Lasers - Applying a Blow Torch

[SimonN]

Gantt

I believe that you are mistaken WRT the builders contract. They pertain to where a builder can sell the boats they build and not to where they are built. It really matters little where they are actually built. So in theory, LPE could even set up a factory in Australia and build Lasers, so long as the boats are only sold in the correct territory. I have seen no evidence to suggest there is a geographic limitation as to where a builder can set up a factory and it would be a pretty meaningless restriction that could serve no purpose.

 

[Bruce Hudson]

New insignia for the dinghy formerly known as Laser

In 1969, the name Laser was great, because it was synonymous with speed and technology.

Time has moved on. No longer can Bruce Kirby's boat be viewed in the same way.

Maybe the Torch is a great recognition of the boat's maturity? Maybe the above is a good combination of many icons that are relevant to his boat today.

 

[SimonN]

If forced to pick the lesser of the two evils I would pick LPE over Kirby simply because LPE at least give me boats when taking my money. Kirby gives me nothing of value, further tries to assign the class a job of enforcer, and then takes my money apparently for a 1960's drawing. But again, lets agree to disagree.

Let's take your argument further. By your argument, you would always side with a retailer/shop over the government consumer protection organisation (pick correct name for your country) because the retailer supplies you goods in exchange for money while you get nothing tangible from the consumer protection for the taxes you pay. What that ignores is what happens when it all goes wrong. That is when you get the value out of your taxes.

In teh case of BK, the royalities he gets seems to you to be a waste of money, because you claim to to get nothing in return. You totally ignore the fact you got the whole game. Without BK (and IB), there would be no game at all. So BK created the game and gave up most of his rights to the game in exchange for a very small cut. I am sure you are not suggesting that he didn't deserve a cut. Instead, your argument is solely based on him having taken his cut for too long. That is the "gamble" you take in such a contract. If your argument is right, then surely with any design where BK doesn't make enough money from royalties because of poor sales, BK should go back and charge more. How would you like it is your pension provider stopped paying your monthly cheque because "you have lived too long" and have already got more than enough to compensate you for what was contributed.

However, BK did provide a lot more than simply the original design. His position in the chain safeguarded he class against any one part becoming too powerful. The balance of power has totally changed. The class is now powerless to stop a builder from doing whatever he wants. For instance, he can change the way he builds the boat and all that the class can do is to stop giving out plaques. As has been stated many times, LPE doesn't care about the racing market enough to let it get in the way of profit and it is the belief of many that if the class was offered the choice of accepting changes or no boats, they would, yet again, choose the changes to get the boats.

What BK did as part of the chain is to make it impossible for LPE to change the way they built the boats without agreement of all. Even if LPE decided to ignore the racing market and didn't care about the plaques, BK could still stop them making those changes. It is really that simple. Now there are no controls over the builders. And please don't come back with your usual "but they haven't abused that position yet" because only an idiot would force changes while the who;e matter is still in court. We already have evidence of how LPE treats the association - when they didn't need them, LPE cut of much needed funds by no longer supporting the class through the magazine and other sponsorship. This was noted in the ILCA records and was a cause of great concern . As soon as LPE wanted something from the class (a rule change), funding recommenced. Do you really think that LPE will continue with funding for the ILCA once the court cases are over? I would bet a reasonable sum against it.

You try to make things so black and white, when the whole thing is far more complex.

 

[Bruce Hudson]

Gannt,

It is clearly not reasonable for Jeff Martin to deny knowledge of the existence of the builder agreement. But the content? That's very different.

Exhibit 16 merely showed what the plaques looked like, not any legal requirements for the design.

If BK is not a party to the 1992 plaque agreement, then he cannot enforce it.

So, I come back to my point, which is that the design of the plaques is not relevant. ICLA had an absolute right to change them.

BK claims that Rastegar was not paying the royalties, and that ICLA enabled Rastegar to continue building Lasers. As I pointed out, ICLA isn't a party to, and may not have knowledge of the contents of the builders' agreements, so why should ICLA stop issuing plaques? Because BK says so? What business stops a revenue source because someone asks them to? Had BK got a judicial order in hand, things would be very different. But let's not forget that Rastegar disputes the royalty situation. We might all be very skeptical of Rastegar's claims, but who are we to judge, when we have not seen the figures, or even all the contracts?

BK put ICLA in a bind. The ICLA board knows that the trademark issues prevent BK from appointing another Laser builder, and (I assume) that Rastegar's entities provide the bulk of ICLA's income, so what BK wants the ICLA to do is equivalent to suicide. What does a rational actor do?

SM123, I'm glad we agree that Jeff Martin would have known about the ISAF agreement. Here's Jeff Martin's exact words in 2011 in the release for the fundamental rule change:

"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 it was believed that Bruce Kirby held certain design rights. The ILCA is not a party to any of these “Kirby” agreements."

Jeff Martin then stood by while Hieni Wellmann made further statements that were apparently made in denial of the ISAF agreement's existence.

Kirby's legal council isn't trying to enforce the 1992 Plaque Agreement that he isn't party to. With respect to the plaque design, he's protecting the use of his name, which is trademarked - and in the scale of things, partly because the ILCA removed his name, is a very small issue. Nobody is saying that the ILCA didn't have the right to change them.

What is a more substantial issue is that Jeff Martin was as a signatory aware of the ISAF agreement, in my view would have been largely aware of the role that it played in the builder's agreements, was aware of the parts of the ISAF agreement that related directly to the builders agreement, because, in part, that the purpose of the ISAF agreement was to form part of the builders agreement. Yet Martin apparently chose to be complicit in the ILCA's actions which ignored the ILCA's formal, signed and witnessed agreement to recognize BKI's right to terminate a builder.

The most important thing that Jeff Martin - and therefore the ILCA - was aware of from the ISAF agreement, was BKI's right outlined in clause 10 to terminate a builder. Crucially, the ILCA had formally agreed to BKI having that right.

The moment that Kirby withdrew his approval from Laser Performance as a builder, the ILCA was obligated to stop issuing numbers to Laser Performance. (In reading the ISAF agreement, the ILCA was acting as an agent of the ISAF in issuing the numbers). Remember, the ILCA has a formal, signed agreement recognizing that BKI must approve a builder. By issuing plaques to Laser Performance, the ILCA also interfered in BKI's rights to terminate under the Builder's contracts because in a practical way, Laser Performance could (and still can according to the ILCA) still make 'official' Lasers.

We are now in a great position to look at the submitted documents which are public. The position that was once held that this is a mess and can't be sorted out is no longer true.

BKI has provided a statement that Laser Performance did not pay the royalties due, and stopped paying them mid 2008. (The court, having heard Marjory Kirby's statement about the accounts, is satisfied there is a case to be heard). Laser Performance put forward a defence that they had overpaid, though in my view its weak.

The ISAF agreement permits the transfer of rights with agreement from the parties. That transfer of right between BKI and Global sailing was never completed - as it needed the approval of the other parties. BKI has had a continuous and unbroken agreement with the ILCA via the ISAF agreement. The rights that Kirby has through these contracts and because of the royalties he earns form Bruce Kirby's private property. I can see why Kirby made the statement in 2011 that the removal of these rights is tantamount to theft (and I agree).

The ILCA has the right under the ISAF agreement to audit Laser Performance's production figures - and Laser Performance recognizes that right in their builder's agreement.

All of this is now known, this is not a rant, all of the above can be verified by reading agreements and looking at public information.

SM123, you ask what a rational actor is to do? The Laser SB3 changing its name to the SB20, the Laser 2000 becoming the 2000, both dropping Laser Performance because of 'issues' - and in doing so point the way. The game is bigger than the trademark used. (Maybe Farzad Rastegar, being put in a position of the Laser name being dropped by the most popular user, will be prepared to sell the Laser trademark rights.In fact I'll make an offer of $1, and if accepted will donate the trademark to the ILCA.)

It's worth noting that the entire ILCA World Council now will be aware of the ISAF agreement, and of the content of the builders contracts both as they are party to the legal action, and because these documents are in the public domain.

The position that the ILCA held in 2011 that the ILCA did not know the content of the builder's agreement, can no longer be validly held today.

The ILCA do not need to continue holding onto the notion that they are somehow stuck because of the legal action, and can't do anything.

At any time, if the ILCA has the will, they can still put things right and recognize the valid, signed and witnessed agreements they are party to.

 

[BobBill]

New insignia for the dinghy formerly known as Laser

Pure bullshit! Not given to overt such as and not personal, but Dex, really, this is not only not approp but dim! P was an entertainer, shit happens when you are not equipped.

 

[SM123]

Gantt

I believe that you are mistaken WRT the builders contract. They pertain to where a builder can sell the boats they build and not to where they are built. It really matters little where they are actually built. So in theory, LPE could even set up a factory in Australia and build Lasers, so long as the boats are only sold in the correct territory. I have seen no evidence to suggest there is a geographic limitation as to where a builder can set up a factory and it would be a pretty meaningless restriction that could serve no purpose.

Simon,

I believe that you are mistaken here. The builders' agreements that we have seen specify the territory as the places where a builder may manufacture and sell boats. The only flexibility that I can see is that a builder can manufacture in one of its territories and sell in another. A builder can also manufacture in another builder's territory if that builder agrees.

 

[Bruce Hudson]

Gantt

I believe that you are mistaken WRT the builders contract. They pertain to where a builder can sell the boats they build and not to where they are built. It really matters little where they are actually built. So in theory, LPE could even set up a factory in Australia and build Lasers, so long as the boats are only sold in the correct territory. I have seen no evidence to suggest there is a geographic limitation as to where a builder can set up a factory and it would be a pretty meaningless restriction that could serve no purpose.

Respectfully SimonN, not so. It's not only limited by the Licensed Territory, new facilities are subject to approval. Nobody is challenging the content of the ISAF agreement or the terms of the Builder's agreement.

From the Builder's Agreement (Page 111 of the Linked PDF)

9.2 Licensee agrees to comply with and be bound by each of the terms and conditions of the IYRU Agreement to the same extent as if the Licensee was a party thereto.

From the ISAF Agreement (Page 57 of the linked PDF)

9.2 It is expressly understood that nothing shall preclude a Builder from establishing additional manufacturing facilities within its Licensed Territory subject only to the prior written approval of the IYRU, Holdings, Kirby Inc. and Trade Mark Owner, which approval shall not be unreasonably withheld. Sub-licenses are neither contemplated nor permitted.

(The "IYRU Agreement" is referred to is the ISAF agreement. I suppose at some point we should start calling it the World Sailing Agreement.)


The PDF referred to above containing the Builder's Agreement and ISAF Agreement may be viewed here: https://www.docdroid.net/J1xCef9/kirby-first-amended-complaint-final1-with-appendices.pdf.html

 

[SM123]

Gannt,

It is clearly not reasonable for Jeff Martin to deny knowledge of the existence of the builder agreement. But the content? That's very different.

Exhibit 16 merely showed what the plaques looked like, not any legal requirements for the design.

If BK is not a party to the 1992 plaque agreement, then he cannot enforce it.

So, I come back to my point, which is that the design of the plaques is not relevant. ICLA had an absolute right to change them.

BK claims that Rastegar was not paying the royalties, and that ICLA enabled Rastegar to continue building Lasers. As I pointed out, ICLA isn't a party to, and may not have knowledge of the contents of the builders' agreements, so why should ICLA stop issuing plaques? Because BK says so? What business stops a revenue source because someone asks them to? Had BK got a judicial order in hand, things would be very different. But let's not forget that Rastegar disputes the royalty situation. We might all be very skeptical of Rastegar's claims, but who are we to judge, when we have not seen the figures, or even all the contracts?

BK put ICLA in a bind. The ICLA board knows that the trademark issues prevent BK from appointing another Laser builder, and (I assume) that Rastegar's entities provide the bulk of ICLA's income, so what BK wants the ICLA to do is equivalent to suicide. What does a rational actor do?

SM123, I'm glad we agree that Jeff Martin would have known about the ISAF agreement. Here's Jeff Martin's exact words in 2011 in the release for the fundamental rule change:

"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 it was believed that Bruce Kirby held certain design rights. The ILCA is not a party to any of these “Kirby” agreements."

Jeff Martin then stood by while Hieni Wellmann made further statements that were apparently made in denial of the ISAF agreement's existence.

Kirby's legal council isn't trying to enforce the 1992 Plaque Agreement that he isn't party to. With respect to the plaque design, he's protecting the use of his name, which is trademarked - and in the scale of things, partly because the ILCA removed his name, is a very small issue. Nobody is saying that the ILCA didn't have the right to change them.

What is a more substantial issue is that Jeff Martin was as a signatory aware of the ISAF agreement, in my view would have been largely aware of the role that it played in the builder's agreements, was aware of the parts of the ISAF agreement that related directly to the builders agreement, because, in part, that the purpose of the ISAF agreement was to form part of the builders agreement. Yet Martin apparently chose to be complicit in the ILCA's actions which ignored the ILCA's formal, signed and witnessed agreement to recognize BKI's right to terminate a builder.

The most important thing that Jeff Martin - and therefore the ILCA - was aware of from the ISAF agreement, was BKI's right outlined in clause 10 to terminate a builder. Crucially, the ILCA had formally agreed to BKI having that right.

The moment that Kirby withdrew his approval from Laser Performance as a builder, the ILCA was obligated to stop issuing numbers to Laser Performance. (In reading the ISAF agreement, the ILCA was acting as an agent of the ISAF in issuing the numbers). Remember, the ILCA has a formal, signed agreement recognizing that BKI must approve a builder. By issuing plaques to Laser Performance, the ILCA also interfered in BKI's rights to terminate under the Builder's contracts because in a practical way, Laser Performance could (and still can according to the ILCA) still make 'official' Lasers.

We are now in a great position to look at the submitted documents which are public. The position that was once held that this is a mess and can't be sorted out is no longer true.

BKI has provided a statement that Laser Performance did not pay the royalties due, and stopped paying them mid 2008. (The court, having heard Marjory Kirby's statement about the accounts, is satisfied there is a case to be heard). Laser Performance put forward a defence that they had overpaid, though in my view its weak.

The ISAF agreement permits the transfer of rights with agreement from the parties. That transfer of right between BKI and Global sailing was never completed - as it needed the approval of the other parties. BKI has had a continuous and unbroken agreement with the ILCA via the ISAF agreement. The rights that Kirby has through these contracts and because of the royalties he earns form Bruce Kirby's private property. I can see why Kirby made the statement in 2011 that the removal of these rights is tantamount to theft (and I agree).

The ILCA has the right under the ISAF agreement to audit Laser Performance's production figures - and Laser Performance recognizes that right in their builder's agreement.

All of this is now known, this is not a rant, all of the above can be verified by reading agreements and looking at public information.

SM123, you ask what a rational actor is to do? The Laser SB3 changing its name to the SB20, the Laser 2000 becoming the 2000, both dropping Laser Performance because of 'issues' - and in doing so point the way. The game is bigger than the trademark used. (Maybe Farzad Rastegar, being put in a position of the Laser name being dropped by the most popular user, will be prepared to sell the Laser trademark rights.In fact I'll make an offer of $1, and if accepted will donate the trademark to the ILCA.)

It's worth noting that the entire ILCA World Council now will be aware of the ISAF agreement, and of the content of the builders contracts both as they are party to the legal action, and because these documents are in the public domain.

The position that the ILCA held in 2011 that the ILCA did not know the content of the builder's agreement, can no longer be validly held today.

The ILCA do not need to continue holding onto the notion that they are somehow stuck because of the legal action, and can't do anything.

At any time, if the ILCA has the will, they can still put things right and recognize the valid, signed and witnessed agreements they are party to.

Gannt,

You are still conflating knowing about the existence of a contract and knowing contents of a contract. Yes, ICLA knew that the builder should have a valid contract, but not the terms under which that contract could be terminated by BK. ICLA had no way to know if BK's termination of LP was valid.

But going further than just knowledge of the contents, who interprets a contract? The plain answer is that when the parties don't agree, the courts interpret contracts. Has any court ruled on the validity of BK's termination of LP? The ISAF agreement does not require ICLA to stop supplying plaques simply because BK demands it. Can you say authoritatively that LP doesn't have a valid builder's contract? You can't because no one posting here, nor in BK's camp, Rastegar's camp, the ICLA or the ISAF can enforce a contract without a court ruling.

In my amateur review of the contracts, BK has the absolute right to terminate Ratergar's entities as builders. But what I find odd is that BK has only terminated for failure to pay royalties, while the contracts allow for no-fault termination now. Perhaps there is another builder's agreement that we haven't seen? Can you say for sure that such a document doesn't exist? Can Jeff Martin say for sure that such a document does not exist?

As for the "BK" trademark. I think that BK could not enforce it in the USA. Trademarks needs to be enforced in the USA and BK has watched the ICLA and the builders use the trademark without permission for decades. USA trademark law does not allow you to ignore violations and then, years later, attempt to enforce a trademark. But, for the ICLA, removing the trademark simply reduces its legal costs. Even if you would win, it still costs money to defend yourself in court.

Your reading of para 10 of the ICLA is completely backwards. This paragraph gives ISAF the right to ask BK to terminate a builder, not the other way round.

I don't see anything in the agreement that says who the ICLA can or cannot issue plaques to. In fact, if anyone is in the wrong, it's the ISAF. ISAF is responsible for issuing numbers.

You keep writing that the ICLA is tied to various actions by the ISAF agreement, but it simply isn't there. You are reading much more into the text than the drafters of the document included.

Finally, the ISAF agreement has an arbitration clause: it should be arbitrated, possibly by an arbitrator appointed by Lloyds register of shipping. The arbitration should use the laws of England. Has BK initiated any arbitration proceedings?

 

[SM123]

Adding ...

The lack of no-fault termination is interesting for another reason: Rastegar disputes that any royalties are owed. If BK really wants to terminate Rastegar's entities, why not short-circuit the dispute over whether a termination for failure to pay is valid with a no-fault termination. That's potentially an issue the court could take up before the trial because there would not really be any disputed facts (has Rategar paid or not?)

This lack of no-fault termination suggests to me that there is another agreement, or perhaps an amendment to the agreements, or perhaps even just a letter that modifies the terms of the builder's agreement.

 

[Bruce Hudson]

Adding ...

The lack of no-fault termination is interesting for another reason: Rastegar disputes that any royalties are owed. If BK really wants to terminate Rastegar's entities, why not short-circuit the dispute over whether a termination for failure to pay is valid with a no-fault termination. That's potentially an issue the court could take up before the trial because there would not really be any disputed facts (has Rategar paid or not?)

This lack of no-fault termination suggests to me that there is another agreement, or perhaps an amendment to the agreements, or perhaps even just a letter that modifies the terms of the builder's agreement.

Extremely unlikely, that would have been presented by now by either Kirby, or by Laser Performance. Instead, Laser Performance do not challenge the existence of the contract no mention any letter that modifies that agreement in their counterclaim.

 

[SM123]

Adding ...

The lack of no-fault termination is interesting for another reason: Rastegar disputes that any royalties are owed. If BK really wants to terminate Rastegar's entities, why not short-circuit the dispute over whether a termination for failure to pay is valid with a no-fault termination. That's potentially an issue the court could take up before the trial because there would not really be any disputed facts (has Rategar paid or not?)

This lack of no-fault termination suggests to me that there is another agreement, or perhaps an amendment to the agreements, or perhaps even just a letter that modifies the terms of the builder's agreement.

Extremely unlikely, that would have been presented by now by either Kirby, or by Laser Performance. Instead, Laser Performance do not challenge the existence of the contract no mention any letter that modifies that agreement in their counterclaim.

I don't agree. LP could be waiting to use this at trial. Or, it could be that it doesn't really help LP, so there is little reason to mention it in any motion.

Nevertheless, the lack of a no-fault termination is interesting. Do you have any other explanation?

 

[Wess]

Gannt - I guess you didn't like the first simple question:

* Why do you think it should be the class's job to ensure BK gets paid or be in the middle of a contract dispute between BK and a builder... what is wrong with letting the court do its job?

How about a different one even more simple?

* Yes or no... is there any law broken if following the path of the 99er and other Laser knock-offs manufactured and sold around the world if someone made and sold an absolute blatant copy of a Laser (exact same shape, materials, weights, etc...) - and even advertised it as an exact copy of the BK design and Laser class boat - in the US but just didn't call it a Laser?

Anyone?

Here is some music while we wait.



Regards,

WWW

 

[Bruce Hudson]

Summary

• The ISAF Agreement prescribed principles that must be included in the builder's contract.
• Kirby had the ability to "to suspend or cancel any license granted by Bruce Kirby and Kirby Inc to a Builder" (from the ISAF Agreement).
• Laser Performance agreed to all the terms of the ISAF agreement, as if they were signitories.
• Laser Performance's agreements don't work - because Kirby still had to license builders - and Laser Performance has agreed to that.
• The ISAF signed the builder's contract, the ISAF has a copy.
• If Jeff Martin ever wanted to look at a builder's agreement, as ISAF class chair, he just needed to look at one of the ISAF copies.

You are still conflating knowing about the existence of a contract and knowing contents of a contract. Yes, ICLA knew that the builder should have a valid contract, but not the terms under which that contract could be terminated by BK. ICLA had no way to know if BK's termination of LP was valid.

But going further than just knowledge of the contents, who interprets a contract? The plain answer is that when the parties don't agree, the courts interpret contracts. Has any court ruled on the validity of BK's termination of LP? The ISAF agreement does not require ICLA to stop supplying plaques simply because BK demands it. Can you say authoritatively that LP doesn't have a valid builder's contract? You can't because no one posting here, nor in BK's camp, Rastegar's camp, the ICLA or the ISAF can enforce a contract without a court ruling.

In my amateur review of the contracts, BK has the absolute right to terminate Ratergar's entities as builders. But what I find odd is that BK has only terminated for failure to pay royalties, while the contracts allow for no-fault termination now. Perhaps there is another builder's agreement that we haven't seen? Can you say for sure that such a document doesn't exist? Can Jeff Martin say for sure that such a document does not exist?

As for the "BK" trademark. I think that BK could not enforce it in the USA. Trademarks needs to be enforced in the USA and BK has watched the ICLA and the builders use the trademark without permission for decades. USA trademark law does not allow you to ignore violations and then, years later, attempt to enforce a trademark. But, for the ICLA, removing the trademark simply reduces its legal costs. Even if you would win, it still costs money to defend yourself in court.

Your reading of para 10 of the ICLA is completely backwards. This paragraph gives ISAF the right to ask BK to terminate a builder, not the other way round.

I don't see anything in the agreement that says who the ICLA can or cannot issue plaques to. In fact, if anyone is in the wrong, it's the ISAF. ISAF is responsible for issuing numbers.

You keep writing that the ICLA is tied to various actions by the ISAF agreement, but it simply isn't there. You are reading much more into the text than the drafters of the document included.

Finally, the ISAF agreement has an arbitration clause: it should be arbitrated, possibly by an arbitrator appointed by Lloyds register of shipping. The arbitration should use the laws of England. Has BK initiated any arbitration proceedings?

Here's what the ILCA said:

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

'We also took legal advice. We understand this is 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.

There is a gulf of logic between the above statement, and the content of the ISAF Agreement. If the ISAF agreement had not existed, then the above may have made sense. As it turned out, the ILCA was party to the ISAF Agreement which in turn is part of the builder's contract. Are you wanting us to believe that Jeff Martin didn't know that the relationship between the builder's contract and the ISAF Agreement existed? That exact point would have been discussed at the time of the signing of the ISAF agreement, because without such a mechanism, certain clauses (like the chief measurer given the rights to inspect and measure the master tooling) would have been meaningless.

Clause 9.1 says outlines that a builder's agreement must be in accordance with the following principles" (then outlines those principles). Kirby agreed and understood that, and Jeff Martin on behalf of the ILCA understood and agreed to that. Heini Wellman said "ILCA is not a party to this contract and does not even know its content". There is no wriggle room. Jeff Martin signed the ISAF Agreement which prescribed content in the builder's agreement. Heini Wellmann's statement was false.

Clause 10 of the ISAF Agreement says in part:

It is understood and agreed that Holdings (with approval of the IYRU) may request Bruce Kirby, and Kirby Inc to take reasonable steps to suspend or cancel any license granted by Bruce Kirby and Kirby Inc to a Builder...

I agree with you SM123 - that I referred you to clause 10 in error (sorry about that), the ILCA agreeing and understanding that the ISAF may ask BKI to use their rights to cancel builder's licenses was not the correct clause to refer you to.

What I should have referred you to was in fact in the definitions, where it says:

"Builder" means any manufacturer licensed by Bruce Kirby and Kirby Inc to manufacture, sell and market Laser class boats in a specified territory

In the ISAF Agreement, the ILCA agree and understand BKI's ability "to suspend or cancel any license granted by Bruce Kirby and Kirby Inc to a Builder".

Finally, the ISAF signed the builder's contract. Jeff Martin sits on the ISAF Council as the ISAF Classes Rep. and is chair of the ISAF Classes Committee - important positions Jeff Martin has held for some years. If Jeff Martin wanted to know the content of a Builder's Contract, he just needed to look at one of the ISAF copies. For a ISAF signature, see page 119 of https://www.docdroid.net/J1xCef9/kirby-first-amended-complaint-final1-with-appendices.pdf.html

We now have full access to the contracts and their amendments. We know that Laser Performance is not disputing the contract itself - or if they intend to - have not followed legal process.

Importantly, we are now placed better than ever before to work out a lot of what happened.

I understand that SM123 and others are saying that there is a dispute. But when you look closely at the areas of actual dispute, there is far less to look at than there was - a lot of the counterclaims have gone, the ISAF are no longer party to the action. The remaining big areas are royalties and whether or not the contract was valid.

LP's claimed over payment is based on their idea that the builder's contract was somehow invalidated by Global Sailing purchasing BKI - a transfer which we know was never completed as it needed to be signed off by the ISAF etc. as per the ISAF Agreement (which LP agreed to). The date they put on Kirby's sale to GS was June 25, 2008, the "overpaid royalties" between 2007 and 2011 are likely to be payments they made after the 2008 date. LP are 100% pinning their hopes that this transfer somehow invalidated their contract with BKI. Having said that, and whether or not the builder's contract was valid, it was Kirby and BKI, through the valid and uncontested ISAF Agreement who still had the right to license builders - the ISAF, the ILCA and the trade mark holders were all parties to this agreement. And through the builder's contract, Laser Performance agreed "...to comply with and be bound by each of the terms and conditions of the IYRU Agreement to the same extent as if the Licensee was a party thereto." Putting as plainly as I can, LP's argument does not work. Bruce Kirby and BKI still have the rights to license the boat he designed (and he is still due royalties).

All of this information which is now public makes a difference. We have moved forward, and what the ILCA thought was the right thing to do on the basis of the information it had in 2011 (or even as the beginning of 2013) has changed. It's interesting that now this has been figured out, following the path set by the Laser SB3 / SB20 and Laser 2000 / 2000 seem more logical than ever before.

Will the ILCA do the right thing by starting to act in accordance with the ISAF Agreement, rather than wait to be compelled by the courts to do so? Time will tell.

Other less important notes:

• The termination of the license to build Lasers does not terminate the builders agreement. The difference is, that the termination clauses take effect, meaning the agreement lives on.
• I agree that the knowing of a contract's existence and knowing the contents of a contract are not the same thing.
• The ISAF agreement has an arbitration clause for disputing parties - though so far - the ILCA and the Trademark holder are not disputing the ISAF agreement.
• I'm not saying that the ISAF Agreement has anything to do with the plaques. The plaques delivered to LP after their builder's licence was cancelled contained the words "Approved by BKI". I think Kirby would be justified in having an issue with that. In the scale of things, it's not a big deal.
• The ISAF has said in their legal statement that the ILCA was issuing numbers on their behalf.
• (SM123, my name is spelt Gantt.)

 

[SM123]

Wess,

Wow, I don't really know where to start. You really need to read the contracts without trying to figure out how they fit into your world view.

Once again, you write a huge post, most of which is based on stuff you have made up. Given that you keep doing this, there is no point in a line-by-line rebuttal.

For example, you point to para 9.1 binding ICLA to recognizing the need for a builder's agreement. But it doesn't say this at all. This paragraph makes IYRU/ISAF (and no other party) recognize the need for a builder's agreement. In fact, the ONLY way the ISAF agreement binds the ICLA to any action is to keep the construction manual secret.

Finally, why would the ISAF have a copy of a builder's agreement?

 

[SM123]

Some additional comments and a correction: I see that IYRU signed one of the builder's agreements, but it is possible that this procedure was not followed for later agreements. In fact, if you look at the 1995 amendment, you will see that IYRU did not sign this, so may not have had a copy. If there is one amendment, there may be others.

You don't appear to have addressed my comments that neither you, nor I, nor ICLA can authoritatively determine if the builder terminations are valid. Because this is disputed, it takes a court order. Even BK acknowledges that this is ICLA's position:

"74.ISAF and ILCA have told Kirby that they will continue to issue ISAF Plaques to
terminated builders Quarter Moon/QM Vanguard and PSE/LP Europe until a court tells ILCA
and ISAF not to issue plaques or tells the terminated builders not to make and sell Kirby

Sailboats"

 

[Wess]

Wess,

Wow, I don't really know where to start. You really need to read the contracts without trying to figure out how they fit into your world view.

Once again, you write a huge post, most of which is based on stuff you have made up. Given that you keep doing this, there is no point in a line-by-line rebuttal.

For example, you point to para 9.1 binding ICLA to recognizing the need for a builder's agreement. But it doesn't say this at all. This paragraph makes IYRU/ISAF (and no other party) recognize the need for a builder's agreement. In fact, the ONLY way the ISAF agreement binds the ICLA to any action is to keep the construction manual secret.

Finally, why would the ISAF have a copy of a builder's agreement?

Uh, that's Canntt, not me, you you should be referring to. I didn't write that book of a post - he did - and I certainly don't agree his view, especially, but not limited to his interpretation of contacts and contract law. I generally have and do agree your reading of the contact(s). Que Canntt to accuse me of being you, or you of being me, or whatever.

Tillerman may be able to find a relevant song to insert.

 

[Wess]

Still waiting Gannt. Crickets. Simple yes or no. Any laws broken? I guess you agree w Gouv that there are no laws broken.

Gannt - I guess you didn't like the first simple question:

* Why do you think it should be the class's job to ensure BK gets paid or be in the middle of a contract dispute between BK and a builder... what is wrong with letting the court do its job?

How about a different one even more simple?

* Yes or no... is there any law broken if following the path of the 99er and other Laser knock-offs manufactured and sold around the world if someone made and sold an absolute exact and blatant copy of a Laser (exact same shape, materials, weights, etc...) - and even advertised it as an exact copy of the BK design and Laser class boat - in the US but just didn't call it a Laser (obviously no class sticker)?

Regards,

WWW

 

[Bruce Hudson]

Wess,

Wow, I don't really know where to start. You really need to read the contracts without trying to figure out how they fit into your world view.

Once again, you write a huge post, most of which is based on stuff you have made up. Given that you keep doing this, there is no point in a line-by-line rebuttal.

For example, you point to para 9.1 binding ICLA to recognizing the need for a builder's agreement. But it doesn't say this at all. This paragraph makes IYRU/ISAF (and no other party) recognize the need for a builder's agreement. In fact, the ONLY way the ISAF agreement binds the ICLA to any action is to keep the construction manual secret.

Finally, why would the ISAF have a copy of a builder's agreement?

SM123, you are clearly confused.

I didn't say clause 9.1 binds ILCA to recognize the need for a builders agreement, or binds the ILCA to an action - those are your words, not mine.

What I'm saying is that the ISAF Agreement prescribes content of the builder's agreement, and the author of the builder's agreement, Bruce Kirby agreed to that. Jeff Martin signed that he on behalf of the ILCA to acknowledge that, so when Heini Wellman said "ILCA is not a party to this contract and does not even know its content", there is no wriggle room. Jeff Martin understood that the ISAF Agreement prescribed content in the builder's agreement. Heini Wellmann's statement was false.

The ISAF kept a copy because they more than witnessed the builder's agreement, they made a declaration of approval:

The IYRU, pursuant to the IYRU Agreement, signs this Agreement to evidence its approval and recommendation of Kirby Inc. to grant the subject license to Licensee.

Some additional comments and a correction: I see that IYRU signed one of the builder's agreements, but it is possible that this procedure was not followed for later agreements. In fact, if you look at the 1995 amendment, you will see that IYRU did not sign this, so may not have had a copy. If there is one amendment, there may be others.

You don't appear to have addressed my comments that neither you, nor I, nor ICLA can authoritatively determine if the builder terminations are valid. Because this is disputed, it takes a court order. Even BK acknowledges that this is ICLA's position:

"74.ISAF and ILCA have told Kirby that they will continue to issue ISAF Plaques to

terminated builders Quarter Moon/QM Vanguard and PSE/LP Europe until a court tells ILCA

and ISAF not to issue plaques or tells the terminated builders not to make and sell Kirby

Sailboats"

Yes, the ISAF did not sign later builder's agreements. I think you'll agree its equally possible that Kirby sent the ISAF copies of all builders agreements. I maintain that throughout this, it's implausible that Jeff Martin did not know content of the builder's agreements. Even if the ISAF has 'lost' the builder's agreements, AND had suffered from corporate amnesia, the ISAF Agreement is sufficient to prove that Jeff Martin had knowledge of the builders agreement content that the ISAF agreement prescribed.

Again SM123, you are confused and have it backwards.

Prior to the legal action, the ILCA made the determination that Laser Performance's dispute was valid.

You seem to have ignored these aspects of the timeline:

• 2010 Farzad Rastegar threatened the ILCA in emails that are now court exhibits
• 2010/2011 ILCA agreed to propose changes the fundamental rule
• 2011 ILCA appeared to make the determination that the ISAF agreement didn't exist - or was 'historic'.
• 2012 ILCA told Kirby to go to court
• 2013 Kirby obliged, and went to court.

SM123, you are saying that I am making stuff up, yet consistently fail to point out what is a fabrication. I believe that this would be difficult to do for two reasons, the first is that I use quotes and verifiable facts to back up what I am saying. The second reason is far far simpler - I'm not making this up, which is why your 'challenges' are so weak.

When I write these posts, I recheck facts, and central to the events is Jeff Martin and the role he played. I'm careful to check and recheck what I'm saying about Jeff Martin, as my identity is known, and I'm using his name - and I take the view that I am liable for the claims that I make. Each time I look, it seems that I come away on the basis of the facts that it's unavoidable that Jeff Martin knew about the builder's contracts content. Again, Jeff Martin has contributed decades of his life to working with the Laser Class, and in my judgment deserves a medal for that. And again, that does not mean that he is beyond reproach. When I'm looking at what Heini Wellmann said, I increasingly give him the benefit of doubt that he had the same level of knowledge that Jeff Martin had.

The ILCA is far bigger than any single person, and needs to move forward. The ILCA got it wrong by failing to acknowledge the existence and importance of the ISAF agreement when it attempted to remove BKI/Kirby as the party who licensed builders. It's inescapable that Jeff Martin - and therefore the ILCA - knew that.

While the ISAF agreement is in force, all of the parties are still bound by that agreement.

Changing the Laser name is deceptively simple, the ISAF / World sailing can remove international status and apply it to Kirby's boat with another name. Here's clause 18 of the ISAF agreement:

18. This Agreement shall continue in force so long as International Status shall be accredited to the Laser Class boat by the IYRU.

 

[Wess]

He still Canntt answer.

Still waiting Gannt. Crickets. Simple yes or no. Any laws broken? I guess you think there are no laws broken.

Gannt - I guess you didn't like the first simple question:

* Why do you think it should be the class's job to ensure BK gets paid or be in the middle of a contract dispute between BK and a builder... what is wrong with letting the court do its job?

How about a different one even more simple?

* Yes or no... is there any law broken if following the path of the 99er and other Laser knock-offs manufactured and sold around the world if someone made and sold an absolute exact and blatant copy of a Laser (exact same shape, materials, weights, etc...) - and even advertised it as an exact copy of the BK design and Laser class boat - in the US but just didn't call it a Laser (obviously no class sticker)?

Regards,

WWW

 

[tillerman]

Uh, that's Canntt, not me, you you should be referring to. I didn't write that book of a post - he did - and I certainly don't agree his view, especially, but not limited to his interpretation of contacts and contract law. I generally have and do agree your reading of the contact(s). Que Canntt to accuse me of being you, or you of being me, or whatever.


Tillerman may be able to find a relevant song to insert.

I Canntt Get No Satisfaction