Saturday 22nd November 2014,
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Stand your ground – Glock v AirSplat, Goliath’s attempt to crush David and his community

glock

Stand your ground – Glock v AirSplat, Goliath’s attempt to crush David and his community

A very famous quote dating back to WWII fitting for this situation:Untitled-1

First they came for the Socialists, and I did not speak out– Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out– Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out– Because I was not a Jew.
Then they came for me–and there was no one left to speak for me.

The point of this poem by Martin Niemoller refers to a time when speaking out loud and standing up for one’s rights could result in death.

In today’s civilized world, we live a very different world. “Stand Your Ground”, which I’m sure many people are familiar with, entails the right for someone to stand their ground and protect both themselves and their property when confronted with life or safety threatening force. It’s an Americanism that many people in the US firmly believe in and live by.

Untitled-2In today’s civilized world, we live a very different world. “Stand Your Ground”, which I’m sure many people are familiar with, entails the right for someone to stand their ground and protect both themselves and their property when confronted with life or safety threatening force. It’s an Americanism that many people in the US firmly believe in and live by.

 

In today’s busy and robust world, there are many battles being fought. And in the last 5 years there has been a huge surge of “patent trolls”, entities litigating on patents in hopes of extorting a settlement fee out of defendants unable to litigate. Sometimes they are more generically referred to as IP (Intellectual Property) Trolls which sometimes involves trademarks, patents, or copyright. A simple google search1 reveals articles from NY times, Wall Street Journal, CNBC, Wired, and many more that estimate costs to consumers of $30 billion2 over the last 5 years.

Recent litigation involving large comUntitled-3panies such as Over Stock3, New Egg4, Geico5, Google6, Blizzard7, Nintendo8, and the list goes on. Complaints (lawsuits) by trolls are always make absurd and unreasonable claims which are over broad and all encompassing, such as patents to transfer data through the air (wifi), buttons next to pictures of items on a website (add to cart), or copying data off a device onto a portable offsite storage (on line backup). In affect they punish any sort of innovation or advancement in technology, as Sir Richard Branson recently put, “If you can’t innovate, litigate. Are entrepreneurs being prevented from innovating?”

To make matters worse, there are contingency firms such as Continental Enterprises (CE) who will phish (with a “ph) for deals. In fact this firm is so hated it has garnered heated opinions from many sites
http://www.techdirt.com/blog/?company=continental+enterprises
http://www.tabberone.com/Trademarks/HallOfShame/CyberCops/ContinentalEnterprises/ContinentalEnterprises.shtml
http://www.iniplaw.org/2011/06/saeilo-enterprises-inc-sues-bu.html

And in 2009 Glock, Umarex, and Heckler & Koch used CE services to sue 38 businesses in the US
http://www.tabberone.com/Trademarks/HallOfShame/CyberCops/ContinentalEnterprises/HK/HK.shtml

These cases were filed in state court in Indiana, which had no jurisdiction for ANY of the plaintiffs of defendants; it was merely a convenient court because CE’s offices were located there.

Fortunately, with so many defendants, several of them banded together, “stood their ground”, and after a 2 year battle, the cases were ultimately dismissed or settled in a favorable manner. In Glock’s case with AirSplat (www.airsplat.com), it was dismissed with prejudice. As Wikipedia puts it “A civil matter which is “dismissed with prejudice” is over forever9”, period.

However, AirSplat finds itself in the same situation again 3 years later10. This is obviously an odd predicament and one that will most undoubtedly be resolved in time, as recent Miami New times article covers in an article titled “Gun Maker Intimidates Toy Makers”18.

Of course, Glock is no stranger to lawsuits and turmoil, both internally as well as externally. In the history of Glock there have been issues of corruption, family feuds, partners having affairs with the same woman, and countless product liability lawsuits.

But one must ask what is Glock hoping to achieve this time around? Are they hoping to clear the market for the introduction of their own toys after AirSplat and this industry have worked so hard over the last 30 years to build? Or are they merely trolling with no intent of selling any products of any kind into this industry, category, or market demographic.

Untitled-4As many of the players and users of this industry know, airsoft guns have been around for 30 years. In this time, the US market has flourished to $300M12 and includes names such as Daisy, Crosman, and AirSplat. These products are ubiquitously sold in chain stores such as Wal-Mart, Big 5, Sport Chalet, Cabela’s, eBay, and Amazon. For glock to suddenly claim anything this far along is what is commonly referred as past the statute of limitations. They lost any claim they could have had a long time ago. It’s a very basic premise of law dating back to roman times; as Cornell Law Legal Information Institute defines it:

 

Any law that bars claims after a certain period of time passes after an injury.  The period of time varies depending on the jurisdiction and the type of claim.  

Statutes of limitations exist for both civil and criminal causes of action, and begin to run from the date of the injury, or the date it was discovered, or the date on which it would have been discovered with reasonable efforts.  Many statutes of limitations are actual legislative statutes, while others may come from judicial common law.12

In addition, another basic law premise isUntitled-5 laches, which can simply be defined as an inexcusable delay, in prejudice to a defendant. In this case, as Glock continues to wait, AirSplat and the airsoft industry continues to grow and become larger. In theory the longer Glock waits, the more they can potentially gain, if they prevail.

Let’s pretend a rail road company files a claim with the government for a specific mountain range. And at a later point in time, some settlers decide to colonize just shy of the foothills of said mountain. The rail road company has an obligation to notify and remove those settlers. If the settlers are allowed to stay, knowing or unknowingly to the rail road company, for several generations and a booming economy spurs from that, with gold mining, gambling, hotels, and other economies of a town or community, they have successfully occupied the space and am now the legal tenant, and owner of that land. The rail road company cannot wait until the settlers discover gold to suddenly then claim the land is theirs; rightful owner or not, at this point, even if they potentially could have owned the territory just shy of the foothills, they’ve lost the ability to claim it now. And doing so now, is at an intentionally disadvantage to the defendant, in this case the settlers.

Think of it this way, the rail road company initially could care less about that property shy of the foothills, since their plans were to make tracks through or over the mountains. But now that they see an opportunity to get rich off the gold that the settlers discovered just shy of the foothills, they are making claim after the fact. And now that gold and  bustling economy is present, they want it all while having not done any of the work to build it.

Untitled-6Let’s further take this example by adding, all the residents concede because they don’t feel they have the ability or resources to fight a large rail road company. But the gold mine, hotel, and casino, if put together may be able to take on that sort of battle. In turn, they are saving the city they all live and depend on. They have the courage and wherewithal to stand up for what they believe in, that the land they now own, belongs to them and if there was any claim differing it would have been brought to them long before their existence. Of course, once they stand up to fight, the community members rally behind them and propel them forward with their voice and power of the masses.

The previous litigation in 2009, AirSplat played a major role for the gathering of the troops to defend against H&K, Glock, and Umarex. In fact, the legal counsel for the group was chosen and vetted by AirSplat. They were a driving force in the defense and assumed the role of leadership to help navigate all the defendants through that turbulent process, many times acting as navigator, mediator, and peace maker. This is part of the reason why AirSplat was targeted again.

From AirSplat’s point of view, the case in 2009 was dismissed, Glock conceded, in effect allowing AirSplat to continue selling their products. Hence Glock’s focused and targeted pursuit of AirSplat represents the head of the snake they want so badly to kill. Second time around, they are smarter, they are not going for the group, only picking 1 target to go after. AirSplat is the martyr, the keystone to their case.

And if they succeed, it does give precedence to all other retailers, manufacturers, distributors, and users of their claimed products. They would have cleared the market for their own product to sell, regardless of the merits of their claims. They would have bullied an entire town out of their homes, businesses, and livelihood. If the hotel falls, they will go around town with that paper in their hands telling everyone to get out of town because they own everything! And don’t believe they won’t. Why go through all this trouble, if they didn’t have bigger plans?

Jag Precision, also known as Echo1, is going through a similar battle with a similar foe of the industry14. They are singlehandedly fighting for all the rights for us, as an industry, against Cyber Gun who is the license holder of FN Herstal. If they lose, all of the US airsoft industry will be forever changed. Any toy that even closely resembles a P90, M249, SCAR, or any of their other makes by FN will have to concede both their design and marks.

In both cases, an entire town, community, and industry all hold their faith and future in these 2 defendants. These 2 defendants, AirSplat and Echo1 are fighting for the rights that may change and shape an entire industry; similar to how the Bushmaster v Colt forever changed the landscape of M4’s and Assault Rifles (AR’s).

These 2 parties are at the frontier of this litigation, they are fighting the battle for all “Davids” who are all the average citizens of this great community and industry. These 2 defendants are the unsung heroes that everyone so easily overlooks and dismisses, not knowing that their own fate lays in these 2 parties’ hands. Without AirSplat and Echo1, Glock acting as Goliath would crush our community. And don’t think either of these 2 Goliath’s won’t come for you, your store16, group, or manufacturer who makes the airsoft guns you enjoy so much. They will come for us all and will clear the US market like they have done so in the EU. For example Cybergun had the trademark rights to the word “airsoft” in the EU15, so no one could sell “airsoft” or do any commerce related to airsoft. And they were fully taking advantage of this unfair business practice. All shipments which had the word “airsoft” in the paperwork or on the packaging were seized. And Cybergun did their part in harassing any business, retailer or importer, in either destroying their merchandise or forfeiting it to Cybergun. The virtual monopoly CyberGun possessed was unchallenged for over a decade until recently some other Goliath’s wanted a piece of the pie. Now the market is merely segmented between the 3 Golaith’s, in most people’s opinion not an improvement of the situation for the industry or consumers there.

No one should think they are safe from the reach of bullies such as these. If you or someone you care about falls in their crosshairs, they will be targeted, bullied, and ultimately annihilated. For example, a 81 year old gentleman Vico Confino was recently, sued, lost, then restricted from saying anything about it (www.vicoconfino.com), and subsequently had all his inventory seized and destroyed.

Like the example used, the gold mine, hotel, and casino need your support, both psychologically and in voice. Rally against these tyrants who are trying to unfairly control our community. Recognize what’s at stake and what you and everyone around you have the potential of losing. Or when it’s too late, there will be no one to stand up against them when they come for you.

Thank you for your time in reading this. Thank you www.airsplat.com for help and support of airsoft industry.

Guest Blogger and Avid Airsofter
Original blog can be found at http://blog.airsplat.com

1 www.google.com/search?q=patent+trolls
2 www.cnbc.com/id/101514899
3 online.wsj.com/article/PR-CO-20140313-911730.html
4 arstechnica.com/tech-policy/2013/01/how-newegg-crushed-the-shopping-cart-patent-and-saved-online-retail
5 arstechnica.com/tech-policy/2014/04/newegg-and-geico-stop-patent-troll-that-sued-dozens-over-forms-on-apps
6 www.businessweek.com/articles/2014-02-06/google-defeats-patent-troll-in-court-wins-1
7 wow.joystiq.com/2014/03/19/blizzard-scores-a-victory-against-patent-troll-worlds-inc/
8 www.gamespot.com/articles/nintendo-acquires-troll-s-patent-portfolio-after-legal-victory/1100-6417060/
9 http://en.wikipedia.org/wiki/Prejudice_(legal_procedure)
10 http://dockets.justia.com/docket/georgia/gandce/1:2014cv00568/202971
11 http://positiveleo.wordpress.com/2009/09/12/glock-safety-issues-raised-concerns/
http://www.businessweek.com/articles/2013-08-06/ex-glock-exec-out-of-prison-and-spitting-bullets
http://www.huffingtonpost.com/2012/07/25/enrique-chavezs-lawsuit-glock_n_1701930.html
http://www.thehighroad.org/archive/index.php/t-56616.html
http://www.freerepublic.com/focus/news/729088/posts
12 Forrester report dated August 2012
13 http://www.law.cornell.edu/wex/statute_of_limitations
14 http://dockets.justia.com/docket/circuit-courts/ca9/12-17640
15 http://www.ipo.gov.uk/tmtext/Results
16 https://www.youtube.com/watch?v=tQgkCUyxawE
17 http://www.tabberone.com/Trademarks/HallOfShame/CyberCops/ContinentalEnterprises/HK/HK.shtml
18 http://www.miaminewtimes.com/2014-04-24/news/glock-lawsuits-toy-gun-makers/

About The Author

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  • Crashtian

    From my perspective, Glock is the innocent party on this matter; WE and Airsplat are the bullies. Glock is a company that built their reputation on reliability. They maintain that reputation with products that fail after an incredible 100k+ rounds fired and with stellar customer service. Can anyone say the same about either WE or Airsplat? Of course not. WE and Airsplat have the reputation for being bottom of the barrel manufacturers and vendors respectively.

    If you were the smart kid in class and worked your tail off to create an awesome lab report, just to have the flunkee guy with the least amount of integrity in the room steal your report and slap his name on it, wouldn’t you retaliate somehow? If I were Glock, I wouldn’t want WE shipping my product with leaky mags, a slide that doesnt cycle correctly and very low tech support hijacking my reputation…. oh… but its not a “Glock” its a “G17″ (chuckle chuckle).

    Its not Glock / HK that are ruining the airsoft industry, its the airsoft industry itself that needs to pony up and learn some better business practices.

    I like Kriss’s approach: “If you don’t like what the airsoft industry is doing (coughKWAcough), provide something better.”