Class Politics All about to kick off....

gouvernail said:
http://www.kirbytorch.com/news/kirbyseekscourtorderagainstisafplaquesandsailnumbers
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I rather doubt that a Connecticut court order will have much impact on a UK or Isle of Man organization. Especially if it is a default judgement (no response from ISAF and ICLA to Kirby's suit).

Also, the motion claims trademark violation, but didn't Kirby already complain that his name (and hence trademark) had been removed from new plaques?

And now, looking at the dockets it appears that ISAF and ICLA have not been served and Kirby is asking for an extension up to October 15 to serve ICLA and ISAF. Hence any prejudgement remedy would appear to be premature. But what do I know? I am not a lawyer.
 
whatever said:
I rather doubt that a Connecticut court order will have much impact on a UK or Isle of Man organization. Especially if it is a default judgement (no response from ISAF and ICLA to Kirby's suit).
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It will mean that boats (possibly) cannot be sold in the US which is probably quite a chuck of the NA/EU market....

So people may be forced to individually import a 'used' boat if they want a 'new' one......
 
jeffers said:
It will mean that boats (possibly) cannot be sold in the US which is probably quite a chuck of the NA/EU market.....
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I don't think that such a court order would have the effect you describe. I suspect that ISAF/ICLA could simply (and legally) ignore any order from the Connecticut court and continue to supply the plaques.

But I also think any such action is a long way off. Kirby has filed for an extension of time to serve ICLA and ISAF, which I think means that they are effectively not part of the lawsuit yet. Even after they are served, I think that ISAF and ICLA have a way out: the 1983 IYRU agreement has an arbitration clause which, I think, makes the Connecticut court the wrong place for litigation between Kirby, ISAF and ICLA. I would be surprised if the court would not respect the arbitration clause given recent supreme court decisions.

No, I think that this recent action is simply more of what Kirby has been doing up until now: using P.R. to put pressure on Rastegar.
 
torrid said:
The complains seems to outline a conspiracy between LP, the ILCA, and the ISAF to deprive BK of royalties. One thing it does not mention in BK's brief sale of the design rights to the Australian builder. I think it's been established they were positioning themselves to begin importing boats into the US market.

Now I'm not a bloodsucking parasite attorney, nor did I stay in a Holiday Inn Express last night. However, it seems to me the basis of a defense could be that BK and the Australian builder were conspiring to deprive LP of their exclusive right to sell Lasers in its markets. That's the first thing I would bring up with the jury.
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Torrid, the sale to New Zealand based Global Sailing is definitely in the Laser Performance's June 14 statement. Don't agree that it's been established that Performance Sailcraft Australia were positioning themselves to export Lasers to the North American or European markets at all. Laser Performance are clear that they believe that Performance Sailcraft Australia wanted the China market back in 2008 though.
 
Gantt said:
Torrid, the sale to New Zealand based Global Sailing is definitely in the Laser Performance's June 14 statement. Don't agree that it's been established that Performance Sailcraft Australia were positioning themselves to export Lasers to the North American or European markets at all. Laser Performance are clear that they believe that Performance Sailcraft Australia wanted the China market back in 2008 though.
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I can't see how it matters if Global Sailing and Kirby were conspiring together. The question is what rights do the various agreements give the various parties? As far as I can tell, Kirby had the right to terminate LPE, irrespective of whether LPE had paid all the royalties due to Kirby (or successors). The kicker is, I think that Kirby can't appoint new builders without the "trade mark holder's" (Rastegar?) approval. This puts Kirby in a bind. I also think that many of the same rights that the "Trade mark holder" owns also apply to the Torch, since the document defines the Laser in a way that I think applies to the "Kirby Sailboat", irrespective of what it is called. On the other hand, I think that Vellum and Rastegar have chosen to claim that the Connecticut court is the wrong venue, so at the moment, I think that he is not challenging Kirby's action in setting up the Torch class.
 
Gantt said:
Torrid, the sale to New Zealand based Global Sailing is definitely in the Laser Performance's June 14 statement. Don't agree that it's been established that Performance Sailcraft Australia were positioning themselves to export Lasers to the North American or European markets at all. Laser Performance are clear that they believe that Performance Sailcraft Australia wanted the China market back in 2008 though.
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This came up a few weeks ago on SA.

http://www.scuttlebutteurope.com/archive/218-scuttlebutt-europe-2158-18-august.html

Global Sailing Limited
We are looking for enthusiastic and well established marine dealers to become national or multi national distributors in the European region for the

Bruce Kirby designed Olympic Sailing Dinghy

This well established brand has already attracted over 200,000 devoted sailors globally and its long term future remains extremely positive. Over 4500 new boats were produced in 2009. Further details will be available after receipt of your expression of interest.
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whatever said:
I can't see how it matters if Global Sailing and Kirby were conspiring together. The question is what rights do the various agreements give the various parties? As far as I can tell, Kirby had the right to terminate LPE, irrespective of whether LPE had paid all the royalties due to Kirby (or successors). The kicker is, I think that Kirby can't appoint new builders without the "trade mark holder's" (Rastegar?) approval. This puts Kirby in a bind. I also think that many of the same rights that the "Trade mark holder" owns also apply to the Torch, since the document defines the Laser in a way that I think applies to the "Kirby Sailboat", irrespective of what it is called. On the other hand, I think that Vellum and Rastegar have chosen to claim that the Connecticut court is the wrong venue, so at the moment, I think that he is not challenging Kirby's action in setting up the Torch class.
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Mostly agreed, very good summation. Are you sure it would apply to the Torch? Surely the parties would terminate the agreement or at least change the provisions within it. It's a good point and lends weight to the way forward if Kirby wins to us all sailing the Torch - unless the ownership of the Laser Trademark changes...
 
AlanD said:
I suspect all of that occurred after LP began not paying royalties and negations had broken down. Thole thing has now been going on for 4 years. Global thought it had the power to terminate LP contract because of LP repeated infringement of that contract and would be legitimately looking at moving forward and the supply of boats.
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Alan, given the new information in the Laser Performance's reply / counter suit I'm not so clear that that is the case. My thoughts are that it was a road crash waiting to happen - basically 'the system' of Kirby pretty much acting unilaterally (or briefly, Global Sailing) no longer worked with a builder who wanted to exercise their rights based on trademarks owned - this dates back to 2007/8. It's Kirby's right to terminate if royalties aren't paid - but the royalties aren't the only issue that Kirby and Laser Performance had with each other.

I can see the way forward is with the Torch, or else we'll be without a builder and requiring (Via the ISAF Agreement) Rastegar to approve a new builder. Of course the way forward may be for the signatories to agree to new provisions under the ISAF agreement.
 
Gantt said:
Mostly agreed, very good summation. Are you sure it would apply to the Torch?
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No, I am not sure. Read it for yourself (the 1983 ISAF agreement, which was attached to the original filing by Kirby), and pay careful attention to the definition of "Laser Class Boat", which I will try to reproduce here:
In this agreement:
"Laser class boat" means the sailboat pictured in Schedule 1 annexed hereto designed by Bruce Kirby, the copyright in and to the design of which is owned by Brice Kirby and Kirby Inc.
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Assuming that Exhibit 1 in Kirby's filing is actually the "Schedule 1" referred to in the ISAF agreement, there is no laser symbol (or any other symbol) depicted on the sail, I think that the definition of "Laser class boat" in the ISAF agreement would equally cover the Torch.
 
I think the ISAF Agreement would apply to the Torch in a weird kind of way - the agreement appears to define the Laser as the Kirby Sailboat. The signatories (Kirby/ILCA and ISAF) would really need to change the ISAF Agreement to accommodate the Torch, if Kirby won at court. (Lots of "ifs".)
 
whatever said:
Kirby just withdrew this motion. Document # 48 on this page:
http://ia601604.us.archive.org/30/items/gov.uscourts.ctd.99988/gov.uscourts.ctd.99988.docket.html
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Withdrawn the pre-judgement motion. To me that suggests of a deal agreed at the last minute. We have had the same before (legal action enforcing an employment contract) where agreement was reached outside the court (literally on the steps) with only a few minutes before the hearing. It can be quite a motivator.
 
Deimos said:
Withdrawn the pre-judgement motion. To me that suggests of a deal agreed at the last minute. We have had the same before (legal action enforcing an employment contract) where agreement was reached outside the court (literally on the steps) with only a few minutes before the hearing. It can be quite a motivator.
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I agree that it probably represents some kind of deal, but think that it is quite limited. We are a long way from the parties meeting on the court steps.

If you look at the motion to extend the time to reply by ISAF, you see that Kirby ("Counsel for plaintiffs") already agreed to this. As part of the negotiations over that motion, there was probably an agreement to withdraw the prejudgement motion. There were probably some other agreements made at the same time that we have not yet seen. The agreements might be that the parties will take part in further negotiation with a way forward for an overall settlement between ISAF and Kirby, or there may be others. At this point, we can only speculate. However, since ISAF has not been dismissed as a defendant in the case, I doubt that Kirby and ISAF have settled just yet.

It think that ISAF's reply deadline is now after the Rule 26 conference, which may be significant.
 
In the ILCA denying so much, there was one surprise for me - that was in response to Kirby's point #80:
"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 response:
"The defendant denies the allegations contained in this paragraph."

I'm wondering if the response 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.
 
Gantt said:
In the ILCA denying so much, there was one surprise for me - that was in response to Kirby's point #80:
"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 response:
"The defendant denies the allegations contained in this paragraph."

I'm wondering if the response was a mistake by the ILCA -.....

I would have thought that the ILCA would be admitting that clause 80 was correct.
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ICLA can't admit all of clause 80. Perhaps what would have been more correct would be to admit that a rule change happened, but deny everything else in that paragraph.
 
whatever said:
ICLA can't admit all of clause 80. Perhaps what would have been more correct would be to admit that a rule change happened, but deny everything else in that paragraph.
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Can't see how denying any part of the paragraph is consistent with the truth. The are on public record as saying that was the reason for the rule change - and its important from the respect of Kirby saying that there action were in breach of the ISAF agreement.
 
Gantt said:
Can't see how denying any part of the paragraph is consistent with the truth. The are on public record as saying that was the reason for the rule change - and its important from the respect of Kirby saying that there action were in breach of the ISAF agreement.
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They are in court. Truth is irrelevant. All that counts is what either party can prove.
 
whatever said:
They are in court. Truth is irrelevant. All that counts is what either party can prove.
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hahaha... I suppose you are right... though it's a whole lot easier to prove your case when you try to 'prove' something, when public statements have been made in support of your allegation.
 
I put my money on the sympathetic jury and it's a no-brainer who is going to get that vote.
Hint: Just got into the sailing hall of fame.
 
Interestingly, the ILCA rsponse does tell is they have changed the plaque (presumable to eliminate any reference to Kirby). Their response to 72 "The defendant admits that Exhibit 16 is a true and accurate copy of sample of a previously issued ISAF plaque"
 
whatever said:
ISAF appears to have filed a motion asking for yet more time to respond.
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The longer it all goes on, the greater the damage to the class. So this now looks like the ISAF is more interested in themselves than in Lasers and those sailing them.
 
Deimos said:
The longer it all goes on, the greater the damage to the class. So this now looks like the ISAF is more interested in themselves than in Lasers and those sailing them.
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To be fair they have already had 1 extension so request for a further one will likely be denied. I seem to recall the judge in this case does not want to be messed around.
 
jeffers said:
To be fair they have already had 1 extension so request for a further one will likely be denied. I seem to recall the judge in this case does not want to be messed around.
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Since Kirby has agreed to the delay, I expect that it will be approved.
 
Deimos said:
The longer it all goes on, the greater the damage to the class. So this now looks like the ISAF is more interested in themselves than in Lasers and those sailing them.
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Why do you assume that ISAF is in the wrong here? Is it possible that Kirby has created the controversy for personal gain? I don't know who is telling the truth and who is in the right. Perhaps all the parties involved should be criticized for their actions?
 
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