 

Then, brand managers realize that production in Taiwan, Corea, or now, China is cheaper. Parker ask Hero to start producing the 51 by the millions, brand it Parker and send the stock over for selling, but (imagine) won't pay (or will return) unsold items (note, this is pure speculation on my part, I do not know the agreements they reached). And in return, Hero gets to re-sell unsold Parker 51s as Hero instead of Parker. You get exactly the same product under a different brand that is unknown in the West, perceived as low quality, and therefore, sold at close to production costs. Or Parker decides to discontinue the line and Hero is left with expensive machinery, a product whose protection expired decades ago, and the opportunity to sell it under their own brand, probably with the "bonus" (to them) of no longer having to maintain such high and demanding quality standards as Parker forced them to.

 

Most people wants the "Parker 51", brand, quality, etc... and will get it, so no harm done. Some people want the "product" named Parker 51, and do not care about branding, status, whatever... is it any wonder if they get a Hero 51 instead? Can you say it is counterfeit? Is there any brand name confusion? Is there any difference in the product or its quality? Do they care?

 

That is why "serious" makers do the product 'in house'. Any buyer knows that when they get a Rolex-looking watch, a Montblanc-looking pen, etc... that is not branded Rolex, Montblanc, etc... or produced directly by them, it must be a fake. No way to get the same product from the real producer (which in this case is the brand holder) under a different brand name (unless it is also owned by the same brand holder).

 

There are also many cases among buyers: Some people are more than happy to buy low-quality/price fakes just to look like they have a real one and do not care about ethics (I'd say these are ethically wrongdoers, not only they do not care, they actively look for fakes to mislead -lie to- other people intently); some people are fully entitled to buy the real thing under a different name from excess stocks; some people are fully entitled to buy homage items in lower, similar or even higher quality as long as the branding is clearly distinguishable; and some people will always prefer to get the actual real thing under the original branding.

 

And yet, you should ask yourself... if you value more someone because s/he wears D&G, V&L or MB, then is it any wonder there are people who cannot afford them and will look for fakes? If you did not pay any attention to the form (clothing, complements, car, income...) but only to the contents (kind person, honorable, hard working, ...) would there be any interest in looking for ways to project fake images of "power"?

 

Sometimes the root problem lies within ourselves.

Edited January 19, 2020 by txomsy

[Mech-for-i]

....

 

Sometimes the root problem lies within ourselves.

Very likely the case , can't agree with that more

[Parker51]

While I agree on most said, let us not forget that sometimes counterfeits aren't.

 

When I see sunglasses by "Rey Bahn" I know they are not Ray-Ban. I cannot say they are counterfeit. I hate that they look so close (even the font used for the name and the name). But there are countries where you can claim they are "confusing", yet not counterfeit: i.e. they are designed to lure the buyer into thinking they are getting the real thing. Much like if you decided to set up a fast food chain called 'MacDonalds' (note the extra 'a'). You do not claim their food is counterfeit, you claim they are doing unfair competition.

 

Then you have counterfeits, which look exactly (or almost) like the original item, down to the branding, logos, etc... produced in cheap materials and trying to be passed for the real thing, like counterfeit Montblancs, Swarovsky glass, "High-couture" clothing, purses and complements... which I doubt anybody would deny they are absolutely wrong. They steal from the real brand, they steal from buyers, and the should be punished.

 

And then you have the real thing re-branded. This happens typically when the brand holder subcontracts production to cheaper producers to save costs. Some times the actual producer will have excess product that the brand-holder decides ultimately not to pay for (because e.g. demand was not as high as expected) and the producer is left with unbranded excess stock that must be either destroyed at the producer's expense or recirculated with a different name. Usually major brands will have some kind of agreement to deal with this (I will order according to my projections but will only pay for what I need, and you can do with the excess production as you wish as long as there is no way the product is sold with my brand or cannot be confused with or connected to my brand). Or may be the same brand disposes of excess stock through outlet stores or using a less well known branding owned by them too. The reasoning is that people buys a purse from, say, D&G for the brand more than for the quality, and that the same purse sold as, say, "Tom, Dick or Harry's" will not be attractive. Or that if it is from last season it will be less valuable than the new designs.

 

Then, brand managers realize that production in Taiwan, Corea, or now, China is cheaper. Parker ask Hero to start producing the 51 by the millions, brand it Parker and send the stock over for selling, but (imagine) won't pay (or will return) unsold items (note, this is pure speculation on my part, I do not know the agreements they reached). And in return, Hero gets to re-sell unsold Parker 51s as Hero instead of Parker. You get exactly the same product under a different brand that is unknown in the West, perceived as low quality, and therefore, sold at close to production costs. Or Parker decides to discontinue the line and Hero is left with expensive machinery, a product whose protection expired decades ago, and the opportunity to sell it under their own brand, probably with the "bonus" (to them) of no longer having to maintain such high and demanding quality standards as Parker forced them to.

 

Most people wants the "Parker 51", brand, quality, etc... and will get it, so no harm done. Some people want the "product" named Parker 51, and do not care about branding, status, whatever... is it any wonder if they get a Hero 51 instead? Can you say it is counterfeit? Is there any brand name confusion? Is there any difference in the product or its quality? Do they care?

 

That is why "serious" makers do the product 'in house'. Any buyer knows that when they get a Rolex-looking watch, a Montblanc-looking pen, etc... that is not branded Rolex, Montblanc, etc... or produced directly by them, it must be a fake. No way to get the same product from the real producer (which in this case is the brand holder) under a different brand name (unless it is also owned by the same brand holder).

 

There are also many cases among buyers: Some people are more than happy to buy low-quality/price fakes just to look like they have a real one and do not care about ethics (I'd say these are ethically wrongdoers, not only they do not care, they actively look for fakes to mislead -lie to- other people intently); some people are fully entitled to buy the real thing under a different name from excess stocks; some people are fully entitled to buy homage items in lower, similar or even higher quality as long as the branding is clearly distinguishable; and some people will always prefer to get the actual real thing under the original branding.

 

And yet, you should ask yourself... if you value more someone because s/he wears D&G, V&L or MB, then is it any wonder there are people who cannot afford them and will look for fakes? If you did not pay any attention to the form (clothing, complements, car, income...) but only to the contents (kind person, honorable, hard working, ...) would there be any interest in looking for ways to project fake images of "power"?

 

Sometimes the root problem lies within ourselves.

One point of contention, based on reality, reality which in part put my wife's former employer out of business.

Subcontractors in (self edited to avoid complaints) have produced and sold identical products, except for brand name that they were paid to produce and which they were provided models for and technical specifications for as their own products. They produced and sold the products they sold to the marketplace before they even shipped the products they were contracted to provide to my wife's former employer. They were not being stiffed, they did not have left over product. Identifiers are typically include in the production process, not after it.

Are those people evil, no, they are morally compromised, why, possibly a look at their history might give some answers. Any more I say likely will get me shut down and these posts shut down as some people consider the discussion of History as political.

[txomsy]

I agree with you that that is ethically and morally rotten.

 

We all have made legal mistakes. In that case, maybe the victim should have stated in the contract that the product could not be sold otherwise under heavy penalties and defined for arbitration and trial a court in a convenient Country.

 

If all was well, then you are in a conundrum alike any other start-up: will it be worth loss production and failure the cost of a lawsuit? Will you be able to sustain it? I know it is a big deterrent to small, innovative companies, but dealing with it takes us into politics.

Edited January 20, 2020 by txomsy

[Pickwick]

I agree with you that that is ethically and morally rotten.

 

We all have made legal mistakes. In that case, maybe the victim should have stated in the contract that the product could not be sold otherwise under heavy penalties and defined for arbitration and trial a court in a convenient Country.

 

If all was well, then you are in a conundrum alike any other start-up: will it be worth loss production and failure the cost of a lawsuit? Will you be able to sustain it? I know it is a big deterrent to small, innovative companies, but dealing with it takes us into politics.

The definition of Politics according to Webster's dictionary: "the art or science of governance... guiding or influencing governmental policy." Governments don't get involved with the policies of commerce but leave it to the jurisdiction to settle any legal disputes between companies. Therefore use of the word has no relevance to this discussion or even history for that matter.

 

The main topic is about copying original pen designs. This means the actual design of a pen's shape which has become popular. The finished product of the copier can easily be distinguished because of different embellishments along with the makers trade mark and shape of the clip distinguishing it from the original manufacturer and usually offering it at a much lower price because of cheaper materials used.This leaves it to the customer to choose between the two, one giving a longer guarantee of a lifetimes use or the cheaper version making no such claims.Therefore it is not a fake in any sense.

[Arkanabar]

<snip> Microsoft ... has totally abandoned DOS, Windows 3.1, Windows 95, 98, ME, NT, 2000, 7, and Vista. They've even publicly said they're abandoning those platforms. So they should provide all the code to anyone who asks, for a reasonable sum to pay for the copying. )

 

Microsoft has indeed abandoned DOS and all the versions of Windows that ran on its codebase, the last of which was the pile of steaming dung that was Me. But some of the NT codebase has continued through 2000, XP, Vista, 7, 8, and 8.1 and on into 10. They're still using it, so they aren't about to release it.