Lasers - Applying a Blow Torch

[torrid]

Lord knows how much of this current mess will be regurgitated online ten years from now.

 

[Bruce Hudson]

Please!!! One of you must know how to give us a link to the results of Thursday's hearing!!!

The hearing was cancelled because Kirby withdrew it. There is some speculation as to whether or not a deal had been made (on the steps of the court house), but I am not holding my breath.

Updates are here: http://www.rfcexpress.com/lawsuits/trademark-lawsuits/connecticut-district-court/441418/bruce-kirby-inc-et-al-v-laserperformance-europe-limited-et-al/docket-text/

6/27/2013 48

ORDER withdrawing 31 Motion for Prejudgment Remedy; withdrawing 41 Motion for Prejudgment Remedy. The motions are withdrawn without prejudice at the request of the moving party. So ordered. Signed by Judge Donna F. Martinez on 6/27/13. (Nichols, J.) (Entered: 06/27/2013)

 

[SCARECROW]

Question for the lawyer types. In the case of the ILCA with literally thousands of members, how legally acceptable is it to answer any question as we have no knowledge without polling every single member about each question.

 

[Wildwavedesign]

For all those ILSA members that don't agree with the Response : set a Torch to it !

 

[Reht]

ILCA Responds

http://www.archive.org/download/gov.uscourts.ctd.99988/gov.uscourts.ctd.99988.51.0.pdf

So that was a load of copy-pasting, wonder which lawyer made a good couple days salary to hit up the ctrl+c ctrl+v keys...

 

[BalticBandit]

Junior associate, then reviewed by a Partner so that it can be billed at Partner hours

 

[IPLore]

Question for the lawyer types. In the case of the ILCA with literally thousands of members, how legally acceptable is it to answer any question as we have no knowledge without polling every single member about each question.

It is legally valid for a corporation or association to respond to a law suit without polling its members or shareholders. The legal role of the members of an association is to approve a constitution and a set of rules, to appoint association officers to manage the association and to vote on any changes to those rules. The Association officers are usually free to poll members on any matter they choose, but it would be unheard of (and pretty stupid) to poll members with regard to a response to a suit.
There would not be a legal way that the Association could incorporate the poll results into the response. The members would not have knowledge or information to form an accurate belief as to the allegations, but the members are not being sued - the association is being sued - so whatever the poll results, it is the association which has to reply truthfully. The association is a legal entity, not a "natural person" but a person none the less. If the association knows an allegation to be true, it must "admit" to this allegation in the response (whatever the poll says). If the association knows an allegation to be inaccurate, it should "deny" this allegation (whatever the poll says)

The response is very noticeable by its sparse and low key nature.

It is not accompanied by the more common rhetoric where the respondent states their side of the story. There is no language accusing Kirby and Global Sailing of bad intent and justifying the actions of ILCA. The response succinctly and simply denies paragraphs 72 through 85. They state twenty affirmative defenses. They claim a Jury trial. That is the "meat" of the response.

Interesting.

 

[Bruce Hudson]

Question for the lawyer types. In the case of the ILCA with literally thousands of members, how legally acceptable is it to answer any question as we have no knowledge without polling every single member about each question.

Hi Scarecrow, the short answer is that yes, it is legally acceptable. Think of it more as "establishing the truth" and acting in accordance with it's own constitution.

The only members the needs to survey are the members of the World Council - of course the decisions for responses depend on it if the ILCA is to act in accordance with it's constitution. I suppose the ILCA could survey it's members - I recall a union polling it's members on how to respond to a legal matter (they presented a choice of wording to their membership). According to the ILCA constitution the World Council can act in the way they believe is in the best interests of the association.

In the ILCA denying so much, there was one surprise for me - that was:

"80. ILCA purports to have lawfully changed its Constitution, By-Laws and/or Class Rules ("ILCA Rule Change") so as to grant itself the purported ability to authorize Kirby Sailboat builders whether or not those builders have a license from Kirby."

..and the ILCA responds:
"The defendant denies the allegations contained in this paragraph."

I'm wondering if that was a mistake by the ILCA - it does seem to go against what the ILCA said back in 2011:
"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."

I would have thought that the ILCA would be admitting that clause 80 was correct.

 

[ojfd]

It is not accompanied by the more common rhetoric where the respondent states their side of the story. There is no language accusing Kirby and Global Sailing of bad intent and justifying the actions of ILCA. The response succinctly and simply denies paragraphs 72 through 85. They state twenty affirmative defenses. They claim a Jury trial. That is the "meat" of the response.

Yes. Laconic and to the point.

The affirmative defenses make the most interesting reading.

And further answering, ...

10....the plaintiffs have no standing to bring this lawsuit, having sold

in 2008 whatever intellectual property and contract rights they owned.

15....the defendant moves that the complaint be dismissed, insofar as

the plaintiffs have participated in the transactions which gave rise to the relief sought by the plaintiffs.

17....the defendant says that plaintiffs are barred from relief under the

doctrine of unclean hands.

20....the defendant says that the plaintiffs have used and plan to use

their trademark to violate the antitrust laws of the United States.

 

[Wildwavedesign]

Agreed: bring on the Torch !

 

[Wavedancer II]

It seems the Torch is the only currently available solution for maintaining a supply of new game toys in Australia .

Or so says that builder

Disheartening, since the reason given for the change in the Fundamental Rule was to secure an uninterrupted supply of Lasers...

 

[Bruce Hudson]

It seems the Torch is the only currently available solution for maintaining a supply of new game toys in Australia .

Or so says that builder

I must have missed that. Plus PSA are only promoting Lasers on their website, as are the dealers. (Was there an announcement Gouv?)

Frankly, the Torch is looking increasingly like the fastest way out of this bind - there are two other possibilities - that Kirby and Laser Performance reach an agreement - or Laser Performance no longer controls the Laser Trademark in the major markets.

 

[Bruce Hudson]

Just my interpretation . PSA said, (Quoting from suspect memory) According to our contract, we can't build Lasers unless we use the old style stickers. We paid our bills and now you are changing the rules to accomodate someone who did not.(Unquoting from same suspect memory)

Hungry?

 

[Dpneis]

just out of courisity, will the Torch also maintain the same sail lofts with associated price gouging?

$600 rags...really haven't helped the Laser game. How much even goes to the class? If it is less than $200 something has to give. No one likes getting raped.

 

[Sailabout]

The knock off supplied in Europe, have seen it at many rental places, retails for 50% of a laser.

There's more labour in the hull to build a stupid opti than a laser..hows the price difference!!!

 

[Bruno]

The only important filing this week is the one where Kirby requested the case be trial ready by June 2014.

Until then, all this discussion is useless

So check back next year, crowded dockets in Connecticut, why I would have liked to have seen IYRU take the reins to ensure smooth sailing for Rio, maybe a new class but o well.

 

[Bruce Hudson]

So, the legal action is going to take a while to process, no surprise there.

Also, what's not surprising are the possible outcomes from the court case. One possible outcome not discussed is what would happen if the civil action was dropped by Kirby - what then? Are we (the sailors of Lasers) happy with the result?

And as an aside from all of this - what's best for the class? What are the options? I agree that the ideal would include less expensive lasers - though not at the cost of reliable supply.

Here's a little gem from Wikipedia - I'm not so sure the author has it right:

_____________________________________________________________________________________________________________

Litigation

In a long running dispute between the designer of the Laser dinghy Bruce Kirby and one of the Laser builders LaserPerformance, the builder and supplier of Lasers into UK, Europe and North America, because of non-payment of design royalties.

March 4, 2013, Bruce Kirby, Inc., filed a complaint in the U.S. Federal Court District of Connecticut, alleging unlawful counterfeiting of the Kirby dinghy by LaserPerformance principal Farzad Rastegar acting with and through LaserPerformance and its associated entities. Kirby claimed that he was due royalties that were not being paid upon boats that were being built.

Kirby introduced a new label for his boat design called the Torch. Current manufacturers of the Kirby sailboat under the Laser brand, Performance Sailcraft in Australia are in the process of converting over to manufacture the Kirby sailboat under the Kirby Torch brand. It’s expected that Performance Sailcraft Japan will follow the same path.

The builder for North America is Torch Performance Sailcraft North America- led by John Kerr and Hans Fogh, 1984 Soling Olympic bronze medallists. Fogh build the very first sail used on the Kirby prototype and designed the Laser Radial sail. Orange Performance Sailcraft in the Netherlands with the long established and well regarded Nautisch Centrum Delfzijla, a very well-known and respected dinghy builder, will be building Torch’s for Europe, the Middle East and Africa.[7]

 

[redstar]

Did anyone else notice that the June edition of the LaserWorld ILCA newsletter has not been published yet?

What makes this more interesting is that the link to the newsletter has been removed from the ILCA home page. It's almost as if they don't want anyone to notice that the newsletter hasn't been published...

So what's going on? From memory, Tracy provided quite a good update on a number of topics in the last couple of newsletters. Are they just deferring the next edition because they think that some news is just around the corner? Or are they avoiding it?

 

[BalticBandit]

So, the legal action is going to take a while to process, no surprise there.

Also, what's not surprising are the possible outcomes from the court case. One possible outcome not discussed is what would happen if the civil action was dropped by Kirby - what then? Are we (the sailors of Lasers) happy with the result?

And as an aside from all of this - what's best for the class? What are the options? I agree that the ideal would include less expensive lasers - though not at the cost of reliable supply.

Here's a little gem from Wikipedia - I'm not so sure the author has it right:

_____________________________________________________________________________________________________________

Litigation

In a long running dispute between the designer of the Laser dinghy Bruce Kirby and one of the Laser builders LaserPerformance, the builder and supplier of Lasers into UK, Europe and North America, because of non-payment of design royalties.

March 4, 2013, Bruce Kirby, Inc., filed a complaint in the U.S. Federal Court District of Connecticut, alleging unlawful counterfeiting of the Kirby dinghy by LaserPerformance principal Farzad Rastegar acting with and through LaserPerformance and its associated entities. Kirby claimed that he was due royalties that were not being paid upon boats that were being built.

Kirby introduced a new label for his boat design called the Torch. Current manufacturers of the Kirby sailboat under the Laser brand, Performance Sailcraft in Australia are in the process of converting over to manufacture the Kirby sailboat under the Kirby Torch brand. It’s expected that Performance Sailcraft Japan will follow the same path.

The builder for North America is Torch Performance Sailcraft North America- led by John Kerr and Hans Fogh, 1984 Soling Olympic bronze medallists. Fogh build the very first sail used on the Kirby prototype and designed the Laser Radial sail. Orange Performance Sailcraft in the Netherlands with the long established and well regarded Nautisch Centrum Delfzijla, a very well-known and respected dinghy builder, will be building Torch’s for Europe, the Middle East and Africa.[7]

Well you do realize that you can go in and change the Wikipedia page. I wouldn't be surprised if Rastegar etc aren't involved in that as well.

 

[Bruce Hudson]

Some light weekend reading:

http://www.archive.org/download/gov.uscourts.ctd.99988/gov.uscourts.ctd.99988.56.0.pdf

This 23 page document shows the areas of dispute, areas not disputed and has the proposed case management plan.