Tuesday, April 09, 2013

Kirby Torch - What Do I Know?

Today we saw a development in the dispute between Bruce Kirby, designer of the Laser, on the one hand... and LaserPerformance (builder of Lasers and owners of rights to the Laser trademark in most of the world) on the other hand.

For those of you who have been living under a rock for the last couple of years and who have no idea what I am talking about, you can catch up on the history of this dispute on these posts....

March 2011 Three Laser Classes? - The Laser Class tries to change its fundamental rule to allow the current builder to continue to build Lasers without Bruce Kirby's approval.

November 2011 Mushroom Goes Kirby Sailboating - Bruce Kirby goes public on the dispute and announces that the Laser never was a Laser; it was really a Kirby Sailboat all along.

March 2013 Shit Hits the Fan - Bruce Kirby sues everyone involved including the Laser Class and the International Sailing Federation.

March 2013 Kirby Torch - Bruce Kirby files an application for the trademark "Torch" and I predict he will use it as the new name for the Laser.

Confused? I'm not surprised. So am I.

If you want more detail you can check out the 21,749 posts on this topic on the Sailing Anarchy Dinghy Forum, the Laser Forum, and the Yachts and Yachting Forum. I suspect that when you have read all of those you will be even more confused. Some of the people on those forums are even more in the dark than I am and have even less grasp of the accepted rules of logic and argument than I have.

And so today (or maybe a few days ago - I'm not all that sure) we have a new website about The Kirby Torch.

According to this website...

  1. On March 25, 2013, ISAF sent a letter to Jeff Martin of the International Laser Class Association (ILCA) which stated as follows: "...ISAF requests that ILCA cease to issue ISAF plaques to LaserPerformance (Europe) Limited and Quarter Moon Inc. (the "Builders") with immediate effect." 

  2. "...ISAF has concluded, based on the correspondence and court papers received from Bruce Kirby's attorneys, that the Builders are no longer licensed by Bruce Kirby and/or Bruce Kirby Inc. to build the Laser class boat (as required by the 1983 ISAF Agreement and our 1992 Plaque Agreement)." 

  3. Current manufacturers of the Kirby sailboat under the Laser brand are in the process of converting over to manufacture the Kirby sailboat under the Kirby Torch brand. 

  4. Bruce Kirby Inc. has today signed Builder Agreements to manufacture the Kirby Torch in regions serving the needs of sailors in the Americas, Europe, Africa, Asia and Oceania. 

  5. Bruce Kirby Inc. and the Torch Builders have been trying to negotiate with the International Laser Class Association in hopes it would replicate itself as the Torch Class. This is considered the most expedient way to establish a Torch Class because Bruce Kirby Inc. and the Torch Builders all agree that all authorized Laser brand boats with ISAF plaques will be class legal in the Torch Class.

I have no reason to doubt the veracity of the first two points,

I have no idea what the third point means or the evidence for it.  Has LaserPerformance thrown in the towel and are they switching over to making Kirby Torches? I would need some more evidence before I believe that.

Point 4 may well be true but I am not sure who the new builders really are. The three builders listed on the website are the current Australian builder (generally believed to be allied with Kirby in this dispute), a Dutch company with very little web presence, and a Canadian company which has the same address as the Canadian Yachting Magazine. Are the latter two real boat factories?

Point 5 sounds plausible. If Kirby is to be successful in relaunching the Laser as the Torch with new builders, it would help him a great deal to obtain recognition from the existing Laser Class. If the Torch becomes a reality we need some way to allow Torches and Lasers to race together under one class organization. But who knows how the Laser Class will respond to this suggestion?

I don't think this is the the end of this dispute.

Not by a long way.

I think it is just a maneuver by one party in the early stages of a legal dispute that will eventually get settled in court.

But then what do I know?

Update #1. There you go. As soon as I post the above, I see that those clever people at Scuttlebutt with their worldwide news gathering organization are one step ahead of me. See What led Bruce Kirby to rename his boat  which explains the whole dispute much more clearly than I have, and specifically has much more information on the Canadian Torch builder.

Update #2. And how about this timing? Only last week the US Trademark Office sent Bruce Kirby Inc. a Final Refusal on its application for the Kirby Torch trademark. I'm no lawyer but I think I'm right in saying that this is not actually "final" and BKI can appeal this decision.

Update #3. The Laser Class response: "The International Laser Class Association (ILCA) is disappointed to learn about the actions by Bruce Kirby Inc concerning the introduction of a new class association whilst there is an unresolved legal dispute between Bruce Kirby Inc and some Laser builders. The ILCA continues to believe that it is necessary to resolve the current legal issues before considering possible alternatives, and remains committed to working towards a resolution."

Update #4. Sail-World article: Kirby says "The idea of saying we should all just sit and wait until the court case… That’s bullshit."

Update #5. And now there is an online petition asking "the International Laser Class Association to consider all of the options available, and not to rule anything out without consulting the very membership they are there to serve."


Baydog said...

I don't know much, but with the title of your post I can spell Bok Choy, Daikon, and Twit with RR left over.

Oh, and Lasers are cool.

Anonymous said...

Work Hoodwink Arty Bitch.

Baydog said...

Dang. You didn't use that anagram website did you?

O Docker said...

Don't know much Laser history
Don't know much criminology
Don't know much about a legal book
Don't know much about who's on the hook

But sailing's what I love to do
And if everyone could love that too
What a wonderful world this would be

Pandabonium said...

Forget class warfare. Go sailing. Have fun.

The Imperative Voice said...

Torch is a lame name IMO.

In terms of an educated guess why Torch might be refused a TM, "Torch" is not literally made up and has not yet been used in practice to signify certain boats or a class of same (hence the new website?); Olympic marks are specially protected, and I don't know if the IOC would weigh in on one side of this feud with their seal of approval; and there is a general prohibition on marks that create confusion, and one reason people might infer that an Olympic boat is called the Torch would be that it is an IOC product, when currently it's the object of a man not associated directly with the Olympics.

There are administrative appeals of final refusals, and the fact that the would-be TM has a serial number means the problem is substantive and not a procedural glitch.

Kirby is overlooking that one might be able to imitate a Laser so long as they don't call it that, and so long as they weren't an official builder who could be barred on breach of contract from making one. In theory you could have Laser by no one anymore, Torch by Kirby, and then a third set of rogue boats. Kirby may have the molds but he might have no legal right outside existing contracts to limit generic reverse engineering, so long as you don't call it certain things or use certain logos.

I hope they resolve this before it becomes a split loyalty or sourcing issue. It would be no small irony if they wrecked the Olympic status trying to profit from it. But since this is about who can make boats and make money there is a lot of incentive to go to the mat and stay there.

Joe said...

Think Banshee....or Force Five...Will you have to buy new sails with the new logo and change your tagline? "I am just a 64-year-old kid with a crazy dream that it is not too late to learn how to sail my "Torch" smarter and faster.

Tillerman said...

Exactly OD and PB. Interesting as it is to follow this news, I'm not going to let in interfere with my fun. One way or another Lasers (and/or Lasers by any other name) will continue to exist and there will be plenty of racing in them and I will continue to enjoy racing them.

Tillerman said...

Thanks for that insight TIV. I don't understand trademark law but I seem to remember hearing that there is some requirement to actually use the mark in trade, and you could be right that the purpose of that new website is to give the Torch trademark more credibility in the application process.

ISAF and IOC are certainly going to have an interest in this and could weigh in.

And I can't help feeling that there is another shoe to drop. I don't think we have heard LP's side of the case yet in detail, and I can't help thinking that they will find some way to fight ISAF/ICLA's decision to stop issuing them builders' plaques (without which they can't produce class-legal Lasers.)

Tillerman said...

Get thee behind me, Satan.

George A said...

Cheat the nursing home--go sit on a torch...

I don't have a dog in this particular fight and so no burning, itching, swelling interest in the outcome, but with about a jillion of these whatsits boats out on the water I think life will somehow go on, at least at the club level, for years and years. And just think--now you're free at last to go buy a so-called "practice" sail at a fraction of the cost of a "real" one.

I think you should have a blog post wherein you challenge your readers to come up with a new name and sail insignia for all these orphaned boats.

Tillerman said...

Sure George, life will go on. With over 200,000 Lasers sold and over 30 regattas every year in New England alone, nothing will change for me in the short term.

The 200,000 Lasers (well most of them) still exist. The 30 regattas will still happen. The Laser Class still exists. I already have a practice sail but will continue to sail with my class-legal Hyde sail in class-sanctioned events.

There are no "orphaned boats." There is simply a new website that attempts to give the impression that there is a boat called a Kirby Torch. I haven't seen one. Have you?

Anonymous said...

Lasers would be grandfathered into the Torch class, so no worries there.

"Laser" is just a word. It's the boat I sail and care about.

I support Bruce Kirby's bid to wrest control from this (in my opinion) rogue builder, and thank him for his considerable efforts to do so.

Marc Jacobi

Litoralis said...

The final Office Action from the USPTO isn't really a final rejection of the mark. It just gives the applicant 6 months to respond to some objections the examiner has made. In this case, the examiner objected to the mark in the first Office Action because it includes the name of a living individual. Kirby's lawyer responded by showing Kirby's consent to the use of his name, but he didn't state whether the mark was a pseudonym, stage name or nickname of the applicant. The final Office Action just asks for that clarification, which is easy to provide. There are no other grounds for rejection in the Office Actions, so the mark will probably be allowed. This was an "intent-to-use" application, so Kirby will have to show use in commerce before the mark can be registered. The new website might help with that.

/ Pam said...

The question on my mind is Oman. Will it be the Torch Worlds, the last Laser Worlds or will it be cancelled altogether because no new charter boats are available? Have to wonder if the Worlds registration was early so that the ILCA could collect the money before the whole thing fell apart.

Tillerman said...

Good point / Pam. As far as I can see, only one of the three listed Kirby Torch builders (Performance Sailcraft Australia) is actually producing Lasers right now, so they may be the only source of new charter boats (Lasers or Torches) for major regatta for some months. Let's be optimistic and believe that it will be in the interests of Oman, PSA, Kirby and a reconfigured class association to make the Oman Worlds a success, (maybe as the major international launch of the Torch Class?) and they will pull out all the stops to make it happen.

Litoralis said...

I guess I shouldn't have paid for a two-year membership in the ILCA.

Tillerman said...

Why not? As of today Laser is the only game in town. The Torch is a website.

If ILCA does what Kirby asks and "replicates itself as the Torch Class" along with the commitment that "all ISAF-plaqued Lasers are class legal in the Kirby Torch fleet" then your membership should be fine for your current Laser and that new Torch your wife will buy you for Xmas.

However ILCA just came out with this...

"The International Laser Class Association (ILCA) is disappointed to learn about the actions by Bruce Kirby Inc concerning the introduction of a new class association whilst there is an unresolved legal dispute between Bruce Kirby Inc and some Laser builders. The ILCA continues to believe that it is necessary to resolve the current legal issues before considering possible alternatives, and remains committed to working towards a resolution. "

So it sounds as if the reports of the demise or renaming of the Laser Class may be a little exaggerated.

bonnie said...

Oooh, here's a scoop for you - Kirby Falcon???

George A said...

At my age I don't even buy green bananas any more.

Tillerman said...

At my age I don't even buy coffee that's too hot.

Doc Häagen-Dazs said...

Roger all this!

Post a Comment