Halcyon Prouduction, DIR, and ironic facts of life

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-hh once bubbled...

...Just one simple question. It has to do with Halycon's recent filing requesting that DIR be Trademarked, and the fact that there are already several DIR backplate manufacturers besides Halycon, such as FredT and ScottK...

Question: if Halycon is granted the DIR trademark, what's your (Halycon's) Trademark position going to be for existing DIR BP manufacturers such as FredT & ScottK? Are you:

a) Going to promptly licence the TM to them for free?
b) Require them to pay you a licencing fee?
c) Entirely withhold its use from them?
d) Ignore Trademark infringements?


Afterall, the knowledgable diving public already knows that FredT & ScottK make good DIR BP products; its not just exclusively [[Halycon. Plus, we're talking about "DIR" products that are in production today and being sold.

....
-hh

Okay, I admit I'm not JJ, but I know a little about trademarks, so I'm sticking my nose in here.

Halcyon's owership (assuming their applications are granted) of the marks "DIR" and "Doing it Right" does not and will not prevent FredT, ScottK or anyone else from selling whatever products they want. Absolutely anyone can sell products that are designed to be"DIR-compliant", provided only that the sellers do not identify their goods with the terms "DIR" or "Doing it Right". You could get away with saying "Buy my XYZ backplate because it is built to be [just the same as | even better than] a Halcyon | DIR backplate" as part of a legitimate product comparison. You just couldn't say "Buy my DIR backplate".

You would agree, I think, that it would be improper for me to make up backplates in my basement and sell them as Halycon backplates. It would be equally wrong for me to sell my home-made backplates as FredT or ScottK backplates. If I did that I would be misrepresenting who made the plate, even if my plates were just the same or better than the ones I am passing them off as. The same thing is true if I call them DIR backplates (again assuming successful registration of the mark). I can sell all the backplates I want as long as I don't pass them off as coming from somebody else. That's all trademark protection means. It protects ownership of a certain term or label which shows where a product came from.

We're talking trademarks people, not patents. Trademarks are labels. The products themselves are different than the label you put on the product. Ownership of a trademark means you own the label, not the design of the product.
 
Ownership of a trademark means you own the label, not the design of the product.

You can't go get a trademark retroactively and have it stand up if you've let the market call something by a given name (which you wish to protect) even though it does not exclusively identify your goods and services in the marketplace.

You also must defend against any incursions on your mark; if you let incursions go, then you risk having it ruled lost.

This is how Bayer lost "Aspirin", one of the more famous marks to "disappear" as a registered trademark.....

Its quite arguable that "DIR" has been explicitly stated (even by JJ!) as a holistic dive system, which is something that Halcyon cannot protect, as it encompasses things that simply aren't protectable!

Even the idea of calling the mark "The DIR Hardware Company" might fail, in that it has been said many times over by the various folks involved in GUE and DIR that there is no such thing - that a product is DIR not based on who makes it, but by its form and function (and lack of "anti-functions") as a piece of diving equipment.
 
Genesis once bubbled...


You can't go get a trademark retroactively and have it stand up if you've let the market call something by a given name (which you wish to protect) even though it does not exclusively identify your goods and services in the marketplace.

Either you're typing too fast or I'm reading too slow, but I'm not sure what you mean by this. If you're saying that a trademark can be lost or refused registration because the mark has become a generic term for the product, you are correct. Hence you see such constructions as "Kleenex brand facial tissues" and "Xerox brand photocopied" insisted upon by trademark lawyers who are worried that Kleenex and Xerox may come to be viewed as generic terms. That's how Thermos Company lost the trademark for its vacuum bottles.


....
Its quite arguable that "DIR" has been explicitly stated (even by JJ!) as a holistic dive system, which is something that Halcyon cannot protect, as it encompasses things that simply aren't protectable!

Even the idea of calling the mark "The DIR Hardware Company" might fail, in that it has been said many times over by the various folks involved in GUE and DIR that there is no such thing - that a product is DIR not based on who makes it, but by its form and function (and lack of "anti-functions") as a piece of diving equipment.

You're conflating the definition of the system and its components with the right to ownership of the trademarks. They are two different things. Halcyon has been using the marks "DIR" and "The Doing it Right Company" on their products for years now. Until recent efforts by OMS I don't know of any other manufacturer using those marks for dive gear. Halcyon is claiming the exclusive right to use those marks as an identifier for its products.
 
"The Doing it Right Equipment Company" is likely IMHO protectable. I've seen it on nothing other than Halcyon gear in the diving equipment space, and I've also never seen anyone from either Halcyon or GUE try to claim that label isn't company-specific.

However, "DIR", the more generic term, is another matter. There have been a whole host of statements from various people connected with GUE and Halcyon in one form or another that DIR is not connected to any particular hardware manufacturer, and in fact stating that hardware made by other companies IS "DIR".

JJ can't have this one both ways; I'd bet that a challenge by OMS (which I'd think they'd be rather interested in launching) citing some of these examples might "poof" the "DIR" mark registration in short order.
 
WJL once bubbled...
You just couldn't say "Buy my DIR backplate".


I agree that there's ways to tip-toe around the legal nuances, but the 'Buy my DIR backplate" is today's reality: it is the simple message that the consumer understands, which includes the fact that DIR is recognized to not be exclusive to one manufacturer's products.

We should note that neither Fred nor Scott nor anyone else are claiming that they're making a "Halycon BP" - they're making a "DIR" BP instead. But if Halycon were to get a DIR(TM), this avenue can be blocked, and the ensuing nomenclature dance to satisfy the lawyers would only confuse the marketplace, which is a customer disservice and my point. And this confusion can be entirely prevented today if the TM applicant wants to do so.


We're talking trademarks people, not patents...

and not copyrights, either.

IMO, the "horse has left the barn" three years ago insofar as DIR having any possibility of rightfully becoming anyone's legal Trademark. However, the official decision is up to the lawyers to thrash out, which means that common sense may not necessarily prevail. This is a litmus test.


-hh
 
Civility... Jarrod gets it hands down (not even close)
Facts... again, Jarrod gets the nod here. When things have been pointed out as being mis-represented, Genesis only back-peddles and we are led to conclude that he is grasping at straws.
Grasp of reality... J's getting way ahead here. His level headedness are in stark contrast with G's diatribe.
Spew factor... G is out in front as some of his arguments should come with a coke alert.
Overall believability... G has cried Wolf so many times that we villagers are having a hard time with it. J's confidence and almost sedate writing leave us to believe that he has absolutely nothing to hide.
Sincerity... Sorry G... this goes to J again. He really seems concerned about providing a great product. G seems more concerned with winning a sophomoric argument. This relates a lot to the Cry Wolf factor, but I trust J's motives more than G's.

Final outcome... JJ by a landslide.
 
Jarrod, thank you for posting what you have, especially with the pending show. You have gone above and beyond what MOST manufacturers would ever think of doing and have thus caused me to re-think my consideration of Halcyon for future gear purchases. I don't own any, and given the rhetoric of a few DIR "wannabes" (and even GI3 from other boards), I had dismissed your company as merely being part of their innanities. Your posts showed some incredible insite into the diver's psyche and an overall restraint that was very cool.

You have whetted our appetite for reading what you want to post about DIR/GUE/Halcyon... I for one look forward to it. Please start another thread in the general scuba area so that all of the board will see it. Maybe Genesis would agree to keep the discussion about Halcyon's customer service on this thread so that the entire board can have a chance to chat with you about where you have been and where you are going.

I would also like to thank many on this thread for not letting this slide into a mere personal vendetta replete with flames. Many of you have presented great questions and seem content to let JJ answer them with candor.
 
-hh once bubbled...

....
We should note that neither Fred nor Scott nor anyone else are claiming that they're making a "Halycon BP" - they're making a "DIR" BP instead....


I have never seen FredT, ScottK or anybody but Halcyon use the term "DIR" to describe their backplates. Can you direct me to wherever it is you saw this?
 
Jarrod is advocating that price be controlled and determined only by the manufacturer. (he will adjust it according to the marketplace) Denying the retail business the opportunity to freely compete and set his price as he deems fit.

It may appear easy to compete in price - but to successfully do so is a very difficult business feat to accomplish, excluding large differences in capitalization. Prices are directly linked to a business bottom line and may be the purest form of competition. How efficiently a business is operated will determine how much of the price income it can keep as profits. A complex and difficult balancing act.

The shop that provides what consumers want at the lowest price is rewarded with greater profits. For example: assume most consumers want air fills, X type of gear, and good repair facilities -the shop that provides this best at the lowest price will attract the most customers and make more money. Not the shop that has the lowest price on air fills, but not the other two categories, or on X type of gear, but not the other two and so on It may well be that different businesses excell in each category, as the example above where shops excell in only one, or perhaps provide only one service. This is not a bad thing, as more consumers with different interests will find specifically what they need at the best price. This is also beneficial for a greater variety of businesses. This is a general simplification of it..

Consider two shops, both provide essentially the same service, sell the same equipment, and are located in the same area with similar overhead costs. One shop is better managed than the other and thus realizes a greater profit per item than the other through greater efficiency. This more efficiently operated shop may wish to use this competitive edge to compete with the other less efficient shop by lowering his prices in order to increase his sales over the less efficient shop. Since the more efficient shop is able to make more (or loose less) money per item than the less efficient shop at any given price, one shop has a competitive advantage in this category over the other. The result is the consumer will benefit by competition, in this case in the form of a lower price, and so can businesses by striving for efficiency in meeting customer needs. Better service at a lower cost and price to the consumer. Succesful businesses can realize and keep greater profits, increase sales through lower prices, or use the extra profits over the competition to invest it in whatever way they gauge will be most useful to them. Possibly adding more and better services to the benefit of consumers.

This could and will result in some of the less efficient shops going out of business. Whose place will eventually be taken by an even more efficient shop able to compete.

If retail shops are unable to compete in price due to price controls by the manufacturers, we have ANTI COMPETITIVE practices in effect, which do not permit retail PRICE COMPETITION due to PRICE CONTROL. Prices have been FIXED for the retail shops. Regardless of its legality or the manner which makes its application possible, this is what is taking place in actual practice from an economic stand point. A key form of business competition amongst retail shops has been repressed. This is not a healthy business climate, and its likely to lead to greater problems down the road.

Competition results in businesses succeeding who posses a greater understanding of the consumer’s needs, and have the talent to meet these needs more efficiently. Internet shops today specialize in product sales providing the consumer with greater selection and lower prices than most shops clinging to the protected, less competitive business model, while providing warranties and service for the goods sold equal to or better than
many LDS’s. GUE provides quality instruction that is not necessarily affiliated with a local shop, and is superior to what many LDS’s provide. Current protectionist policies and practices such as price restraints, and brand protection, (some manufacturers will not allow dealers to carry a competitors goods) have resulted in an industry today with many shops offering poor quality of instruction, small product selection, highly variable customer and warranty service, along with high prices. They have come to rely on a steady stream of new students, who lack the knowledge to know any better, for their survival and prosperity. How many of you shop owners can say you are successful without the steady stream of new students and your sales to them.

Protectionism and restricted competition leads to stagnation and the survival of those businesses that are inefficient and thus not very receptive to customers needs, since they don’t have to be. You can’t go somewhere else and buy it for less. Going somewhere else is an additional inconvenience and you may recieve the same treatment. And they all know this. Competition leads to greater innovation and efficiency for all. This is not a painless or flawless process, but it’s usually better than the alternative, especially in the long run.

The dive industry is not unique in limiting free enterprise, to some degree or other all industries have some type of protectionist policies, some of which help to curve excess in market cycles. It is the degree of application that can be helpful or harmful.
 
Yes the dive industry is supposed to operate
in a free market society. If external price
controls have been imposed by the manufacturers
on the LDS, this is technically an olgiopoly.
If the LDS was the only choice for the rec diver
to purchase gear there would not be a problem.
The problem arises in internet commerce that
has allowed divers to purchase gear at lower
prices (often much lower) than offered at the LDS.

So even the efficient dive store that offers
good service and gear often cannot compete
in the long term with the wholesaler. Can in point,
a local dive shop in our area with great service
and gear just shut its doors.

since internet commerce is here to stay, the LDS should
be allowed to lower prices without penalty in order
to compete with the online retailers.
 
https://www.shearwater.com/products/swift/

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