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Posted 19 November 2014:

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STIPULATION OF FED. R. CIV. P. 41 DISMISSAL WITHOUT PREJUDICE

Pursuant to Federal Rule of Civil Procedure 41©, counterclaim-plaintiffs Laserperformance (Europe) Limited and Quarter Moon, Inc. hereby dismiss this action as to the counterclaim-defendant Performance Sailcraft Pty. Ltd. without prejudice and with each party to bear its own costs and attorneys’ fees with respect to the dismissed claims. Counterclaimplaintiffs further dismiss all claims against counterclaim-defendant Global Sailing Limited except Counterclaims six, seven and nine without prejudice and with each party to bear its own costs and attorneys’ fees with respect to the dismissed claims.
Counterclaims dismissed:
1) Declaratory Judgment That Kirby And BKI Have No Rights Under The Builder Agreements (Against Kirby And BKI)
2) Declaratory Judgment That Kirby And BKI Have No Rights In The “Bruce Kirby” Name Or Trademark (Against Kirby And BKI)
3) Tortious Interference With Business Relations (Against Kirby, BKI, Global Sailing And PSA)
4) Conspiracy To Tortiously Interfere With Business Relations (Against Kirby, BKI, Global Sailing And PSA)
5) Violation of the Connecticut Unfair Trade Practices Act (By Quarter Moon Against Kirby, BKI, Global Sailing And PSA)
8) Breach Of The November 2005 Agreement (Against Kirby And BKI)
Counterclaims retained:
6) Breach Of The 1983 Builder Agreement (By LaserPerformance Against Kirby, BKI And Global Sailing)
Note that this is the alleged BK's licensing of a builder in the Netherlands for which LP clims damages of in excess of $1 million
7) Breach Of The 1989 Builder Agreement (By Quarter Moon Against Kirby, BKI And Global Sailing)
Note that this is the alleged BK's licensing of a builder in North America for which LP claims damages of in excess of $1 million
9) Unjust Enrichment (Against Kirby, BKI And Global Sailing)
Note that this is the alleged over payment of royalties by more than $250,000

No doubt that Kirby will argue that the appointment of new builders were after the termination of Laser Performance. Their appointment may not have been completed and may be conditional on the outcome of the legal action.

The language used in Laser Performance's counterclaim included:

  • "This case arises out of a scheme by plaintiffs Bruce Kirby and Bruce Kirby, Inc. (“BKI”) and their foreign co-conspirators, Global Sailing Limited (“Global Sailing”) and Performance Sailcraft Pty. Ltd. (“PSA”) to force LaserPerformance and Quarter Moon out of business."
  • "Kirby’s and BKI’s efforts to destroy LaserPerformance and Quarter Moon commenced as early as 2008."

I am left wondering how much these now dismissed allegations of Rastegar and Crane against Global Sailing then Kirby influenced the decision of the ILCA exec to push through the fundamental rule change.

It would seem that the act of Rastegar to register the Laser Trademark outside of LP's licensed area, specifically Asia, was a move designed to undermine Bruce Kirby's agreed role to appoint builders in territories where there were none.

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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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As with some other stuff I'm not sure this is as big news as it sounds. AIUI dismissal without prejudice means that the claims may be taken up again at some future date. So I suspect that all this means is that the lawyers don't currently plan to rack up fees working on these claims.

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As with some other stuff I'm not sure this is as big news as it sounds. AIUI dismissal without prejudice means that the claims may be taken up again at some future date. So I suspect that all this means is that the lawyers don't currently plan to rack up fees working on these claims.

 

My understanding is that they have been dismissed for the case that will be heard early 2015, and that the dismissal is very likely to be final for that case.

 

It's fairly significant for PSA who by my estimation no longer has any reason to appear. Another possible reason that Laser Performance has agreed to dismiss is that they failed to find evidence that supports their outrageous claims.

 

I still wonder how much these now dismissed allegations of Rastegar and Crane against Global Sailing then Kirby influenced the decision of the ILCA exec to push through the fundamental rule change.

 

I also wonder what will happen if it's found that LP is bound by the terms of the contract and unable to build Lasers in the future as per the termination conditions.

_________________________________________________________

 

The rake issue was solved by vanguard . I thought it was solved world wide and the builders had all agreed to construct at the same rake. That was two decades ago. If new boats have varying rake again, somebody is not trying to build quality product.

In fact, the builders manual almost certainly has been amended to include the agreed upon rake

If the boats are out of builder manual specifications THEY ARE NOT LEGAL LASERS !!!!!

 

I don't think anyone was suggesting that they were not legal Lasers. Rather possible 'variances' within the tolerances - tolerances which we don't know (no should know).

 

And if the mast rake was 'solved' years ago, how come the ILCA was measuring it at the 2014 world along with the weight? A nice way to spend time? Academic curiosity? If the ILCA doesn't make an announcement, then it sailors (like what's happening in the UK right now) will speculate that there are. They just need to say that any minor issues are being addressed and that differences within the tolerances did not translate into noticeable differences on the result sheet.

 

Otherwise it kind of looks like it did.

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I also wonder what will happen if it's found that LP is bound by the terms of the contract and unable to build Lasers in the future as per the termination conditions.

Combine that with what happens if LP's ownership and control over the Laser trademark holds up? The problem with the contracts is that they establish two parties, both with negative power: both have the ability to prevent the other from building Lasers.

 

Thought experiment: what if another company starts building a boat that is functionally identical to a Laser (using reverse engineering to develop its own construction manual and plugs) and then Rastegar licenses the Laser trademark to that new builder?

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And if the mast rake was 'solved' years ago, how come the ILCA was measuring it at the 2014 world along with the weight?

It seems sensible, indeed vital, to take a sample from time to time to make sure that the boats are still being built to standard, and a world championships is surely by far the most convenient place to do it. There's no need to read anything into it.

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I also wonder what will happen if it's found that LP is bound by the terms of the contract and unable to build Lasers in the future as per the termination conditions.

Combine that with what happens if LP's ownership and control over the Laser trademark holds up? The problem with the contracts is that they establish two parties, both with negative power: both have the ability to prevent the other from building Lasers.

 

Well in that case we are back to the Torch scenario. LP cannot build because the contract stops them building. No one else can build as LP (may) not allow them to use the TM.

 

This is why the (former) Laser SB3 (now called the SB20) was called the Dart SB3 by our antipodean cousins.

 

So it could still be a Laser elsewhere in the world but called something else and NA and Europe. A mess I grant you but contract law cases usually are when they reach this level of litigation.

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And if the mast rake was 'solved' years ago, how come the ILCA was measuring it at the 2014 world along with the weight?

It seems sensible, indeed vital, to take a sample from time to time to make sure that the boats are still being built to standard, and a world championships is surely by far the most convenient place to do it. There's no need to read anything into it.

You would think competitors and/or organizers at that level would want some assurance that no outliers slipped through the cracks at the builder. I would be surprised if they didn't check them closely. Every worlds.

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I also wonder what will happen if it's found that LP is bound by the terms of the contract and unable to build Lasers in the future as per the termination conditions.

Combine that with what happens if LP's ownership and control over the Laser trademark holds up? The problem with the contracts is that they establish two parties, both with negative power: both have the ability to prevent the other from building Lasers.

 

Well in that case we are back to the Torch scenario. LP cannot build because the contract stops them building. No one else can build as LP (may) not allow them to use the TM.

 

This is why the (former) Laser SB3 (now called the SB20) was called the Dart SB3 by our antipodean cousins.

 

So it could still be a Laser elsewhere in the world but called something else and NA and Europe. A mess I grant you but contract law cases usually are when they reach this level of litigation.

 

 

I wonder if the contracts also limit Kirby from building the Torch. The situation is very messy.

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I also wonder what will happen if it's found that LP is bound by the terms of the contract and unable to build Lasers in the future as per the termination conditions.

Combine that with what happens if LP's ownership and control over the Laser trademark holds up? The problem with the contracts is that they establish two parties, both with negative power: both have the ability to prevent the other from building Lasers.

 

Well in that case we are back to the Torch scenario. LP cannot build because the contract stops them building. No one else can build as LP (may) not allow them to use the TM.

 

This is why the (former) Laser SB3 (now called the SB20) was called the Dart SB3 by our antipodean cousins.

 

So it could still be a Laser elsewhere in the world but called something else and NA and Europe. A mess I grant you but contract law cases usually are when they reach this level of litigation.

 

I wonder if the contracts also limit Kirby from building the Torch. The situation is very messy.

 

Not under the builder's contracts. They are very specific in that they are licensing agreements for the building of the Kirby Sailboat. They include termination clauses that prohibit the builder from building any Kirby Sailboats other than fulfilling existing contracts - and that for boats build after the termination, royalties are still due. The builder's agreements do not prohibit Kirby from licensing other builders with different terms.

 

The situation is less messy now that allegations of Kirby conspiring to "destroy" Laser Performance have been dismissed.

 

Seems like the issue is reduced to whether or not the contract was voided when Kirby attempted to retire, and sell his design rights (as defined by the contracts) to Global Sailing - a sale that wasn't completed and the steps that had been taken were reversed. I can't see how the contract was voided.

 

Finally, there is the significance of the class rule change, which must be dealt with at some point. This will be either in repealing the change to reinstate Kirby, or the ILCA negotiating new agreements with the builders (I doubt that has been done). That will be difficult for the ILCA to complete with PSA who believes their agreement with Kirby is legal and binding. The ILCA can expect more legal fees if that route is taken.

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Not under the builder's contracts. They are very specific in that they are licensing agreements for the building of the Kirby Sailboat. They include termination clauses that prohibit the builder from building any Kirby Sailboats other than fulfilling existing contracts - and that for boats build after the termination, royalties are still due. The builder's agreements do not prohibit Kirby from licensing other builders with different terms.

 

Section 11 of the IYRU/Kirby/LPE agreement gave "Laser International Holdings (1983) Ltd" the right to limit Kirby's choice of sailmakers for the "Kirby Sailboat", which would include sailmakers for the Torch. With all the changes of ownership, bankruptcy and asset purchases of the builders, it's not clear if that right still exists and if so who owns it.

 

I think that you are overstating the issues for the ICLA. As I see it, the ICLA is taking the attitude that Kirby and the builders need to sort things out amongst themselves. I don't see why the ICLA needs new agreements with the builders.

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Of course Canntt is overstating it but that is what he does.

 

He is not member of the class and does not speak for it. Its pretty obvious what the class thinks given the vote, the double down and no back-tracking at all.

 

If you have a Laser, go sailing and enjoy it. There is absolutely nothing left in this case that is going to impact the class or change anything for better or worse. Kirby already gave up on the only aspect of it that would have impacted us (his litigation against the trademark).

 

We had about 20 boats out today for 8 frostbite races in breeze that ranged from 20-29 knots. Young and old; guys and gals; generic and button sails and parts. What great fun. The only thing that makes me hurt worse than reading all of Canntt's stupidity is all that hiking and the one california roll in the 40F water temps.

 

And mast rake? Went away for a bit and you guys are really hung up on mast rake? I would love to meet the individual posting on this thread that is such a hot shot Laser sailor that mast rake would make a difference for them!! Spend some time on bending and busting upper sections. At least 2 of 20 had their upper section snap in today's breeze on conditions and many in the fleet talk about how quickly the new one's bend in as little as 10 knots of breeze.

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We had about 20 boats out today for 8 frostbite races in breeze that ranged from 20-29 knots. Young and old; guys and gals; generic and button sails and parts. What great fun. The only thing that makes me hurt worse than reading all of Canntt's stupidity is all that hiking and the one california roll in the 40F water temps.

You call that frostbite racing? I have sailed in conditions that required chipping the ice out of the bottom of the boat before launching it and times when the sheets would not go through the blocks because they were icing up (along with the ice on the decks). In the latter conditions, there were also sailboarders out with bare feet!

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LOL, our winters are not that bad. We can sail the entire season. Need drysuit and occasionally have the break ice to get to open water but not bad really.

 

Usually we get a few weeks were the decks and lines (and beards) get all iced up from spray but we also get some where the drysuit (required) feels like a sauna.

 

The water temps will typically get into mid 30s F in Jan/Feb which make the california rolls a bit more "bracing."

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Of course Canntt is overstating it but that is what he does.

 

He is not member of the class and does not speak for it. Its pretty obvious what the class thinks given the vote, the double down and no back-tracking at all. While I think Gantt is way OTT, your over simplification and biased views are almost as bad the other way.It is clear to anybody independent that the class vote was manipulated by the committee. There is a strong belief that if the true nature of the dispute had been known, they would never have got a majority. I personally think it was a disgrace the way the committee put the vote to the membership, in that it included misleading and incorrect information. There are 2 indisputable facts. First, the committee told members they needed to vote urgently and immediately, a comment clearly designed to get people to vote before BK could get his side of the story out. Second, people declared on a number of forums that if they had known the full story and hadn't been duped into voting as soon as the papers came out, they would not have voted in favour. Finally, and this is harder to prove, there is evidence that suggests the voting dried up as soon as BK made his position public. Whatever the truth of that is, the numbers who actually voted were low and to say that tells us what the class thinks is a big leap.

 

If you have a Laser, go sailing and enjoy it. There is absolutely nothing left in this case that is going to impact the class or change anything for better or worse. Kirby already gave up on the only aspect of it that would have impacted us (his litigation against the trademark). This is also incorrect.If BK wins his case against LP, the ILCA will end up becoming defunct because there will be no option but to change the name and if you think that BK will allow the existing organisation to have any part going forward, you are delusional.Now i personally see that as a positive because, while not going to the extremes of Gouv, I do believe that the class is pretty poorly run at the top level, although pretty well run at grass roots. Maybe those grass roots organisers will get a committee they deserve.

 

And mast rake? Went away for a bit and you guys are really hung up on mast rake? I would love to meet the individual posting on this thread that is such a hot shot Laser sailor that mast rake would make a difference for them!! Spend some time on bending and busting upper sections. At least 2 of 20 had their upper section snap in today's breeze on conditions and many in the fleet talk about how quickly the new one's bend in as little as 10 knots of breeze. There are 2 issues which seem to have gone over your head. First, mast rake actually has a big influence on top section bend and breakage. Second, nobody sails a Laser because it is the best boat out there. They sail it because it is the best one design racing and even if your boat handling and tactics aren't as good as some, you want to believe that you aren't being disadvantaged compared with others of exactly the same skill level. Would you knowingly sail a Laser that was slower than others?

And before you point out the obvious about me having no skin in the game, yes, you are right but I have been considering buying a Laser and using it for Saturday racing when not sailing my A, because I miss the closeness of that sort of racing. The current goings on are just one (small) factor that goes into my decision of whether I do buy one or not.

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While I think Gantt is way OTT, your over simplification and biased views are almost as bad the other way.It is clear to anybody independent that the class vote was manipulated by the committee. There is a strong belief that if the true nature of the dispute had been known, they would never have got a majority. I personally think it was a disgrace the way the committee put the vote to the membership, in that it included misleading and incorrect information. There are 2 indisputable facts. First, the committee told members they needed to vote urgently and immediately, a comment clearly designed to get people to vote before BK could get his side of the story out. Second, people declared on a number of forums that if they had known the full story and hadn't been duped into voting as soon as the papers came out, they would not have voted in favour. Finally, and this is harder to prove, there is evidence that suggests the voting dried up as soon as BK made his position public. Whatever the truth of that is, the numbers who actually voted were low and to say that tells us what the class thinks is a big leap.

Think you missed some colour there Simon. Quite agree with you. It would be very interesting to know if the ILCA were aware of how the votes were running, and adjusted their (lack of) responses to their membership accordingly.
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JimC/Simon,

 

Sorry but might I respectfully inquire and seek some clarification from you? No smoke and mirrors. Just talk facts.

 

1.) Please tell me what BKI claims (please be specific) remain in the litigation would compel ISAF and ILCA to have to do anything with regards the class rules?

 

2.) Please tell me what claims BKI has that "if he wins his case against LPE would cause ILCA to be defunct"?

 

3.) Please tell me what claims BKI has retained would cause there to be "no option but to change the name" and cause BK "to allow [or not] the existing organization [presumed to mean ISAF and ILCA] to have any path going forward"?

 

4.) Have you talked with existing class members that are active (Championship level regatta sailors) and asked why they voted as they did? If people feel manipulated as you say, do you wonder why there has been no uprising in the class as more information became available? Do you wonder why instead of backing down, as more information became available, the class took a harder, firmer, more active stance sometimes characterized as being in opposition to BKI but in reality simply ensuring a commercial contract dispute between BKI and LPE returned to being just that, and was handled in the courts where it belonged without forcing the class to be a bag man?

 

5.) Do you really think that the class officers (2 sets of them now), and active class members, really just woke up one day and decided to screw BKI in favor of LPE who, as anyone who can even fog a mirror understands, apparently has some not insignificant issues supplying product to those same active class members?

 

6.) Do you agree that if BKI has or had a valid contract with LPE the courts will rule in his favor and LPE will have to pay him absent any class involvement or rule?

 

7.) Do you agree that if BKI has any rights he has not already sold and have not expired, that LPE will be forced to renew its contracts with BKI absent any class involvement or rule?

 

I thank you kindly for your response. You know my opinion, but perhaps I am wrong. I would welcome your fact based responses to above.

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1,2,3,6,7 If the contracts stand up in court LPE will have to cease building Lasers, but Rastregar's other company will still hold the trademark Laser for their regions. Start from there. The permutations are endless, and I have no intention of attempting to predict what the consequences might be. Money will doubtless talk, but so might animosity and lack of trust.

 

4. I've never found a Laser sailor in the UK who has much idea what is going on or who has ever been given any more information.

 

5. I'm sure the ILCA staff think they're doing the right thing, whatever right is, but there is no available information I would care to base a judgement on.

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JimC,

 

Am honestly NOT trying to wind you up here but please...

 

What specific claim (please be specific) in the litigation, if won by BKI, means that "LPE will have to cease building Lasers"?

 

Wess

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Contract termination clauses.

Agreement of Licencee on Termination

10.7 Licensee agree that termination of this Agreement for any reason shall not relieve Licensee of the obligation to pay the royalty payments and fees as provided herein which have accrued up to the effective date of termination hereof and the obligation to pay the royalty payments and fees for all Kirby Sailboats manufactured prior to the effective date of termination but not delivered until after such date.

10.8 Licensee agrees that in the event of termination of this Agreement for any reason, Licensee shall attempt in good faith to negotiate a sale to Kirby Inc., or to negotiate a sale to another licensee of Kirby Inc., all plugs, moulds and tooling then owned by the Licensee relating to the manufacture of Kirby Sailboats at fair market value not to exceed replacement cost.

10.9 Upon termination of this Agreement for any reason, Licensee shall forthwith discontinue manufacturing Kirby Sailboats and shall discontinue the use of and shall refrain from using the production tooling, moulds and plugs particularly associated with the manufacture of Kirby Sailboats. Notwithstanding the foregoing, Licensee shall be permitted (against a letter of credit or other similar assurance that royalties and fees shall be fully paid) to complete the manufacture, subject to all the terms and conditions of the Agreement, of Kirby Sailboats in the course of manufacture, and sell all such sailboats, together with any Kirby Sailboats in a finished state at the effective date of termination hereof provided that in each case Licensee pays all royalty payments and fees with respect to such Kirby Sailboat at the rate, time and manner provided for in Article 8 hereof.

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OK, so then you are saying that BKI's position is that the contracts are terminated?

 

JimC, BTW, this is why I asked about claims. He cant get what he did not ask for. Seems he is asking for royalties under the contract, no? That is not to say our hero is not angry enough to have a second or third go at it. Economic reality seems to have flown the coop, in favor of emotions so I would actually not be surprised if he does have a second go.

 

I see you edited you post to remove the line I quoted. Was not trying to start a fight when I quoted you. If you prefer I can just delete the post. Was simply pointing out that folks seem to be stating views that there will be outcomes beyond what BKI claimed in the litigation. Read the actual claims and see what you think.

 

All in my opinion...

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OK, so then you are saying that BKI's position is that the contracts are terminated?

 

I am pretty sure BKI are saying the contracts have been terminated which is kind of the whole point of the litigation. Terminated due to non-payment of royalties in line with the contract.

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Now you have me wondering, LOL. Its been a while since I looked at it.

 

I might be confsing the PR with the court filings. He sold it, bought it back, LPE claimed voided on that, BKI claims and he then terminated? Is that the PR, the filing or both?

 

Pretty sure I know the LPE response to the termination clauses either way but thought BKI was claiming still valid and forward royalties as well.

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This is one of the many things the court needs to rule on:

 

1) Was the sale of the 'rights' ever completed? (even if it was that does not void the contract as in a sale of this kind there is (usually) a transfer of contracts from the seller to the buyer with all affected parties notified in writing).

 

2) Who actually gave notice of the contract termination? (BKI or GS and was it done in line with the termination clauses)

 

3) Are the contracts actually valid anyway? (the fact that they have been abiding by them for several years may add weight in court)

 

The fact that any 'rights' may long ago expired in some ways is immaterial as it is the contract that states that they royalty must be paid. If LP were not happy paying the royalty they should have re-negotiated the contract (IMO).

 

I am no lawyer though ;)

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OK, so then you are saying that BKI's position is that the contracts are terminated?

For sure. The termination notices are in the court papers, together with the instruction to ISAF/ILCA to cease issuing placques because the contract is terminated.

 

My reading of the contracts is that all those conditions apply if the contract terminates for any reason, in any manner and by either side. But I am not a lawyer so I could very easily be wrong. But to my non legal eyes if the contracts cease for *any* reason *all* the termination clauses apply. I haven't read all the papers and haven't seen why LPE thinks they don't apply.

 

Its all part of what seems to me to be checks and balances in the web of contracts. If the builder doesn't play the game then they get their contract terminated and they are out of building Lasers for ever, but if the builder is terminated they still hold the trademark so no-one else can use the trademark to sell Lasers, so both sides have security. So provided all played sensibly it was all stable, and both sides stood to lose if they played rough, so it should have been in everyone's interests to keep things running.

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Gouv!!!

Reality check time!

It is just a game for most of us. We are glad you and others host regattas and we come play with you when we feel like it but we have lives outside sailing.

Boat manufacturing is a business.

Association management is nothing more than a job to our employees like Faust and Campbell.

You want us to share your passion and I suppose many of us understand how much better sailboat racing could be if we did.

We won't

We can't

If I see a fleet and think it looks like I could have some fun, I might join in.

I don't care if the boats are built by union workers in the USA or slave child labor in China. All I care is whether I can have some fun.

You obviously care.

I don't and even that great piece you wrote does nothing to change the fact I don't.

Now I have to go back to work and you should too.

Really. You can fix some boats. That, unlike your rants here, will make a difference for somebody.

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Good interesting discussion. Just my opinion...

 

Gouv - The problem is the "bully" owns the trademark to the boat. Yes, you and I see an answer to that impass with generic Lasers but the vast majority of active class member don't buy into that vision of lower cost and improved access at the expense of SMOD. And while I have an opinion that is the same as your opinion on this point, I have never thought it appropriate to force my view on others. I get one vote is all. You can scream all day from the hilltops how the class should stand to take down LPE, but you have no legal basis to force them to do that and they have a right to their opinion which clearly is that they don't want to (or feel they can't). And seriously, the party best positioned to do this is BKI with the Torch and even he will not give it more than lip service sadly.

 

JimC - Its been too long since I looked carefully at that and I may be confounding his PR postion w his legal position (they have not always aligned). A danger of BKI saying the contact is invalid and or is truely terminated, is that absent some right to sell and absent any contract, he gets no royalties going forward and would not be part of the LASER game financially. In my opinion the termination provisions are easy to deal with and for sure many on this thread have pointed out that any of us can make and sell a boat that is exactly like a Laser, so for sure LPE can as well, and they alone can call it a LASER. I assume all agree that point right? So from there, unless BKI has some valid right that he still holds (has not already sold) and that right has not expired - and I am not aware of anything that falls into this category - then there is no way to induce anyone to enter a contract and pay him.

 

From there you end up back at the class rule. If the class rule was the only thing forcing people to pay BKI and enter or renew contracts with him, ignoring the ethics of that, you can't force people to keep a rule they don't want to force others to pay fees that are passed to them, no? This puts it back into the land of "but he is my friend" while others argue, "then you go pay him we don't want to and you have no legal right to sell to force me to." I do not recall any legal claim that BKI has made in the existing litigation that, even if he won, would force the class (ISAF and ILCA) to put a rule back that sort of says you LPE or other mfg, must pay BKI even if he has nothing to sell to you. Again, from recall and I could be wrong, but I think there are no remaining litigation claims against ISAF at all and the few vs ILCA are widely viewed as a huge reach. If BKI legal position is the LPE contracts are terminated, then all he can get at best is back royalty, and to get anything else (absent having some legal right to sell), he needs to class to reverse course and put back a rule to pay BKI no matter if he has someting to sell or not. I don't think the current litigation gets that, and his actions don't seem to have won him any friends at the ISAF and ILCA officer or active class member level so... I'm guessing a snowball's chance in h*ll...?

 

I suspect in the end LPE will not be making a Kirby sailboat, they will be making an ISAF/ILCA sailboat that is exactly the same as a Laser has always been, and is still called a LASER under the trademarks owned by LPE.

 

Wess

 

PS - Who made the claim that PSA or GS was paying BKI's legal bills? Anyone know if that is so? Hard to understand the BKI position unless it is really a PSA/GS funded position.

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Not under the builder's contracts. They are very specific in that they are licensing agreements for the building of the Kirby Sailboat. They include termination clauses that prohibit the builder from building any Kirby Sailboats other than fulfilling existing contracts - and that for boats build after the termination, royalties are still due. The builder's agreements do not prohibit Kirby from licensing other builders with different terms.

 

Section 11 of the IYRU/Kirby/LPE agreement gave "Laser International Holdings (1983) Ltd" the right to limit Kirby's choice of sailmakers for the "Kirby Sailboat", which would include sailmakers for the Torch. With all the changes of ownership, bankruptcy and asset purchases of the builders, it's not clear if that right still exists and if so who owns it.

 

I think that you are overstating the issues for the ICLA. As I see it, the ICLA is taking the attitude that Kirby and the builders need to sort things out amongst themselves. I don't see why the ICLA needs new agreements with the builders.

 

With the changes of ownership etc., the legal actions have developed considerable certainty. There was less certainty with the Laser Trademark holder, but a separate action has provided the necessary certainty. There are several companies involved that Farzad Rastegar controls, bottom line is that they are documented in the legal action and there is no disagreement about who those companies are. Most people refer to them as "Laser Performance" but LPE actually are Quarter Moon Incorporated (builder contract signatory) and the trademark holder Kayara (Jersey) Limited.

 

Good that you bring up the IYRU Agreement. Section 11 says that the sails must be made in accordance with the construction manual and approved by the trademark holder. To raise that shows that you have detailed knowledge of the contracts. In all honesty, I can't see how that can work for the Torch under the existing IYRU Agreement, though it's probable that this contract would be replaced and a new one signed, for the Torch to properly replace the Laser. It's important to realise that the ISAF announced that their right to withdraw from the agreement, though their action to withdraw was unilateral and their obligations under this agreement if tested may be found to still be binding.

 

I don't think I am overstating the issues that the ILCA has. Though SimonN refers to my position as over the top, he puts forward a view more extreme than my own in that if Kirby wins that the ILCA will be defunct. I see that is one possible scenario, however while I have huge concerns about the ILCA, I don't see that Kirby winning his day in court will automatically lead to the demise of the ILCA. I see it's renaming as being more likely, but again, that is only one of several possibilities. A Laser Performance is worth far more with the Laser building contract, so the sale of Laser Performance is another of several possibilities.

 

Given the history of the relationship between the ILCA and Laser Performance with Crane and Rastegar (and there have been issues - see the discovery documents), I'm very confident that the ILCA would want to replace the agreements that they have with the builder's contracts with new ones. Under the builders contract, the builder recognizes the IYRU Agreement, and agrees that the ILCA can inspect boats to make sure they measure, (known as the ISAF class measurer) and to pay the ILCA fees for inspections. These may seem small, though I would think that the ILCA would like to see the builders obligated for that to continue. The reason is that if the boats don't measure, then there will be a cost that needs to be met by the builder - they may not want to 'reject' boats! If there is not builder's contract, then there is no obligation. (This makes the ILCA a party to the builder's contracts, but not a signatory).

 

It appears that most of the probable scenarios is that there currently is no builder's contract. This will be the case if Laser Performance wins, in that the builder's contracts were somehow invalidated by the sale of BKI to Global sailing. If Kirby wins, and the ILCA moves forward without Kirby (as Wess is wanting), then I imagine that the Trademark holder (Rastegar) may put forward another builder. I'm not sure what the ILCA will do.

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JimC/Simon,

 

Sorry but might I respectfully inquire and seek some clarification from you? No smoke and mirrors. Just talk facts.

 

1.) Please tell me what BKI claims (please be specific) remain in the litigation would compel ISAF and ILCA to have to do anything with regards the class rules? Non. Never suggested as much either

 

2.) Please tell me what claims BKI has that "if he wins his case against LPE would cause ILCA to be defunct"? Simple. If BK wins, nobody will be able to produce boats called "Laser" in the territories where LP has the trademark (unbless LP give up or sell their rights). In addition, as he has the support of the other builders, we will see the "Laser" cease production. The boat will be sold under a different name, a name that BK will control. There would be 2 options. First, a new class association will be formed or second, the ILCA will change its name. Do you really think BK will want the ILCA in its current form? ISAF will have no option but to support the new name and association because failure to do so would throw the Olympics into chaos.

 

3.) Please tell me what claims BKI has retained would cause there to be "no option but to change the name" and cause BK "to allow [or not] the existing organization [presumed to mean ISAF and ILCA] to have any path going forward"? As above. If LP own the trademark in certain geographies they can prevent "Lasers" being sold in that territory. Then what? Are you suggesting the class known as "Laser" can survive with no new boats?

 

4.) Have you talked with existing class members that are active (Championship level regatta sailors) and asked why they voted as they did? Yes If people feel manipulated as you say, do you wonder why there has been no uprising in the class as more information became available? Because there is no real mechanism to do anything and most people cannot be bothered, because, as you say, it doesn't really directly effect people - they still sail and race the boats Do you wonder why instead of backing down, as more information became available, the class took a harder, firmer, more active stance sometimes characterized as being in opposition to BKI but in reality simply ensuring a commercial contract dispute between BKI and LPE returned to being just that, and was handled in the courts where it belonged without forcing the class to be a bag man? The association didn't back down for 2 reasons. First and foremost, it is run by arrogant people whose behavior at the time of the vote left many stunned. It was, IMO, the biggest abuse of power i have ever seen by an association, which was unduly influenced by people with vested interests.

 

5.) Do you really think that the class officers (2 sets of them now), and active class members, really just woke up one day and decided to screw BKI in favor of LPE who, as anyone who can even fog a mirror understands, apparently has some not insignificant issues supplying product to those same active class members? Once the first committee went the way it did, the class had no option but to continue that way. To change direction would have opened them up to much more legal trouble

 

6.) Do you agree that if BKI has or had a valid contract with LPE the courts will rule in his favor and LPE will have to pay him absent any class involvement or rule? That is really irrelevant. Payment isn't the issue. The ability to continue to manufacture Lasers is what really counts.BK is no longer only after money. He now wants LPE out of the equation. That is one relationship that cannot be rebuilt. And before you ask, I do not believe that was ever the end game (on behalf of PSA), as evidenced the people who would build the Torch - PSA only retains its territory and doesn't expand it.

 

7.) Do you agree that if BKI has any rights he has not already sold and have not expired, that LPE will be forced to renew its contracts with BKI absent any class involvement or rule? No, because if BK wins there is nothing to compel him to renew the contract with LPE. For BK to win, LPE will need to be shown to be in breach of contract and that it was right to terminate the contract

 

I thank you kindly for your response. You know my opinion, but perhaps I am wrong. I would welcome your fact based responses to above.

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Gouv - Too much in your post to know if we agree or disagree. See below.

Wess is spot on except he keeps leaving out this: NOT SURE WHAT YOU ARE SAYING I AM LEAVING OUT. NOT TRYING TO INTENTIONALLY LEAVE ANYTHING OUT.

We have been holding Laser races for msny decades and we have regularly allowed products built by others to participate in those races.
Here in Austin we had Wednesdsy night Laser races for many years before we started calling them Sunfish and Laser nights. We have welcomed all kinds of boats to oarticipate at various times including but not limited to Force Fives, Sunfish, Starfish, Europe Dinghy, Finn, Hobie 14, Hunter 12, Capri 14.2, Flying Junior, 420, various windsurfers, and even a few guys on kayaks. OK, BUT NOT SURE YOU CAN CALL THAT AN ILCA EVENT IN COURT OF LAW. DOUBT IT.

The ILCA can continue to call itself ILCA and welcome any boat they please to their Laser races. WITH SOME LIMITS DEFINED BY THE TRADEMARK HOLDER, I BELIEVE THAT IS SO, YES.

ILCA and its various members have been doing just that for decades and it would take a ton of lawyer$ and a very well laid for judge to support a claim by LP thst tgey have a history of defending their trademark against such free and open use. THIS IS OUTSIDE MY COMFORT ZONE TO OFFER A USEFUL OPINION BUT AS A SWAG, I SERIOUSLY DOUBT THAT. BKI TRIED TAKING A RUN AT TAKING DOWN THE TRADEMARK AND IT WAS IMPORTANT TO HIM TO WIN THAT AND LOOK WHAT HAPPENED. HINT: HE DIDN'T WIN.

So all the ILCA needs to do is decide how to go about making deals with potential builders to provide the game with the right toys. YES, BUT YOU MIGHT NOT BE ABLE TO CALL IT A LASER.

Briefly that amounts to: YES, BUT AGAIN YOU MIGHT NOT BE ABLE TO CALL IT A LASER.
We ,ILCA, have a lucrative market for you.
We will let your boats be used in our sanctioned competitions if you Promise to and actually consistently provide the product we want.
If you screw up we will toss your toys out and you will not have access to that lucrative market


I fail to see why the above is less attractive to us than :
If you hold the trademark for a word and a logo we will pay whatever you charge for whatever you build while banning all others from entering your monopoly market YES, WE AGREE THIS BUT YOU AND I ARE 2 VOTES. I DONT CARE IF ITS CALLED A LASER, A TORCH, AN ISAF DINGHY, OR A WHATEVER, JUST SO LONG AS IT LOOKS AND SAILS JUST LIKE A LASER SO THEY CAN - AT A GRASS ROOTS LEVEL - COMPETE FAIRLY WITH EXISTING LASERS. BUT THERE ARE MANY ACTIVE IN THE CLASS THAT WOULD DISAGREE.

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Simon,

 

I agree with you that LPE might preclude anyone else from building a Laser that is called a LASER. Absolutely. But what in existing BKI litigation, assuming he wins (please refer to a specific claim) prevents LPE from continuing to build boats that are exactly like Lasers and are called LASER? What claim precludes those same boats being accepted and used by ISAF and ILCA under existing Laser class rules?

 

Wess

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JimC,

 

Am honestly NOT trying to wind you up here but please...

 

What specific claim (please be specific) in the litigation, if won by BKI, means that "LPE will have to cease building Lasers"?

 

Wess

 

 

Contract termination clauses.

Agreement of Licencee on Termination

10.7 Licensee agree that termination of this Agreement for any reason shall not relieve Licensee of the obligation to pay the royalty payments and fees as provided herein which have accrued up to the effective date of termination hereof and the obligation to pay the royalty payments and fees for all Kirby Sailboats manufactured prior to the effective date of termination but not delivered until after such date.

10.8 Licensee agrees that in the event of termination of this Agreement for any reason, Licensee shall attempt in good faith to negotiate a sale to Kirby Inc., or to negotiate a sale to another licensee of Kirby Inc., all plugs, moulds and tooling then owned by the Licensee relating to the manufacture of Kirby Sailboats at fair market value not to exceed replacement cost.

10.9 Upon termination of this Agreement for any reason, Licensee shall forthwith discontinue manufacturing Kirby Sailboats and shall discontinue the use of and shall refrain from using the production tooling, moulds and plugs particularly associated with the manufacture of Kirby Sailboats. Notwithstanding the foregoing, Licensee shall be permitted (against a letter of credit or other similar assurance that royalties and fees shall be fully paid) to complete the manufacture, subject to all the terms and conditions of the Agreement, of Kirby Sailboats in the course of manufacture, and sell all such sailboats, together with any Kirby Sailboats in a finished state at the effective date of termination hereof provided that in each case Licensee pays all royalty payments and fees with respect to such Kirby Sailboat at the rate, time and manner provided for in Article 8 hereof.

 

Simon,

 

I agree with you that LPE might preclude anyone else from building a Laser that is called a LASER. Absolutely. But what in existing BKI litigation, assuming he wins (please refer to a specific claim) prevents LPE from continuing to build boats that are exactly like Lasers and are called LASER? What claim precludes those same boats being accepted and used by ISAF and ILCA under existing Laser class rules?

 

Wess

 

Not sure how SimonN's answer will be any different to JimC's.

 

In plain language, Laser Performance can't build Lasers because they agreed to not build if the contract was terminated. Kirby is asking the courts to confirm, while Laser Performance / Rastegar / Crane are hoping to pull a proverbial rabbit out of the hat.

 

Specifically they are outlined in points 48 to 66 of Kirby's action.

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In plain language, Laser Performance can't build Lasers because they agreed to not build if the contract was terminated. Kirby is asking the courts to confirm, while Laser Performance / Rastegar / Crane are hoping to pull a proverbial rabbit out of the hat.

 

Specifically they are outlined in points 48 to 66 of Kirby's action.

 

So we are clear. Your opinion is that if BKI wins the existing litigation, that LPE will not be able to build boats that look exactly like Lasers, even though many (and I think even you) previously posted that anyone else could, right? But because of the termination clause they canntt, right? So the 99er = OK, but an LPE 99er = not OK. Because of the termination clause? :wacko:

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They may be able to legally build something that superficially looks like a Kirby boat and even call it a Laser (in some territories, possibly) but it wouldn't be class legal to the ILCA. Sure the ILCA could change their rules to accept whatever they like, except they are an International Class, so don't have freedom to change rules (although the ISAF were toothless over the fundamental rule change). To be an ILCA boat it needs to be built in accordance with the construction manual and from official tooling.

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So ala the 99er they can't make or have already made long ago new official tooling and who owns the construction manual? All just a SWAG of course...

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Simple terms:

Consensus here says:

The design rights have expired so anybody can built toys that are just like Lasers and market them as just like Lasers but not called Lasers.

 

Gannt's point:

LP may have signed an enforceable contract that says, "LP may build the Kirby Designed a Laser until such time as LP no longer has a contract with Kirby Inc. Part of the consideration for having that approval in that contract is an agreement to NOT build any more after the contract with BKI is terminated

 

More simple:?

I agree as of today to no longer call Wess a fartblossom. No one else on the planet has made such an agreement and each of them can call Wess a fartblossom at their own peril.

I signed away my rights and even at some close rounding at a masters regatta I shall have to restrain myself

Unless the agreement includes a clause describing how I can resume calling Wess a fartblossom.

I believe the unwritten clause describes offering Wess a cold beer or margarita.

Sorry Gouv. Liked this so had to save it before you played the game (which is funny on read back of older pages). I'll take the beer.

 

I was trolling a bit above. Assumed most following along in the fact based world realized the tooling, construction manual and termination clause were dealt with 3 or so pages ago.

 

I liked your "More simple:?" but its even better for you. You just canntt call me a Wess designed fartblossom. But you can still call me a fartblossom. After my beer!

 

You should have been here this weekend. Epic sailing. But I am too old. My surgically repaired shoulder was mildly unhappy. My "you should have surgery now" other shoulder screamed with pain and even more so after the death roll and recovery. I should have gone in but did not want to end on that note. Had some decent races and was leading one by a good margin when my left hip cramped and hurt so freaking bad while locked into the boat on the starboard downwind run, that I literally sailed off to the right on a broad reach, to stand and stretch it while still racing (kinda). Managed a second but that dang kid (fleet champ) got me for the gun. Almost had him the next race but he got me about 2 boats from the line.

 

UGH. Its sucks getting old.

 

Wess

 

PS - 2161 splains it.

 

PPS - that should let you have fun with your game. Play well and that cann reference canntt.

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It seems that I am being attributed ownership of a point. Others, including SimonN made it before me about a year ago - it's not my point at all - though I agree that it should be made, because of the potential consequences.

 

Ultimately, it's a point that Kirby is making in his legal action:

 

 

61. PSE/LP Europe have continued to manufacture Kirby Sailboats following termination of the 1983 Builder Agreement in violation of article 10.9.
62. PSE/LP Europe have continued to use the production tooling following termination of the 1983 Builder Agreement in violation of article 10.9.
63. PSE/LP Europe have continued to use the molds following termination of the 1983 Builder Agreement in violation of article 10.9.
64. PSE/LP Europe have continued to use the plugs following termination of the 1983 Builder Agreement in violation of article 10.9.
65. PSE/LP Europe have failed to negotiate the sale of “all plugs, moulds and tooling” used to make the Kirby Sailboat following termination of the 1983 Builder Agreement in violation of article 10.8.
66. On information and belief, Rastegar has caused and directed the actions of PSE/LP Europe as alleged in paragraphs 60-64.

 

All I'm saying is that it's up to the courts to decide.

 

The outcome of the court case will impact on the ILCA either in the form of a new builder, or an increased requirement to have some sort of assurance (vai a contract perhaps?) that the builder is going to serve the class.

 

And it's pretty important that no matter who the builder is, the class association has a system to keep builders in check - ideal if the builders are obligated. Mostly because its us sailors who are insanely competitive looking for the edge.

 

Found this on the Y&Y forum by bustinben:

 

 

...the physical differences are readily provable to anybody who cares to check. I know that they're there because I've measured them myself. I've got a table of rake measurements from a range of boats, and not only are no two the same, they're in fact all very different. Anybody who is a member of a club with more than 1 laser can repeat my experiment smiley1.gif

As to whether it actually makes a difference on the racecourse, that's much harder to prove conclusively. Sailing two boats with different rakes does feel different, but can you be sure that one is better than the other?
What you *can* say on this topic if you understand how the laser rig works, is that if you have a mast that is raked 2 inches further back than other, then you have the same leech tension as the forward raked boat if it loosened the traveller or clew strap by the same amount.
A bit of 2 boat tuning in hiking conditions up until you start de-powering significantly will quickly show you what happens if you do that (clue, it's not going to be very fun).
That doesn't help you assess where the limits lie however. I'm sure there's a point where going further forward will start to disadvantage you.
P.S. I know I've argued that the published radial "ideal weight" is utter b**locks, but I'm not sure I've claimed that it has a wide range?
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So you believe that 61-66 shuts down LPE and means they can't make LASERS any more going forward and thus the class can't get boats. My gosh that is insightful. I canntt believe nobody saw that coming and prepared for it. O M G !

Ultimately, it's a point that Kirby is making in his legal action:

 

 

61. PSE/LP Europe have continued to manufacture Kirby Sailboats following termination of the 1983 Builder Agreement in violation of article 10.9.
62. PSE/LP Europe have continued to use the production tooling following termination of the 1983 Builder Agreement in violation of article 10.9.
63. PSE/LP Europe have continued to use the molds following termination of the 1983 Builder Agreement in violation of article 10.9.
64. PSE/LP Europe have continued to use the plugs following termination of the 1983 Builder Agreement in violation of article 10.9.
65. PSE/LP Europe have failed to negotiate the sale of “all plugs, moulds and tooling” used to make the Kirby Sailboat following termination of the 1983 Builder Agreement in violation of article 10.8.
66. On information and belief, Rastegar has caused and directed the actions of PSE/LP Europe as alleged in paragraphs 60-64.

 

The outcome of the court case will impact on the ILCA either in the form of a new builder, or an increased requirement to have some sort of assurance (vai a contract perhaps?) that the builder is going to serve the class.

 

And it's pretty important that no matter who the builder is, the class association has a system to keep builders in check - ideal if the builders are obligated. Mostly because its us sailors who are insanely competitive looking for the edge.

 

And no, really, its not "us sailors;" its you few idiots. Most of "us sailors" sail the old boat we have, with the old gear on it till it breaks. Most of "us sailors" know that it was not my 150000 sail number and hull that cost me the gun those races this weekend against somebody with a new boat and sail and boards. When I lost the lead it was my bad tacks, bad gybes, and old fat out of shape body that let me down, not my old boat, old sail, or old boards. The loose nut at the end of the tiller cost me the race and anyone that thinks something like mast rake makes a difference, or buying a new boat or boards etc... will improve your position in a club fleet is an idiot. And a poorer one at that... but because I like you I will buy your year old used stuff for 50% off retail so you can get the brandy new stuff and an edge.

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Of course Canntt is overstating it but that is what he does.

 

He is not member of the class and does not speak for it. Its pretty obvious what the class thinks given the vote, the double down and no back-tracking at all. While I think Gantt is way OTT, your over simplification and biased views are almost as bad the other way.It is clear to anybody independent that the class vote was manipulated by the committee. There is a strong belief that if the true nature of the dispute had been known, they would never have got a majority. I personally think it was a disgrace the way the committee put the vote to the membership, in that it included misleading and incorrect information. There are 2 indisputable facts. First, the committee told members they needed to vote urgently and immediately, a comment clearly designed to get people to vote before BK could get his side of the story out. Second, people declared on a number of forums that if they had known the full story and hadn't been duped into voting as soon as the papers came out, they would not have voted in favour. Finally, and this is harder to prove, there is evidence that suggests the voting dried up as soon as BK made his position public. Whatever the truth of that is, the numbers who actually voted were low and to say that tells us what the class thinks is a big leap.

 

If you have a Laser, go sailing and enjoy it. There is absolutely nothing left in this case that is going to impact the class or change anything for better or worse. Kirby already gave up on the only aspect of it that would have impacted us (his litigation against the trademark). This is also incorrect.If BK wins his case against LP, the ILCA will end up becoming defunct because there will be no option but to change the name and if you think that BK will allow the existing organisation to have any part going forward, you are delusional.Now i personally see that as a positive because, while not going to the extremes of Gouv, I do believe that the class is pretty poorly run at the top level, although pretty well run at grass roots. Maybe those grass roots organisers will get a committee they deserve.

 

 

And before you point out the obvious about me having no skin in the game, yes, you are right but I have been considering buying a Laser and using it for Saturday racing when not sailing my A, because I miss the closeness of that sort of racing. The current goings on are just one (small) factor that goes into my decision of whether I do buy one or not.

 

I think that you think that the agreements between IYRU, Kirby, ICLA and the builders only apply to Lasers. I disagree. I think that they apply to the Kirby Sailboat -- hence they would apply to the Torch also. So, contractually, PSA and any builder appointed by Kirby (whether appointed to build the Torch or the Laser) would still have to pay the builder fees to the ICLA.

 

This isn't like Prince, who became "The artist formerly known as Prince" for several years in order to get out a contract, in this case the contract is pretty clear that it is the boat design that is important, not what the boat is called.

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Pretty sure the term "kirby sailboat" in the contracts doesn't apply to anything but the Laser described within the contracts and CM. I wonder what the origin of the specific term "kirby sailboat" is. Related to transfer of Laser trademark to builders? (Sort of an IP foot in the door for Kirby?)

 

The Torch would also be a kirby sailboat, probably not a kirby sailboat subject to any of the Laser-related contracts. Torch may need a new construction manual, can't remember if builder or BK holds copyright on CM.

 

Interesting to see how that would play out.

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Pretty sure the term "kirby sailboat" in the contracts doesn't apply to anything but the Laser described within the contracts and CM. I wonder what the origin of the specific term "kirby sailboat" is. Related to transfer of Laser trademark to builders? (Sort of an IP foot in the door for Kirby?)

The Torch would also be a kirby sailboat, probably not a kirby sailboat subject to any of the Laser-related contracts. Torch may need a new construction manual, can't remember if builder or BK holds copyright on CM.

Interesting to see how that would play out.

I tend to agree with you Dex. The word "The" would apply to a singular boat as opposed to the word "A" which would apply to more than one. Presumably "the Kirby sailboat" would mean the boat referred in the balance of the contract. So, to your point, the Torch would be "a" Kirby sailboat, not "the" Kirby sailboat. The Sonar is also a Kirby sailboat, but not "the" Kirby sailboat.

Hey Gannt! I thought you were limiting your posts to one a day. You can't seem to help yourself - like a cat on a couch...

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Thanks bill4, I said once per day for the next 7 days. That was 11 days ago. Though I'm pretty busy of late, so I'm going to try and post less frequently... Haven't been sailing for a few weeks, last time was two races in a clanger of a club boat with a Rooster sail (30,000 number, beat the newer boats). That picture of me is the last Laser I owned, 150,000 when I competed one level down from the nationals last in Dec 2013. (Not an ILCA official regatta). All official parts. In fact, come to think of it, I've never bought anything but genuine Laser.

 

 

__________________________________________________

 

Bill4 and Dex Swash, I think you'll find SM123 was referring to the IYRU agreementas well, where it gets real specific about the Laser, including the clause about the sails that SM123 pointed out. As SM123 got real specific earlier, I decided to assume that my memory of it was wrong, and there must be something in that agreement that prevented the parties from forming another. References about the Kirby Sailboat seemed to be mostly about recognizing Bruce Kirby as having design rights There are clauses that say that it's effective until the parties agree otherwise, but I couldn't find anything that imposed a limitation on Kirby, ILCA or the ISAF from forming other similar agreements, at the same time the IYRU existed. So I'm guessing that they could go ahead and form another agreement for the Torch, unless I've missed something.

 

So SM123 - what specific part of the IYRU agreement would prevent Kirby, the ILCA (or ITCA) and ISAF from forming another agreement for the Torch?

 

 

__________________________________________________

PS: Dex, yes Kirby has the copyright on the construction manual, and it's current. (Text Registration Number TXu001362085 / Date: 2007-06-21)

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So SM123 - what specific part of the IYRU agreement would prevent Kirby, the ILCA (or ITCA) and ISAF from forming another agreement for the Torch?

 

 

__________________________________________________

PS: Dex, yes Kirby has the copyright on the construction manual, and it's current. (Text Registration Number TXu001362085 / Date: 2007-06-21)

The definition of the "Laser class boat" is Kirby's problem. I believe that it is not a stretch to think that the 1983 IYRU/ILCA/Kirby/Builders agreement covers both the Laser and the Torch.

 

Yes, the parties could form a new agreement, but the idea that the ILCA can simply be pushed aside and replaced by an new association is naiive.

 

To put it another way, someone earlier suggested that the ICLA is in a very weak position regarding future negotiations with PSA -- my suggestion is that the ICLA has a strong hand.

 

I think that an independent party could reverse-engineer the boat and build it (as long as it isn't called the Laser, or this party has a license to the trademark), but those who are party to the agreement cannot, without the agreement of the others. But why bother? At this point, though, a class association of Laser-like boats that doesn't include existing Lasers will not succeed, because there are better boats available. What the Laser class has going for it is the number of existing boats.

 

The problem for Rastegar is that Kirby seems to have rock-solid rights to terminate LPE, irrespective of any breach,.There was a time limit (21 years from 1983) after which Kirby could terminate without fault. Since both Kirby and Global Sailing sent termination notices, at least one of these should be valid. Perhaps there is another agreement that I have not read that supercedes the 1983 agreement, and extends the period of the license to build? One thing that bothers me, though, is why do the termination notices that Kirby sent all reference failure to pay royalties? If Kirby can just say "time's, up, you have to quit", why didn't he?

 

One final comment: Yes, Kirby has a copyright registration for the construction manual, but was it obtained fraudulently? The agreements seem to show that Kirby has an "interest" in the manual, but not outright ownership. A fraudulent registration could be worse for Kirby than no registration.

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Simon,

 

I agree with you that LPE might preclude anyone else from building a Laser that is called a LASER. Absolutely. But what in existing BKI litigation, assuming he wins (please refer to a specific claim) prevents LPE from continuing to build boats that are exactly like Lasers and are called LASER? What claim precludes those same boats being accepted and used by ISAF and ILCA under existing Laser class rules?

 

Wess

Wess

 

Others have said it, but if BK wins, it is because the courts find the contract is enforceable and under that contract, BK cannot build the Kirby Sailboat once the contract is terminated. So if BK wins, nobody can build and sell Lasers in LP's trademarked territory without their say so. Do you think they will allow a new builder to do so?

 

And if BK wins, the other builders have agree to have their contracts terminated. that means there will be nobody to build Lasers. The ILCA will be responsible for a class that will have no supply of new boats. If BK wins, the timing could be very interesting. If it is in this Olympic cycle, I think that ISAF will have no option but to agree to a name change in order to secure boats. If it is early in the next cycle, ISAF could have a bit more leverage.

 

Of course this all assumes that BK wins. While I think he has a very strong case, and based on the past Rastegar is sailing very close to the wind, courts are never easy to predict and I wouldn't want to do so in this case. Morally, i want to see Rastegar lose because he has done nothing but screw the class and the sailors. It is a shame that the class feels that it has no option but to roll over and take whatever he wants to dish out. I guess the class has got a bit lucky with all of this as LPE/Rastegar is playing a little better since this all came to a head, but it is a very naive person who believes it will continue if he wins the case.

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Simon,

 

Good morning. You and JimC have lost me on a point, mainly why do you (seem to?) think that whatever boat is going to be produced after this is all over (or even now) is (still) a "Kirby Sailboat?"

 

For example, what stops ISAF and ILCA (barely or not even a party to the litigation any more) from having the 99er folks make an ISAF/ILCA sailboat that is exactly like a Laser (which they already do without any problem) using a construction manual owned by the class and calling it a LASER under a trademark license from LPE, and accepting these boats as class legal LASERS under existing class rules?

 

With ISAF and ILCA out or largely out of the litigation BKI has no or limited reach to them, and with BKI having surrendered on his litigation to take down the LPE LASER trademark, how is above not viable and welcomed by the class. Frankly, if you go back a few pages and see others comments re the tooling and termination, I am not sure that LPE itself (maybe even already) will be or now is NOT making a Kirby sailboat, but rather making an ISAF/ILCA sailboat under a construction manual owned by the class, called a LASER under the trademark owned by LPE.

 

I was told the answer to these questions is "yes" but I am not confident in this... but this part of the discussion might boil down to this Q: Given the current status of any IP in any form, and given the ownership of any of that IP including the trademark, can a boat look and be exactly like a Laser in all aspects that matter to performance, be called a LASER under the trademark, but not be a Kirby Sailboat?

 

Second Q: Can the class accept that same boat as a class legal Laser under the existing rules?

 

Wess

 

PS - SM123's take is interesting. Did not hear that one before but it puts an interesting spin into it.

 

PPS - What's up w foiling As? Have not checked into that in a while.

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Simon,

 

Good morning. You and JimC have lost me on a point, mainly why do you (seem to?) think that whatever boat is going to be produced after this is all over (or even now) is (still) a "Kirby Sailboat?"

 

For example, what stops ISAF and ILCA (barely or not even a party to the litigation any more) from having the 99er folks make an ISAF/ILCA sailboat that is exactly like a Laser (which they already do without any problem) using a construction manual owned by the class and calling it a LASER under a trademark license from LPE, and accepting these boats as class legal LASERS under existing class rules?

 

With ISAF and ILCA out or largely out of the litigation BKI has no or limited reach to them, and with BKI having surrendered on his litigation to take down the LPE LASER trademark, how is above not viable and welcomed by the class. Frankly, if you go back a few pages and see others comments re the tooling and termination, I am not sure that LPE itself (maybe even already) will be or now is NOT making a Kirby sailboat, but rather making an ISAF/ILCA sailboat under a construction manual owned by the class, called a LASER under the trademark owned by LPE.

 

I was told the answer to these questions is "yes" but I am not confident in this... but this part of the discussion might boil down to this Q: Given the current status of any IP in any form, and given the ownership of any of that IP including the trademark, can a boat look and be exactly like a Laser in all aspects that matter to performance, be called a LASER under the trademark, but not be a Kirby Sailboat?

 

Second Q: Can the class accept that same boat as a class legal Laser under the existing rules?

 

Wess

 

PS - SM123's take is interesting. Did not hear that one before but it puts an interesting spin into it.

 

PPS - What's up w foiling As? Have not checked into that in a while.

It's very simple. You are falling into the same mistake the association makes - LPE doesn't control the world rights to Laser. GS has some of the rights and they back BK. Of course, you can take that northern hemisphere/NA/Europe centric view and say "screw everybody else", but that simply won't fly. Or do you want to turn the Laser into a regional class, rather than an international one?

You also keep going on about LPE being able to continue to making a boat that complies with the Laser class rules. If BK wins, that cannot happen. Contracts trump copyright. It doesn't matter that anybody can, theoretically, build boats that are for all intents exactly the same as a Laser, because the copyright is now dead. What matters is that (allegedly) there is a contract between BK and LPE that says that if the contract is terminated, LPE cannot build boats that are the same as the boat we know of as the Laser. The only way they could do so is to build a boat that is similar. What degree of similarlity? It would have to be enough changed to totally kill the one design nature of the class, and it still doesn't get over the fact that LPE only controls some of the global trademarks.

SM123 is completely wrong. The ILCA only has control over boats called Laser that meet its rules and which are used under circumstances sanctioned by them.

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Think we are talking past each other. You are not responding to what I am saying, but no worries. I cant think of how to make it clearer so we will have to agree to disagree on this one.

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Damn!! I think I have been sidling Gannt instead of Gantt.

Trust me; it is a typo.

Until I start typing Gantzipoo, Gantarooneydoodle, or similar I am still being polite.

 

No problem Gouv.

 

I made a typo on a name about a year ago, spelling Rastegar's first name Fazad instead of Farzad. (Farzad, if you are reading this, I'm sorry, and unreservedly apologise. The mistake was genuine, and no disrespect was intended. I very much dislike names being spelt incorrectly. And Mr Crane, since I know you are reading this, if Farzad doesn't read this directly, please pass on my apology).

 

It was about that time that IPLore started misspelling my name. And of course Wess, being the unique, upstanding character he is, followed suit.

 

I haven't bothered to go back and check if IPLore started misspelling Gantt straight after I made that mistake. There's probably no deeper meaning in it, right?

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SM123 is completely wrong. The ILCA only has control over boats called Laser that meet its rules and which are used under circumstances sanctioned by them.

You haven't actually read the contracts, have you?

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So SM123 - what specific part of the IYRU agreement would prevent Kirby, the ILCA (or ITCA) and ISAF from forming another agreement for the Torch?

 

 

__________________________________________________

PS: Dex, yes Kirby has the copyright on the construction manual, and it's current. (Text Registration Number TXu001362085 / Date: 2007-06-21)

The definition of the "Laser class boat" is Kirby's problem. I believe that it is not a stretch to think that the 1983 IYRU/ILCA/Kirby/Builders agreement covers both the Laser and the Torch.

 

Yes, the parties could form a new agreement, but the idea that the ILCA can simply be pushed aside and replaced by an new association is naiive.

 

I've read and re-read the definitions, in both the builder's and the IYRU contracts and don't believe there are any limitations in either contracts that would prevent Kirby from forming similar agreement with the Torch Class. Pretty sure that Kirby would have taken legal advice on that.

 

Then you appear to be contradicting yourself (?) by saying they could form a new agreement?

 

Kirby's point is that if the ILCA don't want to, or are unable to change to accommodate the Torch, then he has sufficient following to move forward without the ILCA. (I agree) This is all speculative, and hinges on the result of the court case - it's very clear that Kirby is taking care to get things right both from a legal point of view, and a moral one too.

 

 

To put it another way, someone earlier suggested that the ICLA is in a very weak position regarding future negotiations with PSA -- my suggestion is that the ICLA has a strong hand.

 

I think that an independent party could reverse-engineer the boat and build it (as long as it isn't called the Laser, or this party has a license to the trademark), but those who are party to the agreement cannot, without the agreement of the others. But why bother? At this point, though, a class association of Laser-like boats that doesn't include existing Lasers will not succeed, because there are better boats available. What the Laser class has going for it is the number of existing boats.

 

The problem for Rastegar is that Kirby seems to have rock-solid rights to terminate LPE, irrespective of any breach,.There was a time limit (21 years from 1983) after which Kirby could terminate without fault. Since both Kirby and Global Sailing sent termination notices, at least one of these should be valid. Perhaps there is another agreement that I have not read that supercedes the 1983 agreement, and extends the period of the license to build? One thing that bothers me, though, is why do the termination notices that Kirby sent all reference failure to pay royalties? If Kirby can just say "time's, up, you have to quit", why didn't he?

 

One final comment: Yes, Kirby has a copyright registration for the construction manual, but was it obtained fraudulently? The agreements seem to show that Kirby has an "interest" in the manual, but not outright ownership. A fraudulent registration could be worse for Kirby than no registration.

 

I'm not sure it's about whether the ILCA are weak or strong, I can see scenarios where both are true, we need to wait to see what happens after the day in court. One thing is that the ILCA do formally agree via the IYRU Agreement that Bruce Kirby is the owner of the design etc of his boat. I would imagine that if the ILCA tried to approve a Laser with another builder, then they would find themselves the subject of another legal action by Kirby. The strength of the ILCA is in their commitment to one design sailing in the boat Kirby designed, their infrastructure etc. I don't for a moment think that they will be anything but a significant player in the time after the trial.

 

The great thing about the Torch proposal is that they have already suggested that all legally built Lasers can compete on equal terms.

 

Regarding the reasons for termination of Laser Performance, Kirby was left with few options outside the courts. I can't speak for his counsel, I suspect using the royalties possibly presented the strongest, valid way forward to terminate under the contracts.

 

With regards to the manual registration, I'm not sure that much can be read into it. I think at that time, everyone was still friends with a common mission. I'm confident that it was not a fraudulent act as you suggest.

 

Look all of this is highly speculative. In the scenario where Kirby wins in court, he could be crucial in helping to broker a deal with new owners of Laser Performance. Laser Performance probably has already lost significant value because of the possibility (not yet a certainty) that it's days of building Kirby's boats are limited.

 

 

 

SM123 is completely wrong. The ILCA only has control over boats called Laser that meet its rules and which are used under circumstances sanctioned by them.

You haven't actually read the contracts, have you?

 

I've spent far too much time reading the contracts and am pretty familiar with them. I have spent over 20 years working with contracts, am currently drafting another one. Pretty sure SimonN has read the contracts too.

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I've spent far too much time reading the contracts and am pretty familiar with them. I have spent over 20 years working with contracts, am currently drafting another one. Pretty sure SimonN has read the contracts too.

So tell me, from the contracts, what's the definition of the "Laser class boat"?

 

As for the contradiction that you claim in my posts: perhaps I wasn't clear. Obviously, Kirby, ICLA and IYRU are free to come to another agreement. On the other hand, according to my reading, the contracts limit what Kirby can do without the agreement of the ICLA and IYRU. It all hinges on the definition of the Laser in the contracts.

 

As to your claim that Kirby is doing everything right, morally and legally, I disagree. He is resorting to self help (see http://en.wikipedia.org/wiki/Self-help_%28law%29).

 

Personally, I think that the Laser class is doomed, and I doubt that the Torch can save it.

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I'm not clear why the ILCA has any power or authority. As I see it they are, or should be, nothing more than a fan club. A group of guys who have a common passion and get together for some fun. Just like teenage girls joining a Britney Spears fan club. They don't tell Britney what to do, though she may be wise to listen. If they decide to hire in a Britney look alike for a party there is nothing to stop them. However, they have no control over Britney's songs and can't annoint a new Britney. If they get tired of Britney they can move on to Taylor Swift, but Britney is still Britney, even when she runs out of fans. The Laser is a mess because the Laser fan club appear to have some say in what is a Laser, or at least so some believe.

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I'm not clear why the ILCA has any power or authority.

They're not just a conventional class association. They have an involvement in the Web of contracts which used to make the Laser thing work.

 

That Web of contracts is going to change, and I think it's pretty much impossible to predict what will happen, but for sure the status quo is dead.

 

The variables are too many for me to make useful predictions.

 

If the contracts fail in full the builders have much more power. As they seem not to be on on great terms that will be very interesting. Some kind of fragmentation if the class is one possibility vide the recent ad, which while I think was a cockup probably wasn't exactly the error described.

 

If the contracts stand in full then LPE is out of the Laser building business. The complications of that are all around who is allowed to authorise new Kirby sailboat builders. Other contracts will come into play, probably more lawyering if ILCA and ISAF continue their exclude Kirby policy.

 

Most likely some kind of settlement, or contracts partially upheld. Even more unpredictable, because contract status likely to be part of the settlement/judgement. Almost anything is possible, and not sure it's reasonable to expect the law to deliver a new stable basis for the Laser to go on.

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This thread may be way short of facts, but damn it has some of the best one-liners ever!

I wonder how Britney handles in a blow?

The thread should have been locked after that line Gouv. You were robbed.

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Thanks bill4, I said once per day for the

PS: Dex, yes Kirby has the copyright on the construction manual, and it's current. (Text Registration Number TXu001362085 / Date: 2007-06-21)

Yes I remember now thanks. The copyright to the manual is the IP hammer that Kirby gets to hit builders with if needed...through the license to use the manual, linked to fees/contracts.

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The copyright to the manual will have zero bearing on this case. We have gone through this ad infinitum. But every few pages Gantt brings it up again.

 

Even if the copyright was valid it has no bearing. I doubt it is valid because (i) It was probably written by Ian Bruce and his team and not Bruce Kirby (ii) The parties agreed that ISAF was responsible for maintaining the manual and approving all changes (iii) BKI has not asserted copyright in the claims in the case.

 

BUT , even if it was valid it has no relevance because (I) The trademark holder is entitled to a copy and (ii) The copyright on a manual does not preclude anyone using the contents of a manual, same as recipes in a cook book. You cannot reprint the cookbook for resale but you can use the recipes and share them with your colleagues and friends. Same with music on a CD. You can listen to it as many times as you like, even copy it to your mp3 player, but you cannot copy it for resale.

 

Enough with the manual copyright PLEASE. Nobody is claiming that the other is trying to publish the manual for resale.

 

The manual is protected by a confidentiality clause. ISAF asserts that BK has broken that clause.

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For the life of me, I cannot see how a copyright on some set of directions has crap to do with rights to produce a widget.

Do you guys think I can write a set of directions about how to build a set of Vice Grips and demand royalties on every set of locking pliers Irwin makes??

 

You are completely correct.

If you want to protect the design of the widget then you have to file a patent or in some cases a design copyright. Both of them will eventually expire so that your competitors can make them cheaper and better , letting capitalism do its good work.

You cannot protect the design with a literary copyright on the directions.

 

You could write directions on how to rebuild an F150 truck. They could be the best directions ever. I would have to pay you royalties if I published the directions and sold them online...but the folks who used the directions and the friends that they shared them with and the workshops that fix F150s and the Ford motor company would not have to pay you royalties.

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From an IP perspective LP or ISAF or the ILCA could lend Gouv their copy of the construction manual to build Lasers without any fear of a breach of copyright.

 

From a contract law perspective they cannot lend Gouv their copy of the manual without the permission of ISAF and the trademark owners due a confidentiality clause that they all agreed to twenty five years ago.

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where almost nothing= nothing minus 1 So if I was to learn one thing I will increase my knowledge to nothing :D

From an IP perspective LP or ISAF or the ILCA could lend Gouv their copy of the construction manual to build Lasers without any fear of a breach of copyright.

 

From a contract law perspective they cannot lend Gouv their copy of the manual without the permission of ISAF and the trademark owners due a confidentiality clause that they all agreed to twenty five years ago.

 

And the copyright is the force used to make builder sign the contract to obtain a license to use the CM since the holder controls the printing/distribution of the work.

(I won't give you my book unless you sign this contract regarding the use of it)

None of which matters to sailors if builder doesn't have to be licensed to use CM.

Probably easy for class or builder to make new manual (even if very derivative) or change the language governing that aspect of construction requirements in the rules to replace with some other protocol and leave copyright holder holding his dick.

 

Just fucking about on the internet for giggles though, what do I know? Almost nothing

[where almost nothing= nothing minus 1 So if I learn one thing I will increase my knowledge to nothing :D

that's what.

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IPL, I think we all accept that copyright is not an issue. But presumably it is an unpublished document with usage rights granted by the author (or owner) on a limited basis. So you can't use the manual without permission and only boats built using the manual are bona fide Kirby Lasers. You assert that ISAF controls the manual, but I don't remember reading that (it's easy to miss stuff in this thread though).

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where almost nothing= nothing minus 1 So if I was to learn one thing I will increase my knowledge to nothing :D

From an IP perspective LP or ISAF or the ILCA could lend Gouv their copy of the construction manual to build Lasers without any fear of a breach of copyright.

 

From a contract law perspective they cannot lend Gouv their copy of the manual without the permission of ISAF and the trademark owners due a confidentiality clause that they all agreed to twenty five years ago.

And the copyright is the force used to make builder sign the contract to obtain a license to use the CM since the holder controls the printing/distribution of the work.

(I won't give you my book unless you sign this contract regarding the use of it)

None of which matters to sailors if builder doesn't have to be licensed to use CM.

Probably easy for class or builder to make new manual (even if very derivative) or change the language governing that aspect of construction requirements in the rules to replace with some other protocol and leave copyright holder holding his dick.

 

Just fucking about on the internet for giggles though, what do I know? Almost nothing

[where almost nothing= nothing minus 1 So if I learn one thing I will increase my knowledge to nothing :D

that's what.

 

Sorry IP...just noticed I accidentally dropped my spoilered lame joke inside your quote box too. Wasn't trying to take the piss there.

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IPLore, you are confused. I am not saying that the copyright ownership is under question or that copyright law is relevant. What you just posted was an example of your misinformation. Again. What you are saying is that something not relevant is NOT RELEVANT. Great contribution. And thanks for saying that I did something that I didn't. Wess calls that "fun" or "trolling". Good on ya.

 

Dex Sawash asked a question. I answered it. Sosoomii nails it - nobody thinks that the copyright is an issue.

 

So when you post that copyright isn't an issue again and again, the only conclusion that I reach is that you (IPLore) are annoying, or stupid or both.

 

The copyright to the manual will have zero bearing on this case. We have gone through this ad infinitum. But every few pages Gantt brings it up again.

 

I'm not saying who the copyright of the construction manual is vested with has any bearing on the case. (Please refer to where I have ever said that!)

 

However, the construction manual is important. It is referenced in the contracts and it is referred to by name in Kirby's legal action multiple time. Here it is AGAIN:

 

52. Quarter Moon/QM Vanguard have continued to use the Construction Manual following termination of the 1989 Builder Agreement in violation of article 10.9.

 

The construction manual is one of the central documents referred to in Kirby's legal action. That Kirby has registered it and the copyright is under his name is worth noting, but nothing to rant about. Read what Dex Sawash wrote again. You will see that he says the real power is in the contracts. Dex refers to those rights as IP. Kirby refers to them as Design Rights. I understand what they are saying.

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OK then! For the 50th time we have disagreement. This time - for sure - concensus will be reached! It should only take a few dozen more point/counterpoint/insult/name calling entries and all will be settled. You guys all realize this is time you will never get back...don't you?

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Can some one please stick a note at the top and let us normal folks know what the current status is. I am not interested in reading through all the shit slinging. I look at this tread once a month and my eyes glaze over.

There is a lawsuit going on about some contracts and the suit seems to be about whether the contracts are still valid and enforceable.

 

Currently the lawyers are in pretrial stall and haggle mode

Same as here

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What's really needed is not just the basic facts, but some analysis of the subtleties of the case. Multiple viewpoints would be helpful.

Analysis of the subtleties? Multiple viewpoints? That is why there are over 2,000 posts in this topic. There are about a dozen people in this shit show with very passionate views and opinions. If each were to give you their analysis, there will be another 2,000 posts.

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Hmmm. I may have missed a fecetious tone....

 

What's really needed is not just the basic facts, but some analysis of the subtleties of the case. Multiple viewpoints would be helpful.

Analysis of the subtleties? Multiple viewpoints? That is why there are over 2,000 posts in this topic. There are about a dozen people in this shit show with very passionate views and opinions. If each were to give you their analysis, there will be another 2,000 posts.

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Facetious... Although a derivative of fecal could certainly apply to a lot that has been written thius far.

 

Hmmm. I may have missed a fecetious tone....

 

What's really needed is not just the basic facts, but some analysis of the subtleties of the case. Multiple viewpoints would be helpful.

Analysis of the subtleties? Multiple viewpoints? That is why there are over 2,000 posts in this topic. There are about a dozen people in this shit show with very passionate views and opinions. If each were to give you their analysis, there will be another 2,000 posts.

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Can some one please stick a note at the top and let us normal folks know what the current status is. I am not interested in reading through all the shit slinging. I look at this tread once a month and my eyes glaze over.

 

That's a fair comment about this thread. I'd be happy to pin a summary to the top the page, but don't know how - or even if its possible.

The last item submitted was a stipulation of dismissal - where Laser Performance dropped all of it's counter suits against Kirby but three - two regarding the contract and one regarding the overpayment of royalties. There is a post outlining it in more detail above.
The calender of events for the legal action is:
  • Discovery is completed by 19 Dec 2014
  • Dispositive motions filed by 19 Jan 2015
  • Counterclaim defendant Performance Sailcraft Pty. Ltd. may renew its motion to dismiss on or before 19 Jan 2015.
  • The parties' joint trial memorandum is due by 19 Feb 2015, (or within 30 days of the Court's ruling on dispositive motions, whichever date is later.)
  • Case ready for trial by 19 March 2015
Over the last month in addition to stipulation of dismissal, there has been some meaningful discussion over the last month about the implication of the termination agreement in the builder's contract - though that needs to put into the context of whether or not the courts find in Kirby's favor.
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The last item submitted was a stipulation of dismissal - where Laser Performance dropped all of it's counter suits against Kirby but three - two regarding the contract and one regarding the overpayment of royalties. There is a post outlining it in more detail above.

 

Incorrect and Inaccurate.

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For those interested in the stip of dismissal.

 

The defendants (LP and Quarter Moon) did not drop any of their claims against Kirby.

 

1.They stipulated that Performance Sailcraft was not a counterclaim defendant.Global sailing remains a counterclaim defendant

2.The defendants stipulated that the 3 counter claims vs Global sailing involving tortious interference and unfair trade practice should be dropped.

 

Early in the case I suggested to interested readers on this forum that IMHO, the tortious interference claims on both sides were weak and would probably fail to meet the pleading standards. I explained some of the hurdles these claims would have to meet. BK's tortious interference claim vs ISAF was dismissed. LP have (wisely) volunteered to drop their tortious interference case vs Global Sailing (GS).

 

As far as I am aware there are still 9 counterclaims vs Kirby but I haven't reviewed the counterclaims for a while.

 

The case continues to narrow in on contract.

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Posted 19 November 2014:

Quote

 

STIPULATION OF FED. R. CIV. P. 41 DISMISSAL WITHOUT PREJUDICE

Pursuant to Federal Rule of Civil Procedure 41©, counterclaim-plaintiffs Laserperformance (Europe) Limited and Quarter Moon, Inc. hereby dismiss this action as to the counterclaim-defendant Performance Sailcraft Pty. Ltd. without prejudice and with each party to bear its own costs and attorneys’ fees with respect to the dismissed claims. Counterclaimplaintiffs further dismiss all claims against counterclaim-defendant Global Sailing Limited except Counterclaims six, seven and nine without prejudice and with each party to bear its own costs and attorneys’ fees with respect to the dismissed claims.
Counterclaims dismissed:
1) Declaratory Judgment That Kirby And BKI Have No Rights Under The Builder Agreements (Against Kirby And BKI)
2) Declaratory Judgment That Kirby And BKI Have No Rights In The “Bruce Kirby” Name Or Trademark (Against Kirby And BKI)
3) Tortious Interference With Business Relations (Against Kirby, BKI, Global Sailing And PSA)
4) Conspiracy To Tortiously Interfere With Business Relations (Against Kirby, BKI, Global Sailing And PSA)
5) Violation of the Connecticut Unfair Trade Practices Act (By Quarter Moon Against Kirby, BKI, Global Sailing And PSA)
8) Breach Of The November 2005 Agreement (Against Kirby And BKI)
Counterclaims retained:
6) Breach Of The 1983 Builder Agreement (By LaserPerformance Against Kirby, BKI And Global Sailing)
Note that this is the alleged BK's licensing of a builder in the Netherlands for which LP clims damages of in excess of $1 million
7) Breach Of The 1989 Builder Agreement (By Quarter Moon Against Kirby, BKI And Global Sailing)
Note that this is the alleged BK's licensing of a builder in North America for which LP claims damages of in excess of $1 million
9) Unjust Enrichment (Against Kirby, BKI And Global Sailing)
Note that this is the alleged over payment of royalties by more than $250,000

No doubt that Kirby will argue that the appointment of new builders were after the termination of Laser Performance. Their appointment may not have been completed and may be conditional on the outcome of the legal action.

 

 

 

The last item submitted was a stipulation of dismissal - where Laser Performance dropped all of it's counter suits against Kirby but three - two regarding the contract and one regarding the overpayment of royalties. There is a post outlining it in more detail above.

 

Incorrect and Inaccurate.

 

So if you could manage being constructive, what is correct and accurate? (Hint: it's not about copyright!)

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It is so dangerous to speculate with so little information but if I had to guess, there will be a certain amount of angst between the parties as they debate the characterization of the termination of the builder contract.

Was it termination for cause? termination for convenience? or a bad faith termination?

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It is so dangerous to speculate with so little information but if I had to guess, there will be a certain amount of angst between the parties as they debate the characterization of the termination of the builder contract.

Was it termination for cause? termination for convenience? or a bad faith termination?

 

Yes it is very dangerous to speculate... Maybe I'll go out on a limb here and say that Laser Performance didn't pay the royalties as per the builder's agreement. I realize that there is more to it than that, but I have a sneaky suspicion that the non payment of royalties is a part of it. Do we really want to get into the finer points of the characterization here? Or shall we look at tortious interference in more depth?

 

Maybe the thing to look at closer is the difference between the titles in the counterclaim and the limitations of the Stipulation of Dissmisal. (Seriously, someone needs to look at them closer, because so far, the interpretations - including IPLore's and mine have been weak - and I'm too busy at the moment to study up on the finer points of this latest development.)

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I suggest that people use the docket on archive.org (populated using Recap): http://ia601604.us.archive.org/30/items/gov.uscourts.ctd.99988/gov.uscourts.ctd.99988.docket.html and if you want files that are not available from archive.org, download them yourself (preferably with Recap installed and working in your browser) directly from the canonical site (known as Pacer): https://ecf.ctd.uscourts.gov/cgi-bin/ShowIndex.pl You can download up to $15 of documents per quarter at no cost.

 

For those that don't know what Recap is, it is a browser extension that does 2 things: 1. When you go to download something from Pacer, it offer a free download from archive.org if the document exists and 2. When you do download from Pacer, the document is also automatically uploaded to archive.org. It's a simple way to spread the cost of downloading these documents.

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It is so dangerous to speculate with so little information but if I had to guess, there will be a certain amount of angst between the parties as they debate the characterization of the termination of the builder contract.

Was it termination for cause? termination for convenience? or a bad faith termination?

 

Yes it is very dangerous to speculate... Maybe I'll go out on a limb here and say that Laser Performance didn't pay the royalties as per the builder's agreement. I realize that there is more to it than that, but I have a sneaky suspicion that the non payment of royalties is a part of it. Do we really want to get into the finer points of the characterization here? Or shall we look at tortious interference in more depth?

 

Maybe the thing to look at closer is the difference between the titles in the counterclaim and the limitations of the Stipulation of Dissmisal. (Seriously, someone needs to look at them closer, because so far, the interpretations - including IPLore's and mine have been weak - and I'm too busy at the moment to study up on the finer points of this latest development.)

No need to look at the titles. In fact, titles are often very misleading. Contracts often redefine common words in ways that are not obvious without digging into the details. Example: the meaning of "Laser class boat".

 

Kirby claims that royalties haven't been paid. Rastegar claims that royalties were overpaid. That has been in the documents for a long time. I don't think that we have seen any evidence (nor will we) that shows who is right about this, unless this issue goes to trial. We don't get to see the documents that each side produces in discovery and it is in the discovery that the answer to the royalty issue lies.

 

From the very first complaint:

31.

Since at least about January 2011, Kirby has not received any royalty payments

under the 1983 Builder Agreement as required by article 8.

 

From the first reply:

 

120.

From about 2007, LaserPerformance and Quarter Moon overpaid Kirby,

BKI and Global Sailing more than $250,000 in royalties. Accordingly, Kirby, BKI and Global

Sailing have been unjustly enriched.

 

The dismissals don't address either of these claims.

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