legal help wanted! Got a cease and desist call from Dunlop!

[william]

I'd say forget cloning the look of other's pedal's.  It's better to forge your own identity and not ride the coat tails of other people.

[The Tone God]

Another question;
What about cloning the look of pedals that aren't made anymore?

It depends on the pedal your copying and if there is a copyright or patent involved. It also depends on the whims of whatever company you want to clone/copy. They may not have a case per se but could decide to strong arm you anyways. They would probably win just on the basis of being able to sustatain the legal battle longer then you.

I would remove the "MXR Imitations Inc." thing. Don't make any references to any company other then your own.

You know you could save yourself alot of legal headaches and B.S. and just not make the pedals look like any other pedal including MXR. You obviously can do artwork so make something interesting.

Andrew

[mikeb]

C.A.D. stands ofcourse for Cease and...

or %^&*suckers At Dunlop.  :lol:

How ironic. It was good enough to copy their circuit AND appearance before yet now.....

... it's not that you NEED to make it look like of theirs to sell it, do you? ;^)

Mike

[ESPguitar]

how you guys like this look:


C.A.D. stands ofcourse for Cease and...

or %^&*suckers At Dunlop.  :lol:

I dunno, I found this Micro Amp schematic, changed it a tiny bit (bigger input cap, different output resistor, different opamp) and I never heard a Micro Amp, so I decided to build one and make it look like the real deal. It turned out great and got 2 buyers for it immediately.

Another question;
What about cloning the look of pedals that aren't made anymore?

That's cool..
Write CAD=%^&*sucker At Dunlop on your pedal..
Or name your company that..

Can i download A CAD program free?

Where?

Thanks,


Robin

[mlabbee]

R.G., my question is more: WHAT exactly is the property here?
I mean, I didn't use the MXR logo, I didn't use the 'Micro Amp' name, it just looks similar. AFAIK they can't trademark words like 'gain', output and input, and HWA is MY property!

So I'm thinking; as long as Dunlop/MXR hasn't patented the LOOK of the pedal, they don't have a leg to stand on, or am I wrong?

And I'm DEFINITELY not hurting their sales numbers with 4 @#$%in' pedals, eh?!  :roll:  :wink:

The property in question is the trade dress of the product.  They have a trademark on how the product looks - just like a Coke bottle. You've said yourself that you made it look exactly like the MXR product, but just changed the letters on the logo - that is EXACTLY what trade dress rights are designed to prevent.  Basically, you've made  something that looks exactly like their product so that it will be easier to sell (since everyone recognizes the product).  No offense, but this one is black and white and you are wrong . . . MXR is well within its rights to ask you to stop trading off of their products.  

Also, with regard to harm, think of it this way.  4 pedals will not hurt their sales, true. But suppose someone buys one of your pedals and it fries or craps out or something unfortunate.  A few days later a friend of theirs asks them if he shoul dbuy one of those MXR pedals - he says - "nah - I had one of those things and it crapped out."  MXR's reputation gets dinged unfairly.  (Believe it or not, this really happens - I have clients who get warranty claims on knockoff products all the time - even the people who buy the things can get confused).  A trademark (or trade dress or a service mark) is a symbol to the customer that tells them where the product came from - by copying the trade dress, there's a risk that the consumer will think the product came from (or is endorsed by or licensed by) MXR - so you get the additional sales boosted by MXRs advertising, but if your product is no good, their reputation takes the hit . . . doesn't sound very fair, does it?

Sorry if that sounds preachy, and I know you were kidding, but I think it's a little premature to be calling them "%^&*suckers," especially when my first post on the subject informed you that they were in the right.

Finally, do not ignore this.  If they've contacted you, they will follow through. I doubt they want to go to court, but if you don't resolve the issue, they probably will.

[Speeddemon]

C.A.D. stands ofcourse for Cease and...

or %^&*suckers At Dunlop.  :lol:

How ironic. It was good enough to copy their circuit AND appearance before yet now.....

... it's not that you NEED to make it look like of theirs to sell it, do you? ;^)

Mike

well, I figured that like myself, there are people out there that like the mojo look of MXR pedals, and I wanted that to go with an improvement, over the inferior Micro Amp that Dunlop puts out now (hard wired bypass, plastic pot shaft, noisy components)

Ofcourse I can make a completely 'own' look, (look at my MiG*Boost for starters... although it came to me as a shock after I designed it, that the guys at Smart People Factory have the Red Threat distortion, which has a similar look. But different knobs, size, fonts... only things the same are the outer 2 knobs, red color and yellow hammer and sickle.

but like I said, it started more as an experiment for myself, to create a COMPLETE clone of the Micro Amp (hence the Myclone Amp name!), but some folks WANTED it like this.
Now I got some Dutch guys interested in a 'Lawsuit' Myclone!  :lol:

But to recuperate:
-can I make the pedal ivory/white with 1 black knob?
-can I use the 'Myclone Amp' name?
-can I use the Micro Amp-font for 'Myclone Amp'?
-the HWA with the rectangle thing was the problem right? Replace it with a script CAD and all is well?

[mlabbee]

It is the entire look of the pedal - the placement of the controls and in/outs, the logo, the color, etc.  Changing the color, the script of the logo and the placement of the components should help.

I hate to tell you this, but your comments on this thread have made it virtually impossible to come out on top of this one - you have basically admitted that your were trying to copy their product to trade on their goodwill (not towards you - "goodwill" is the name for the marketing value attributable to things like trademarks).  The "MXR Imitations Inc." pretty much seals the case.

At this point, my recommendation would be to come up with a new enclosure design and run it by MXR to have them okay it as non-infringing.

[troubledtom]

C.A.D. stands ofcourse for Cease and...

or %^&*suckers At Dunlop.  :lol:

How ironic. It was good enough to copy their circuit AND appearance before yet now.....

... it's not that you NEED to make it look like of theirs to sell it, do you? ;^)

Mike

well, I figured that like myself, there are people out there that like the mojo look of MXR pedals, and I wanted that to go with an improvement, over the inferior Micro Amp that Dunlop puts out now (hard wired bypass, plastic pot shaft, noisy components)

Ofcourse I can make a completely 'own' look, (look at my MiG*Boost for starters... although it came to me as a shock after I designed it, that the guys at Smart People Factory have the Red Threat distortion, which has a similar look. But different knobs, size, fonts... only things the same are the outer 2 knobs, red color and yellow hammer and sickle.

but like I said, it started more as an experiment for myself, to create a COMPLETE clone of the Micro Amp (hence the Myclone Amp name!), but some folks WANTED it like this.
Now I got some Dutch guys interested in a 'Lawsuit' Myclone!  :lol:

But to recuperate:
-can I make the pedal ivory/white with 1 black knob?
-can I use the 'Myclone Amp' name?
-can I use the Micro Amp-font for 'Myclone Amp'?
-the HWA with the rectangle thing was the problem right? Replace it with a script CAD and all is well?

i'm sorry brother,
    dunlop WILL TAKE CARE OF THE " PROBLEM " ONE WAY OR AN OTHER
they are to big to mess w/ .  3ms had to change it's name to 4ms.com because, they thought cool hippy fx designer dann G@#$N was a threat.
nothing could be further from the truth
     - tt

[Johan]

But to recuperate:
-can I make the pedal ivory/white with 1 black knob?
-can I use the 'Myclone Amp' name?
-can I use the Micro Amp-font for 'Myclone Amp'?
-the HWA with the rectangle thing was the problem right? Replace it with a script CAD and all is well?

..if it looks like "the real thing" ( no matter what that "thing" is )when it is in the corner of your eye, you're probably too close..and since they've spoted you, why push your luck?..you might make a few bucks, but at what potential cost?...

Johan

[Speeddemon]

the MXR Imitations was more a jab towards the great MXR Innovations name and how it got less 'shiny' by Dunlop as they reduced costs by replacing the stuff that made the old MXR pedals sturdy and good.

But about the placement; there are a ton of DIY boosters with 1 knob, jacks in the middle of the sides, LED in the middle on the top and switch right beneath it, right? So they couldn't screw with that?
I mean, in such a small enclosure there's hardly room to screw around with that, and I'm sure as hell not gonna use a 1590BB enclosure (like the size of Menatone pedals) for such a simple boost.

[mlabbee]

It has nothing to do with "perceived threat" - your trademark rights exist ONLY if you protect them. If you do not enforce your rights, you lose them. "Aspirin" was a trademark - now everyone uses it because Bayer did not enforce their rights.  The 3ms case was a bit of a stretch for 3M, but this one is a no brainer - someone is using their trade dress to sell a competing product. It doesn't matter how few he sells - if they know about it and do nothing, their rights start to whittle away.

[Ben N]

As someone has already pointed out, the issue is trade dress.  MXR pedals have had a distinctive appearance for something like 30 years, and they trade on the instant recognizability of their pedals.  When someone sells something that is so close a likeness that it can be mistaken for the real thing--and that was, after all, your intention, however harmless you thought it was--that infringes their trade dress.  Just ask Boss, er, Behringer!

It is doubtful that they would actually sue, but they cannot afford to ignore it, since that might be deemed a waiver of their rights, and that MXR look is worth a lot to them.  FWIW, I agree with the advice above:  change the look enough to avoid the problem, and don't advertise.

Ben
(another kind of lawyer)

[mlabbee]

the MXR Imitations was more a jab towards the great MXR Innovations name and how it got less 'shiny' by Dunlop as they reduced costs by replacing the stuff that made the old MXR pedals sturdy and good.

But about the placement; there are a ton of DIY boosters with 1 knob, jacks in the middle of the sides, LED in the middle on the top and switch right beneath it, right? So they couldn't screw with that?
I mean, in such a small enclosure there's hardly room to screw around with that, and I'm sure as hell not gonna use a 1590BB enclosure (like the size of Menatone pedals) for such a simple boost.

You can argue that the placement of the components is functional, and thus not protectable under trade dress law - I think it's a solid argument.  Just relocate the logo and name, use a dramatically different font for both, use a different color for the box, and maybe a different knob style.  Once you have your new design, write them a nice e-mail apologizing for any confusion and asking them to okay the new design.

[R.G.]

R.G., my question is more: WHAT exactly is the property here?
I mean, I didn't use the MXR logo, I didn't use the 'Micro Amp' name, it just looks similar. AFAIK they can't trademark words like 'gain', output and input, and HWA is MY property!

In this case (and someone please correct me if I'm wrong here - I'm NOT an attorney) I think the property is called something like "trade dress" or "confusingly similar appearance".  As you yourself pointed out:

Now the Myclone Amp I made it look exactly like an MXR Micro Amp (which it is a clone of, with some minor differences and enhancements).

If they didn't have you before you said that, they do now. By your own admission, you made it "look exactly like an MXR Micro Amp". Making a product that is (by your admission) deliberately confusingly similar in both appearance and function to some other recognized commercially available product is almost by definition counterfeiting, at least as I understand by watching and listening how the court system sees it. Certainly here in the USA, and possibly in your country. No question on that, you did it. The only questions are:
1) will Dunlop actually come after you legally if you ignore them?

Remember, if someone turned you in, presumably the same someone will turn you in again if you ignore them, so you can never be below the radar again.

There is a possibility that Dunlop has other people doing something similar and *might* want to make an example of you in court to frighten someone who has more ability to resist them in court. This is a common legal tactic: destroy the weakest enemy first to set precedent. It is also possible that the bad press from suing a tiny target would be a disincentive.

But you notice that neither of these things has **anything** to do with whether you actually make any money or are a real irritation to Dunlop. It essentially doesn't matter if you made a lot of money or are a threat or not. In this matter, you are purely expendable and do not in fact matter, except as as side effect.

2) Can you afford the consequences in time and money if they do? If you can't afford even the possibility of legal defense, my advice is to send a note back saying "Yes, sir, and please accept my apologies for the trouble." Bitter words, but the price of speaking your mind may be high here.

On the other hand, you just might want to tell them to go jump in a lake and be prepared to pay thousands to tens of thousands of dollars in legal fees if they don't back away from you. It's a calculated risk. High likelihood that they will not come after you, versus high costs in the unlikely event that they do.

So I'm thinking; as long as Dunlop/MXR hasn't patented the LOOK of the pedal, they don't have a leg to stand on, or am I wrong?

Look and feel is a part of trade dress that is a long recognized protected property right. In fact, there is a thing called a "design patent" that probably is not at play here, but yes, it does in fact protect the LOOK of some item. It doesn't protect anything else, but it protects the shape, knob location and that kind of thing. So while they may not have, yes, it's possible that they could have.

And you need to find good advice from an attorney you trust on that "leg to stand on" thing. Whether or not they have a leg to stand on, they can haul you into court and make you spend the money and time to defend yourself. In the USA, we have to pay our own legal costs to defend ourselves no matter who wins. In some European contries, the winner gets his legal expenses paid by the loser. I don't know how that works in your country - if it's brought to court in your country. Even if it's winner take all, you lose the time you'll spend in court and legal meetings, as well as the sleep you'll lose.

And I'm DEFINITELY not hurting their sales numbers with 4 @#$%in' pedals, eh?!

See the explanation under 1) above. Whether you're hurting them or not may not matter at all.

So you have some decisions to make, as well as some guesses to make about whether you will be pursued or not.

I really have no status here to be blathering on. mlabbee is the expert. I think he gave you really good advice. Maybe you should change something around so it's not confusingly similar. That's a pretty low cost alternative in terms of blood, toil, tears, and sweat.

If they can trademark Tone, Volum And Drive i can trademark The Dallas Rangemaster.. I guess

Yes, you can. Or at least, you could have if you had beaten Don Butler, the self styled "tone man" to it. He did in fact register "Rangemaster" as a trademark for his Dallas Rangemaster clone. That is why I always am careful to say "Dallas Rangemaster", as he threatened me with both legal action and covert revenge by his brother? cousin? who apparently works for the CIA if I published the schematic for the Dallas Rangemaster on the net. But I digress.

What about redraw the logo?
That's the only thing..

Nope. Do a search on "trade dress".

Whatever you do, good luck. It's always fun to play in a cage with the 500 pound gorillas. Mostly they ignore you.

[ESPguitar]

the MXR Imitations was more a jab towards the great MXR Innovations name and how it got less 'shiny' by Dunlop as they reduced costs by replacing the stuff that made the old MXR pedals sturdy and good.

But about the placement; there are a ton of DIY boosters with 1 knob, jacks in the middle of the sides, LED in the middle on the top and switch right beneath it, right? So they couldn't screw with that?
I mean, in such a small enclosure there's hardly room to screw around with that, and I'm sure as hell not gonna use a 1590BB enclosure (like the size of Menatone pedals) for such a simple boost.

You can argue that the placement of the components is functional, and thus not protectable under trade dress law - I think it's a solid argument.  Just relocate the logo and name, use a dramatically different font for both, use a different color for the box, and maybe a different knob style.  Once you have your new design, write them a nice e-mail apologizing for any confusion and asking them to okay the new design.

Sounds good though!

:wink:

[ESPguitar]

R.G., my question is more: WHAT exactly is the property here?
I mean, I didn't use the MXR logo, I didn't use the 'Micro Amp' name, it just looks similar. AFAIK they can't trademark words like 'gain', output and input, and HWA is MY property!

In this case (and someone please correct me if I'm wrong here - I'm NOT an attorney) I think the property is called something like "trade dress" or "confusingly similar appearance".  As you yourself pointed out:

Now the Myclone Amp I made it look exactly like an MXR Micro Amp (which it is a clone of, with some minor differences and enhancements).

If they didn't have you before you said that, they do now. By your own admission, you made it "look exactly like an MXR Micro Amp". Making a product that is (by your admission) deliberately confusingly similar in both appearance and function to some other recognized commercially available product is almost by definition counterfeiting, at least as I understand by watching and listening how the court system sees it. Certainly here in the USA, and possibly in your country. No question on that, you did it. The only questions are:
1) will Dunlop actually come after you legally if you ignore them?

Remember, if someone turned you in, presumably the same someone will turn you in again if you ignore them, so you can never be below the radar again.

There is a possibility that Dunlop has other people doing something similar and *might* want to make an example of you in court to frighten someone who has more ability to resist them in court. This is a common legal tactic: destroy the weakest enemy first to set precedent. It is also possible that the bad press from suing a tiny target would be a disincentive.

But you notice that neither of these things has **anything** to do with whether you actually make any money or are a real irritation to Dunlop. It essentially doesn't matter if you made a lot of money or are a threat or not. In this matter, you are purely expendable and do not in fact matter, except as as side effect.

2) Can you afford the consequences in time and money if they do? If you can't afford even the possibility of legal defense, my advice is to send a note back saying "Yes, sir, and please accept my apologies for the trouble." Bitter words, but the price of speaking your mind may be high here.

On the other hand, you just might want to tell them to go jump in a lake and be prepared to pay thousands to tens of thousands of dollars in legal fees if they don't back away from you. It's a calculated risk. High likelihood that they will not come after you, versus high costs in the unlikely event that they do.

So I'm thinking; as long as Dunlop/MXR hasn't patented the LOOK of the pedal, they don't have a leg to stand on, or am I wrong?

Look and feel is a part of trade dress that is a long recognized protected property right. In fact, there is a thing called a "design patent" that probably is not at play here, but yes, it does in fact protect the LOOK of some item. It doesn't protect anything else, but it protects the shape, knob location and that kind of thing. So while they may not have, yes, it's possible that they could have.

And you need to find good advice from an attorney you trust on that "leg to stand on" thing. Whether or not they have a leg to stand on, they can haul you into court and make you spend the money and time to defend yourself. In the USA, we have to pay our own legal costs to defend ourselves no matter who wins. In some European contries, the winner gets his legal expenses paid by the loser. I don't know how that works in your country - if it's brought to court in your country. Even if it's winner take all, you lose the time you'll spend in court and legal meetings, as well as the sleep you'll lose.

And I'm DEFINITELY not hurting their sales numbers with 4 @#$%in' pedals, eh?!

See the explanation under 1) above. Whether you're hurting them or not may not matter at all.

So you have some decisions to make, as well as some guesses to make about whether you will be pursued or not.

I really have no status here to be blathering on. mlabbee is the expert. I think he gave you really good advice. Maybe you should change something around so it's not confusingly similar. That's a pretty low cost alternative in terms of blood, toil, tears, and sweat.

If they can trademark Tone, Volum And Drive i can trademark The Dallas Rangemaster.. I guess

Yes, you can. Or at least, you could have if you had beaten Don Butler, the self styled "tone man" to it. He did in fact register "Rangemaster" as a trademark for his Dallas Rangemaster clone. That is why I always am careful to say "Dallas Rangemaster", as he threatened me with both legal action and covert revenge by his brother? cousin? who apparently works for the CIA if I published the schematic for the Dallas Rangemaster on the net. But I digress.

What about redraw the logo?
That's the only thing..

Nope. Do a search on "trade dress".

Whatever you do, good luck. It's always fun to play in a cage with the 500 pound gorillas. Mostly they ignore you.

Haven't you published the schematics for the DR?? Just asking..

When i think a bit longer you wrote an article about it.. I loved that article :wink:
(it helped me a lot!)

RB

[Ben N]

[quote="R.GThere is a possibility that Dunlop has other people doing something similar and *might* want to make an example of you in court to frighten someone who has more ability to resist them in court. This is a common legal tactic: destroy the weakest enemy first to set precedent. [/quote]

Vis. Monster Cable.  And most of their cases (in which the products weren't even similar and the trademark allegedly being infringed was a common word) were a lot weaker than Dunlop's would be against you, IMHO.

Ben

[cd]

but like I said, it started more as an experiment for myself, to create a COMPLETE clone of the Micro Amp (hence the Myclone Amp name!), but some folks WANTED it like this.

Well DUH.  If it's supposed to be your yourself, keep it to yourself.  If other folks want a Micro Amp, they can buy a Micro Amp.

[Speeddemon]

but like I said, it started more as an experiment for myself, to create a COMPLETE clone of the Micro Amp (hence the Myclone Amp name!), but some folks WANTED it like this.

Well DUH.  If it's supposed to be your yourself, keep it to yourself.  If other folks want a Micro Amp, they can buy a Micro Amp.

and what if other folks want a TB Micro Amp with the same look?
Apparently there's a market for it and someone (Mr. Dunlop) doesn't like the idea of such a market.  :wink:

[cd]

but like I said, it started more as an experiment for myself, to create a COMPLETE clone of the Micro Amp (hence the Myclone Amp name!), but some folks WANTED it like this.

Well DUH.  If it's supposed to be your yourself, keep it to yourself.  If other folks want a Micro Amp, they can buy a Micro Amp.

and what if other folks want a TB Micro Amp with the same look?
Apparently there's a market for it and someone (Mr. Dunlop) doesn't like the idea of such a market.  :wink:

So tell your  buddies to buy Micro Amps and have you mod them.  You can pocket more $ from less work AND no legal hassles.