Ariel china ???

[RandyLamp]

.... My guess is that these chassis were made by Arch Motorsport in the UK, the same as Ariel's. Even the photos suggest they are too good to be some cheap knock off. So they have been paid for and could be bought back by the supplier even at a reduced rate. To me it's as if I were to sell you 10 computers that you had lined up for a job, then when the job fell through I refused to take them back or let you sell them to anyone else. I'm more inclined to help you find a buyer for them and have you respect me as a supplier than leave you swinging. I guess I'm not as cut-throat as some business people....

It would be so easy were that the case, for the seller to simply document the pedigree of the units in question. That would not only remove the suggestion of impropriety, but increase the value of the merchandise. It would also provide a measure of protection to future unsuspecting buyers of cars which may contain these components.

It seems very unlikely that TMI was a party to the Chinese arrangement, yet they are the ones principally damaged by the sale of these contraband goods. The seller has chosen to go the other direction, removing the phrase "Ariel Atom" from their advert, and attempting to suggest that these are not identical copies of a licensed product. A shabby business.

Were I in TMI's postion, I would go much further than the conservatively worded notices they posted here. (I assume they are.) I would be investigating a cease and desist order, taking this and other legal actions to protect my rights as the exclusive license holder of Ariel Atoms in the North American market.

Is Ariel UK somehow complicit in this as you suggest, or has the Chinese partner agreed to use a third party importer to violate TMI's licensing protection? We will each have our opinions on the matter, but I suppose the actual truth of this may never be widely known. One thing for sure, folks who are disposed to buy Atoms are not without strong opinions!

]Glad to see you're still around despite giving up your car.[/COLOR]

I was in it so deep for so long, it's not easy to give up. The Atom community is very small and enriched by each member. I wish you had the opportunity to have joined us at Atomfest and we had gotten to know one another better. Here is one of my favorite shots from that event in 2007 -

[RyanD]

Hypothetical situation: The chassis were legally built (under license or otherwise) for sale in China only. Since the expected demand was not there, the Chinese company went into liquidation. Another company buys the chassis. There is now no valid contract involving the chassis, so they are exported to the US. Is there anything illegal or wrong about that?

There is a case in the US Supreme Court that is sort of similar. An individual figured out that he could buy college text books at retail in Asia and sell them in the US at a profit because the retail price was so much higher in the US. The argument is that the publisher is not owed anything on second hand sales of the books. The publisher was paid on the original sale, so the owner is free to do anything he wants with them.

[atom ant]

Law is a funny thing, the situation you described is absolutely legal, the chassis really has become a second hand item now. As for TMI, if one is to closely examine the Ariel license agreement, we would probable find that they have the exclusive rights to "build/construct and distribute" the vehicle in the U.S. That simply means you or I can not build one and put it on the market to sell under the Ariel Atom name tag. It does not mean I can't buy a (or a dozen)right hand drive atom(s) from Ariel in U.K. imported to the states and re-selling it (them). As the U.S. government can not block the importation of personal goods if proper paperwork and duty has been met, nor can the gov stop you from selling them as soon as they get here. This is a very grey area in the import/export business.

Hypothetical situation: The chassis were legally built (under license or otherwise) for sale in China only. Since the expected demand was not there, the Chinese company went into liquidation. Another company buys the chassis. There is now no valid contract involving the chassis, so they are exported to the US. Is there anything illegal or wrong about that?

There is a case in the US Supreme Court that is sort of similar. An individual figured out that he could buy college text books at retail in Asia and sell them in the US at a profit because the retail price was so much higher in the US. The argument is that the publisher is not owed anything on second hand sales of the books. The publisher was paid on the original sale, so the owner is free to do anything he wants with them.

[RandyLamp]

Hypothetical situation: The chassis were legally built (under license or otherwise) for sale in China only. Since the expected demand was not there, the Chinese company went into liquidation. Another company buys the chassis. There is now no valid contract involving the chassis, so they are exported to the US. Is there anything illegal or wrong about that?

There is a case in the US Supreme Court that is sort of similar. An individual figured out that he could buy college text books at retail in Asia and sell them in the US at a profit because the retail price was so much higher in the US. The argument is that the publisher is not owed anything on second hand sales of the books. The publisher was paid on the original sale, so the owner is free to do anything he wants with them.

In your example the defendant is not arguing that the textbooks are not the genuine product of the Plaintiff. In this case the seller calls it "... a high quality replica ..." This identifies it unambiguously as a copy.

The successful lawsuits of Carroll Shelby and Ferrari have frequently hinged on not only trademarks, but design patents and a legal concept known as "trade dress". Here is some additional reading on the trade dress subject. It is more extensive than I want to cut and paste, and of course want it correctly attributed to it's rightful owner.

http://corporate.findlaw.com/intellectual-property/trade-dress-the-forgotten-trademark-right.html

Here is another document comparing Trade Dress with Design Patent.

http://www.foley.com/files/Event/e31...TradeDress.pdf

The last slide is of particular interest showing on a graph that the highest instance of federal trade dress cases over 5 years were in the Automotive, marine and small engine industries. The next to last slide also includes the "shape of Ferrari cars" as a feature for which federal trade dress protection was claimed. I would have liked to witness the presentation first hand.

FWIW - I am curious that eBay continues to host the auction in question and wonder if TMI or Ariel have made a complaint through the "Report Item" feature.

[RyanD]

In your example the defendant is not arguing that the textbooks are not the genuine product of the Plaintiff. In this case the seller calls it "... a high quality replica ..." This identifies it unambiguously as a copy.

The successful lawsuits of Carroll Shelby and Ferrari have frequently hinged on not only trademarks, but design patents and a legal concept known as "trade dress". Here is some additional reading on the trade dress subject. It is more extensive than I want to cut and paste, and of course want it correctly attributed to it's rightful owner.

http://corporate.findlaw.com/intellectual-property/trade-dress-the-forgotten-trademark-right.html

Here is another document comparing Trade Dress with Design Patent.

http://www.foley.com/files/Event/e31...TradeDress.pdf

The last slide is of particular interest showing on a graph that the highest instance of federal trade dress cases over 5 years were in the Automotive, marine and small engine industries. The next to last slide also includes the "shape of Ferrari cars" as a feature for which federal trade dress protection was claimed. I would have liked to witness the presentation first hand.

FWIW - I am curious that eBay continues to host the auction in question and wonder if TMI or Ariel have made a complaint through the "Report Item" feature.

Has anyone ever been successfully sued for selling an authentic item as a fake? Sounds like a hard case to make. If there really are only a total of 18 frames, it might be cheaper to let them go then to pay the lawyers to argue a difficult case.

I know from experience that the "report item" feature on Ebay is not very effective. I have reported some obvious fake items that were not removed.

[RyanD]

The US Supreme Court has made its decision.
Supreme Court says copyright law does not protect publishers in discount re-sales - The Washington Post

Based on this, it sounds like the frames are legal to sell in the US if they were built legally in China.

[bolus]

That's an American court decision and we're talking about 3 separate countries here.

I think the important question is, are they just wanting to sell off previously made frames or are they building new one?. From some of what is posted it sounds like they are building new frames. It is claimed that they reverse engineered the frames as well. So we are to believe they had all the CAD drawings from Brammo and data down to specs on every single bolt, and now we have to believe they got rid of them and reverse engineered a near exact copy from scratch? Yeah, that's hard to believe.

I doubt any license agreement from Ariel would include keeping the CAD files for ever and using them however they wish. Do all the cobra kit makers have access to all the original tooling to make their replica's?

Either way, except for the owner already here working on the first China frame that DP was originally going to turn into an electric model, I dont plan to be of help to anyone wanting to construct one of these. Whether it be help with registration or finding parts.

[RandyLamp]

The US Supreme Court has made its decision.
Supreme Court says copyright law does not protect publishers in discount re-sales - The Washington Post

Based on this, it sounds like the frames are legal to sell in the US if they were built legally in China.

Having read the article it appears that now copyright protection in the US can only restrain abusers who stay within US borders. One only needs a "straw man" in a foreign country to buy and resell the products. This effectively strips copyright protection, and provides a competitive advantage over the lawful US licensed manufacturer/dealer. This will likely spawn a cottage industry of those who will take this parasitic approach, gaining income from the intellectual property and hard work of innovators and developers who will have less and less incentive to risk their capital for a vanishing reward.

I agree that if "reselling legally manufactured genuine goods" is the cause of action taken by TMI's to protect it's rights, this judgement would appear adverse. TMI may choose a different cause of action based on specific facts in this case which differ from those of Kirtsaeng v Wiley & Sons. Time will tell.

Rant/
I have spent a lifetime designing, building, investing and risking (and receiving copyright and patent protections along the way). In my little corner of the world, peoples lives are better because I labored and risked. Thousands of people use my products daily and millions have benefitted from inovations I developed in the fields of manufacturing, defense and public service. I reinvested the rewards of this work over and over into more risk, inovation and beneficial products. I did it not only to make folks lives better but to make a living for myself and my family. I do not live lavishly (except for my car habit) but my family is more financially stable than that of my family of origin. My kids have a better place to start than I had. I am saddened to think that future generations are loosing the incentive to do the same.
/Rant

[RyanD]

I mostly agree with this decision because consumers in the US are often the ones paying too much for products. College text books are such a scam that it's cliche. It won't be long until they will only be available in electronic versions so that they cannot be resold. Music, movies, books, and video games are headed that direction.

I have purchased the Australian version of Frontline for my dogs because it costs less than the US version. It is the exact same product in a better package.

As far as the Atom frames go, I just hope Ariel got paid in some way for them. If so, it's none of their business what happens to them after that. Just like it's none of their business what modifications I make to my car.

[Terry Kennedy]

The US Supreme Court has made its decision.
Supreme Court says copyright law does not protect publishers in discount re-sales - The Washington Post

That's true. If I purchase product X from any lawful manufacturer, I can resell it in the US.

The exact wording in the verdict is "lawfully made". I haven't seen anything indicating either way whether these chassis in their current state of assembly were "lawfully made" under the terms of Ariel China's contract with Ariel UK.

The court's verdict was based on the book publisher authorizing its foreign subsidiary to produce the book(s), and thus those books published outside the US were "lawfully made" and could be re-sold.