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Lasers - Applying a Blow Torch


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From the Wikipedia entry:

 

As a means of resolution, in July of 2010, Global Sailing offered to sell LaserPerformance the Laser Rights and their manufacturing company Performance Sailcraft Australia for $15,000,000 US, which LaserPerformance alleged was more than it was worth. In August of 2010, LaserPerformance offered to buy the Laser rights and Performance Sailcraft Australia’s trade mark rights for Australia and Oceania for $3,500,000.

 

I hadn't heard this bit of info before. Can anyone verify it?

 

Kirby has been quoted as saying that he sold the rights to GS as they had the best interests of the Laser at heart. GS then promptly offer the rights for sale to LP, for a probably decent profit.

 

Shows that despite all of the propaganda about people acting for the good of the class, all the players bar the class association are ultimately just interested in the money. Anyone who still believes that Kirby, GS, PSA or LP would ever put the good of the class ahead of the money is naive in the extreme. They're all playing us.

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When are they going to make a decision? I need to know whether I should be training in my RS Aero or my Laser for Paris 2024.     

@WCB  i seriously doubt there is a soul contributing to this thread who honestly disagrees with my perceptions or the reasoning behind my effort to establish an AERO fleet in Texas and at my home

That is one version of the story but there are other views. Today, many years later, who seems intent on controlling what happens to money that does not belong to them and attacking those elected by

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Interesting. All that stuff has come from a user id which seems to have been solely used for posts which on the surface one might think are from a Laser performance company point of view. One might even be reminded of artificial grass...

See http://en.wikipedia.org/wiki/Special:Contributions/Sailnfish123

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Yes, it does come across as authored from one particular point of view. Which is indeed interesting, because that side of the debate has said nothing publicly during the entire saga. It gives us a small insight into their version of events.

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Silly me; I forgot where I was. Allow me to correct myself.

 

In my opinion and in fairytale told over and over…

 

There is a great and good website filled with individuals that are long standing members of the class and instilled with divine powers of observation such that offerings noted by ordinary mortals have no standing. Their hero is a kind poor white hair gentleman who was forced to take action to save the class from its officers who are evil to a degree perhaps only slightly less than that of the ultimate evil doer from a land across the sea. Said hero reaps a mere pittance of benefit from a napkin discovery so astounding and recent that family members for generations should suckle from its milk. So kind is he that pretty pink princess ponies emerge when he farts and he would never be associated with a Shark who would never issue threats to sailors over the interweb.

 

The action is going exactly to plan and our hero has won great victories at every turn. The class associations are about to be sanctioned into the stone ages for their bad deeds and the very starburst symbol upon which they gaze as they trim, will be stripped from the evil-doers, and evaporate into nothingness. It has been written and so it will be. It must be so.

 

The sailors themselves are panicked at their inability to worship at the alter upon their chosen steed but by the great light of a burning flame offered by our hero, they have found a better one and they are buying the new steed at such a great rate only equaled by the speed at which the new steed is being produced. To see those burning light factories hum is a sight they tell us. Oh what a grand sight it must be. I would order one if I could but such new steeds are not for mere mortal or class members grounded in the mundane. And the new cloth for the steed which will be a great improvement is being forever delayed by the same evil doers. So it was written so it must be. Our heros from lands very far away or very close would have nothing to do with such actions for they are pure as spun gold. At least until they had something to do with it but then it would only be for good reason for the heros are unfailing.

 

And I am Spartacus! Or Bill. That is about as true as anything else here. In fact, the best thing about this thread is there appears to be so little fact in it that it can provide a useful comic relief to the whole mess.

 

And then there is this one guy that if you spell his name wrong, and stir just little, that you can get him so wound up that he will actually believe you are somebody that matters in the mess and that they would actually post here in the land of fairytales.

 

Come on guys. Do you really believe in hero and fairytales? Go sailing already. The sky is not falling nor is it the color you make it out to be. Its grey. Many many shades of grey.

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Yes, it does come across as authored from one particular point of view. Which is indeed interesting, because that side of the debate has said nothing publicly during the entire saga. It gives us a small insight into their version of events.

 

 

Agreed. You know it's strange really to say that, because you almost get a greater sense from the Wikipedia listing, than from the legal submissions.

 

I really like (sarcasm) the end paragraph: "On June 13, 2013, LaserPerformance answered Bruce Kirby’s claims and filed counterclaims against Bruce Kirby, Inc., Global Sailing Limited, (“Global Sailing”), and Performance Sailcraft Pty. Ltd. (“PSA”). The case is essentially a claim that LaserPerformance and Quarter Moon have breached post-termination obligations in the license agreements with Kirby and BKI. As set forth in detail in the Answer and Counterclaims, however, the defendants deny any such breach and deny that they have violated any federal statutes. The counterclaim argues that it is unclear as to which party owns the right to the “Kirby sailboat” design commonly referred to as the Laser. Nor do the defendants owe any unpaid royalties to Kirby, BKI, or Global Sailing."

 

And the end sentence seems stated with such belief.

 

The fact is, that a contract exists between Kirby and Laser Performance, and that contract includes among other things, the payment of royalties to the designer of the class: Kirby. We know that the royalties were reasonable, and have worked for many years with all of the other builders. The vast majority of Laser sailors who were aware of those royalties, were (and are) happy to see Kirby benefit. And Kirby has been a consistent figure in Laser sailing, turning up to countless regattas over the years.

 

If the reason that the royalties haven't been paid is because the contract was terminated, then all that may do is limit the amount of royalties that are / were due. Having said that, the contract is also very clear about who owns what, and what the terms are for release, and for selling the rights under the contract. My sincere hope is that the courts will see these aspects clearly, and that proper damages will be awarded to Kirby.

 

What is really annoying is that all Kirby wanted to do was retire. He as admitted botching the sale to Global Sailing, and that it wasn't completed according to the terms of the contracts. That being said, Rastegar / Crane (Laser Performance) did not need to take advantage of that, even though at that time I understand times were tough for the company and they were probably just trying to survive. Rather than deal with these issues openly and honestly, they appeared to have made a play for securing the world market for the production of the Laser (with the exception of Korea, Japan and Oceania), which they see as their right. That's why Bill Crane registered the Laser trademarks around the world a few years back - right Bill?

 

For sailors of Lasers (myself included) who have gained enormous benefit from sailing Laser, we also signed up to the system that Kirby created. I have come to a point where I now realise some of the flaws in the system (particularly trademark ownership), however Kirby, (originally a Finn sailor from Canada) got enough right to see the explosive growth of the class, something that Rastegar (a controversial figure who owned a pushchair / buggy company McLaren) bought into after previous Laser builders Vanguard went bust.

 

What's particularly annoying to me, is all of the effort that has gone into the legal case (including ILCA changing the fundamental rule, the badges etc in a successful attempt to support Laser Performance supply boats), is that these efforts could have been made making improvements to the class.

 

It's unacceptable that Kirby has been put in this position. It's completely understandable that he has opted to seek redress through the courts.

 

And it's understandable that he wants to see the continuation of his creation, even if it means adopting a new name.

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Gotta wonder why:

1. People feel such a need to choose a side

2. Anyone believes posting an argument here eill away the opinion of others

3. There is such passion for either side

 

Again with the implication that someone must be either for BK or for LP. I really, honestly do not give a damn which of them is right or wrong, or which one ends up paying how much to whom. I know I'm far from alone, but reading this thread makes it seem like I am.

 

I do care about the class and the sailing. That's what the class association is protecting. Why anyone who sails lasers would do anything other than support the class is beyond me.

 

Why is is so difficult to understand that if the class had not taken the action it did, that there would not have been a new, class legal boat sold in Europe or NA in the past three years? Why do people (looking at you, Gantt) insist on reduction this to a pro-LP rather than a pro-class member action?

 

Neither LP or BK will put the class ahead of the money. Neither of them are the sailor's friend in this. You can argue that one is slightly more towards one side of the course than the other, but ultimately the money is by far the most important consideration to both of them.

 

The class doesn't care about the money. They care whether there are boats for people to sail, and events for people to sail them in. So please forget about supporting BK, or supporting LP. Just look after the class.

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I do care about the class and the sailing. That's what the class association is protecting. Why anyone who sails lasers would do anything other than support the class is beyond me.

 

Why is is so difficult to understand that if the class had not taken the action it did, that there would not have been a new, class legal boat sold in Europe or NA in the past three years? Why do people (looking at you, Gantt) insist on reduction this to a pro-LP rather than a pro-class member action?

 

Neither LP or BK will put the class ahead of the money. Neither of them are the sailor's friend in this. You can argue that one is slightly more towards one side of the course than the other, but ultimately the money is by far the most important consideration to both of them.

 

The class doesn't care about the money. They care whether there are boats for people to sail, and events for people to sail them in. So please forget about supporting BK, or supporting LP. Just look after the class.

 

I care more about sailing than I do about Lasers, though obviously I care about Laser as well. I also care about fair play.

 

Redstar, if Kirby's termination of Laser Performance was effected, there would have been a new Laser builder. Any supply issues would have temporary and certainly not lasted three years. When the Laser builders went bust previously, new builders were found quickly. When Vanguard went bust, new owners in the form of Rastegar stepped in. There have been supply issues when there were financial issues with LP which are fairly well documented.

 

The manner ILCA acted when they changed the fundamental rule has been widely criticized. When they made mistakes (and they did), they acted as if they were beyond reproach. When I discovered that the ILCA claimed that they had no knowledge to contracts that they were signatory to, that further turned me off the ILCA with respect to that. Issuing the plaques and the ISAF announcing that they had terminated their contract, merely highlighted the contracted agreement they had (or have). Don't get me wrong, there are top guys like Tracy Usher who contributed to forums prior to becoming ILCA president - but his election appears to have silenced him. A disruption to Laser Performance, may have meant a disruption to a big part of their income.

 

The ILCA definitely does care about money. They receive their contributions from selling plaques, member fees and that money goes towards paying salaries, travelling costs and organising regattas. The majority of work is volunteer work, however there are a select few where this financial tie is very significant. This is well documented in Laser World, though they have stopped putting complete financial statements there in the last couple of years.

 

It's a nonsense to say that Laser sailing is limited to just the members of the ILCA. There are in my estimation more than 40,000 people who race Lasers in any given year, yet only about 15,000 that join the ILCA. There are members of small clubs all around the world who choose not to belong to the national Laser association and therefore don't belong to the ILCA either. Some of them use club Lasers, like with college boats in the US, while others own their own boats and are weekend racers.

 

There was a significant period when Bruce Kirby put the class ahead of the the money. During the Laser's formative years, there is no doubt in my mind that he worked his ass off to make the Laser a success. There is some that say that is still true that he puts the class ahead of money. His many years of sailing, and even more years of turning up at regattas are beyond what was necessary - and certainly action that were not about money.

 

The contracts he put together binded same-minded enthusiasts - and it is striking that Farad Rastegar and Bill Crane are cut from a different cloth. They bought a failed Vanguard, probably at a greatly discounted price. When you dig, it's hard to avoid McLaren's challenges (How Farad Rastegar infamously forgot that his mother and sister owned a McLaren company), or the way that Bill Crane left the NA-ILCA hanging regarding their sponsorship. The legal documents lodged have underscored that Farad Rastegar and Bill Crane have treated Bruce Kirby poorly. In spite of what the ILCA claimed, the contracts were real, and Bruce Kirby is more than justified to use legal process to uphold the terms of those contracts. Win or lose in court, Bruce Kirby can hold his head high as the guy who created a boat that has given several hundred thousand people great enjoyment. There is a good chance, win or lose, that the Torch will become a reality. He has quite a few supporters, including some high level sailors who currently race Lasers. As I said previously, there are others who have been a big part of building Lasers, however this is not about their efforts - this is about addressing the allegation that Kirby is all about the money. I firmly do not believe that is (or ever was) the case.

 

Putting the class ahead of money is definitely true for the Spencer family. When they moved manufacturing from New Zealand (Henderson) to Australia, I'm pretty sure that move was inspired by losses that the builders made. Never the less, the Spencers stood by the class and persevered. So to them, at that time (the 1980s), it was more about maintaining a highly successful class than making big profits. The Spencers didn't need to generate profits, they had a highly successful business called Caxton Papers Mill that the family sold in the 1980s for many millions. Lasers are still incredibly popular in Australia and New Zealand - both countries have contributed a disproportionate number of top Laser sailors as a result. (The regional population is about 20 million). While it's not perfect, there's something that is very right about down-under when it comes to Lasers.

 

Yes PSA and LP have longstanding issues. but the above does not mean that Kirby, who made a few mistakes when he tried to retire, should be squeezed out of the contracts he set up. The court case is now going to verify if the the contracts were binding.

 

By pretending it's not about Kirby, that things will sort themselves out, that everything should continue as it is, is exactly what will benefit Laser Performance - and to do that is to screw Kirby out of the rights that he had contracted with builders and with the ILCA.

 

So don't go thinking it's reducing this down to making it pro Kirby or pro Laser Performance.

 

It already was.

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Why anyone who sails lasers would do anything other than support the class is beyond me.

 

...

 

So please forget about supporting BK, or supporting LP. Just look after the class.

But how do you look after the class in the long term?

The fundamental rule change seems to me like putting sawdust in your radiator. You might be able to limp home, but if you don't fix the problem properly in the medium term things are going to get much much worse.

Major involvement from designer and builders who also have an enthusiasm for the sport has been a big part of the success of the class, it's one of the things that is different.

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Vanguard did not go bust.

They sold a well oiled money making machine to an enthusiastic buyer who decided to run the company in a different manner.

 

Quite right, Vanguard didn't go bust - what I was referring to badly was the merged businesses of Sunfish / Laser, Vanguard and Performance Sailcraft Europe (Gavel) which were an entirely different animal to the Vanguard company formed by the Harken brothers. I wouldn't be the first that erroneously referred to them as Vanguard - partly because they were the most famous (at least in my mind). Farzad Rastegar acquired the company/ies sometime around 2007/8.

 

Checking the facts about Laser Performance's history (which I didn't do with my previous post), I looked at this on Wikipedia:

http://en.wikipedia.org/wiki/Laser_Performance

 

In it is a statement with presents a very one sided account of the legal proceedings, concluding with this gem:

"On June 13, 2013 LaserPerformance filed its Answer and Counter Claims in the United States District Court, District of Connecticut, alleging a scheme by Bruce Kirby, Inc., and their foreign co-conspirators Global Sailing Limited, and Performance Sailcraft Pty. Ltd. to force LaserPerformance out of business."

 

As it turns out, the evidence that supports that is that according to Bill Crane some guy once imported to the US about 20 foils from Australia without PSA's knowledge. That's based on the affidavits submitted by Bill Crane.

 

Perhaps my response to Redstar wasn't as clear, as well thought out as I intended. I agree with his sentiment "just look after the class". By simply rereading the proposal to change the rule back in 2011 (http://www.laserinternational.org/info/2011rulechangesvotingended23rdseptember2011) underscores why looking after the class should be with our eyes wide open, that blindly following the direction that the ILCA sets for sailors is dangerous - and that people within the ILCA are human, fallible and not beyond reproach. Specifically, when they made the following untrue statement as part of convincing the membership to change the rule:

 

"In addition, a builder also needs a building agreement from Bruce Kirby or Bruce Kirby Inc. This provision is mostly historical. The rule was instituted at a time when Bruce Kirby held certain design rights. The ILCA is not a party to any of these “Kirby” agreements."

 

This statement was cosigned by then president Heini Wellmann, and Jeff Martin (Laser Class World Executive Secretary).

 

The agreements are still poorly understood, as are the royalty payments. Most people don't acknowledge that the ILCA (along with Kirby and the ISAF) were also due royalty payments because of a clause (8.1) that Kirby put in the builder's contract. Note that the contract was amended as recently as 2005 - which speaks volumes to the historic nature of the contracts.

 

The ILCA were a beneficiary of the building contracts, and therefore a party. The ILCA formally acknowledged that fact, by being a signatory to the IYRU contract, which Jeff Martin personally signed.

 

JimC rightfully raises the question of how do you look after the class in the long term? In order to do that, the stakeholders need to agree and work together. Unfortunately, even who the stakeholders are is under question, which will hopefully be answered in part by Kirby's legal action. According to the ILCA, the stakeholders don't include Kirby and does include Farzad Rastegar and Bill Crane. That needs resolving before we can move forward.

 

Part of looking after the ILCA, is saving them from themselves.

 

For me and others, because of the above, moving forward will be with Kirby.

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I still wonder how they will be able to explain all this shit to a jury.

I think it unlikely they will have to. Most likely there will be some kind of out of court settlement once discovery is over and all the lawyers get to see what the evidence says.

 

It occurs to me, now I think of it, that the lawyers must be as ignorant of what really happened as the rest of us, and all they know is what their clients tell them, which must be coloured with the usual human failings, truth mixed with wishful thinking, second guessing on what they think the other guy thought, evasions, stuff left out because it's embarrassing or awkward, and maybe even lies and deceit.

 

It seems to me it must only be after the discovery phase is over that the lawyers can look at what both sides have got and figure out what they can prove in court, and also what the other side can prove, and get some idea of who is likely to win.

 

But maybe I 'm talking b******'s...

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I'd agree with you JimC, if it were all about the money, but that's not what it's all about. It would seem to me that there are few principals involved as well - like whether or not contracts have been breached.

 

I'm not sure about the other lawyers, but with Wesley W. Whitmyer, Jr., who has been Kirby's lawyer for at least a few years, is a sailor. I don't know if he is or was a Laser sailor, but he knows a few. I believe that as a sailor he is very well placed to understand the intricacies.

 

The issues include whether or not the contracts are valid, and whether or not Kirby has the right to terminate Laser Performance as a builder. If successful, then the question becomes who appoints new builders. So, given that Rastegar's company holds the Laser trademark for various countries, the discussions would be about renaming the boat and using a new builder, or reinstating Laser Performance. It will be interesting to see if Kirby and the ILCA can find agreement on how to move forward in this scenario. If they don't, Kirby has already indicated that a new association can be set up.

 

If Kirby loses the court case, then he (along with his supporters) will proceed with the Torch, which, as he indicated personally, is on hold until the courts make a ruling. This scenario is interesting as well, because although Rastegar holds the Laser Trademark for most regions, crucially he does not hold the trademark for Australia, Japan, Korea and New Zealand. It's even more interesting if PSA starts building the Torch, and retains ownership of the Laser Trademark. If Kirby loses the case and Rastegar continues to build, I can't see the class moving forward in the longer term with the same name - with or without Rastegar.

 

The issues that lead Kirby to court are not just about Rastegar not paying royalties. They include Kirby's contracted right to terminate Laser Performance as a builder, and the ILCA and the ISAF upholding their agreements with Kirby. It's also about several other terms and conditions set out in the contracts, including: the ownership of the moulds Laser Performance have used to make Lasers, through to the procedures (eg notification) that parties must follow when selling their contracted rights.

 

Let's look at the main defence and counterclaim. Aside from some technical argument that somehow invalidates the contracts, the most significant reasons put forward is that Kirby and the Spencers/PSA have a conspiracy to take over the world production of Lasers. If that's the case, then how come with the Torch, that the builders in Europe and North America are not related to PSA? That the only evidence presented is very very flimsy? My hope is that the jury will see this counterclaim for what it is.

 

I wonder too about a jury's capacity to understand this stuff, though am of course hopeful that they will. Even if they do find in favor of Kirby, there are still quite a few barriers in the way of resolution.

 

One of my recent realisations is what this is about is whether or not Kirby's voice should be heard. The ILCA have said that Kirby's role is historic. To simply forget about this stuff like others have suggested and just go sailing is to shut Kirby out. I can't say enough how I am disappointed in the ILCA in that they did not adhere to their agreements. They have said let's just go with the guys who are paying the ILCA money and supplying the boats - because supply is really important. To say that Kirby's role is historic offends on many levels. Let's not forget that Laser Performance are not the only boat builders with the capacity to build Kirby's boat - and yes - that might be with a different name. So let's forget about our values of fair play and what is right - of course forgetting about these things is wrong.

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Is it definitely on track to go to a jury trial?

Isn't a lot of this contracts stuff done with just a judge/panel of judges hearing the case?

 

I don't know for absolute sure, though the US District Court routinely try civil cases by jury. According to Judge Meyer's information, the normal number of jurors is 8. http://www.ctd.uscourts.gov/content/jeffrey-alker-meyer I recall one party requesting a jury.

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Mmm, but anno domini can't be escaped. BK cannot play the role he's played in the past for ever, and indeed that was part of how this mess started. Eventually his role has to be historic.

But now you have me speculating, with no evidence whatsoever, whether there was a faction in ILCA that didn't altogether value the input from the designer, and was looking forward to his retirement. If so a passing of the baton on so that input continued from another party might have been a very unwelcome surprise.

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Mmm, but anno domini can't be escaped. BK cannot play the role he's played in the past for ever, and indeed that was part of how this mess started. Eventually his role has to be historic.

But now you have me speculating, with no evidence whatsoever, whether there was a faction in ILCA that didn't altogether value the input from the designer, and was looking forward to his retirement. If so a passing of the baton on so that input continued from another party might have been a very unwelcome surprise.

 

I guess that it's safe to assume that the ILCA no longer values Kirby's input, or they would not have tried to pass off the contracts as 'historic' and change the fundamental rule. I agree, that there may be a time in the future that Kirby Inc, might become historic. That time is not now, with a system that binds the parties together with contracts.

 

The right way to pass the baton on is the decision of the stakeholders, and the right way to terminate the contracts is actually laid out in the contracts themselves. Though of course currently, the validity of the contracts is questioned through the actions of the ILCA (changing the rules, and breaking their agreement) and Laser Performance (breaking their agreement).

 

Also, just how significant the attempted sale of Kirby's contracted rights to Global Sailing remains to be seen. (Under the terms of the contracts, the sale was never completed.)

 

All roads lead back to court at this point.

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This thread has long since lost sight of the issues of law at stake here.

 

Design Royalties and Intellectual Property

Bruce Kirby owns no intellectual property in the Laser. He is not suing for design royalties. The nub of this case is a contractual dispute. The plaintiff, a company called BKI, is claiming that it is due fees under a contract for consideration/services provided by BKI . The defendant is claiming that BKI gave notice and terminated that contract.

Industrial patents and design copyrights have fixed lives that expire. Our modern industrial and capitalist society depends on this. If a brilliant chemist designs a life saving drug that will cure millions, the patent on that drug will expire 20 years after the patent is filed and generic companies will manufacture the drug without paying royalties. If we didn't have limits to the lives of patents and design, aspirin would cost $30 and all of the worlds steel would be supplied by Bessemer. IP law is a balance between encouraging innovation and discouraging monopoly. It works.

The design rights of the Laser have long since expired. The designer has been paid. Anyone can build the Laser dinghy (They just cannot call it a Laser).

 

Trademark

 

Ian Bruce, "Father of the Laser", and his companies originally owned the Laser trademark and Laser name. The Laser trademark is now owned by 3 builders in 3 different regions. They paid for them and they own them.

 

Termination of Builders Agreement

 

BKI had a contract with each of the 3 builders/trademark owners where BKI received a fee per boat in return for (among other things) approving their build process. Bruce Kirby sold BKI to the Spencers. Laser Performance (LP), the European builder claims that the BKI under Spencers ownership terminated the fee agreement. If this is true then the fee per boat is no longer due. Bruce Kirby claims that he reacquired BKI and that the fee was due again, and when LP did not pay the fee they were in breach of contract.

 

IMO, neither Bruce Kirby nor BKI nor the Class Association nor ISAF can terminate LP's right to build Lasers. Anyone can build a Laser and LP owns the trademark, so they can call it a Laser.

 

ILCA and ISAF have some power in that they issue plaques which sanction a boat to be used in major class events and the Olympics. They could also change their rules and appoint additional builders. But they cannot terminate a trademark holder from building the Laser boat and calling it a Laser.

 

Its all about Money

 

Bruce Kirby and BKI are claiming that the fee contract was not terminated. They are seeking to recover lost fees. IMO, Bruce has little or no interest in getting into the boat building business or barn storming around the country to promote the Laser. He wants his money. The Spensers are reputed to have given him an 8 figure sum for BKI (which seems suspiciously higher than the FMV of the fee stream coming from BKI). We do not know how or why the sale was cancelled but it appears that Bruce has ended up without either the sale proceeds or the fee income.

The court will discover what happened. Was the contract terminated or not?

My guess: If the BKI case is strong, it will not go to court and Bruce will receive a tidy sum in settlement. LP will continue as builder.

If the BKI case is weak, either Bruce will concede under the weight of legal fees or they will lose in court. LP will continue as builder.

LP alleges that the Global Sailing or the Spensers are paying Bruce's legal fees. One hopes so, but either way if you have a weak case its the legal fees which force you to acknowledge your position. Again, if the case is strong, BK/BKI/GS will continue until they get a settlement offer.

 

Case Against ISAF and ILCA

 

IMO, BKI doesn't stand a rat's chance in hell of winning these claims. Sorry to be so blunt. ISAF has already had several important components of BKIs claim against ISAF dismissed. The claim of tortial interference against ILCA doesn't, in my opinion, come close to meeting the pleading standards for tortial interference. My guess is that these claims get dismissed with prejudice.

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This thread has long since lost sight of the issues of law at stake here.

 

Design Royalties and Intellectual Property

Bruce Kirby owns no intellectual property in the Laser. He is not suing for design royalties. The nub of this case is a contractual dispute. The plaintiff, a company called BKI, is claiming that it is due fees under a contract for consideration/services provided by BKI . The defendant is claiming that BKI gave notice and terminated that contract.

Industrial patents and design copyrights have fixed lives that expire. Our modern industrial and capitalist society depends on this. If a brilliant chemist designs a life saving drug that will cure millions, the patent on that drug will expire 20 years after the patent is filed and generic companies will manufacture the drug without paying royalties. If we didn't have limits to the lives of patents and design, aspirin would cost $30 and all of the worlds steel would be supplied by Bessemer. IP law is a balance between encouraging innovation and discouraging monopoly. It works.

The design rights of the Laser have long since expired. The designer has been paid. Anyone can build the Laser dinghy (They just cannot call it a Laser).

 

Trademark

 

Ian Bruce, "Father of the Laser", and his companies originally owned the Laser trademark and Laser name. The Laser trademark is now owned by 3 builders in 3 different regions. They paid for them and they own them.

 

Termination of Builders Agreement

 

BKI had a contract with each of the 3 builders/trademark owners where BKI received a fee per boat in return for (among other things) approving their build process. Bruce Kirby sold BKI to the Spencers. Laser Performance (LP), the European builder claims that the BKI under Spencers ownership terminated the fee agreement. If this is true then the fee per boat is no longer due. Bruce Kirby claims that he reacquired BKI and that the fee was due again, and when LP did not pay the fee they were in breach of contract.

 

IMO, neither Bruce Kirby nor BKI nor the Class Association nor ISAF can terminate LP's right to build Lasers. Anyone can build a Laser and LP owns the trademark, so they can call it a Laser.

 

ILCA and ISAF have some power in that they issue plaques which sanction a boat to be used in major class events and the Olympics. They could also change their rules and appoint additional builders. But they cannot terminate a trademark holder from building the Laser boat and calling it a Laser.

 

Its all about Money

 

Bruce Kirby and BKI are claiming that the fee contract was not terminated. They are seeking to recover lost fees. IMO, Bruce has little or no interest in getting into the boat building business or barn storming around the country to promote the Laser. He wants his money. The Spensers are reputed to have given him an 8 figure sum for BKI (which seems suspiciously higher than the FMV of the fee stream coming from BKI). We do not know how or why the sale was cancelled but it appears that Bruce has ended up without either the sale proceeds or the fee income.

The court will discover what happened. Was the contract terminated or not?

My guess: If the BKI case is strong, it will not go to court and Bruce will receive a tidy sum in settlement. LP will continue as builder.

If the BKI case is weak, either Bruce will concede under the weight of legal fees or they will lose in court. LP will continue as builder.

LP alleges that the Global Sailing or the Spensers are paying Bruce's legal fees. One hopes so, but either way if you have a weak case its the legal fees which force you to acknowledge your position. Again, if the case is strong, BK/BKI/GS will continue until they get a settlement offer.

 

Case Against ISAF and ILCA

 

IMO, BKI doesn't stand a rat's chance in hell of winning these claims. Sorry to be so blunt. ISAF has already had several important components of BKIs claim against ISAF dismissed. The claim of tortial interference against ILCA doesn't, in my opinion, come close to meeting the pleading standards for tortial interference. My guess is that these claims get dismissed with prejudice.

 

I agree with IPLore that the case is not about IP and is about contract law - though in the same paragraph he talks about IP law as if it's important. The rights that Kirby has been referring to were always his contracted rights. This is borne out in his legal action, and the responses. IPLore is off base here. To quote Kirby directly "There is no patent!" This case is all about the contracts. All this talk IPLore brings forward as IP being relevant is not. What is relevant is who can build a class legal boat designed by Kirby and race it at official regattas. At the moment, this case is all about the contracts.

 

Historically there was a case about the Laser trademark. The case before the courts (the one we are talking about) is not about the Laser trademark. IPLore is off base regarding trademarks.

 

Termination of rights we (IPLore and I) agree are important. There is no evidence (yet) of the sale ever have been completed. Maybe we'll see some when discovery is completed. To put forward the sale as if it were not contested is disingenuous. If the sale is found to be valid then it has been reversed by the same mechanism. Kirby wants the contract with Laser Performance to be terminated. The court will establish a date that it was terminated to calculate the royalties owing. If the contracts are found to be binding, then Laser Performance may or may not be able to continue building class approved boats (though they must return Kirby's property), and if the ILCA contract (Called the IYRU contract) is binding then the ILCA and ISAF cannot approve Laser Performance as a builder without Kirby. It's all in the contracts. The question is whether or not these signed, witnessed contracts are legal and binding.

 

IPLore says that issues of law have been lost then in the same post devotes a whole paragraph to speculation about Kirby's motive being all about the money. Kirby's actions are at worst a mix. If there has been an attempt to dig up dirt on Kirby (and I'm sure that there has) it has so far failed. Where is the dirt? Kirby is one of the good guys in sailing. We have heard statements on this forum that Kirby is not. Yet there is no evidence, instead a story about conspiracy that is supported weakly by flimsy affidavits. We will see if the case goes to court or not. If it is settled out of court, then I predict it will not just be about the money as IPLore has speculated. Matters of law are not the only thing that is important. One of my favorite quotes is:

"You haven't won the race, if in winning the race you have lost the respect of your competitors." — Paul Elvstrøm
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You cann'tt do that here. This place is for works of fiction and bromances that know no reason or end. Take you logic elsewhere.

This thread has long since lost sight of the issues of law at stake here.

 

Design Royalties and Intellectual Property

Bruce Kirby owns no intellectual property in the Laser. He is not suing for design royalties. The nub of this case is a contractual dispute. The plaintiff, a company called BKI, is claiming that it is due fees under a contract for consideration/services provided by BKI . The defendant is claiming that BKI gave notice and terminated that contract.

Industrial patents and design copyrights have fixed lives that expire. Our modern industrial and capitalist society depends on this. If a brilliant chemist designs a life saving drug that will cure millions, the patent on that drug will expire 20 years after the patent is filed and generic companies will manufacture the drug without paying royalties. If we didn't have limits to the lives of patents and design, aspirin would cost $30 and all of the worlds steel would be supplied by Bessemer. IP law is a balance between encouraging innovation and discouraging monopoly. It works.

The design rights of the Laser have long since expired. The designer has been paid. Anyone can build the Laser dinghy (They just cannot call it a Laser).

 

Trademark

 

Ian Bruce, "Father of the Laser", and his companies originally owned the Laser trademark and Laser name. The Laser trademark is now owned by 3 builders in 3 different regions. They paid for them and they own them.

 

Termination of Builders Agreement

 

BKI had a contract with each of the 3 builders/trademark owners where BKI received a fee per boat in return for (among other things) approving their build process. Bruce Kirby sold BKI to the Spencers. Laser Performance (LP), the European builder claims that the BKI under Spencers ownership terminated the fee agreement. If this is true then the fee per boat is no longer due. Bruce Kirby claims that he reacquired BKI and that the fee was due again, and when LP did not pay the fee they were in breach of contract.

 

IMO, neither Bruce Kirby nor BKI nor the Class Association nor ISAF can terminate LP's right to build Lasers. Anyone can build a Laser and LP owns the trademark, so they can call it a Laser.

 

ILCA and ISAF have some power in that they issue plaques which sanction a boat to be used in major class events and the Olympics. They could also change their rules and appoint additional builders. But they cannot terminate a trademark holder from building the Laser boat and calling it a Laser.

 

Its all about Money

 

Bruce Kirby and BKI are claiming that the fee contract was not terminated. They are seeking to recover lost fees. IMO, Bruce has little or no interest in getting into the boat building business or barn storming around the country to promote the Laser. He wants his money. The Spensers are reputed to have given him an 8 figure sum for BKI (which seems suspiciously higher than the FMV of the fee stream coming from BKI). We do not know how or why the sale was cancelled but it appears that Bruce has ended up without either the sale proceeds or the fee income.

The court will discover what happened. Was the contract terminated or not?

My guess: If the BKI case is strong, it will not go to court and Bruce will receive a tidy sum in settlement. LP will continue as builder.

If the BKI case is weak, either Bruce will concede under the weight of legal fees or they will lose in court. LP will continue as builder.

LP alleges that the Global Sailing or the Spensers are paying Bruce's legal fees. One hopes so, but either way if you have a weak case its the legal fees which force you to acknowledge your position. Again, if the case is strong, BK/BKI/GS will continue until they get a settlement offer.

 

Case Against ISAF and ILCA

 

IMO, BKI doesn't stand a rat's chance in hell of winning these claims. Sorry to be so blunt. ISAF has already had several important components of BKIs claim against ISAF dismissed. The claim of tortial interference against ILCA doesn't, in my opinion, come close to meeting the pleading standards for tortial interference. My guess is that these claims get dismissed with prejudice.

The reality you note here:

 

"IMO, neither Bruce Kirby nor BKI nor the Class Association nor ISAF can terminate LP's right to build Lasers. Anyone can build a Laser and LP owns the trademark, so they can call it a Laser.

 

ILCA and ISAF have some power in that they issue plaques which sanction a boat to be used in major class events and the Olympics. They could also change their rules and appoint additional builders. But they cannot terminate a trademark holder from building the Laser boat and calling it a Laser."

 

And here:

 

"Case Against ISAF and ILCA

 

IMO, BKI doesn't stand a rat's chance in hell of winning these claims. Sorry to be so blunt. ISAF has already had several important components of BKIs claim against ISAF dismissed. The claim of tortial interference against ILCA doesn't, in my opinion, come close to meeting the pleading standards for tortial interference. My guess is that these claims get dismissed with prejudice."

 

... really sum up the issues. All simply in my opinion: As you note its highly unlikely that anybody can stop LP from making and selling Lasers in their territory. There is no IP on the design and the tradmark is owned (for their territory) by LP. Anybody can make a boat that is the same as a Laser (or a Torch for that matter should that pipe dream ever be more than a stain on the sheets) in LP's territory, except only Laser can call it a Laser (and if BKI gets their act together - stay tuned - only they can call it a Torch).

 

Only the Laser class could have said that those Lasers made by LP are not class legal race boats. Except the class did not say that. The class said the exact opposite and took a vote and took action to do the exact opposite. This is why BKI had to sue the class and win against the class to get anywhere. However the fearless leader's success on this front is not exactly awe inspiring as he has suffered defeats already. There are good reasons the class went down this path if Its consider it from the standpoint of the class members. There was no turmoil is the class officer ranks or class members. Even as class officers came and went, and class meeting were held, there was no uproar (or even a murmor) of dissent. One path leads to the destruction of the class, or splintering and confusion at best, along with continued royalties and monopoly and associated pricing. The other path leads to the continuation of the class. BKI needed to have the class taken out in the litigation of the class members abandon the class for the Torch.

 

Thus far neither looks likely and so as you say:

 

"If the BKI case is strong, it will not go to court and Bruce will receive a tidy sum in settlement. LP will continue as builder.

If the BKI case is weak, either Bruce will concede under the weight of legal fees or they will lose in court. LP will continue as builder."

 

Oddly though I think BKI could lose the case and win in the market place. As noted nothing stops BKI from launching the Torch. If he did so I would not be surprised if the Torch (priced right and below the Laser) would not become a common sight in Laser fleets at the club level just like the generic brand sails and parts are now. I am not a BKI fan at all, but I am not a LP fan either and if BKI offered a boat that was priced better than the Laser and could compete at a club level in Laser fleet races (yea, yea, I know the i is not doted or the t crossed relative to an exact reading of the ruloes when it happens with practise sails but the reality is it does happen), I would but the Torch. This is where I think BKI missed the boat. I doubt he wins the case and I doubt he deserves to win the case - again just an opinion. But I suspect he could win in the marketplace and deserves to as well on multiple levels. A better/same boat at a better price and leverage his name the hate that exists for LP.

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I wouldn't read anything into some suits having been dismissed. Lawyers seem to like to throw anything and everything against the wall just in case something sticks. After all even if there was just a 5% chance of the ISAF thing sticking it would have been such a big win it was probably worth having a shot, especially if billing by the hour.

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Jim - We often disagree, but I appreciate your view and I have gained from some insights you have shared. On this however we have to agree to disagree.

 

The early rallying crys from BKI supporters was that he is here to save the class. Well clearly the class did not want his form of saving (in my opinion its more like he keeps sticking his hand in my wallet) and they not only didn't embrace his view; they apparently ran as fast as possible away from it.

 

Unless folks are wiling to admit this is just about the money for BKI - and here I can only guess that the class feel/act as if to believe that he has been paid many time and many ways for the decades old napkin and don't feel its fair if he has his hand in our pockets anymore - then for BK to have success beyond just getting our money, but also saving the class to his POV then he must:

 

1.) take down the trademark (so LP does not own the name "Laser"), and, take down/stop the class who clearly vote and act not aligned with BK views, AND

2.) convince the class to leave Laser class and join Torch class and buy and race Torch boats.

 

If he fails in #1 or #2, at best he will get only our money. At present all signs point to his failure on both points #1 and #2. I don't think either were thrown against the wall by his lawyers at random. I speculate they were key aspects as they are his only path to stated desires beyond simply taking our money.

 

I wonder if BKI counted on the class officers and members rallying to his support and over-played their hand. Even ignoring the class ran awy rather than embrace him, at the end of the day the sailors and class can not be forced to do anything even if BKI wins (on every single count). Even if BKI wins aginst LP, there is nothing to stop the class members from immediately reconstituting themselves as the "Ian Bruce" class and setting up an Ian Bruce class dinghy specification that matched Laser and Torch and allowing any boats (including Lasers and Torches) that measures/conforms to the spec to play, opening things to competition and lowering prices and improving access (just as generic sails have). They would be free of BKI as well as LP and PSA. Should LP and PSA tire of the game and legal fees and be willing to sell them the Laser trademark, the class could even continue forward as the so-called Laser class.

 

I know somebody will scream "that ain't SMOD." Fair enough, but SMOD died long ago as evidence by multiple manufactures of sails for example. And I know of not a single sailor that left the class because of the generic sails being allowed even when class legal sails were available. I gather everyone would agree that the tossing of the SMOD concept for sails has grown club fleets not harmed them. Its clearly true with sails, as with parts and would be with boats as well. BK could have won that fight for hearts and minds at the club level with the Torch and saved himself all those legal bills and the stimga of having sued the very class that made him rich and able to afford those fees.

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I know somebody will scream "that ain't SMOD." Fair enough, but SMOD died long ago as evidence by multiple manufactures of sails for example. And I know of not a single sailor that left the class because of the generic sails being allowed even when class legal sails were available. I gather everyone would agree that the tossing of the SMOD concept for sails has grown club fleets not harmed them. Its clearly true with sails, as with parts and would be with boats as well. BK could have won that fight for hearts and minds at the club level with the Torch and saved himself all those legal bills and the stimga of having sued the very class that made him rich and able to afford those fees.

 

Wess you have it wrong, Agree with you JimC. Some of what Wess says may be true (though I'm sure if it comes to pass it will be contested), but it comes to play if and only if the contracts are found to be non binding.

 

Kirby says its about the contracts. The legal case is about the contracts. Wess, at this point, it's about the contracts.

 

Even when a contract is terminated, it's a process and all parties need to adhere to the terms and conditions they agreed to. It's really clear from Kirby's submissions that Kirby does not think that Laser Performance has met their obligations, hence the suit. Global Sailing attempted to terminate Laser Performance's builder's contract after Laser Performance belligerently told Global Sailing to go away. (Here's one reference: http://www.sail-world.com/australia/breaking-news:-laser-class---contracts-signed-and-kirby-is-back/88802) Then later (after reversing the 'sale'), Bruce Kirby issued a notice of termination to Laser Performance after they did the same to him. (What other recourse was left for him to do? I think it's perfectly understandable).

 

With regards to the IYRU agreement, I can't follow the legal proceedings so clearly. I assume they can only contest whether or not the ILCA's right to 'reinstate' Laser Performance once they have been proven that they have done so. In the mean-time, there is a contract that they have signed that spells out what they can and can't do in that regard. The ISAF has attempted to release itself from that contract via a public statement, however the ILCA has not. Whether or not the contract is binding is crucial.

 

All that stuff you are saying Wess may or may not be true about rights. If Kirby wins in court regarding his contract, and somehow Laser Performance keeps building the boat he designed, and the ILCA/ISAF say that those boats can be used for official events, I'm fairly confident that Kirby will consider taking legal action again - because of the contracts. Kirby has not really taken on the ILCA properly with his current legal action, nor has focussed on their breach of contract. I can only imagine that at this time, he cannot bring himself to properly sue the ILCA - partly because he wants to work with them in the future.

 

But having read and reread the IRYU agreement, it leaves me in no doubt what the ILCA agreed to, and what, when Jeff Martin signed it, the ILCA's obligations will be.

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Sorry but I don't play fairytale games.

 

Refer to the IPLore post. Its all there.

 

You may not like the facts but that does not change them.

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Sorry but I don't play fairytale games.

 

Refer to the IPLore post. Its all there.

 

You may not like the facts but that does not change them.

 

 

Hahaha. That's rich, even for you Wess.

 

The IPLore post is made by someone who doesn't understand what they are talking about! What facts? All this stuff about intellectual property is nonsense.

 

What is fact is that the courts have heard enough to proceed to a trial. The main issues, the main thrust of Kirby's legal action are based on the contracts.

 

These are facts.

 

See the references above. Read the court proceedings.

 

So you are saying that the contracts are not relevant and the court case doesn't exist? I'm not sure what IPLore's or your game is, but it sure as heck doesn't address the contractual issues that are in front of the court.

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Are all the contracts in the public domain now? Including termination clauses and all the rest of it? Because if not isn't it worse than futile speculating what they might or might not say?

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Are all the contracts in the public domain now? Including termination clauses and all the rest of it? Because if not isn't it worse than futile speculating what they might or might not say?

 

Most are, yes. I have collected them and have them on my hard drive, plus have collected relevant posts etc and stored them off line - in case they are removed or changed. Most of the contracts can be found here: http://www.plainsite.org/dockets/srr8dgkt/connecticut-district-court/bruce-kirby-inc-et-al-v-laserperformance-europe-limited-et-al/ You will have to dig a little.

 

I think I can sum up the obtuse argument of IPLore and Wess in a single sentence:

 

"Kirby is unlikely to win having his contracted rights acknowledged and enforced by the court because a patent that never existed has long since expired, and that therefore the court case is irrelevant."

 

Actually, every Laser sailor that I have ever met has the intelligence to see through that. Wess has posted again and again against Kirby, then when people try to defend him, or ask for evidence, that Wess implies that they are hero worshiping. There is something else going on with you Wess, I'm pretty sure you have an axe to grind against Kirby, even though you deny it.

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Gantt,

 

Believe whatever you want. You are welcome to your opinion and I don't mind informed debate but your reality is so diverent that I try to avoid dialogue with you because its just not productive. I don't know or speak for IPLore but I am pretty sure (s)he would agree when I say your summary of our views is so misinformed and inaccurate that its just not worth responding to. The IPLore post is about as brief as it could be while covering all relevant aspects in an accurate non-biased way. If you can't understand the contents or recognized the implications of same we have no shared reality from which to discuss the situation.

 

I am most likely incorrect and your view will prevail. Afterall as you note, all those Laser sailors in the class agree with you. The voted against the class in favor of BKI. They arose and removed the class officers that acted against BKI.

 

The court has ruled in BKI's favor at every turn and his actions to void the trademark will succeed any day now.

 

He has also been succcessful in litigating against the class and both ISAF and ILCA are both about to lose everything and be forced by the court to comply and revert to old rules favoring BKI.

 

LP has held up the release of the new sail and on and on and on...

 

Oh brother. Only 2 weeks till frostbiting. Must try to avoid the internet until I can sail again.

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Gantt,

 

Believe whatever you want. You are welcome to your opinion and I don't mind informed debate but your reality is so diverent that I try to avoid dialogue with you because its just not productive. I don't know or speak for IPLore but I am pretty sure (s)he would agree when I say your summary of our views is so misinformed and inaccurate that its just not worth responding to. The IPLore post is about as brief as it could be while covering all relevant aspects in an accurate non-biased way. If you can't understand the contents or recognized the implications of same we have no shared reality from which to discuss the situation.

 

I am most likely incorrect and your view will prevail. Afterall as you note, all those Laser sailors in the class agree with you. The voted against the class in favor of BKI. They arose and removed the class officers that acted against BKI.

 

The court has ruled in BKI's favor at every turn and his actions to void the trademark will succeed any day now.

 

He has also been succcessful in litigating against the class and both ISAF and ILCA are both about to lose everything and be forced by the court to comply and revert to old rules favoring BKI.

 

LP has held up the release of the new sail and on and on and on...

 

Oh brother. Only 2 weeks till frostbiting. Must try to avoid the internet until I can sail again.

 

What a lot of nonsense. According to Wess I am misinformed, yet he gives no indication how.

 

Instead he just says I'm misinformed (no specifics) and the reason is "because" IPLore is more informed. If the Intellectual Property thing is so important, then how come it hasn't figured in any of Laser Performance's / Bill Crane's statements? Are they misinformed as well?

 

Am I misinformed about the case being about contracts? What exactly am I misinformed about?

 

Does the fact that there was never any patent (particularly the non-existent one that expired) mean that the contracts are not valid?

 

From the link provided, it's clear that Bruce Kirby shares the same misinformation, and now the courts do too.

 

I'm not a lawyer, have no affiliation with Kirby, nobody pays me in any way to write what I do - I am independent. I do have some experience with contracts and intellectual property, I work mostly in marketing. Yes I have got some things wrong. I am a Laser sailor and sail in New Zealand and on the West Coast of the US at club level. I admit that I am obsessed with Lasers, and I have taken a very keen interest in what has happened with Kirby, the actions of Laser Performance and the ILCA with regards to this situation. I have communicated directly with a few of the key players. (Not Rastegar or Crane).

 

With regards to the vote taken by the membership to change the fundamental rule:

  • There were statements by the ILCA in it's brief to it's members that were not true. Specifically that the contracts were historic and that they were not party to the contracts.
  • The UKLA advised it's members to wait "There is a strong case in favour of waiting: information about the background to this Rule change is still emerging, and the argument has a long way to run. In such a fluid situation the advice of the UKLA Committee is to wait before casting your vote."
  • The membership were advised by the media prior to the completion of the vote that they need not vote. http://www.sail-world.com/australia/breaking-news:-laser-class---contracts-signed-and-kirby-is-back/88802

These concerns have to date not been addressed by the ILCA in any way. Instead the rule was changed, subject to ISAF approval and statements justifying their actions regarding protecting supply were made. http://www.laserinternational.org/info/fundamentalrulechangevotingresults It contained further misinformation about the historical nature of the contract, and "The lawyers also informed us that the any Kirby design patents would have certainly expired.". In the mean-time, and this was before Kirby took legal action, Kirby was effectively sidelined while the ILCA proceeded to make the change after the ISAF reversed it's initial refusal to adopt the change. There are other things that happened subsequently, however the above paints a picture that reflects very poorly on the ILCA - if not with their procedural issues then for poor communication to it's membership.

 

All that being said, I have reached the conclusion that Kirby had no other recourse left other than to take this matter to the courts. I also have reached the conclusion that the actions taken both by Laser Performance (Crane / Rastegar) and by the ILCA (specifically the ILCA statements signed by Jeff Martin) pushed Kirby to take legal action.

 

Again, patent law and intellectual property rights have nothing to do with this case before the courts.

 

Some of the key facts are:

  • Kirby set up contracts with builders.
  • Kirby set up an agreement with the ILCA and IYRU (now ISAF)
  • Laser Performance and the ILCA are attempting to invalidate the contracts.
  • Kirby has taken the matter to court.
  • Nobody knows who will win in court..

Exactly how am I misinformed or inaccurate? No doubt yet again Wess will disappear and yet again we won't benefit from the wisdom of his higher thinking that so far he has kept secret.

 

Regarding the facts that I can find, even researching some of the allegations made on this forum, I find the above to be very compelling and it forms the basis of why I support Kirby and welcome any input that supports or refutes this.

 

I am far from being the only one who supports Kirby.

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You did get more than one thing right in your post. Congrats on that!

 

I stand in awe of your superior intellect, vast experience in the field, and communication with the key players. How very impressive.

 

No doubt the class is shaking in its boots at your analysis and realizes now the error of their ways, as do I. Your astute observations on IPLore's post and resulting comments highlight the powers of your reading comprehension skills. Good job ole boy. Good job!

 

It is all clear now and certainly as you say the victories will flow like wine and ICLA and ISAF will be forced to bow and concede, and the trademark will be voided and Torches will rule the seas.

 

I can only hold out a small glimmer of hope that since by some odd turn of events you are not the class president, or the judge, or even a class member it seems, that while you will gladly open your wallet for him for generations to come, that you might not force mine open to him too.

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Because Wess has not contributed anything in his latest post to the argument, perhaps it's a good time to reflect on IPLore's post which he claims is correct. I will focus on one part, the design royalties.

 

Design Royalties and Intellectual Property

Bruce Kirby owns no intellectual property in the Laser. He is not suing for design royalties. The nub of this case is a contractual dispute. The plaintiff, a company called BKI, is claiming that it is due fees under a contract for consideration/services provided by BKI . The defendant is claiming that BKI gave notice and terminated that contract.

Industrial patents and design copyrights have fixed lives that expire. Our modern industrial and capitalist society depends on this. If a brilliant chemist designs a life saving drug that will cure millions, the patent on that drug will expire 20 years after the patent is filed and generic companies will manufacture the drug without paying royalties. If we didn't have limits to the lives of patents and design, aspirin would cost $30 and all of the worlds steel would be supplied by Bessemer. IP law is a balance between encouraging innovation and discouraging monopoly. It works.

The design rights of the Laser have long since expired. The designer has been paid. Anyone can build the Laser dinghy (They just cannot call it a Laser).

 

What IPLore is talking about is Intellectual Property Law. This is not the same as what Kirby is talking about. This, straight from Kirby's legal submission:

 

"41. Since at least about January 2011, Kirby has not received any royalty payments under the 1989 Builder Agreement as required by article 8."

 

Now from the builder's contract which appears in Appendix 8 of Kirby's submission, on page 9 of 20:

Kirby Builders Agreement - Appendix 8 - Royalties

(Copy of page 9)

 

You will see that "Royalties", as defined by the builder's contract includes payments to Kirby, ILCA and IYRU (Now ISAF) This makes the ILCA a beneficiary and a party to the builder's contract, which is something that the ILCA denied when asking for members to vote.

 

See the issues here?

 

What Kirby is referring to are "Royalties" as defined by the Builder's contract. What IPLore is referring to is something entirely different.

 

The way I see it, Wess is accusing me of misinforming. Yet as I see it, it is IPLore (backed by Wess) that is misinforming. It's pretty straight forward.

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Posted 01 March 2013 - 02:25 AM

Sailed an old boat in big breeze a few weeks ago and broke a bunch of stuff. Can't find official class parts and thought I was screwed until the nice man showed me all the replica replacement parts. OMG, fixed the boat good as new and saved tons of money since BK can't get his greedy fingers on that. Saved so much money that I bought a bunch of other replica parts, sails, etc... and brought a bunch of other older boats back to race condition. The local club fleets must be as sick of the BK squeeze as I am because nobody seems to have much if any issue with the replica parts, sails, etc... Heck, we likely get many more boats out racing by allowing them.

http://sailing277.rssing.com/browser.php?indx=4377537&item=3588

 

Some more misinformation above posted by Wess (note that these posts were deleted - but see the link for a copy).

 

The Royalty due to Kirby according to the contract is 2% of the wholesale price of the Kirby sailboat. There is no Royalty for spare parts.

 

Wess, why are you are so anti Bruce Kirby?

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You have convinced me Ganntt. He is my hero. My life. If only he had a PayPal account I would send him, and his kids, and his grandkids and theor grandkids and so on, all my money because of all they do for the class. I mean he does so much like uh, and uh, uh...

 

Hey maybe you could do a road show? Join the class. Come to some meetings. Teach our officers of the error of their ways and the many benefits of the great God you worship before the judge stikes them down and smites them forever.

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Hey Gov,

 

Not exactly. I don't speak for IPLore and this is my view only but I think what (s)he is saying is that BKI had IP such as trademarks and he got paid for it. (S)he also points out that society decided and enacted laws such that that various forms of IP (even for really amazing things like cures for cancer) expire eventually. I suspect this is to address those that claim BK should forever be able extract payment to infinity for his grandkids and their grandkids too. What did he call it..."estate planning" if I recall. For a napkin many decades ago. IPLore also points out that the one right/form of IP that BKI had that would have lasted to infinity was the trademark but he sold that (and got paid for that) as well. So to think he has not been paid for the napkin is laughable in my opinion. That other/all forms of IP should last forever and not expire is not correct. I suspect that is why IPLore highlights the fact (I believe accurately) that today anybody could build a boat that looks just like and measures to the same specifications and standards (in all aspects and dimensions) as a Laser. You could, I could, even Ganntt could. We could all sell those boats as well and BKI could not do anything about it AFAIK. Should LP (who owns the Laser trademark), sell you the Laser trademark, you could even call the boats that look and measure like a Laser, a "Laser." This is what IPLore is getting at when (s)he says that even if BKI wins on all counts he can never ever stop LP from making and selling Laser. You could, I could or Ganntt could do the same so long as we own the trademark (which currently is owned by LP). This is all in my opinion, and yes it aligns with IPLore's post but do some digging and I believe you will find this is all accurate.

 

What is left after this are various contracts that may or may not have expired, been terminated (or not), been renewed (or not), have valid consideration (or not), and that is (mostly) what the court case is about. This is something my BKI loving stalker has kinda right. But what is missed is that the case can't change the paragraph above even if BKI is successful and that kinda matters to the sailors. Why? Well because IP dcoes exists in the form of a trademark and BKI does not own it, and to date the class has not exactly embraced BKI's version of events and desire. With the new rules that is clear, yes? So even if BKI wins on the contract dispute (and takes some old money from LP), anyone can still make a Laser-like boat and only LP can call it a Laser. And not only could you do that, but it appears you could also set up a new "Laser" class completely divorced from BKI for those newly built and previously built boats (could only call it Laser with approval or trademark owner LP). You might recall LP already taking steps forward towards creation of a new class that look kinda like this, no? I don't know that ILCA would want to morph into that but I dont see anything that stops them from doing so if they wanted and thus far there are no signs they want to play BKI's game BKI's way, so...

 

So the IP matters because it provides certain rights to the owner and some of it still exists - in this case LP for the trademark for which BKI was paid - and anything else has gone away. The case is about the contracts but even in winning BKI just wins old money from LP. To the best of my knowledge, BKI's ability to reach into sailors pockets has come to an end unless the class (sailors) were to vote to allow it again... or the court were to force the class back to old rules (but AFAIK the court could not force sailors to not join a new class that uses the new rules and simply shutter/close the old class).

 

BKI would have had more leverage if successful in taking down the trademark (that is not contracts) or dragging the class into the dispute and winning but while I believe both were attempted by BKI, the prospect of success here seems low - here I will not comment further but suggest you read the proceedings and court actions thus far. They are public and there are reports of the great leaders progress on this front in this thread.

 

From here on I am really guessing with no good basis:

 

I guess the class could not care if BKI wins the court case about the contracts against LP or not. Either way the class has access to boats, the Olympics go forward, and so long as the trademark does not get taken down (which thus far does not seem a likely outcome) the class future as Laser is secure. BKI seems unlikely to be able to force the class to pay new money given the options but those are messy and I wonder if that path would actually be taken. Oddly, having the class forced to pursue those options are actually what I (and I think you if I understand correctly) want because its most likely to result in builders that compete on price and improved access for sailors at the club level. Should BKI litigation against the ISAF and ILCA be extremely successful on all counts (which thus far does not seem to be the likely outcome) I suspect a negotiated settlement would be reached before the class would pursue the other options but this is a pure SWAG.

 

As for me, I don't care about BKI one way or the other. If they made a good product (Torch) and it was, better priced and accepted in a class where Lasers raced, I would gladly pay BKI for one. If on the other hand BKI simply has in hand in my wallet and is offering nothing of value for a Laser boat that anyone can build and only LP can call a Laser (in LP territory), I would say he got paid long ago when he sold out and should get his hand out of my wallet.

 

All just my opinion... find your own facts and reach your own conclusions.

 

I am very consistent:

 

1.) I am for lower prices and improved access

2.) I am against paying money for nothing (or things already paid for).

 

Cheers,

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Gannt keeps trying to tell us the dispute is only about contracts while ignoring the fact the ILCA is continuing to hold the game hostage for participation only by those who pay whatever the monopoly builder decides to charge.

 

Hmmm. Then I failed. What I was trying to say was the rights being talked about in the court case (not all disputes ever) was about the contracts and not about intellectual property rights. There are other aspects to the case - there's a big difference!! (And if I have got that wrong, I'd really like to know exactly how!) Again, Wess has posted as if intellectual property law is really important, and true to form makes more statements against Kirby. Wess, the 2% Royalty on wholesale boats is a low royalty, and is not responsible for the price of spare parts (where there are no royalties paid to Kirby). Wess, for the court case it's not relevant to speculate whether or not other people can build Kirby's boat, what's important regarding rights are the contracted obligations of the parties, the extent to which the contracts are binding - and the actions of the key people, particularly Laser Performance (Bill Crane etc). IPLore is saying that any intellectual property rights give context for the legal outcomes, however we need to know the extent and limitations of the contracts before we weigh up what he's talking about. So far, in relation to these contracts, the presiding judge has said there is a case to answer. By posting again and again about intellectual property law it fails to address the specific case in front of the court.

 

But this has got me thinking.

 

Is all this talk about intellectual property and patents really misinformation? From the earliest mention of it, Kirby is quoted about this, saying it was about the contracts and using what I think was an exasperated tone. http://www.sail-world.com/australia/Laser-Class-major-rule-change----A-disaster-says-Bruce-Kirby/81938 More and more, I'm thinking this talk about intellectual property and patents was not only misinformation, but a quite clever and largely successful - at least on the various forums - attempt at misdirection away from the contracts. Remember that this was prior to Kirby taking legal action, and I'm thinking it was very significant when he finally decided to.

 

So in looking for the origin of the misinformation, it appears that it came from the ILCA. Am I wrong? (I hope I am).

 

One of the first instances was back when the ILCA wanted members to vote to have the rule changed, which carries Jeff Martin's name underneath.

 

The ILCA statement http://www.laserinternational.org/info/2011rulechangesvotingended23rdseptember2011 specifically said:

"In addition, a builder also needs a building agreement from Bruce Kirby or Bruce Kirby Inc. This provision is mostly historical. The rule was instituted at a time when Bruce Kirby held certain design rights. The ILCA is not a party to any of these “Kirby” agreements."

 

Later, they said: "The lawyers also informed us that the Kirby design patents had in fact expired."

 

I put forward that these statements are misdirections. We know that there never were any patents relevant to ILCA's contracted agreement with Kirby.

 

The ILCA, by saying "held" is saying that the design rights were no longer held. Was this true?

 

Specifically, Jeff Martin should have known that these statements were not true, because Jeff Martin signed the IYRU agreement. Jeff Martin should have had first hand knowledge of any contradictions.

 

The IYRU agreement in detail outlines the agreed responsibilities of the ILCA. For the ILCA to release itself from the contract they had with Kirby, it's in the IYRU agreement. (It's Exhibit 3, of Kirby's first action). The relevant parts relating to the release of the contract were:

 

"15. This Agreement may be amended at any time upon the agreement of all parties hereto."
and
"18. This Agreement shall continue in force so long as International Status be accredited to the Laser Class by the Iyru."
I have no information that the ILCA has ever been released from the contract, so that from my perspective, and certainly at the time the ILCA released the information in 2011, I believe that the contract was (and possibly still is) current and binding.
The IYRU Agreement details the relationship between builders and the ILCA, details for example regarding builder payments to the ILCA (section 13) are very explicit and leave no room for doubt as to what the relationships and responsibilities were. Each page carries the initials "JM".
All of that being said, there is a compelling case that ILCA is the original source of the misinformation or misdirection regarding what Kirby's rights were, then they communicated this misinformation to it's membership at a time when they were making a decision regarding changing the rules.
I think that this is important. I think at some point the ILCA need to answer to this. And if found to have made mistakes then make amends to it's membership to rebuild any trust that needs rebuilding.
After being encouraged to delay voting (by the UKLA) and then not to vote (by Sail-World), less than 8% (1139 of approx 15,000) of the membership voted. This, along with the misinformation from the ILCA, and encouragement by the ILCA to vote yes means that the process was not very democratic.
The ILCA has successfully managed to date the most successful adult one design class. That does not mean the ILCA is not fallible or beyond reproach. If mistakes have been made, and butts have been covered, then this has been at the expense of Kirby. If this is found to be true, then this is unacceptable behaviour, and if found to be a person within the ILCA then their role within the ILCA should be questioned.
Finally, I hope that this in some way clears up what the rights are that are being discussed in Kirby's legal action are. Again, the Kirby action is not about intellectual property law, it's about the contracts!!!
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Ganntt - Again you have more wrong than right and no I am not going to waste my time correcting you. You may however wish to investigate if BKI pursued litigation to take down the Laser trademarks (which would be contrary to your constant insisting this is just about the contracts). You may also wish to investigate how that is going and give some thought to why such an action might be important to BKI.

 

OK
Let me have one more crack at joining the Saturday discussion among those without sufficient facts to actually contribute.

I have insufficient information because:
1. I do not know exactly what contracts have been signed and by whom
2. I do not know if the contracts between Kirby and the ILCA were properly written such that those contracts are in force today
3. I do not know whether the contracts between Kirby and the old Vanguard group were written a manner such that ANYONE who bought Vanguard would be bound by those previous contracts
5. May I build sailboats exactly like the Laser?! I think so but the ILCA won't let my boats race.
6. May LP build lasers?? I don't know if they signed a currently enforceable contract
With Kirby which can demand they either pay Kirby or cease building lasers

7. Before the ILCA removed the requirement "builders have a contract with Kirby " no one could supply sailboats for ILCA contestants to use unless that supplier had a contract with Kirby.

So

What do I want to see??

[sNIP]


So I guess I want kirby to win for already built boats and everybody involved in the suit to be removed and replaced by new blood .

Gouv - IMHO

 

1.) Largely knowable from public information. Suggest you do own research and ignore this thread. Much BS and misinformation here.

2.) If they are in force today (or some time prior) and when is largely the matter in dispute for the contracts. Here there are differing opinions of course.

3.) Will be determined by 2. Likely not gating item.

4.) What do you have against #4, LOL.

5.) Exactly.

6.) Obviously if you can under #5, they can as well. And since they own the trademark they can call them Lasers. Under existing class rules they can also be raced in the class. This is in theory the problem for BKI and rational for any BKI action against ISAF and ILCA and/or the trademark. You can find public information on how those aspects are going. Depending on how far the class is willing to go to continue its distancing itself from BKI, any litigation by BKI against ISAF and ICLA and to take down the trademark is critical and gating to BKI staying in the Laser money making game (vs collect some old money from LP depending on #2).

7.) Exactly, the rule change was necessary to protect the class and ensure availability of boats called Lasers to the class.

 

As for the what do you want part, I don't care if BKI wins or loses the first part (it make absolutely no difference to sailors) but hell yes to your second part. Absent the trademark going down however, even while there may be a path to this end, its highly unlikely and messy IMHO. That said steps do appear to have been taken

 

Cheers,

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Gouv's in Black, My responses are in blue. Wess, I am happy to agree that I have made mistakes, but Wess's approach is to say that I'm wrong for him to say that it's a waste of time to point out where is bizarre and stupid. I have posted on the Trademark case numerous times in this forum. Good to see that Wess is changing his tune and starting to talk more about the contracts.

 

The information I'm providing is my best effort. I'm not a lawyer but have experience with contract law and intellectual property - I work mostly in marketing. Basically, I'm a club sailor who has been sailing Lasers since the 1980s.

 

I do not know exactly what contracts hz d been signed and by whom

 

This is in the public domain and can be found here: http://www.plainsite.org/dockets/srr8dgkt/connecticut-district-court/bruce-kirby-inc-et-al-v-laserperformance-europe-limited-et-al/ (Hint - download the PDFs)


2. I do not know if the contracts between Kirby and the ILCA were properly written such that hey are in force today

 

I'm confident that they were properly written. The court has established that a case needs to be heard.


3. I do not know whether the contracts between Kirby and the old Vanguard group were written a manner such that ANYONE who bought Vanguard would be bound by those previous contracts

 

They weren't. New builders were required to be signed off - again that's in the contracts. That happened later, the contracts were updated.


5. May I build sailboats rxxctly like the Laser?! I think so but the ILCA won't let my boats race.

 

Sure you can't with the respect you can't race it in official events. There is a lot of chatter about this on whether you can or can't, there are merits to the argument both for and against. But it really it comes down to LP and what they will or won't do, and that takes us straight back to the contracts. Because they had a contract, they may be bound by the terms of the agreement, even after being terminated as a builder. For example, outstanding Royalties will still be due, even once they have been terminated as a builder. This is pretty standard.


6. May LP build lasers?? I don't know if they signed a curtently enforceable contract

 

With Kirby which can demand they either pay Kirby or cease building lasers

 

Yes LP can build "Lasers", within the territories they hold the Trademark though there are special conditions in the contract they have (or had) with Kirby, particularly with the Kirby Sailboat. In the first instance, we are all waiting to hear from the courts to see the extent that the contracts will be enforced. According to Kirby they last paid Royalties in January 2011, prior to their termination by Kirby in 2012 but after Global Sailing terminated them in 2010 (which Kirby says that because the contracted terms of sale were not fulfilled that termination was not valid). It's unclear (to me) if there are royalties are due prior to their termination, however this is contract law and if the contract is found to be binding, then the courts may even find in favour of Kirby getting paid for Royalties of Lasers built after termination. He can say that he would have proceeded with the Torch - or would have received Royalties from a properly approved builder - and if the case goes that way he has a strong case for damages. It will be important for Kirby to have his right to terminate the contracts recognized by the court, but I'm unclear through what mechanism in this legal action he will be able to do that. Nobody knows how it will end up - we have to wait and see.


7. Before the ILCA removed the requirement "builders have a contract with Kirby " no one could supply sailboats for ILCA contestants to use unless that supplier had a contract with Kirby.

 

It appears that the ILCA unilaterally declared the Agreement they had with Kirby as historic. The original agreement was back in 1973. The one that Kirby says is current, the one signed by Jeff Martin was in 1989. It looks pretty clear to me that the ILCA are in breech of their Agreement with Kirby.


So

What do I want to see??

I want:

1. LP to forced to pay Kirby whatever fees are described in whatever enforceable contracts exist between the two

 

The courts have established there is a case to be heard for exactly that (and other stuff).


2. I would like the courts to recognize the term Laser and the starburst logo have not been protected by the copyright / trademark owner of whatever you call those folks.

 

I don't think that the current legal action with Kirby will cover that.

 

For the future, there is some uncertainty about the roles of Kirby and of Laser Performance will play. It could favor either of them To a lesser extent, the role of the ILCA is also being questioned - but not so far as I can tell with Kirby's current legal action.

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You have made many and still more with the latest. And no; same tune, you just perhaps happen to be tone deaf and unable to understand it.

 

But again, you are welcome to your tune and I wish you best of luck with it. Its sure to be a top 40 hit given your superior intellect and communications with key contacts. I am just stunned that all the class officers past and present are dancing to a different tune and the class member voting set them on a cha cha rather than your waltz. But keep at it and they will come around for sure.

 

BTW, have you joined the class yet so you can attend the dance and sing for us all?

 

I will leave you to the last word as I am going to retire now.

 

No doubt I will awake to another great song and dance complete with smoke and mirrors.

 

Cheers,

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Clearly Wess is not compelled by the points I have made, though frustratingly he nor IPLore have not properly refuted the points raised. Also, and I'm sure it wasn't deliberate, some key questions are at risk of getting lost in personal attacks and chatter...

 

Is the talk about intellectual property and patents really misinformation? Every time I look at it, I see classic signs of misdirection away from the contracts.

What Kirby said before he took legal action was reported in a Sail World article.

 

What was his response to the ILCA statement ‘Lawyers also informed us that the Kirby design patent has in fact expired.’

Kirby responded. ‘That’s total bull s--t! There never were any patents. You can't patent a sail boat design. These were contracts, legitimate contracts drawn up by lawyers and there is no suggestion that I had a patent on the boat. These were long term contracts that were renewable every so many years. No-one’s ever questioned them so I don’t know what lawyer they found that suggested this course of action. It’s crazy!’

http://www.sail-world.com/NZ/Laser-Class-major-rule-change----A-disaster-says-Bruce-Kirby/81938

Kirby at that time sounded exasperated.

In the same way that the impression that Laser Performance through an article in Sail World (http://webcache.googleusercontent.com/search?q=cache:http://www.yachtsandyachting.com/news/160363) was holding up the introduction of the new standard Laser sail design, (the truth was revealed that is was PSA who was the only party not voting for it) it would be great to uncover the truth when talking about the ILCA and it's role in this.

From what we know so far we are to conclude that the ILCA's actions have in part placed Kirby in a position where he felt there was no alternative but to take legal action.

It would be good to actually address this with the facts, and not with personal attacks and further misdirections.

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It does no good to shine light if one can not see.

 

Fear not Ganntt. I am very compelled by your points. Compelled to leave you to them and wish you well...

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Wess, may I suggest that to refute me, to use facts and have references. Here is an example:

 

Why pay 3-5X for an official class part that seems to help get BK richer when I can get the exact same part for 3-5X less without his stamp on it. And we have bigger fleet racing because many club sailors are gladly doing exactly that. But hey, if you want to pay more and keep PSA and BK pockets lined, go ahead. More power to you.

 

According to the builder's contract, Bruce Kirby is contracted to receive Royalties of only 2% on the wholesale value of each boat. Laser parts do not have his stamp on it. (This is my personal observation of class legal Laser parts from 1982 to 2014).

There is no mention in the contract or anywhere that I can find that states that Kirby gets any Royalties on spare parts.


To support what I am saying, please refer to Section 8 of the builder's contract with Vanguard, a copy of which can be found as Exhibit 8 of Kirby's original legal action. What binds Laser Performance to this agreement are the signed amended agreements, which are also found in the exhibits.

Additionally, I would be intrigued to know why you hold a grudge against Bruce Kirby. Perhaps the basis of your grudge is high-priced Laser parts, in which case holding a grudge for that against Bruce Kirby is flawed and frankly not very logical. What's really going on with you Wess?

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Wess, may I suggest that to refute me, to use facts and have references. Here is an example:

 

Why pay 3-5X for an official class part that seems to help get BK richer when I can get the exact same part for 3-5X less without his stamp on it. And we have bigger fleet racing because many club sailors are gladly doing exactly that. But hey, if you want to pay more and keep PSA and BK pockets lined, go ahead. More power to you.

 

According to the builder's contract, Bruce Kirby is contracted to receive Royalties of only 2% on the wholesale value of each boat. Laser parts do not have his stamp on it. (This is my personal observation of class legal Laser parts from 1982 to 2014).

 

There is no mention in the contract or anywhere that I can find that states that Kirby gets any Royalties on spare parts.

 

To support what I am saying, please refer to Section 8 of the builder's contract with Vanguard, a copy of which can be found as Exhibit 8 of Kirby's original legal action. What binds Laser Performance to this agreement are the signed amended agreements, which are also found in the exhibits.

 

Additionally, I would be intrigued to know why you hold a grudge against Bruce Kirby. Perhaps the basis of your grudge is high-priced Laser parts, in which case holding a grudge for that against Bruce Kirby is flawed and frankly not very logical. What's really going on with you Wess?

Why would I refute such accuracy and perfection Ganntt? Uh, but you might want to clean up a detail here and there...

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I see nothing has happenned in the last few months since I read anything useful here, just the same few people arguing about what they speculate the courts will decide. Its always a long wait while lawyers count dollars.

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From the Wikipedia entry:

 

As a means of resolution, in July of 2010, Global Sailing offered to sell LaserPerformance the Laser Rights and their manufacturing company Performance Sailcraft Australia for $15,000,000 US, which LaserPerformance alleged was more than it was worth. In August of 2010, LaserPerformance offered to buy the Laser rights and Performance Sailcraft Australia’s trade mark rights for Australia and Oceania for $3,500,000.

 

I hadn't heard this bit of info before. Can anyone verify it?

 

Kirby has been quoted as saying that he sold the rights to GS as they had the best interests of the Laser at heart. GS then promptly offer the rights for sale to LP, for a probably decent profit.

 

Shows that despite all of the propaganda about people acting for the good of the class, all the players bar the class association are ultimately just interested in the money. Anyone who still believes that Kirby, GS, PSA or LP would ever put the good of the class ahead of the money is naive in the extreme. They're all playing us.

 

Source of information regarding $15 million

The source appears to be Laser Performance, and likely to be Bill Crane (or Farzad Rastegar) personally.

 

It's very similar to Laser Performance's legal submissions in their first response:

"First, Global Sailing and PSA unilaterally tried to get LaserPerformance to give up rights to build, market, distribute and sell Lasers in China in exchange for continued rights in Europe. When that failed, Global Sailing and PSA tried to force LaserPerformance’s parent company to buy them out for the exorbitant sum of $15 million for a business worth no more than $2 million. That tactic was rejected. Then Kirby, BKI, Global Sailing and PSA joined forces to destroy LaserPerformance and Quarter Moon and, with them, the Laser class."

 

It's very probable that PSA did not want to sell. The statement refers to rights that Laser Performance has to build in Asia. In fact, as signitories to two builder's agreements they acknowledged Kirby's rights in appointing builders, the IYRU's roles and rights. Asia was a bind between the Trademark holder, and Kirby Inc, that's very clear from the contracts.

 

Kirby's motivation just money?

I would not want to be using Bill Crane or Farzad Rastegar as a source to say what the motives of Bruce Kirby, Chris Spencer, Chris Caldecoat etc. were or are. There is evidence that Bruce Kirby has acted ahead of money for the good of the class many times. I'd suggest that they include when Bruce Kirby went sailing in a Laser for fun, turned up at regattas and befriended countless Laser sailors, attend countless meetings, and appoint new builders who were sailors. It's outrageous to suggest that.he is just about the money.

 

Kirby's role was to create then maintain the contracts that defines and binds the parties: The Trade Mark holder, the IYRU, the ILCA, Kirby Inc, and the builders together. It defines their responsibilities and outlines a significant part of their relationship. If that was all that Kirby did (actually he did far more) then he is more than justified to take a modest 2% Royalty of the wholesale value of the boats. Some of the clauses in both the IYRU Agreement and the Builders Agreement were there in direct benefit of the ILCA.

 

Remember that these agreements were first written in the early 1970s, when there were a few thousand Lasers. Nobody was predicting that the class was to have the success it now enjoys. I doubt that there was much money involved at all in the first few years.

 

The sale(?) to Global Sailing

Kirby was indeed quoted as saying that he sold his design rights to Global Sailing. He was also quoted at a later time that he did not realise that there was a contracted obligation to obtain the approval of the IYRU (ISAF).

 

Was that true?

 

The answer can be found in IYRU Agreement, which is Exhibit 3 of Kirby's legal action.

 

17. This Agreement shall continue to be to the benefit of and be binding upon the parties hereto, their successors and assigns, provided that none of Kirby., Trade Mark Owner or the Builders set forth in Schedule 2 as amended from time to time, may assign their rights and obligation under this Agreement without proper written approval of the IYRU and the Association, which approval shall not be unreasonably withheld.

 

It's reasonable to believe that the permission was not obtained.

 

Note that the IYRU agreement and the Builder's agreements were bound together - please refer to both to see how they formally recognise each other. Also, in the legal case Kirby talks about the obligations of Laser Performance once the agreement is terminated.

 

Propaganda?

This is not propaganda Redstar, the information from the contracts are verifiable. In reading Kirby's legal submissions, I find myself able to follow Kirby's reasoning, it is stated logically and the vast majority I am able to check out what Kirby is saying with public records. With regards to the statements made by Laser Performance, an example which appears above, the language used is more emotive. As for verification, how can one verify that Kirby and PSA are conspiring to destroy the Laser class? (It's important to know that the above is taken directly from Laser Performance's legal submission) The weight of several decades of Kirby's actions tends to contradict LP's claim. Which statements sounds more like it has bias? Propaganda, really? Come on Redstar...

 

ILCA

There is consistency to the statements of Redstar, Wess and IPLore (and others like 'old dog' in other forums) when talking about the ILCA, or more usual, when not talking about them. The ILCA have an agreement with Kirby and have certain obligations that they are not meeting.

 

Lack of information? Not any more!

There has been much talk previously about being in the dark, and than nobody knows enough to make any conclusions.

 

More and more, as I read the information available, its becoming clearer that lack of information can no longer be used as a reason to ignore this situation. From the outset, there was sufficient information to cast significant doubt on Laser Performance's claims (as put forward by Pam), and few had access to the contracts to verify what Kirby was talking about. Now we all do.

 

It's interesting to note that this topic is approaching 100,000 views, and has several hundred views per day.

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I see nothing has happenned in the last few months since I read anything useful here, just the same few people arguing about what they speculate the courts will decide. Its always a long wait while lawyers count dollars.

 

There's been a few things that have happened.

 

The courts have made rulings regarding Rastegar and the ISAF meaning they don't have to answer to certain allegations (it's possible that the ruling was about jurisdiction - not sure - doesn't matter). It makes the case a little more focussed, though a small step backwards for Kirby. Kirby's challenge to the Laser Trademark was withdrawn. The main case is mow scheduled to be heard in March 2015. The main thrust is that there is a case to be heard, that the builders contracts and the IYRU agreement are in the public domain. Also, the new sail has been discussed, a report that said that LP were delaying it's introduction has been found to be false, it is actually PSA who are voting against the new sail.

 

There's been a little discussion about the role that the ILCA has played - and how the information they put forward about patents and design rights being historical are being posted and reposted here - as though they somehow counter what Kirby is talking about with the contracts. I think there needs to be more digging about the role that the ILCA has played. If the skeletons come out of ICLA's closet then they can go forward more openly with better communication.

 

For me, I'm getting a better understanding on how the contracts work, and have reached a better understanding of what the actions of the key players, of what is misinformation and what isn't.

 

Sorry Phil that all of that is lost in the detailed posts, I wish the path to finding what the truth is was less verbose on my part!!

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Get_A_Room.png

But he is like Frank or Daniel. So easy to wind up, and nobody posts more, or posts more wrong and its funny and I'm between sailing seasons. I admit, I can't resist but w work, holidays, and frostbiting all ramping up I guess I will have to.

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. According to Wess I am misinformed, yet he gives no indication how.

 

Instead he just says I'm misinformed (no specifics) and the reason is "because" IPLore is more informed.

Am I misinformed about the case being about contracts? What exactly am I misinformed about?

 

Some of the key facts are:

 

  • Kirby set up an agreement with the ILCA and IYRU (now ISAF)
  • the ILCA are attempting to invalidate the contracts.
  • Kirby has taken the matter to court.
  • Nobody knows who will win in court..

Exactly how am I misinformed or inaccurate?

 

Perhaps I can help.

 

IMO:

 

1. Neither the ILCA nor ISAF are trying to invalidate the contracts between Kirby and IYRU.

2. Kirby cannot take this matter to court because the contract between IYRU, Kirby and the builders specifically states that any disputes must be resolved by arbitration.

3. To this day, Kirby has never alleged that this agreement has been broken and he has NOT taken this matter to court.

4. If he did allege this, I for one, know who would win at court simply by reading the plain language of the contract. Kirby and his advisers have wisely decided not to allege a breach of this agreement.

 

BKI sued ISAF and ILCA for tortuous interference, which has nothing to do with contract law. The case against ISAF has essentially been dismissed. The case against ILCA is doomed for all the good reasons that were outlined many pages earlier in this thread.

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. According to Wess I am misinformed, yet he gives no indication how.

 

Instead he just says I'm misinformed (no specifics) and the reason is "because" IPLore is more informed.

Am I misinformed about the case being about contracts? What exactly am I misinformed about?

 

Some of the key facts are:

 

  • Kirby set up an agreement with the ILCA and IYRU (now ISAF)
  • the ILCA are attempting to invalidate the contracts.
  • Kirby has taken the matter to court.
  • Nobody knows who will win in court..

Exactly how am I misinformed or inaccurate?

 

Perhaps I can help.

 

IMO:

 

1. Neither the ILCA nor ISAF are trying to invalidate the contracts between Kirby and IYRU.

2. Kirby cannot take this matter to court because the contract between IYRU, Kirby and the builders specifically states that any disputes must be resolved by arbitration.

3. To this day, Kirby has never alleged that this agreement has been broken and he has NOT taken this matter to court.

4. If he did allege this, I for one, know who would win at court simply by reading the plain language of the contract. Kirby and his advisers have wisely decided not to allege a breach of this agreement.

 

BKI sued ISAF and ILCA for tortuous interference, which has nothing to do with contract law. The case against ISAF has essentially been dismissed. The case against ILCA is doomed for all the good reasons that were outlined many pages earlier in this thread.

 

1. ILCA claimed that the contracts were "historic", via a statement from the ILCA at the fime of the fundamental rule change. ISAF announced that they had terminated the contract with Kirby on a special announcement on their website.

2. The IYRU Agreement says that it is bound by the Laws of England. If arbitration fails for a disagreement, logically that's where it will end up.

3. Kirby has "never alleged" that the ILCA had breeched their contract? I think you may be right, technically. What he did say was: "121. ISAF and ILCA have continued to issue ISAF Plaques to Quarter Moon/QM Vanguard and PSE/LP Europe after they stopped paying royalties and providing written reports of their sales to Kirby. As a result, Quarter Moon/QM Vanguard and PSE/LP Europe were able to manufacture and sell unauthorized Kirby Sailboats bearing ISAF Plaques without fulfilling their obligations to Kirby under the 1983 and 1989 Builder Agreements. ISAF and ILCA’s actions induced Quarter Moon/QM Vanguard and PSE/LP Europe to default on those Agreements." This references the ILCA and ISAF's obligations under the IYRU agreement. The way the builder's agreement is written is that references the IYRU agreement multiple times. What I'm saying is that it's clear to me that the ILCA is in breech of their agreement.

4. Your speculations about don't address anything in particular.

 

IPLore makes some claims, and refers us to something he said historically. IPLore is wrong about Tortious Interference having nothing to do with contract law. To see how Tortious Interference relates to contracts, check out the Wikipedia entry.

Tortious interference, also known as intentional interference with contractual relations, in the common law of torts, occurs when a person intentionally damages the plaintiff's contractual or other business relationships. This tort is broadly divided into two categories, one specific to contractual relationships (irrespective of whether they involve business), and the other specific to business relationships or activities (irrespective of whether they involve a contract).

http://en.wikipedia.org/wiki/Tortious_interference

 

IPLore, your understanding on legal matters is embarrassing.

 

Wess, it's not funny to post the stuff you have posted about Bruce Kirby. It's not based on fact and it's disrespectful.

 

It's not useful to talk about what's not in the case, and pretend it has bearing.

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There's been a few things that have happened.

 

The courts have made rulings regarding Rastegar and the ISAF meaning they don't have to answer to certain allegations (it's possible that the ruling was about jurisdiction - not sure - doesn't matter). It makes the case a little more focussed, though a small step backwards for Kirby. Kirby's challenge to the Laser Trademark was withdrawn.

 

The challenge to the ownership of the Laser trademark has been withdrawn, a small backward step akin to Rommel's minor defeat at El Alamein and the mildly irritating setback that the British suffered at Yorktown.

 

This leaves the case right back where it started ...as a contractual dispute between BKI and Laser Performance. BKI is a company previously owned by Bruce Kirby, purportedly sold to the Spensers (owners of Global Sailing) and then purportedly reacquired (in a manner yet to be described) by Bruce Kirby.

 

It is this contractual dispute that the ILCA (quite rightly in my humble opinion) decided that it did not want to be in the middle of. This is simply a contractual dispute between two commercial parties. If they have a dispute, then they should take it to court. That is where commercial contractual obligations get resolved. That is what the courts are for.

 

The Class Association does not advance the interests of its members one whit by getting involved in this dispute. The clumsy attempts by both parties to somehow get the Class association to help resolve the issue were repulsed by the Class Association. The Class Association is busy organizing regattas and promoting the boat and the interests of the boat's owners. Good for them. Some believe they can do a better job, but that's a separate discussion and Im sure they would welcome volunteers.

 

BKI is seeking monetary damages and other compensation for breach of contract. They don't need the class association to help them.

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IPLore, your understanding on legal matters is embarrassing.

 

Gantt,

 

Thank you. Thirty five years in practice has inured me to criticism of my understanding of legal matters. I can however say with complete confidence that tortious interference is a tort and not a breach of contract. There may be a contract between 2 other parties involved but it is not contract law and it is not about a breach of contract. Completely different legal arguments with entirely different pleading standards. If you scroll back a thousand pages, you will see that I provided a very careful explanation of tortious interference.

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Gantt,

 

You asked us to help you out by pointing out where you were misinformed. I rose to the occasion by pointing out that your claim that Kirby had taken the matter to court of ILCA trying to invalidate the IYRU contract was , in fact, misinformed.

 

 

  • Kirby set up an agreement with the ILCA and IYRU (now ISAF)
  • the ILCA are attempting to invalidate the contracts.
  • Kirby has taken the matter to court.
  • Nobody knows who will win in court..

I was just trying to oblige.

There are some other rather glaring bloopers on your part...just say the word if you want some more examples. Always happy to oblige. its just a matter of which ones to pick.

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The challenge to the ownership of the Laser trademark has been withdrawn, a small backward step akin to Rommel's minor defeat at El Alamein and the mildly irritating setback that the British suffered at Yorktown.

 

This leaves the case right back where it started ...as a contractual dispute between BKI and Laser Performance. BKI is a company previously owned by Bruce Kirby, purportedly sold to the Spensers (owners of Global Sailing) and then purportedly reacquired (in a manner yet to be described) by Bruce Kirby.

 

It is this contractual dispute that the ILCA (quite rightly in my humble opinion) decided that it did not want to be in the middle of. This is simply a contractual dispute between two commercial parties. If they have a dispute, then they should take it to court. That is where commercial contractual obligations get resolved. That is what the courts are for.

 

The Class Association does not advance the interests of its members one whit by getting involved in this dispute. The clumsy attempts by both parties to somehow get the Class association to help resolve the issue were repulsed by the Class Association. The Class Association is busy organizing regattas and promoting the boat and the interests of the boat's owners. Good for them. Some believe they can do a better job, but that's a separate discussion and Im sure they would welcome volunteers.

 

BKI is seeking monetary damages and other compensation for breach of contract. They don't need the class association to help them.

 

Or perhaps the challenge provided surety of ownership. The reasons behind the challenge that IPLore is making are speculative.

 

Good that you are now talking about the contracts. Yes, it is a contractual matter. If found binding the termination clauses may have some consequences for Laser Performance.

 

The ILCA is involved with this, through changing the rule, and as a signatory to the IYRU Agreement which forms a part of the builder's agreement.

 

What was particularly clumsy was for the ILCA to say that Kirby's role was historic and that any patents had long since expired.

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IPLore, your understanding on legal matters is embarrassing.

 

Gantt,

 

Thank you. Thirty five years in practice has inured me to criticism of my understanding of legal matters. I can however say with complete confidence that tortious interference is a tort and not a breach of contract. There may be a contract between 2 other parties involved but it is not contract law and it is not about a breach of contract. Completely different legal arguments with entirely different pleading standards. If you scroll back a thousand pages, you will see that I provided a very careful explanation of tortious interference.

 

Right. And I'm not a lawyer, though have used many over the years.

 

Yes, you did provide a great summary a long time ago. It's just that Wesley W. Whitmyer, Jr., disagrees.

 

What you said was "...tortuous interference, which has nothing to do with contract law...". IPLore, please before you go into a lot of detail, that statement was wrong and should be embarrassing for you. So are your misdirections regarding patents and IP legalities.

 

I'd like to think that Wesley W. Whitmyer, Jr.has been briefed properly, and knows a little about legal matters as well.

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Gantt,

 

You asked us to help you out by pointing out where you were misinformed. I rose to the occasion by pointing out that your claim that Kirby had taken the matter to court of ILCA trying to invalidate the IYRU contract was , in fact, misinformed.

 

 

  • Kirby set up an agreement with the ILCA and IYRU (now ISAF)
  • the ILCA are attempting to invalidate the contracts.
  • Kirby has taken the matter to court.
  • Nobody knows who will win in court..

 

I was just trying to oblige.

 

There are some other rather glaring bloopers on your part...just say the word if you want some more examples. Always happy to oblige. its just a matter of which ones to pick.

 

Yes you did try. And you failed.

 

In fact your first sentence does not make sense, particularly "...that Kirby had taken the matter to court of ILCA trying to invalidate the IYRU contract... ". What exactly is meant by "court of ILCA".

 

The ILCA are trying to invalidate the contracts. They are acting as if the IYRU Agreement is not current and binding. Kirby has taken the matter to court. Are you saying that he didn't?

 

Have another go, pick any one of those four, in fact pick all four. Your previous attempt did not negate any of them.

 

Are you are saying IPLore is that the ILCA have made no errors, or if you agree that they have, that they are beyond reproach? Are you saying that the IYRU Agreement, the one that Wesley W. Whitmyer, Jr., put in the original legal action as an exhibit and made references to, is not relevant to the case?

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The ILCA are trying to invalidate the contracts. They are acting as if the IYRU Agreement is not current and binding. Kirby has taken the matter to court. Are you saying that he didn't?

 

Yes I am saying that .

 

Kirby is not taking the matter of "the IYRU Agreement" to court. He is not suing ILCA for breach of contract. He is not suing ISAF for breach of contract.

 

Read the claims.

 

All of the intro' is blurb and hyperbole that we lawyers like to use. But all that really matters is the claims.

 

"If you have the facts on your side, pound on the facts. If you have the law on your side, pound on the law. If you have neither on your side, pound on the table"

 

Have a good evening

 

IPL

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The ILCA are trying to invalidate the contracts. They are acting as if the IYRU Agreement is not current and binding. Kirby has taken the matter to court. Are you saying that he didn't?

 

Yes I am saying that .

 

Kirby is not taking the matter of "the IYRU Agreement" to court. He is not suing ILCA for breach of contract. He is not suing ISAF for breach of contract.

 

Read the claims.

 

All of the intro' is blurb and hyperbole that we lawyers like to use. But all that really matters is the claims.

 

"If you have the facts on your side, pound on the facts. If you have the law on your side, pound on the law. If you have neither on your side, pound on the table"

 

Have a good evening

 

IPL

 

Classic IPLore.

 

More misdirection. You know he's quite right you know about Kirby suing ILCA for breach of contract. Trouble is, nobody is saying that. I know I'm not.

 

I said that "The ILCA are trying to invalidate the contracts. They are acting as if the IYRU Agreement is not current and binding. Kirby has taken the matter to court. Are you saying that he didn't?"

 

IPLore is roaring! He says: "Kirby is not taking the matter of "the IYRU Agreement" to court. He is not suing ILCA for breach of contract. He is not suing ISAF for breach of contract."

 

There are crucial differences in what I said and what IPLore implies I said.

 

The ILCA are definitely trying to invalidate the contracts. They have done this by taking specific steps that are contrary to their agreement (IYRU Agreement) with Kirby. These are spelt out in Kirby's action, which is in front of the court. It's written in plain language which is easy to understand.

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(Bump. This was the last post before IPLore sucked me in to responding to a whole lot of drivel that doesn't matter.)

 

I see nothing has happenned in the last few months since I read anything useful here, just the same few people arguing about what they speculate the courts will decide. Its always a long wait while lawyers count dollars.

 

There's been a few things that have happened.

 

The courts have made rulings regarding Rastegar and the ISAF meaning they don't have to answer to certain allegations (it's possible that the ruling was about jurisdiction - not sure - doesn't matter). It makes the case a little more focussed, though a small step backwards for Kirby. Kirby's challenge to the Laser Trademark was withdrawn. The main case is mow scheduled to be heard in March 2015. The main thrust is that there is a case to be heard, that the builders contracts and the IYRU agreement are in the public domain. Also, the new sail has been discussed, a report that said that LP were delaying it's introduction has been found to be false, it is actually PSA who are voting against the new sail.

 

There's been a little discussion about the role that the ILCA has played - and how the information they put forward about patents and design rights being historical are being posted and reposted here - as though they somehow counter what Kirby is talking about with the contracts. I think there needs to be more digging about the role that the ILCA has played. If the skeletons come out of ICLA's closet then they can go forward more openly with better communication.

 

For me, I'm getting a better understanding on how the contracts work, and have reached a better understanding of what the actions of the key players, of what is misinformation and what isn't.

 

Sorry Phil that all of that is lost in the detailed posts, I wish the path to finding what the truth is was less verbose on my part!!

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IPLore, you're nowhere near as much fun now that you insist on spelling Gantt correctly. You disappoint me.

Its not necessary anymore. He cann'tt help himself to not repond. Even ignoring how much he gets wrong over and over the best part is that he seems to think he is somehow influencing the outcome... he will deny this, but see the "100s of views a day" post, LOL. And of course he talks to the key players... Wow the ability of emotions and a bromance to ignore rational thought...

 

This thread needs Guy LaDouche with some of his classic Frank responses. Damn, that was funny.

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IPLore, you're nowhere near as much fun now that you insist on spelling Gantt correctly. You disappoint me.

 

I always endeavor not to disappoint the audience. After all, the court room is 25 % law and 75% entertainment.

 

I shall henceforth refer to the party as "Can't"

Can't understand the issues

Won't listen to reason

Doesn't want to hear anything good about the Class Association.

 

;)

 

On a more serious note. I rejoined this thread and noticed that it had gone off on all kinds of tangents referring to: Design rights, the IYRU contract , right to build, etc . So I provided a brief summation of where I thought we were. Ironically in April and May 2013 I wrote that :-

1. The only IP issue at stake is Trademark -This has subsequently gone away.

2. The tortious interference claim looks to have several profound weaknesses and I doubt that it will meet the pleading requirements. I rate its chances of success at close to zero now.

3. After this, it all comes down a commercial contract between BKI and the builders.

 

I believe it has come down to a commercial contract dispute between 2 commercial parties. One party alleges breach of contract. The other party alleges that the contract was terminated.

The strength of the opposing claims will be largely affected by discovery.

 

Instead of chasing vapor about the IYRU contract and designer rights, we could have an interesting discussion about what will be the key issues in discovery and what we suspect might be included in the interrogatories.

 

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The ILCA are definitely trying to invalidate the contracts. They have done this by taking specific steps that are contrary to their agreement (IYRU Agreement) with Kirby. These are spelt out in Kirby's action, which is in front of the court. It's written in plain language which is easy to understand.

 

Again, you are claiming that ILCA is somehow in breach of contract with Kirby ("taking specific steps.. contrary to ..IYRU agreement") and yet Kirby does not sue ILCA for breach of contract.

 

Breach of contract is a much easier case to prove than Tortious Interference with much lower hurdles in terms of pleading standards.

Breach of the IYRU contract would be way more cheaper to pursue than TI because it would be an arbitration. TI requires the expense of a trial and will be at least 5 times more expensive.

If ILCA had broken the IYRU contract, Kirby would have sued for breach of contract and not Tortious Interference.

 

Gantt, I admire you. You are a brave and stubborn man. Much like General Custer you refuse to surrender even when you are outnumbered and surrounded by the facts. If we could find you the right hill, you would be a hero.

 

If only the Laser class could find a productive path to channel your admirable energy.

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The ILCA are definitely trying to invalidate the contracts. They have done this by taking specific steps that are contrary to their agreement (IYRU Agreement) with Kirby. These are spelt out in Kirby's action, which is in front of the court. It's written in plain language which is easy to understand.

 

Again, you are claiming that ILCA is somehow in breach of contract with Kirby ("taking specific steps.. contrary to ..IYRU agreement") and yet Kirby does not sue ILCA for breach of contract.

 

Breach of contract is a much easier case to prove than Tortious Interference with much lower hurdles in terms of pleading standards.

Breach of the IYRU contract would be way more cheaper to pursue than TI because it would be an arbitration. TI requires the expense of a trial and will be at least 5 times more expensive.

If ILCA had broken the IYRU contract, Kirby would have sued for breach of contract and not Tortious Interference.

 

Gantt, I admire you. You are a brave and stubborn man. Much like General Custer you refuse to surrender even when you are outnumbered and surrounded by the facts. If we could find you the right hill, you would be a hero.

 

If only the Laser class could find a productive path to channel your admirable energy.

 

IPLore, Wess, and Redstar. I guess you three are my becoming my special project. I really wonder what your respective connections with the ILCA, PSA, LP etc. are. I have shared mine. (For those who may think this is looking one sided, I agree. Those three need help. Perhaps Old Dude could join in?)

 

IPLore, stating that there is no breech of an agreement between Kirby and ILCA because Kirby has not sued for breech of contract does not make sense. In fact, I'm coming to believe that it is yet another misdirection and IPLore is somehow wanting to protect the ILCA. IPLore pretending that he knows that I am anti ILCA may be a sign of that.

 

What I am saying (and what LPLore is either responding to or misdirecting us away from) is that the ILCA is attempting to invalidate the contracts. The reasons we can reach that view include (but is not limited to):

  • We know that the IYRU Agreement exists, and was signed by Jeff Martin. (I expect that a number of this forum have read it.)
  • We know that the ILCA said "In addition, a builder also needs a building agreement from Bruce Kirby or Bruce Kirby Inc. This provision is mostly historical. The rule was instituted at a time when Bruce Kirby held certain design rights. The ILCA is not a party to any of these “Kirby” agreements.".
  • We know that Kirby has said in his legal action that the ILCA are not providing information.
  • We know that such provision of that information is a condition of the IYRU Agreement

For the ISAF it's simpler. Their statement released via their website says: "ISAF regards the recent announcement of the Kirby Torch dinghy as a fundamental breach of contractual arrangements between the parties concerned with the Laser class. ISAF has therefore exercised its right to end those arrangements and will negotiate new arrangements directly with the ILCA."

 

All of the above supports that the ILCA and ISAF are attempting to invalidate their agreement with Kirby. Perhaps the word should be terminate for ISAF, though with ILCA I think invalidate is more appropriate. It's worthy to note the differences between ISAF's and ILCA's respective approaches. None of what IPLore says counters the above.

 

The ILCA are involved with Kirby's legal action, and it interesting to read all the submissions and exhibits (eg, emails) that involve them, because we are definitely getting a clearer and clearer picture of what happened and the respective actions of the individuals involved.

 

Update: Just read Gouv's post. Well said. I want to say it's important to note that all of the ILCA's executive and world council are not implicated with the actions that Gouv speaks of.

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Your first paragraph got it exactly right Gouv.

 

As for the rest, well that is where we leave the land of law and enter into the space of personal preference. In defense of the class, I would suggest that the path you outlined would really not have been practical or wise especially re Olympic sailing. You can't have a class not enforce a rule that you have and not risk legal consequences. For what its worth I like the idea of a nice grey haired old guy in a modest cottage too; its the reality of an estate planning millionaire biting the hand the fed him that I don't like. None of us know everything that went down and at best can have an opinion; but biting the hand that feeds you crosses a line for me. Of course re personal preference everyone will have their own opinion, all of which are valid, but they don't matter in court. Suspect anyone would agree the guy's contribution should be recognized, but do you feel that your great, great grandkids, should be paying his great, great grandkids for an ancient napkin when they go to buy a boat, and worse yet that the class association should be the police/enforcer? Not trying to change your mind; just curious.

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It seems we are back where this discussion began.

Kirby says: I have contracts with you and you owe me money.

LP says: We don't owe you money. What contracts?

The laser class says: We no longer wish to function as the enforcement agency for Mr. Kirby and we are therefore removing from our rules the requirement that builders have a contract with Mr. Kirby.

 

I don't give a rats patootie about this lawsuit. From the get go my objection has been the handling of the situation by the laser class.

I believe the laser class should have left it's rule in It's book but the laser class should have suspended enforcement of that rule while the lawsuit progressed.

To me it is lousy to lack loyalty to your old friends. I find the behavior of the North American laser class and now the international laser class to be offensive, extremely offensive in the way they treat former contributors to the game.

I believe the reason most people contribute is a firm belief that people appreciate their contributions but instead, the north American laser class and now the international laser class act as though all they care about is themselves today.

I find that behavior to be abominable. There is a huge difference between regretfully and with great resistance removing people from positions in the class after years of contribution and gleefully throwing them out. I feel Mr. Kirby has been gleefully cast aside as the old man who doesn't matter anymore.

Perhaps the class does not feel this way but their actions indicate absolutely no appreciation for Mr. Kirby.

As written above there's a wrong way to do things and there are right ways to do things and to gently and with great reluctance remove Mr. Kirby from the process because we see no other way of having our boats is a whole lot different than merely referring to him as historical and no longer important.

The fact is, Kirby may be historical and no longer of any importance but to admit it in public is crass and unacceptable.

Repeating, the proper thing to do would have been to suspend enforcement of the rules until such time as the contract issues between Bruce Kirby and laser performance could be solved or to simply tell laser performance, "your boats are illegal according to our rules and we do not know whethersomeone will decide to protest their use."

Instead the class took action to blow off the historical Kirby. I don't approve. I very much don't approve.

I think it's likely Kirby will get totally white washed in the lawsuit. Kirby is an old man; he may not even want to tell the lawsuit is over.

I would simply feel a whole lot better if the class association had said in public,"We stand with Bruce Kirby. He designed our boats. He made the class happen. It's likely he made the game happen. Any forever will have our appreciation and respect for having done so."

I certainly missed it if that was the class' intended communication.

 

 

Gouv,

 

I sympathize with your affection for Bruce Kirby. I really do. I am sure he is a great guy who has led a great life and is still having fun. He designed a bunch of fast I14 shapes and made some money from his craft by designing successful boats like the Laser, Sonar and Ideal 18. He sounds like a good man.

 

I worry that we sometimes forget to mention the amazing contribution to the Laser class and sailing in general by Ian Bruce. The Laser was his idea and concept. He called BK and asked him to draw the concept. It was a great partnership. One doesnt want to diminish Bruce in any way but dont forget that it was Ian who barnstormed around the country promoting the Laser and Ian that wrote the class rules with its emphasis on strict simple one design. It was Ian who invested the money in tooling and registered the Laser trademark.

 

Both Ian and Bruce should be remembered together for their historical contribution to the Laser.

 

BUT....and I'm afraid it is a big BUT

Class associations are not the right people to enforce contracts..

 

Bruce sold BKI. He sold it to a builder. Leaving aside the obvious conflicts of interest. By the time this reached the Class Association this had morphed into a major commercial dispute between 2 rival builders.

The role of the Class Association is to promote racing and the interests of the class owners. They should not and cannot get involved in trying to resolve a contractual dispute. I feel very strongly that the Class Association did exactly the right thing. It is what I would have advised them to do. The right place for a contractual dispute to be resolved is in the courts.

 

The Class Association does not have the resources or the skills to assemble the evidence and consider the merits that the various parties were claiming at the time. If it had acceded to the demands of either party to refuse plaques to one of the trade mark holders they would certainly have been sued and be facing a far more serious legal situation than they do now. They did the right thing. They really did.

 

They effectively told both parties. If you have a contract dispute, take it to court. In the meantime, pending resolution of your disputes, we are leaving each builder with exactly the same region that they always have had. You will have to sort out the money among yourselves. We encourage you to mediate. Failing that, take it to court and leave the sailors alone.

 

That is what has happened. It is a commercial dispute that has gone to court. Bruce is a more sympathetic figure than LP so folks can support Bruce in his commercial dispute with LP but dont attack the class.

 

The melges class association doesnt collect royalties on behalf of Reichel Pugh. The SB20 class Association doesnt collect royalties on behalf of Tony Castro. The Thistle Class doesnt collect royalties on behalf of Sandy Douglas. That is between builder and designer. BKI and the Spencers are big boys. They can defend their own interests. The Class should stay out of it and has done a pretty successful job of navigating through the weeds so far.

 

I am not in any business way related to the Laser Class Association, LP or Bruce Kirby. I own a Laser. I pay my class dues occasionaly. I have never served as a class officer.

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A more interesting topic of discussion is pondering the nature of the contractual dispute.

 

Gantt has advanced an argument that even if the Spencers did terminate the agreement between BKI and LP, the termination is invalid because the sale of BKI to the Spencers was not properly ratified. Gantt can enlarge on his argument and tell us why he think this nullifies any termination between BKI and LP?

 

This this brings us to the delightful topics of estoppel and ostensible authority.

 

BKI is a corporation. Corporations are legal entities that are represented by human beings that act as agents for that entity.

The principle of ostensible authority provides that where a reasonable person would assume that the agent of a corporation has authority to act, then the corporation is bound by the agent's action even if the agent had no actual authority. The ostensible authority creates an estoppel when the third party relies upon an assurance and it would be inequitable for the corporation or its principals to deny the authority of the action. The corporation is estopped from claiming that the agent had no authority to take the action.

 

If Bruce Kirby announced that he had sold BKI to the Spencers then it may be reasonable for a third party to assume that the Spencers had authority to act as agent for BKI, even if BKI had not in fact been sold to the Spencers .

 

I am sure that there will be discovery around this topic.

 

 

Many hundreds of pages back a poster called Dogwatch raised the very interesting issue of consideration in the original contract. It was an interesting point that got buried in a fruitless discussion about the copyright of the construction manual (there is none!). Have to rush although it would be interesting speculation.

 

Again, we dont have access to discovery so we dont have any answers, just questions. But at least we should be asking the right questions.

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IPLore, the ILCA is connected with the court case. Kirby is right to name the ILCA in this dispute because of the Agreement they have (or had) with Kirby, which is referenced in the builder's agreement. All the stuff IPLore says has never acknowledged that, rather, the stuff he says refocusses our attention away from these items, most recently with misrepresenting what I said regarding Kirby's sale to Global Sailing. It's compelling for me to respond to that by restating what I said previously, trying to be clearer, though that is exactly how IPLore is misdirecting these posts away from talking about the ILCA's agreements. IPLore is pretending that he has dealt with ILCA's involvement, and again is implying that ILCA's involvement is limited.

 

Gouv is right to say there is a big difference with how the ILCA treated Kirby and how the ILCA could have treated Kirby. IPLore's creative response does not get close to dealing with that difference.

 

IPLore, stating that there is no breech of an agreement between Kirby and ILCA because Kirby has not sued for breech of contract does not make sense. In fact, I'm coming to believe that it is yet another misdirection and IPLore is somehow wanting to protect the ILCA. IPLore pretending that he knows that I am anti ILCA may be a sign of that.

 

What I am saying (and what LPLore is either responding to or misdirecting us away from) is that the ILCA is attempting to invalidate the contracts. The reasons we can reach that view include (but is not limited to):

  • We know that the IYRU Agreement exists, and was signed by Jeff Martin. (I expect that a number of this forum have read it.)
  • We know that the ILCA said "In addition, a builder also needs a building agreement from Bruce Kirby or Bruce Kirby Inc. This provision is mostly historical. The rule was instituted at a time when Bruce Kirby held certain design rights. The ILCA is not a party to any of these “Kirby” agreements.".
  • We know that Kirby has said in his legal action that the ILCA are not providing information.
  • We know that such provision of that information is a condition of the IYRU Agreement

For the ISAF it's simpler. Their statement released via their website says: "ISAF regards the recent announcement of the Kirby Torch dinghy as a fundamental breach of contractual arrangements between the parties concerned with the Laser class. ISAF has therefore exercised its right to end those arrangements and will negotiate new arrangements directly with the ILCA."

 

All of the above supports that the ILCA and ISAF are attempting to invalidate their agreement with Kirby. Perhaps the word should be terminate for ISAF, though with ILCA I think invalidate is more appropriate. It's worthy to note the differences between ISAF's and ILCA's respective approaches. None of what IPLore says counters the above.

 

The ILCA are involved with Kirby's legal action, and it interesting to read all the submissions and exhibits (eg, emails) that involve them, because we are definitely getting a clearer and clearer picture of what happened and the respective actions of the individuals involved.

 

The ILCA entered an agreement with Bruce Kirby. Whether or not that agreement is binding is important to the ILCA and therefore the Laser class. That agreement, because it is referenced in the builder's contracts is both relevant and important to Kirby's legal action.

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Too many distractions on this thread. Copyright on the builder manual won't be very important since one could rewrite the entire thing to end up with the same specifications in different words.

 

Similarly arguing about whether its right for the designer to receive royalties is utterly irrelevant.

 

What counts is the contracts and probably most especially termination clauses and conditions. The contracts all seem to overlap and interact with each other, presumably to create a situation where it was in everyone's interest to play nice and get along.

Result is now people have stopped playing nice it's very complicated.

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IPlore : as you write, why is there no copyright in the construction manual ?

 

1. The parties signed an agreement which made ISAF responsible for the construction manual.

2. You cannot copyright the use of a construction manual. Even if a copyright existed (which I doubt) it would only mean that the manual cannot be reproduced for sale. I previously gave the example of a cookery book. You cannot reprint Julia Child's book on French Cooking and then start selling the book, but you can use the recipes in the book as often as you like without any fear of breach of copyright. Furthermore, you can photocopy the book and the recipes for your own use. You can even photocopy the recipes and send them to friends as long as you dont ask for payment. I dont think we will see editions of the Laser Construction manual available for sale on Amazon any time soon.

3. It is unlikely that Bruce Kirby wrote the construction manual. I suspect the original manual was written by Ian Bruce or an employee or agent of Ian Bruce

4. What Jim C wrote.

5. The IYRU 1983 agreement stated that the confidential information in the construction manual belongs to the trade mark owner...which would include LP.

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Ah, geeze, now you are going to prompt Canntt to come back and tell us all how ISAF is going to h*ll and this a contract dispute between BKI and ISAF and how BKI is winning that ISAF action handily.

 

It will be a long post and he will quote himself because if you quote yourself magic happens and a wrong becomes right.

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