"more obscure legal issues" Topic

More long pobscure legal questions that bug me

This actually came up in militaria collecting circles, but I can see that as time has moved on in wargames and figures it may eventually impact this field as well.

There is no law prohibiting anyone from reproducting collectible materials except for coins, stamps and political memoribilia. Except when standard copyright and trademark and patent issues apply.

However, many of the companies that made thgins in, say, WW2 are nmo longer around, and their trademarks are up in the air or non-exsistant anymore. So people make items and use the orignal company stamps or markings on them.

So the question is, even if the item is legal to make, and the company name that orignally made them is long gone and the name allowed ot be used, is it not fraud tpo make as near perfect a reproduction of something as posisble and label it with the oringal company name and date and such- with on indication it is a copy.

The idea being that it was NOT made by XYZ company, and hence the only reason to make it appear as such is to make it appear as if it were something that it is not (i.e. made by a company that it was not made by).

an example would be a WW2 era widget, which was orignallu made by ABC Widget Co. in the war. The item was Govt designed so no patent law applies. The company is long gone and no record sindicate the trademark is owned by anyone.

So you make a near perfect reproduction and stamp it "ABC WidgetCo 1944" with no marking to indicate it is a modern copy. Is this not technically fraud as it is NOT an actual item made by ABC Widget Co. and you have made no attempts to indicate that on the item.

THis is probably covered by the "Successors or assigns" that you see in most contracts. SOMEONE owns something, even if it is "non-valued".

What about reenactors' ACW muskets? Or AWI?
I am sure they were not made in 1776 or 1862, but probably have the "correct" stampings on them.

If you are talking about trademark rights, they can only be maintained through use of the trademark. If the mark ceases to be used, it may be deemed abandoned. If you Google some stories on "phantom marks", you'll find stories of numerous famous marks that have become abandoned, PANAM being the first one that comes to mind.

With regard to WWII, you'll encounter different laws depending on the jurisdiction the mark originated from and the jurisdiction where the mark will be used. For example, in Germany, trademark rights are only gained upon filing an application for a mark. In the U.S. and U.K., trademark rights are earned through use, but registration of those marks affords the owner broader rights.

Obviously, this is an overly simplified analysis.

With regard to copyright law, you will find further difficulties as some of the companies might have been owned by governments or defunct political parties. Some of the companies might be now part of a current corporations (such as Volkswagen). Each country has different copyright rules and regulations including durations.

Some people use the material anyway and assume the risk of a lawsuit. For example, Google set aside $500 USD million recently to cover legal fees in defending itself in lawsuits.

As long as you clearly mark it as a reproduction, I doubt you could be accused of fraud. As for trademark assignment, nycjadie is probably right.

What, if anything, are you considering making?

mmitchell, reproductions to be used in reenacting or collecting are rarely if ever marked as "reproduction". To do so would defeat the entire purpose of a reproduction, which is to be as near the original in every aspect as possible! Consumer fraud is a quite different issue from copyright, though, since counterfeiting and faking of militaria is a billion-dollar business nowadays. A purchaser would (in theory) have an action in contract against a seller who sold fake items as authentic.

As far as trademarks, the fact is that unless a rights holder emerges to accuse the reproductionist of "passing off" the repro as being the original product of the rights holder, or to accuse him of unauthorized use of the rights holder's marks, there will not be a problem. To avoid this possibility (and to alert collectors to the fact that the item is a repro and not original) at least one reenacting supplier uses a "made up" but still period-looking trademark to identify his repro items. An elegant solution.

Therefore, in the case of antique military stuff, there will not likely ever be an issue. In the case of Rolex, Armani, The North Face, etc., there are most certainly problems ;-)

regards

w.

I'm actually after some people that make specific items, mark them with the only original company names (now defunct) and pass them out into the world where hey preto! they become real and are sold as such.

As I said its not a trademark/copyright issue. I just wondered if this fell under some kind of (US) fraud laws as while the intention is not to defraud the initial customer, it is still producing something that appears to be real, but is not. The good makers mark their stuff. Those almost as good just use a fake name so a quick we search will turn up that it is a modern company, the evil ones use period company names and dates.

So if I stopped making my roman zombies, and the world wakes up that they are the holy grail of gaming in 10 years, someone could just make as close to original as possible, use my company name, and flood the market- thus driving down the massive price my future collectible figs will bring (and making the stash of them my nephew has for his college fund worthless).

So you're talking about makers of repro items that sell them as repros, knowing (or reasonably knowing) that unscrupulous resellers will use them to defraud the innocent?

You're wondering if the original maker is breaking any laws?

w.

You'd probably have a fraud claim and/or a passing-off claim (which is related to IP rights).

Re: John's example, all my muskets have a modern makers name in addition to the authentic markings.
Not all re-enactor gear is so marked. Indeed, I have seen many small, low intrinsic value, not marked at all. All agreed that could become a problem, especially if carefully left on the backporch for several months. Result will be inflation of price and re-confirmation of P.T. Barnum's wisdom.

I'm sure there is no greater degree of fraudulent representation of replicas as originals in the re-enacting world than there is in the art world.

Allen