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Lasers - Applying a Blow Torch


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ojfd :

Are you sure it is ISAF and ILCA that approve builders not Kirby ?

They may validate the build of the Laser for compliance, the licience arrangement to build pursuant to the Construction Manual is most certainly Kirby's domain ~ approval.

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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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ojfd :

Are you sure it is ISAF and ILCA that approve builders not Kirby ?

They may validate the build of the Laser for compliance, the licience arrangement to build pursuant to the Construction Manual is most certainly Kirby's domain ~ approval.

I'm deliberately putting up the old rule, so that even those who don't read official documents can see:

 

DEFINITION OF BUILDER

 

A Builder is a manufacturer that has a building agreement from Bruce Kirby or Bruce Kirby Inc. to build the Laser and has rights to use a Laser trademark and has been approved as a Laser Builder by each of the International Sailing Federation and the International Laser Class Association.

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Here's the new rule, for comparision:

 

DEFINITION OF BUILDER

 

A Builder is a manufacturer that has the rights to use a Laser trademark, is manufacturing the hull, equipment, fittings, spars, sails and battens in strict adherence to the Construction Manual, and has been approved as a Laser Builder by each of the International Sailing Federation and the International Laser Class Association.

As anyone can see, the building agreement from Kirby is gone.

 

Construction Manual is new. Who has it? I think it must be ISAF, since Laser design is registered at ISAF (now, where did I read that?)

 

In simple terms: Want to become a Builder (in the context of Laser Class Rules)? Get the rights to use Laser trademark and come back. We (ISAF/ILCA) will consider it. How do you get the rights is not our business, we are sailor's association / federation, we do not interfer in commercial matters.

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The danger is that LPE, owning the Laser mark, can still sell boats/parts without the class plaques. If the Aussies try to sell me class legal boats, they risk a successful challenge by LPE over the Laser mark.

 

LPE only own those rights in their region. The aussies have the rights to the Laser trademark etc in their regions.

 

This issue was only ever about LPE. It was business as usual in Australia. No supply issues and they paid all required fees.

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ojfd :

Are you sure it is ISAF and ILCA that approve builders not Kirby ?

They may validate the build of the Laser for compliance, the licience arrangement to build pursuant to the Construction Manual is most certainly Kirby's domain ~ approval.

 

That is correct. They only ever had the authority to validate the choice, not select a builder.

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Want to become a Builder (in the context of Laser Class Rules)? Get the rights to use Laser trademark and come back. We (ISAF/ILCA) will consider it. How do you get the rights is not our business, we are sailor's association / federation, we do not interfer in commercial matters.

 

And that is exactly why Bruce Kirby has called them thieves. They have used a rule change to sidestep him and effectively steal his boat away and make it a generic class like Optimists or 420's as you mentioned earlier.

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Please stop with the pointless ramblings on copyright. Its giving me a headache.

I recommend a generic painkiller.

There is no copyright infringement either of the design or the manual.

Yes everyone agrees that.

The only IP at stake here is trademark. The rest is contract.

Which leaves the question of whether the contracts are enforceable when, if there's no IP, there's no consideration. Presumably LP, ISAF and ILCA have had advice that, for some reason, the contracts are not enforceable. Unless they believe that, their behaviour is inexplicable. Placing "IP" and "contract" in two different boxes might ease your headache but I'm not sure it's the correct analysis. If anyone else has a theory as to why BK's contracts may be unenforceable, I'd be interested to hear it.
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And that is exactly why Bruce Kirby has called them thieves. They have used a rule change to sidestep him and effectively steal his boat away and make it a generic class like Optimists or 420's as you mentioned earlier.

If you read the old rule carefully, you will see that manufacturer had to have a

 

building agreement from Bruce Kirby or Bruce Kirby Inc.

 

Kirby sold his rights to the third party. Third party does not equal "Bruce Kirby or Bruce Kirby Inc." We haven't seen those agreements yet, but some manufacturers considered their building agreements by this BK's move void.

 

"Generic classes", as you call them, are good for the sport of sailing, and, as history shows, are going strong. It's the BK's monopoly and his self-proclaimed "new world order" that might damage the Laser class. ;}

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ojfd : in any of the documents you have is there mention of who conducts / is responsible for compliance to Construction Manual ?

Wildwavedesign,

 

The documents that I have are the ones that are available on the web, namely:

 

1. ILCA By-Law 2012

2. Changes to ILCA By-Law 2013

3. 2013 ISAF Regulations

 

www.laserinternational.org

www.sailing.org

 

You just have to study them carefully.

 

To answer your question - I think it is a Builder (in the context of Laser Class Rules) that is responsible for compliance with the Construction Manual, but the control is taken by ILCA/ISAF.

 

2. MEASUREMENT

 

In the case of a dispute alleging non-compliance with the Construction Manual, the matter, together with any relevant information, shall be referred to the Chief Measurer of the International Laser Class Association at the International Office who shall give a final ruling in consultation with an ISAF Technical Officer.

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And that is exactly why Bruce Kirby has called them thieves. They have used a rule change to sidestep him and effectively steal his boat away and make it a generic class like Optimists or 420's as you mentioned earlier.

If you read the old rule carefully, you will see that manufacturer had to have a

 

building agreement from Bruce Kirby or Bruce Kirby Inc.

 

Kirby sold his rights to the third party. Third party does not equal "Bruce Kirby or Bruce Kirby Inc." We haven't seen those agreements yet, but some manufacturers considered their building agreements by this BK's move void.

 

"Generic classes", as you call them, are good for the sport of sailing, and, as history shows, are going strong. It's the BK's monopoly and his self-proclaimed "new world order" that might damage the Laser class. ;}

My understanding what that the "Bruce Kirby Inc" part of that was to deal with exactly this kind of situation. It gives a super-simple change if he had been hit by a truck or decides to attempt to retire (which it seems he was considering before this blew up). Basically "Bruce Kirby Inc" is a company on its own, if he sold it to another company (in this case, the Aussie builder, but any generic company would do for concept), they now own a business "Bruce Kirby Inc" just the same as our friends at LPE are owned by some company (which in turn is owned by another, and so on). This means that Bruce could sell the rights in the form of Bruce Kirby Inc and the acquiring company gains those rights similar to how they would any trademark or patent that the acquired company owned.

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And that is exactly why Bruce Kirby has called them thieves. They have used a rule change to sidestep him and effectively steal his boat away and make it a generic class like Optimists or 420's as you mentioned earlier.

Not entirely correct. Anybody can build an Optimist. Any builder licensed by ISAF can build a 420. Whereas under the proposed rule change, a builder "is a manufacturer that has the rights to use a Laser trademark" as well as having ISAF and ILCA approval. The proposed rule acknowledges the commercial ownership of the Laser brand, though obviously not in a way that favours BK.
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Robs example of Compaq and generic IBM PCs is instructive, particularly WRT "The Construction Manual". IBM's hardware was open for inspection and many MFGs made operational clones of it that did not use exactly the same architecture and hence the underlying "Basic Input Output System" (BIOS) was not quite the same Programs that used purely MS-DOS could run on an IBM PC and these other machines just fine, but programs like Flight Simulator, that relied on the BIOS or the hardware itself could not.

 

That's akin to the Russian knockoff of the Laser - the hullshape is basically the same, but the build details are not necessarily so. So iif you ran a "True Laser" against a Russian knockoff, the knockoff may or may not perform identically.

 

IBM had also essentially published UNDER COPYRIGHT the "Construction Manual" (the source code to the BIOS). and there were a couple of companies that tried knocking off the bios (Eagle Computer for one) with only minor changes - and got sued and went out of business.

 

What Compaq did was to reverse engineer the BioS to specific published interfaces. And they did this with a "Clean Room" approach the details are complex but the general gist is that they stuck a guy in a room and told him to write a BIOS. He would then hand off copies that they would test for compatibility against all the apps that were tied to the IBMBios and report back only that they faiiled and how they failed.

 

For ILCA to do that with a Construction Manual that is copyrighted to someone else, is that they would have to write a description of the Laser as a finished product, and hire someone who has no knowledge of how Lasers are constructed, have them write a new Construction Manual - test each iteration to see if it results in an essentially identical hull and repeat until they get an identical hull.S

 

Simply writing a new Construction Manual won't do it. Because changes in the Construction Method has the potential for instantly obsolescing all the existing hulls in the world. After all the New Manual would not be set up to build an inferior boat - that would kill the market. So the New Manual would likely result in a superior boat (more durable perhaps, perhaps quicker in the lumps ) and that would instantly obsolesce many of the older boats and kill their resale value.

 

That in turn would be catastrophic for the class. So re-engineering a copyrighted "Construction Manual" is not going to be trivial.

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IBM had also essentially published UNDER COPYRIGHT the "Construction Manual" (the source code to the BIOS). and there were a couple of companies that tried knocking off the bios (Eagle Computer for one) with only minor changes - and got sued and went out of business.

Not the same situation. The BIOS was part of the PC product. The construction manual is not part of the Laser product, it's a "cookbook".
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interestingly enough, the libel argument seems silly until you see that (a) the ILCA made at least one verifiable false statement of fact (when introducing the builder-change vote) and ( B) it straight-up damaged Kirby in quantifiable ways - that's pretty much the definition of libel, and is the first thing I'm seeing that really puts the ILCA in a bad legal spot.

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interestingly enough, the libel argument seems silly until you see that (a) the ILCA made at least one verifiable false statement of fact (when introducing the builder-change vote) and ( B) it straight-up damaged Kirby in quantifiable ways - that's pretty much straight up libel, and is the first thing I'm seeing that really puts the ILCA in a bad legal spot.

 

I can't wait until they get destroyed in court on this, any chance of SA getting an interview or at least a statement from Kirby on this Clean?

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Ima call Kirby when i get back on the 4th; maybe he'll chat and maybe not. either way, he just doesn't seem to have a lot of leverage except with respect to the vote, and how the vote was achieved.

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IBM had also essentially published UNDER COPYRIGHT the "Construction Manual" (the source code to the BIOS). and there were a couple of companies that tried knocking off the bios (Eagle Computer for one) with only minor changes - and got sued and went out of business.

Not the same situation. The BIOS was part of the PC product. The construction manual is not part of the Laser product, it's a "cookbook".

Well the BiOS itself was and wasn't. its part of the operational aspect of the PC. So how a PC performs is based on the BIOS. That's similar to say what the resin type (weight, flexibility, durability, heat profile) used in the hull is.

 

 

BB : near the mark mate, only how does one reverse engineer a "secret specification", in this case the Construction Manual ?

The key is the same as with COMPAQ's reverse engineering. It doesn't have to be identical, it just has to produce an identically functioning product.

 

So for example, if the current Construction Manual (CM) calls for chop gunning the interior with a mixture A, and the cloned CM calls for hand laying in chop strand and rolling out B amounts of resin with a roller - if the net result is that the interior layer of the hull has essentially identical weight, water absorbtion and flex characteristics, then Bob's Your Uncle.

OTOH

if the new CM calls for an vacuum infused inner layer that is stiffer, or perhaps a rotomolded cockpit liner that weighs the same but flexes way more - then you have a problem with the existing fleet.

 

 

Gouvernail nails it. If you want an "open source" class like the Optis - the class itself might maintain its momentum or it might not, but you will have a much crippled ILCA and the quality of major events will suffer since they will have to be solely funded by sponsors and entry fees.

 

OTOH

 

If you want the builders to give back to the class that they are profitting from (essenttially taxing all buyers of all things Laser) then you don't want an "open source" class. Its that simple

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The only IP at stake here is trademark. The rest is contract.

Which leaves the question of whether the contracts are enforceable when, if there's no IP, there's no consideration. Presumably LP, ISAF and ILCA have had advice that, for some reason, the contracts are not enforceable. Unless they believe that, their behaviour is inexplicable. Placing "IP" and "contract" in two different boxes might ease your headache but I'm not sure it's the correct analysis. If anyone else has a theory as to why BK's contracts may be unenforceable, I'd be interested to hear it.

 

Generally most of Dogwatch's analysis is correct.

 

However, you can have an enforecable contract even if the IP has expired.

 

It is not uncommon for an industrial designer or patent holder to have a contract with a manufacturer for either fees or royalties that continue beyond the life of the patent or the copyright, or even to exist in the absence of a copyright. Yes, there must be some consideration, but that will often be the design "work". For example, a designer may get a contract for an initial lump sum fee for his design and then a small fee for each item manufactured by that manufacturer for 25 years. The SU carburettor is a case in point.

 

Mr Kirby may or may not have such a contract. That will be up to the courts to decide. Certainly there are contracts that survive transfer of ownership of the manufacturing. Then there are others that do not.

 

 

Dog and Clean raise a narrow point, that if at the time of a contract, the only consideration was expired intellectual property for a product that the manufacturer was already building(pretty unlikely unless you had a really bad lawyer or no lawyer at all) then that will raise contractual issues of sufficiency and pre-existing duty. Again, I think the main issues will revolve around the terms of the contract.

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I suspect that the most effective solution would have been for Kirby Inc and LP to have gone to arbitration a year ago and not drag the class and the sailors into what is essentially a commercial dispute.

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Gouvernail nails it. If you want an "open source" class like the Optis - the class itself might maintain its momentum or it might not, but you will have a much crippled ILCA and the quality of major events will suffer since they will have to be solely funded by sponsors and entry fees.

 

Not really, that's already how major laser regattas are now. A builder is contracted to provide charter boats, sailors pay charter fees on top of their entry fee, after the regatta the boats get sold a a small discount compared to a new boat. It doesn't cost the builder anything per se, they just need enough capital to be able to cover the upfront cost of producing lots of boats, and the ability to carry them as stock until sold off.

 

Other than that none of the the laser builders around the world have contributed in any real way to the running of regattas for many, many years. They run as businesses and involve themselves only in the ways that directly or indirectly benefit their business. No reason why that would change in the future regardless of the outcome to this debacle.

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If I remember correctly, the sage of IBM clones went like this.

 

Team "A" of engineers took an off-the-shelf IBM computer, took it apart and revere-engineered it, and wrote up a detailed spec. That detailed spec was given to Team "B" of engineers, who were then tasked to create a computer which met those specifications. As long as there was no direct communication between Team "A" and Team "B", it met a very narrow legal definite for not copying the design.

 

The analog here would be the construction manual. An experienced boat builder or designer could be given a standard Laser hull and be told to write a construction manual for it. That manual could be given to a different builder and told "build this".

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The only IP at stake here is trademark. The rest is contract.

Which leaves the question of whether the contracts are enforceable when, if there's no IP, there's no consideration. Presumably LP, ISAF and ILCA have had advice that, for some reason, the contracts are not enforceable. Unless they believe that, their behaviour is inexplicable. Placing "IP" and "contract" in two different boxes might ease your headache but I'm not sure it's the correct analysis. If anyone else has a theory as to why BK's contracts may be unenforceable, I'd be interested to hear it.

 

Generally most of Dogwatch's analysis is correct.

 

However, you can have an enforecable contract even if the IP has expired.

 

It is not uncommon for an industrial designer or patent holder to have a contract with a manufacturer for either fees or royalties that continue beyond the life of the patent or the copyright, or even to exist in the absence of a copyright. Yes, there must be some consideration, but that will often be the design "work". For example, a designer may get a contract for an initial lump sum fee for his design and then a small fee for each item manufactured by that manufacturer for 25 years. The SU carburettor is a case in point.

 

Mr Kirby may or may not have such a contract. That will be up to the courts to decide. Certainly there are contracts that survive transfer of ownership of the manufacturing. Then there are others that do not.

 

 

Dog and Clean raise a narrow point, that if at the time of a contract, the only consideration was expired intellectual property for a product that the manufacturer was already building(pretty unlikely unless you had a really bad lawyer or no lawyer at all) then that will raise contractual issues of sufficiency and pre-existing duty. Again, I think the main issues will revolve around the terms of the contract.

 

 

And that is exactly what Kirby is claiming. Kirby would argue that talk of IP expiring is irrelevent because the contractual arrangements continue to be valid. Whether there is a technicality that actually invalidates the contracts is another matter, and I seem to remember a post somewhere that quoted Kirby, where possibly at some time in the 80's the contracts did not keep pace with changes of organisations. Could that be a problem?

 

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...

If you want an "open source" class like the Optis - the class itself might maintain its momentum or it might not, but you will have a much crippled ILCA and the quality of major events will suffer since they will have to be solely funded by sponsors and entry fees.

...

 

Actually, anything less than World and Continent chapmionships, i.e. District chapionships (= in most cases, Nationals) shall be financed by the District (=National) Laser Class Association's own money.

 

It is in the Laser Class Rules and is mandatory:

 

9. DISTRICT CHAMPIONSHIPS

 

(1) The District Association shall annually sponsor a

District Championship sailing event which shall

be open to any member of the District Association

to be held at such place within the District as the

District Association shall determine.

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The analog here would be the construction manual. An experienced boat builder or designer could be given a standard Laser hull and be told to write a construction manual for it. That manual could be given to a different builder and told "build this".

There's no obvious reason why that's even necessary. See the "cookery book" metaphor discussed in this thread and previously.

 

A PC was a different proposition because (for example) both the source and object code of the BIOS are classed as literary works and therefore copyright. So (subject to fair use etc) you cannot copy them. The product itself therefore integrally included copyright elements (whether IBM's or the OEM's). That is not true of a Laser dinghy. You don't need to copy the construction manual to build a boat.

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If I remember correctly, the sage of IBM clones went like this.

 

Team "A" of engineers took an off-the-shelf IBM computer, took it apart and revere-engineered it, and wrote up a detailed spec. That detailed spec was given to Team "B" of engineers, who were then tasked to create a computer which met those specifications. As long as there was no direct communication between Team "A" and Team "B", it met a very narrow legal definite for not copying the design.

 

The analog here would be the construction manual. An experienced boat builder or designer could be given a standard Laser hull and be told to write a construction manual for it. That manual could be given to a different builder and told "build this".

 

But you would have to test the resulting build. I was involved in one of the efforts around this cloning. It took multiple iterations through a very laborious test suite to verify whether or not an iteration of the cloned BIOS was in fact compatible. Precisely because the detailed spec could not include in it things that where known to the Team A as a result of their exposure to the publicly available knowledge of the technology.

 

So you would have to have an experienced builder

  • Take apart an existing laser
  • figure out how HE would build it.
  • Write a spec for the result that some 3rd composites and boat builder would then be able to use as guidance for how to layup the hull and deck.
  • Test the new spec by building to it and having Builder A compare the results
  • Have builder A specify to builder B the incompatible RESULTS (not methods, you don't want cross contamination)
  • Have Builder B respecify the build in a way that he thinks will remedy the incompatibility
  • Goto Step 4, while Rinsing and repeating

     

     

There's at least 3 iterations in that I would guess, more like 5 if you are being realistic and lucky.

 

That's a lot of dough to spend just to break a contract. And in doing that while you are still under contractual obligations - I believe a court could rule you to be in violation of that contract because you are acting in a manner that is contrary to "good intent" to uphold the contract.

 

 

That is not true of a Laser dinghy. You don't need to copy the construction manual to build a boat.

True. but you do need a CM that results in a boat with identical performance and specs. And you cannot write such a manual if you have been exposed to the previous methods of building the Laser

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looks a bit like the ICLA conspired with LP to remove Kirby and the reason was the money...that never looks good in court

The ICLA being a 'what' organisation its certainly not a charity

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That is not true of a Laser dinghy. You don't need to copy the construction manual to build a boat.

True. but you do need a CM that results in a boat with identical performance and specs. And you cannot write such a manual if you have been exposed to the previous methods of building the Laser

 

 

What's stopping a builder using the existing construction manual? Especially an incumbent builder who will already have a copy. See the "cookery book" metaphor.
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looks a bit like the ICLA conspired with LP to remove Kirby and the reason was the money...that never looks good in court

The ICLA being a 'what' organisation its certainly not a charity

Well if it gets to "discovery" it would be interesting to see if there are any emails or meeting notes or other communications between Rascegar [sp?] and ICLA showing such a conspiracy

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The analog here would be the construction manual. An experienced boat builder or designer could be given a standard Laser hull and be told to write a construction manual for it. That manual could be given to a different builder and told "build this".

There's no obvious reason why that's even necessary.

It's necessary because the new ILCA rules say there's a construction manual, and it has to specify the construction of a boat that is similar enough to a Kirby sailboat as to be practically indistinguishable, at least in terms of performance. And it must do that without infringing copyright of the Kirby manual, which isn't very difficult since there is no protection of the information in the manual, only in the manual itself.

 

Kirby's "consideration" was that Kirby Inc was endowed by the class rules with the power to anoint builders. In return it got a royalty. With the change in rules, Kirby only has the manual left. Now the ILCA says it has it's own (or at least that's what I infer from the rule, it's unlikely it refers to the Kirby manual) so he's out of the loop.

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And it must do that without infringing copyright of the Kirby manual, which isn't very difficult since there is no protection of the information in the manual, only in the manual itself.

Not necessary. This has been discussed at length in this thread and elsewhere. See the "cookery book" metaphor.
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However, you can have an enforecable contract even if the IP has expired.

 

 

 

Mr Kirby may or may not have such a contract. That will be up to the courts to decide. Certainly there are contracts that survive transfer of ownership of the manufacturing. Then there are others that do not.

 

 

 

 

 

And that is exactly what Kirby is claiming. Kirby would argue that talk of IP expiring is irrelevent because the contractual arrangements continue to be valid. Whether there is a technicality that actually invalidates the contracts is another matter, and I seem to remember a post somewhere that quoted Kirby, where possibly at some time in the 80's the contracts did not keep pace with changes of organisations. Could that be a problem?

 

 

So-sue-me is essentially right, (although Kirby Inc's lawyer's have also claimed a trade mark). This is a contractual dispute between Kirby Inc and Laser Perfomance. The Class Association and the sailors should stay away from that purely commercial dispute. Like all commercial disputes, it will inevitably revolve around money.

 

Where it got interesting is that Mr. Kirby had already sold Kirby Inc to the Australian builder. It appears that the commercial dispute essentialy began after this sale. For whatever reason a dispute commenced between the Aussie builder and the European builder . Unfortunately the Class got dragged unwillingly into this dispute because the owner of the Aussie builder threatened to use Class Rules (and their ownership of Kirby Inc) as a lever against the European builder.

 

The Aussie builder may be a much nicer bunch of blokes than the European builder but really IMO they should have taken their dispute to court and not tried to invoke a class rule in an attempt to threaten to halt production of Lasers in Europe and North America. The Class Association (and the sailors they represent) stepped neatly out of that dispute by simply revoking the rule. They essentially said to the Aussie and the European Builder " If you have a contractual dispute, then sort it out among yourselves. The Class does not want to be involved."

 

Interestingly, Mr Kirby now appears to own Kirby Inc again. We dont know why. Did the Aussie builder have an escape clause? Does Kirby have greater confidence in the contracts than the Australians? Who knows? Does it matter? It is unreasonable to expect the Class Association to switch a rule on and off, depending on who owns Kirby Inc. The rule has been revoked. It is gone. The commercial parties to the dispute will have to resolve their dispute based on the merits of their contracts.

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I'm so tired of retreading the same dumb ground with armchair lawyers.. all we can do is wait and see how this plays out.

 

The bottom line for me is the question: do you like having LP as the exclusive builder for the class? Yes or no. For me the answer is definitely no. I am behind 100% any move to a more stable builder than can actually supply parts. They're a terrible organization to deal with and their supply chain issues have done a huge amount of damage to the class over the past 5 years.

 

It's frustrating seeing a solution to this be blocked by the ILCA. I don't know why they are so supportive of laser performance except there must be a lot of fishy connections between LP and the ILCA at the top levels.

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Interestingly, Mr Kirby now appears to own Kirby Inc again. We dont know why. Did the Aussie builder have an escape clause? Does Kirby have greater confidence in the contracts than the Australians? Who knows? Does it matter? It is unreasonable to expect the Class Association to switch a rule on and off, depending on who owns Kirby Inc. The rule has been revoked. It is gone. The commercial parties to the dispute will have to resolve their dispute based on the merits of their contracts.

 

Right before the deadline for the class rule change vote, Kirby bought the rights back from Global Sailing. There were press releases, the rule change was supposed to be voted down, and every one would gather around the campfire to sing Kumbaya. Obviously none of that happened.

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Well I wonder if the escape clause had to do with the ability to collect License revenue from LP...

And LP didn't like the idea of having to pay their direct competition for the ability to produce the product.

 

It will be interesting to see who actually owns the construction manual, if Kirby Inc owns every copy then it could conceivably recall them all (though I'd imagine that if they could they would have already). Then the builder could claim their lasers are still the same, but they don't have that manual which was acting as a guarantee that it was the same as every other laser...

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From what I understand the Laser Construction Manual (LCM) specifies the construction processes and bill of material to be followed to build a Laser. If Kirby does have the rights to the LCM, then it seems there is a Compaq-IBM scenario indeed.

 

I wonder who in ISAF or the ILCA has thought thru the fact that they do in fact have to follow the Compaq complete arms length approach to building an IBM compatible or they will in fact be thrashed in court and we as ILCA and ISAF members will be levied to pay the legal costs?

 

Have they already commissioned someone to follow this complex interative process? If they have not, when are they going to do this and how long will it take?

 

Will the new Laser be in fact identical in performance characteristics to the existing ones, or are all our existing Lasers going to be obsolete.

 

Are we Laser owners going to find our existing boats worthless?

 

If that happens is ISAF going to provide us all with new boats? ( I say ISAF, because the ILCA seems to be losing money already)

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I have a solution, dump the laser from the five ring circus, and get a newer design, anything that requires a challenge to keep it up and going fast.

 

The laser fleet can then slowly rot away and go back to what it was designed for sailing off a beach for fun.

 

the money saved in legal fees would be huge and people could go and find a better boat to sail, one that lasts a bit longer and doesn't cost and arm and a leg for bits. hell you could even get one with a decently designed and built sail, that would be a revolution.

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I have a solution, dump the laser from the five ring circus, and get a newer design, anything that requires a challenge to keep it up and going fast.

 

The laser fleet can then slowly rot away and go back to what it was designed for sailing off a beach for fun.

...

 

Apparently, there are some Olympic contracts still in place, but recent conflict have greatly accelerated the tempo at which this high-tech piece of engineering called Laser is heading to the exit.

 

 

ISAF REGULATIONS

 

23.1.6 Olympic Equipment contracts shall be agreed between ISAF and the

appropriate Classes and / or manufacturers by May 1st in the year four years

before the Olympic Sailing Competition. The contract shall require the Class to

be an ISAF Class at the first opportunity thereafter, and, in any event, prior

to the Olympic Games, and to remain an ISAF Class while it remains Olympic

Equipment.

 

In the event that ISAF is unable to agree the contract for particular

Equipment, Council shall decide alternative Equipment in November of the year

four years before the Olympic Sailing Competition from a list of Equipment

options provided by the ISAF Executive.

 

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ISAF REGULATIONS

 

23.1.6 [...]

 

In the event that ISAF is unable to agree the contract for particular

Equipment, Council shall decide alternative Equipment in November of the year

four years before the Olympic Sailing Competition from a list of Equipment

options provided by the ISAF Executive.

 

Does that mean that somewhere there's a backup list of possible classes to replace the laser should everything really hit the fan hard and the boats aren't produced for a year or two?

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Does that mean that somewhere there's a backup list of possible classes to replace the laser should everything really hit the fan hard and the boats aren't produced for a year or two?

I very much hope so.

 

Now, take a look at another excerpt from current ISAF Regulations. Even equipment for Rio can be changed, if decided so:

 

23.1.4 Olympic Events and Equipment:

 

Mens Board - RS:X

Womens Board - RS:X

Men's One Person Dinghy - Laser

Women's One Person Dinghy - Laser Radial

Men's 2nd One Person Dinghy - Finn

Men's Skiff - 49er

Women's Skiff 49erFX

Men's Two Person Dinghy - 470

Women's Two Person Dinghy - 470

Mixed Two Person Multihull Nacra 17

 

 

23.1.7 Council may decide to change a specific part of Regulation 23.1.4 closer in time to the

Olympic Games than permitted in Regulation 23.1.3 if at least 75% of votes cast are in

favour of a motion to do so. In such an event, the timescales in regulation 23.1.3 shall not

apply, and any subsequent voting process shall ensure that an Event or Equipment is de-

selected, or new Event or Equipment is selected, only after a vote of more than 50% of

votes cast in favour of the decision.

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Something tells me if they try that, unless they have a really good reason (like the boats aren't produced for a long time in the cycle), the IOC will just pull away the medals for those events.

 

We just got through the crazy period of arguing over who gets in, I'd highly doubt that ISAF really wants to go through all that again. Maybe they can bicker about each other long enough to make it to 2016 without killing the laser/torch. Is anyone still making them with this fight going on? Or is it just the Aussie builder (in which case this is a bad time to be a laser campaigner in NA or Europe)...

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Which leaves the question of whether the contracts are enforceable when, if there's no IP, there's no consideration. Presumably LP, ISAF and ILCA have had advice that, for some reason, the contracts are not enforceable. Unless they believe that, their behaviour is inexplicable.

For me, this is one of the keys. When ISAF first got legal advice, it was that BK had enforceable contracts and that BK had terminated the builders agreement with LP, as he was entitled to do. Because of this legal advice, ISAF instructed ILCA to stop issuing builders plaques. Reading the various statements since, ISAF's position on this point hasn't changed. Instead, they have now decided that BK's actions are in breach of agreement and because of this, they are no longer bound by any agreements and can change the fundamental rule.

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It's frustrating seeing a solution to this be blocked by the ILCA. I don't know why they are so supportive of laser performance except there must be a lot of fishy connections between LP and the ILCA at the top levels.

 

Go to www.ISAF.org and tell me the first sponsor you see as event partner and supplier.

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It's frustrating seeing a solution to this be blocked by the ILCA. I don't know why they are so supportive of laser performance except there must be a lot of fishy connections between LP and the ILCA at the top levels.

 

Go to www.ISAF.org and tell me the first sponsor you see as event partner and supplier.

There are a number of event partners listed (including Neilpryde, Ovington and Nautivela), I don't see anything suspicious about Maclaren being one too. The image is just a GIF.

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Something tells me if they try that, unless they have a really good reason (like the boats aren't produced for a long time in the cycle), the IOC will just pull away the medals for those events.

What makes you to think so?

 

The disciplines are:

 

1.Men's One Person Dinghy

2.Women's One Person Dinghy

 

Is Laser the only one singlehander on this planet? ;-)

 

Btw, one of the resons Laser Radial replaced Europe was that it was promised to ISAF that they will be able to supply enough boats to all big events, unlike Europe manufacturers at that time. I bet, there are some manufacturers right now, sitting on the fence, so to speak and ready to take Laser's place.

 

Is anyone still making them with this fight going on? Or is it just the Aussie builder (in which case this is a bad time to be a laser campaigner in NA or Europe)...

FWIW, my sources tell me that LP has bought (i.e. paid to BK according to contract!) enough plaques in the past to continue manufacturing boats for some time. Remember, manufacturers usually buy plaques upfront, before the actual boat is manufactured..

This might be one of the reasons, why ISAF is so confident that there will be no shortages of boats for all core events and Olympics.

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That is at complete odds with the exhibits provided for the US Federal Court by Bruce Kirby. They make interesting reading...

 

Accord to those documents ISAF/ILCA have been providing plaques to LPE which include Bruce Kirby´s name for which Bruce Kirby Inc. has definitely not been paid.

 

No one has produced evidence to the contrary. Even LPE are not claiming they have paid the royalties due for Lasers built in recent times.

 

So what are your sources that say differently??

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It's frustrating seeing a solution to this be blocked by the ILCA. I don't know why they are so supportive of laser performance except there must be a lot of fishy connections between LP and the ILCA at the top levels.

 

Go to www.ISAF.org and tell me the first sponsor you see as event partner and supplier.

There are a number of event partners listed (including Neilpryde, Ovington and Nautivela), I don't see anything suspicious about Maclaren being one too. The image is just a GIF.

 

I just thought it was funny. As a board member for a non-profit, I know about getting sponsors. The bigger the donation, the bigger the ad space. I just never seen a LPE advertising before, even in the most recent Laser Sailor mag.

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In all the speculation about legal minutiae, there are a couple of questions that have been missed that strike me as strange.

 

Takao Otani has been building Lasers in Japan just about forever - he's licensed to sell in Japan and South Korea. We didn't hear much from him during the original Global Sailing dispute (not outside his region at least), but he was considered an ally of Kirby and GS. Why isn't he now on the list of licensed Torch builders? At this stage PSA appear to have been given his territory (along with the rest of Asia which used to belong to LPE). He has been involved with and been a huge supporter of the Laser class for many, many years. I'd love to hear his perspective.

 

Secondly, during the original rule change voting while Global Sailing owned the BKI rights, we were told (by Kirby) that GS had cancelled the building contract with LPE. This was in mid-2011. Kirby then re-acquired the rights in September 2011. Why then do his court documents state that he cancelled the LPE building contract late in 2012? What happened between mid-2011 and late 2012?

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Went looking for the Fundamental Rule intro on the ILCA site today. Its been taken down.

 

I recall there was some pretty vivid language that I thought at the time it seemed to treat the truth a little lightly. Does anyone have a file copy?

 

Be interesting to see how it stacks up, now with the passing of time.

 

As Clean says if there is any mis.statement there, the consequences for the ILCA in the Kirby lawsuit might be significant.

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gouv

 

There are other deliberate 'misdirections" in the document that the ILCA sent out to inform members of why they needed to vote on the issue. Or were they simply examples of gross incompetence and a lack of care in carrying out their duties as class officers, namely to correctly inform members of what the issues were.

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Its OK to like the guy and hate those running the class. Have your bromance w Bruce - its all OK. By all means, carry the tourch for him and even feel free to send him all your money to ensure he is not destitute.

 

But you may want too re-read this. A few times. Really carefully.

 

---------------------------------------------------------------------------------------------------------

 

2011 RULE CHANGES - VOTING ENDED 23RD SEPTEMBER 2011

IMPORTANT Rule change

This rule change is very important for the future of the class. The change and the explanation have been approved by the Laser Class World Council and the Laser Class Advisory Council. Please do not delay your vote.

 

For 40 years the ILCA Class Rules and associated agreements concerning the management of the class have given the sailing world the most successful youth and adult racing class in history with over 200,000 boats built and racing in over 125 countries.

 

This success, we believe, is based fundamentally on the ILCA Class Rules, which requires that a builder of class-legal boats must (among other things) (i) manufacture the hull, equipment, fittings, spars, sails and battens in strict adherence to the Construction Manual and (ii) have the Laser trademark rights.

 

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

 

Unfortunately, a dispute has arisen between parties who claim to be representing Kirbys interests: a New Zealand company called Global Sailing; and Laser Performance Europe (LPE), one of the manufacturers, which holds the Laser trademark rights for Europe, South America, Africa and Asia (excluding trademark rights owned by Performance Sailcraft Japan for Japan and South Korea). The dispute centers on whether a valid design rights holder agreement exists with LPE. Under the current ILCA Class Rules, if there is not a valid building agreement, then a manufacturer, even a trademark owner, would not meet the requirements to be an International Sailing Federation (ISAF) and International Laser Class Association (ILCA) approved builder.

 

Each of the parties to the conflict has threatened ILCA in various ways Global Sailing has said it may form a new class association for a Kirby Sailboat. LPE informed the ILCA that it intends to form its own Laser class. We may therefore end up with three different classes and may lose the Olympic status. The one design / out of the box principle would also be threatened.

 

One other possible result of this conflict is that due to uncertainty over ISAF and ILCA approval, there may not be a sufficient quantity of new Laser boats compliant with the ILCA Class Rules available in Europe and other countries in 2011 and beyond to satisfy the demand of its current and future ILCA members.

 

The class officers made numerous attempts to get the two conflicting parties to end their dispute: meetings were held in different parts of the world and written compromise proposals were made, unfortunately with no success. While discussions between the two parties continue we are unsure of the outcome and running out of time.

 

We also took legal advice. The above rule changes were deemed the only possible solution in order to promote the uninterrupted supply of class legal Laser boats and to maintain ILCA in its current set-up. The lawyers also informed us that the Kirby design patents had in fact expired.

 

Therefore, we are proposing to change the rule to eliminate the building agreement from Bruce Kirby or Bruce Kirby Inc requirement. Manufacturers who have trademark rights and who build in strict adherence to the ILCA Rules and to the Construction Manual, which is controlled by ILCA, will continue to have the right to build Class legal boats. We believe that this change will eliminate uncertainty over ISAF and ILCA approval, give manufacturers continued reasons to support the class and satisfy the demands of current and future class members.

 

 

 

Why should you vote YES?

1.To promote the uninterrupted supply of class-legal Laser boats all over the world to meet the demands of current and future sailors.

2.To maintain the International Laser Class Association in its current set-up.

3.To preserve the one design / out of the box principle, which is assured by the mandatory adherence to the Laser Construction Manual by all builders as defined in the fundamental rule.

4.To maintain ISAF recognition and Olympic status.

Heini Wellmann,

Laser Class President

Jeff Martin,

Laser Class World Executive Secretary

 

 

 

 

 

 

 

 

It is proposed that the following rule changes be adopted. The additions are underlined. The deletions are crossed through (strike through). They are:

Class Rule changes to the Fundamental Rule

CLASS RULES, PART ONE

FUNDAMENTAL RULE

Current Rule

The Laser shall be raced in accordance with these rules, with only the hull, equipment, fittings, spars, sail and battens manufactured by a licensed builder in accordance with the Laser design specification (known as the Construction Manual) which is registered with ISAF.

 

Proposed new rule with changes

The Laser shall be raced in accordance with these Rules, with only the hull, equipment, fittings, spars, sail and battens manufactured by a licensed an International Sailing Federation (ISAF) and International Laser Class Association (ILCA) approved builder in accordance with strict adherence to the Laser design specification (known as the Construction Manual) which is registered with ISAF.

 

Current Rule

A Builder is a manufacturer that has a building agreement from Bruce Kirby or Bruce Kirby Inc. to build the Laser and has the rights to use a Laser trademark and has been approved as a Laser Builder by each of the International Sailing Federation and the International Laser Class Association.

 

Proposed new rule with changes

A Builder is a manufacturer that has a building agreement from Bruce Kirby or Bruce Kirby Inc. to build the Laser and has the rights to use a Laser trademark, is manufacturing the hull, equipment, fittings, spars, sails and battens in strict adherence to the Construction Manual, and has been approved as a Laser Builder by each of the International Sailing Federation and the International Laser Class Association.

---------------------------------------------------------------------------------------------

 

The patent line you focus on does not say they are or are not Laser patents. Keep in mind that patents list claims. It is possible that some of the claims listed in a patent for a 2 sail boat may apply to the hull, spars, sail, foils or what have you, of a 1 sail boat like a Laser for example. We have no way to know if these or any patents were thrown up as being relevant or not. The simple fact is if he has any valid rights (trademarks, patents, etc...) he will be paid (up front or via damages) and deserves to be paid.

 

Now keep in mind that ISAF and ILCA is not party to the contracts in dispute between BK and the builders. So tey don't know what it says or what rights BK claims with them. So cover all the bases...

 

I would and did read the ILCA statement differently than you have and as typical legal stuff covering all bases. They noted the Laser trademark was controlled LPE and gathered they then did the usual CYOA of searching for any BK patents that might even loosely apply and noted that any such patents had expired. Note they never call them Laser patents.

 

From there what is left is what BK has always claimed which is the construction manual. Interestingly the class statement says that is "registered" with the ISAF. Not clear what registered means and exactly what rights if any either BK, the class, or the builder has to this. I am also going to guess that over the years it has evolved fairly significantly from that BK(?) - or the original byuilder - originally wrote to something heavily modified (guessing by the current and past manufacturers - ie folks other than BK) as constrction techniques, tolerances, and materials were changed so I am not sure that BK could or does own the current version of the construction manual or if the class or current builder(s) does.

 

The patents and statements around them are nothing to hang your hat on and I would be surprised if its anything more than lawers covering all the bases. Its also not about the Laser trademark or statements around that. All the parties seem to concede its valid and controlled by LPE (for the territories in dispute).

 

The fight is going to be around the construction manual and contracts and statements related to that AFAIK. Oh, and the BK name trademark which seems to have caught everyone by surprise.

 

But by all means continue your bromance. Personally I think they all (BK, LPE, GSA) deserve a kick in the nuts as they say. I am standing with ILCA and wish they had the power to kick all these bums out and take control of the builders (they don't because of who owns the Laser trademarks which means we are stuck w LPE).

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That statement in 2011 has a lot wrong about it. I wonder if the lawyer whose advice was sought will ever be named, whether the ILCA still think the advice is good. This matter is much bigger than the ILCA. It's mostly about contract law, though it's also it about ownership.


I was very uncomfortable reading the ILCA statement when it was released back in 2011, though like most have moved forward since then. (That statement should be a source of significant embarrassment for the ILCA. It includes "The lawyers also informed us that the any Kirby design patents would have certainly expired." ...which says more about forked tongues than provides anything meaningful. Of course we know that there never was a patent.)


By the way, where do yacht designers register their designs? Read up about the Bonito/Thundercraft Boats case. Take a look at the "Vessel Hull Design Protection Act" (which doesn't apply - but the rationale behind the law provides interesting reading). Remember - Kirby's boat was designed in 1969 in Canada - there is international ownership to consider! There was never any registration of his design. It's laughable that the ILCA pin their legal hopes on the lack of registration of boat design, yet here we are.


The ILCA is also pinning their position on the transaction between Global Sailing and Kirby - which was subsequently reversed.


Bruce Kirby's legal position puts forward a clear position that he is the rightful owner of his design. In addition to that there are signed contracts showing that Bruce Kirby's boat were manufactured with his permission - pretty conclusive acknowledgement of Kirby's ownership by the parties at the heart of this.


The ILCA can declare whatever they like, but they were independent to the bilateral contracts between the guy who owns the design, and the companies who make the boat. That was until they took sides by giving plaques to LP.


This issue is not about the name on a plaque, or the Laser name. It's about the boat design, contracts between Kirby and manufacturers.


If the Kirby contracts with the builders are unenforceable, like already mentioned previously, I'd sure like to find out why.
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It would seem there is very little for ILCA to be proud about in their presentation of the the reasons for the Vote Yes for the Fundamental Rule change.

 

Whether its legal to present inaccurate information or not, I imagine Bruce Kirby and his legal team will certainly consider them commerica lly damaging and if the US courts agree, that means it will cost us ILCA members money.

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For those of us who sailed Lasers in those early days and saw the class take off, it is sad that the role of Ian Bruce seems to be getting forgotten in all this turmoil.

 

The concept of a single handed car toppable performance boat, the fateful phone call to his friend Bruce Kirby, building the prototype for the Teacup regatta in his shop, refining the prototype to get it right and then his passion and work to build fleets and make it a commercial reality. All of us who have had so much fun in this craft owe Ian Bruce a very big thank you.

 

I hope all of this can be resolved soon.

 

 

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Well its pretty clear that in writing the "patents expired" sentence, the ILCA was acting in a manner that either fails the due diligence test of uncovering whether those patents are applicable, or violating the requirement as trustees of a Not For Profit organization to accurately present the issues in a manner that is "In Good Faith". This has the potential to expose the ILCA to liability - depends of course on what court and jurisdiction the suits are finally heard as to how that sorts out.

 

Similarly there is the questionable assertion

who build in strict adherence to the ILCA Rules and to the Construction Manual, which is controlled [emph added] by ILCA,

not sure what "controlled" means legally in this situation. If in fact Kirby still owns the Copyright on the CM and the ILCA simply controls its distribution, then I assume such "control" is based on some agreement between Kirby and the ILCA, which in turn voids the claim that "The ILCA is not a party to any of these Kirby agreements. " potentially a second misrepesentation.

Alternatively if they do not own the copyright for the CM and don't actually have any sort of contractual ownership of such, then they are in a very precarious position to claim control.

 

 

Frankly I would not want to be in Jeff Martin's shoes right now.


Sadly this all reminds me of the broughaha over the Inland Sailing Associations A Scow disaster. But the $$$ and sailors affected are a much bigger deal.

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ILCA.......violating the requirement as trustees of a Not For Profit organization

 

Assuming the Kirby filing is correct that "ILCA is a British organization" then there's no such thing (directly) as a "Not For Profit organization" here. There are "Community Interest Companies" - ILCA is not registered as such.

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It seems that everybody is very concerned about the BK's money.

 

Does anyone know for sure how much, per boat, went to Julian Bethwaite (49er), Andre Cornu (470), Christian Maury (420), Jack Holt (Cadet), Ian Proctor (Tempest, Topper etc.) or any other boat designer?

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So a British organization is being brought to court in the USA, who's rules apply?

 

In general, contracts say which jurisdiction applies and IIRC those under discussion say laws of Connecticut. However that's not really the point for the purposes of this (limited) discussion. ILCA isn't a "Not for profit organisation" which (afaik) has a specific meaning in the US tax code. That was an incorrect assumption. ILCA doesn't appear to be registered as a company in Britain at all, non-profit or otherwise. They don't have to be - a class association I helped run wasn't set up as a company. There's a benefit to being a company because it makes a clear legal demarcation between the assets of the association and the personal assets of the officers - something ILCA might be wishing it had. But it also costs a few £100s a year to perform the legal duties of a company so small organisations may not bother.

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ooh if they aren't incorporated, then the officers of the ILCA are potentially personally liable for any damages to BK.... ouch! I gotta say, I would not be an officer of any organization that is not protected by a corporate shell - at least not if the litigation is to happen in the USA

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It would seem there is very little for ILCA to be proud about in their presentation of the the reasons for the Vote Yes for the Fundamental Rule change.

 

Whether its legal to present inaccurate information or not, I imagine Bruce Kirby and his legal team will certainly consider them commerica lly damaging and if the US courts agree, that means it will cost us ILCA members money.

 

 

Agreed. Of course it all still hangs on whether Kirby's original building agreement still applies 40 years on. He and his law team apparently think sol

 

This is the first time I've read the full ILCA rationale for rule change. Disingenuous at best. Duplicitous might better characterise their actions. They simply glossed over any history showing why builders around the world had been paying royalty fees to Kirby for the past 40 years.

 

This is the paragraph that is particularly disturbing:

 

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

 

Mostly historical! No attempt at all to explain to members why or where Kirby's "certain design rights" vanished in recent history and don't matter any more. And hey presto, the ILCA tells us that anyway, they are not party to these agreements. C'mon! If the agreements are still valid, the ILCA's rights are surely subordinate to Kirby's.

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Bruce Kirby lawyers have just raised the stakes again, piling more material into the US Federal Court system after ISAF - ILCA´s actions to take Kirby´s design rights from him.


One wonders if the US Courts will take a dim view of the new actions from Sailing´s Peak body?
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Those who seem to love slagging off the class officials here are getting themselves really twisted up on the vote issue and the "patent" thing. There are "patents" and there are "design patents" - they are different. See http://en.wikipedia.org/wiki/Design_patent for a summary. A "patent" covers an invention, a "design patent" as the article says "is a type of industrial design right"

 

Now read the ILCA statement again. Early on, it says the contracts were put in place when Kirby held "certain design rights", which he will have done. Then towards the end it says they were told the "Kirby design patents had expired". People are getting all excited about Kirby's two "patents" which clearly don't apply to Lasers. But they are irrelevant - ILCA never refer to "patents", just to "design patents". Now there's nothing to say that Kirby's "design rights" were formally registered as a "design patent", but the only sin ILCA have committed here is to refer to "design patents" when it looks as though they should really have just referred again to "design rights". But all they are really saying is that whatever rights Kirby had over the design itself in the early days/years had expired by the time the contractual disputes over the separate commercial agreements started up. I don't see the probably mistaken reference to "design patent" rather than "design right" as material at all - in fact the average Laser sailor voting on the rule change probably wouldn't give a toss just what exact legal form Kirby's "rights" had taken. And as to that slip being libellous - dream on

 

Otherwise the ILCA statement just accurately reflects the situation at the time - the class were being pushed around by people arguing over contracts the class weren't even party to. And as Kirby had sold his interest to someone else it was all but impossible for the builders of most Lasers to meet the class rule requirement that they have a contract with Kirby. So although Kirby may well have been seeking to find a good future guardian for his baby, you have to wonder what due diligence was done as to the consequences of the sale - had that little consequence not been spotted? Seems to me the class reaction was all they could do to keep things going. Otherwise I hear lots of vague muttering about the vote not being "proper" but preciously few specifics about exactly what was wrong with it or with the ILCA statements in general

 

And I'm afraid the arguments that ILCA had in some way a duty to argue that everyone should keep paying money to Kirby even if any design rights he originally held had reached their normal expiry date under the law, and that ILCA were "dishonest" or "disingenuous" in not doing so, rather overlook the fact that he had by then, er, sold his interests anyway... perhaps that is why the matter is viewed as "historical"?

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Bruce Kirby lawyers have just raised the stakes again, piling more material into the US Federal Court system after ISAF - ILCA´s actions to take Kirby´s design rights from him.
One wonders if the US Courts will take a dim view of the new actions from Sailing´s Peak body?

 

Just finished reading the law-suit filed by Kirby and without seeing all the attachments relating to the builders agreements, it is not looking that great for ISAF and ILCA.

 

It would appear, as you would expect, that the transfer of ownership every time a builder sold to another party will not void an existing building agreement. The building agreement was always transferred properly into the new ownership structure and all the benefits and obligations of that agreement became the responsibility of the new owner. The act of transferring ownership of a company that includes agreements that both convey a financial benefit and financial responsibility does not in any way remove those obligations. otherwise companies would just on sell their enterprise to a shell company and then say to the person who licenses their service or product, " we have no agreement with you now". It is my belief that the builders agreements will be ruled valid in court.

 

In regards to ISAF, the following part of the suit seems to directly address the issue of what rights he had in the agreement with ISAF then known as IYRU. If Kirby removes that licence it would seem quite clear that they must stop participating in the production, distribution of Lasers or be in breach of their agreement.

 

On or about November 30, 1983, BKI and Bruce Kirby entered into an Agreement (“ISAF Agreement”) with Performance Sailcraft, Inc., Laser International Holdings Limited, ILCA, and the International Yacht Racing Union (“IYRU”), copy attached as Exhibit 3.

 

The ISAF Agreement governed the production, distribution, and management of Kirby Sailboats approved for officially sanctioned sailboat races worldwide. Section “Agreement 1” specifies that all authorized builders of Kirby Sailboats must have a license from Kirby.

 

 

It would appear that Kirby had building agreements in place with the relevant defendants and that those building agreements were documents that had been updated as occasion demanded over the years. The 1983 builders agreement being amended and signed by both Kirby and the builders as recently as June 16, 2005, with other amendments occurring in May of the same year and August 1995. That would make these documents very relevant indeed to any legal proceeding.

 

In regard to the plaques and his rights:

 

 

Article 6.1 of both the 1983 and 1989 Builder Agreements, give Kirby the right to issue and assign Hull Numbers/Sail Numbers for use to build and sell Kirby Sailboats.

 

Article 6.2 of both the 1983 and 1989 Builder Agreements give Kirby the right to refuse to issue Hull Numbers/Sail Numbers to any builder that owes and has not paid royalties to

Kirby.

 

ISAF and ILCA are in the middle of this and it could be argued that by sidestepping their own rules they may have damaged Kirby and his interests and be held liable. If Kirby notified them in October 2012 that a builder was delinquent and that no further plaques were to be issued as per the signed builders agreement and they continued to do so wilfully it would look very poor for them in court. They can change their own rules but they can not change an agreement that are not a direct party to, such as the builders agreement, and that builders agreement helps define what constitues a legal and authorised boat.

 

From my reading of the lawsuit he would appear to have the material he needs to back up his claims and if a court rules that the builders agreements were active and valid documents it will not go well for the defendants. Yes, it is only one side thus far, but he makes some quite compelling arguments that right is on his side.

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It's real simple. ILCA records show that they paid over $60,000 for legal work that presumably included a legal opinion of Kirby's design rights and/or patents. That legal opinion will be in writing and show the attorney's findings. US design patents only have one claim which is an ornamental design for x, y or z. Making a mistake in reviewing a design patent is extremely basic and highly improbable that even a first year attorney might get that wrong.

 

If the attorney got it wrong and the ILCA accurately reported the attorney's findings and relied on it (to their detriment), then the attorney's malpractice insurance will cover the damages to the ILCA and Kirby. If, however, the ILCA knowingly made an intentionally fraudulent misrepresentation, there will be consequences not only to the previous officers but to the present officers because it would be an ongoing misrepresentation that they became aware of and did not correct and the vote went through for approval under their watch. Let's hope that if it was fraud that they take immediate steps to void the vote and rule change before having to produce the attorney's legal opinion in court. Isn't there something in US law about officers being personally responsible for illegal acts committed while serving as officers of any type of organization.

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If this mess ever goes to trial, I'll feel sorry for the non-sailing jurors trying to keep straight the labyrinth of parties involved in all the legal contracts. They'll probably wonder why so many people get so worked up over some silly little boats. And they might think you could be criminally prosecuted for using a non-legal sail in a sanctioned race.

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There is a huge difference between pointing out how some actions taken by the ILCA could easily result in problems for the ILCA and its officers And Harping endlessly about how the volunteers and employees of that organization are bad people.

 

I firmly believe everyone involved in the ILCA is doing his or her best to cause what he or she feels is the best thing to happen.

 

...

It is likely the individuals who are able to purchase the most ABLE advocacy will suffer the least post legal decision damages. Of the participants in this suit either Kirby or the ILCA has the shallowest pockets.

 

 

My edit.

 

Based on the amended complaint, BK is represented by a very able firm of CT IP lawyers.

Respectfully, I have never heard of the ICLA's counsel.

Its not clear who is representing ISAF in the US.

The amended complaint didnt include the notice of service on LP.

 

It will be interesting to see if LP wheel out any of the big national specialist IP guns (Fross Zelnik, Finnegan, Fish and Chips, Morrison &F). Probably not enough money in it. Maybe a local firm like Day Pitney. Anyone seen who is representing LP?

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.......

Bruce Kirby lawyers have just raised the stakes again, piling more material into the US Federal Court system after ISAF - ILCA's actions to take Kirby's design rights from him.

....

What I don't understand is why BK keeps byting the hands that fed him all those years.

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I think what is going to be more of issue is whether Laser supply is going to completely dry up as a result of the ILCA-ISAF actions. Our UK and European scene has had it tough as I understand has the USA, now there are suggestions that Asia-Pacific may dry up too.

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.......

Bruce Kirby lawyers have just raised the stakes again, piling more material into the US Federal Court system after ISAF - ILCA's actions to take Kirby's design rights from him.

....

What I don't understand is why BK keeps byting the hands that fed him all those years.

You have a very strange way of looking at things. Using your analogy, surely it's ISAF and the ILCA who has simply stopped feeding BK, even though BK claims they had a legal obligation to do so. Are you suggesting that because they had been feeding BK in the past, he should simply allow the legal obligation to continue feeding him to stop? In addition, he didn't initiate the action. It was in response to the ILCA continuing to issue builder's plaques against their own class rules and without a builders agreement being in place, as required by the class rules.

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There is a huge difference between pointing out how some actions taken by the ILCA could easily result in problems for the ILCA and its officers And Harping endlessly about how the volunteers and employees of that organization are bad people.

 

I firmly believe everyone involved in the ILCA is doing his or her best to cause what he or she feels is the best thing to happen.

 

...

It is likely the individuals who are able to purchase the most ABLE advocacy will suffer the least post legal decision damages. Of the participants in this suit either Kirby or the ILCA has the shallowest pockets.

 

 

My edit.

 

Based on the amended complaint, BK is represented by a very able firm of CT IP lawyers.

Respectfully, I have never heard of the ICLA's counsel.

Its not clear who is representing ISAF in the US.

The amended complaint didnt include the notice of service on LP.

 

It will be interesting to see if LP wheel out any of the big national specialist IP guns (Fross Zelnik, Finnegan, Fish and Chips, Morrison &F). Probably not enough money in it. Maybe a local firm like Day Pitney. Anyone seen who is representing LP?

 

It's the same lawyer and firm that threatened someone on TLF with a libel suit for posting an opinion.

 

http://sailingforums.com/threads/2011-rule-changes-fundamental-rule.21064/page-5#post-102089

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Rastegar's specialty is forcing companies into bankruptcy and then acquiring their assets. Anyone else see the writing on the wall? What happens if the ILCA is forced into bankruptcy with all the legal costs? Rastegar will step in and own the game. Who set off this entire chain of events by not honoring its legal contracts. There always comes a point when it's more cost effective to rock the boat than play by the rules and then it's possible to sit back and collect the spoils.

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