Pen vs. Pen: Dealing With A Copycat By Naming & Shaming

from the blatant-copying dept

Fri, Aug 24th 2012 7:39pm — Mike Masnick

We often hear from people that without "legal protections" what could they possibly do to stop others from copying them? Of course, "copying" can be loosely defined, and there are times when it's just multiple people coming up with the same basic idea at the same time, and in those cases it seems only fair to just let people compete. But what about a situation of incredibly obvious, blatant copying? Do you need laws? Or can social norms cover the situation? It seems that one small company facing that situation has decided to take the high road and not resort to legal tactics, but instead use social shaming in just such a situation where the copying isn't only obvious, but egregious.

For reasons that I don't fully understand, one of the most popular categories of products that have been successful on Kickstarter is high quality metallic pens. There are tons. But one of the first really, really successful ones was Pen Type-A, a minimal stainless steel case for the popular Hi-Tec-C pens, created by CW&T. Among the distinct features of the pen was the rectangular stainless steel case with a ruler on the side that it came in. The Kickstarter project raised $281,990 -- a bit more than the $2,500 they shot for.

What happened next is covered in a detailed and well-documented-with-images explanation from Notcot. Needing a good manufacturing partner to handle the much larger than expected orders, CW&T partnered with a guy named Allen Arseneau, a Stanford MBA, who was representing JOIGA, a company that claimed to provide manufacturing capabilities in China. Allen and his partner, Diana Hudak, started helping CW&T, and CW&T even mentioned Allen and Diana in some of their updates to Kickstarter backers -- and showed the two of them in some of the photos they posted. Many of those updates highlighted that CW&T were working hard to fulfill all their orders, but that they weren't coming quite fast enough.

And then... earlier this week, popular site Fab.com announced a sale on something called the Torr Classic... a pen that looks remarkably like the Pen Type-A. Remarkably.

Lots of people started wondering if it was the same pen, and even asked CW&T, who were taken by surprise by the whole thing. When they looked at Torr Pens' website... they noticed that it wasn't just the pens that looked familiar. The "CEO & COO" of the company... were the very same Allen and Diana who had recently been working right besides CW&T folks to get the pens ready. Back to Notcot for the illustrated version:

Yup, the same folks who had supposedly been in charge of helping them get their own pens, and who had been working with them to ship the pens:

Over at the Notcot link there are a lot more photos of Allen helping out with the pens. And it's clearly the same guy whose face is plastered all over the Torr pens site, including in a horrifically done James Bond parody video "commercial" for the pens.

Now, for CW&T, this is clearly a pretty horrible situation. The "partner" that they were working with to help them manufacture the pens that everyone had bought had apparently started his own company to make nearly identical pens... and did this while still waiting for the full order of original pens to come in. CW&T responded by just telling the world what had happened:

In response, many Pen Type-A supporters quickly came out in support of CW&T and against Torr Pens. Fab.com pulled down their sale, and other sites started to pick up on the story. I don't know if CW&T have any legal recourse, or if they should even bother, but they realized that just by talking about the situation with the large group of fans they had connected with, they could have an effective response.

Oh, and they've also found a new manufacturing partner, here in the US:

Stories like this are certainly not a fun situation for CW&T, but it seems like their time going forward will probably be well spent continuing to make awesome products and connecting with fans who want them. Who knows what happens to Torr Pens and its "execs" but the story behind them is now out and I can't imagine they'll be able to create the same sort of love and appreciation for their products from fans as CW&T has done.

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Filed Under: competition, copying, innovation, pens

39 Comments

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Rekrul, 24 Aug 2012 @ 8:18pm

The problem with perfectly round pens is that they roll. Put it down on any smooth surface that's not perfectly level and it will roll, probably ending up on the floor.
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Anonymous Coward, 24 Aug 2012 @ 9:03pm

Yes, but in the end, they have trained the competition how to make the pen (or variation thereof) and the Chinese manufacturing will be about as good as the US one and likely cheaper in the market place.

They may have won the 1% battle in the 'tardian universe, but in the end, customers will buy a good product at the best price, and that likely won't be Torr.
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Wally (profile), 24 Aug 2012 @ 9:49pm

Natural Gas Compressers
It isn't just a problem with pens being victim to copycats. I have a story from my uncle who works for Ariel Corporation about natural gas pistons and compressors.

My uncle was working one day and was chosen by his supervisor to give some Chinese industry corporation a tour of the manufacturing and finishing facilities. He described them like this:
"It was all a group of men, and one token woman". I asked him why the woman might be there and his response was "She is simply there to represent to us Americans that they somehow are looking progressive with feminist rights like we are states-side"
He goes on to explain that he gave them the tour and man did they take a ton of pictures.

Four months passes after a tour we are at a family gathering and I asked him how the tour went.
"Funny you should mention that. We got a ton of calls from China asking about warranty claims."

Turns out the industrialists who visited the manufacturing and finishing facilities started making, you guessed it, Natural Gas Compressors and pistons. On top of that, they made wverything based on the pictures they took and were so bold as to try to bill Ariell Corperation for the warranty when a part broke down.
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Anonymous Coward, 24 Aug 2012 @ 10:18pm

Re: Natural Gas Compressers
Sneaky Commies aren't much fun...
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Manok, 25 Aug 2012 @ 3:48am

The Chinese even were making artificial chicken eggs, just because these were cheaper than the real thing. Very industrious.
http://micgadget.com/22036/watch-how-chinas-fake-eggs-bounce-like-a-ping-pong-ball-vid eos/
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That Anonymous Coward (profile), 25 Aug 2012 @ 4:36am

This isn't a Chinese firm ripping off the idea, this is someone who was involved with the project who signed on to help them "protect" their IP here and in China taking the product and running his own when he was involved with them having problems getting the original product out.

While they try to get out everything owed to the Kickstarter backers, somehow he was able to run off his own version and market it while the Kickstarter people were struggling even with his "help".
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TheOldFart (profile), 25 Aug 2012 @ 4:55am

Same excrement 'nother sol
Back around '95 I was working as an electronics technician for an outfit called Securitec down in Scottsdale. They made digital and analog alarm systems based on their own original designs. They would abrade the labels off the TTL chips before they'd ship the units just to make a slightly harder to copy.

One day we received several units in a box to repair. At first I thought they were older versions that I hadn't seen before. They were identical visually but they were made from seriously crappy materials. El-cheapo uncoated circuit boards and paper thin keypad membranes that had all torn. They had the company name on them but the chips hadn't been abraded and the soldering and component placement looked like a ten year old had built them.

Turns out it was some outfit in Israel (!?) that was selling the knock offs, which due to the company name being on them, would be shipped back to us for repairs when they failed. It was a very small company and the owner couldn't even think about the cost of suing in a foreign country. The damage to the company reputation was already done with the inferior hardware, all the owner could do is ship them back brand new replacements for the knock offs.

The thing is, that's capitalism. The teapublibertarians say they want markets with absolutely no government interference, well, that's what zero regulation begets, a frantic race to the least common denominator. The sleaziest and most underhanded people/companies win.

There's a difference between competition and parasitism. The problem is that competition is in the middle of a spectrum, not one end. If you go too far one way you have cheap ripoffs actually destroying the value of the original product and brand. If you go to far the other way you end up with the ridiculous situation we have in the USA where IP law has become a highly effective tool for suppressing both legitimate competition and parasites.

Can't lean against either wall, gotta balance somewhere in the middle.

Unless of course we adopt the Soviet method: "You, you, you and you, go to the factory in Siberia and produce 3,409 pens for our 2014 quota. That will be a glorious year for writing the praises of Putin, and for drawing moustaches on photos of that guy with the funny spot on his head"
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Josef Anvil (profile), 25 Aug 2012 @ 6:56am

Re: Same excrement 'nother sol
Comments like this always leave me scratching my head. Let's look at it rationally.

Company A makes a good alarm system and ships units that are slightly harder to copy. Company B makes shoddy counterfeits which are presumably sold by an offshore VAR (value added reseller). Company A then accepts responsibility and repairs Company B's product when it fails.

Somehow the leap in logic is that the sleaziest company wins in an unregulated capitalist market. While there are plenty of arguments for government regulation, this isn't a very good one. Quality products often do far better in the marketplace regardless of regulations, no matter how much sleazy competition is out there. Because consumers want products that work.

The only way a shoddy copy can survive is when the lack of quality is acceptable to the consumer because of the cost saving.

The entire point of this article is to show that blatantly ripping someone off can backfire horribly if the core fan base finds out. These pens had a particular fanbase that the copier tried to exploit but the connection to the content creator was far stronger than the copier anticipated.
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Anonymous Coward, 25 Aug 2012 @ 7:07am

Copy Hi Tech C pen.
check

Bitch about new pen that looks nothing
like your copy of the Hi Tech C Pen.
check

Some whining cunts need to get a new life.
Check

LOL
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petpost, 25 Aug 2012 @ 7:58am

Supper innovation.
Whatever you say it copy or innovation it is really great.By reading your post I really benefited.I think like me it also help many other people.Really so interesting post.
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Anonymous Coward, 25 Aug 2012 @ 8:19am

Please note:

CW&T partnered with a guy named Allen Areseneau

You appear to have misspelled his name, it is Arseneau, which I found out when I grabbed the name and did a search for it.

If you wanna name-and-shame, you gotta get the name right!
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joenonymous, 25 Aug 2012 @ 8:42am

... super innovation
Well done, Allen Arseneau, MBA

What a way to sink a business, mr founding-member of JOIGA, Manufacturing For All (http://joiga.com/Founding_Members_Allen.html).
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Anonymous Coward, 25 Aug 2012 @ 10:06am

Breach of confidence...
This has nothing to do with the Chinese, this is a case of Breach of Confidence and possibly Breach of Fiduciary Duty by their so-called partners Allen Areseneau and Diana Hudak, and should be easily provable by any reasonably competent lawyer.

This would seem to be a case where a lawsuit would be fully justified and winnable.
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Anonymous Coward, 25 Aug 2012 @ 10:21am

lol, the only thing similar is the box, the pens are completely different, but I guess that doesn't matter to the idiots screaming theft huh? modify his packaging all he needs to do, the torr is probably a better pen
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bob, 25 Aug 2012 @ 10:57am

Well, they should have called it "piracy"
Then all of the creator haters around here would be lining up to send money to the copy cats. But for some reason, the blowhards around here who instinctively embrace every form of piracy are condemning this copying. Why? I've had odd shaped pens in the past that don't roll. That's not an innovation. Nor is a ruler or a pen. Heck, I bet people have put the two things together in the past. But for some reason the folks who consider piracy to be "innovation" aren't stepping up here.

Why? Could it be because the usual astroturfing rules from Big Search, Big Hardware and Big Piracy aren't in effect and this blog can actually consider the right thing to do?
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Wally (profile), 25 Aug 2012 @ 11:30am

Re: Well, they should have called it "piracy"
bob, I ask that you please stop yourself and actually think before you speak. You might get better results around here.
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Anonymous Coward, 25 Aug 2012 @ 11:31am

Re: Well, they should have called it "piracy"
When you agree to "partner" with someone, and then use their idea as a "springboard" for your own purposes in a manner which is detrimental to them, then yes it is very different from the sort of "piracy you're referring to. You can find lots on the subject, but here is a quick sample:

"The courts have extended the protection given by the law of breach of confidence by means of what is referred to as the springboard doctrine. The person who is obliged to respect a confidence cannot use the information for his own purposes even after it has entered the public domain if that would be harmful to the person to whom he owed the duty. The classic case is Terrapin v Builders Supply Co (Hayes) Ltdxxiv in which Roxburgh J said (at 392):.

... a person who has obtained information in confidence is not allowed to use it as a springboard for activities detrimental to [the owner of the information] and springboard it remains even when all the features have been published ...

The obligation will not continue for ever: it lasts merely as long as the unfair advantage to be derived from the use of the material would reasonably be expected to remain. In Roger Bullivant Ltd v Ellis,xxv"
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Anonymous Coward, 25 Aug 2012 @ 11:42am

Re: Re: Well, they should have called it "piracy"
In english:

They started producing their own pens while at the same time, the original makers were still relying on them to fill late orders.

Because they put this extra effort into leap-frogging over the competition that they were hired to produce for, instead of solving the back-order with this extra production, they done bad.

I don't speak legalese that well, so I wonder if the back-order was solved and there were no late cases in production for the Type-A, would Torr then be allowed to produce their own competing pens? I assume to be perfectly legally airtight, they would need advance warning and give Type-A a chance to shift production to another company to avoid conflict of interest, but assuming there's no protected IP there, that seems legal to me?
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Anonymous Coward, 25 Aug 2012 @ 12:08pm

Re: Re: Re: Well, they should have called it "piracy"
No it's not legal. When you agree to partner with someone you are under a legal obligation not to use their idea as a "springboard" to go into competition with them in a way which might be detrimental to them.
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Anonymous Coward, 25 Aug 2012 @ 12:13pm

Re: Re: Re: Re: Well, they should have called it "piracy"
And even if you don't u;timately go into partnership with them, but merely discussed the idea with a view to going into a partnership, you are still legally under the same obligation, even if you didn't sign a non-confidentiality agreement.
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Anonymous Coward, 25 Aug 2012 @ 12:23pm

...sorry, that was meant to be "non-disclosure" agreement.
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Suzanne Lainson (profile), 25 Aug 2012 @ 2:24pm

Re: Re: Same excrement 'nother sol
Somehow the leap in logic is that the sleaziest company wins in an unregulated capitalist market. While there are plenty of arguments for government regulation, this isn't a very good one. Quality products often do far better in the marketplace regardless of regulations, no matter how much sleazy competition is out there. Because consumers want products that work.

In some cases we depend on a testing entity to verify that the product we want is what we are actually paying for. The government doesn't have to do it, but it seems like that in terms of products it hard to verify, the government has stepped. Often not initially but because other protection systems have failed.

With online rating systems, it is becoming easier for people to red-flag cons, but there are still some glitches. Health care products where consumers aren't aware of whether they are getting what they expect or not is one issue. Sure, eventually the frauds may be caught, but in the meantime people may have died.
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Suzanne Lainson (profile), 25 Aug 2012 @ 2:28pm

Re: Re: Re: Same excrement 'nother sol
Another thing I will point out is a possible solution is "buyer beware." That does work, but if enough people become wary, consumption goes down. Of course, there is the reverse benefit where people who don't trust companies they don't know don't buy from them, but will exclusively deal with companies they do know. That sort of mentality is giving a boost to localization.
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SteveS, 25 Aug 2012 @ 2:55pm

Why not have 'ambulance chasers'?
In the same way that we have ambulance chasers, why don't we allow lawyers in the same country (in this case China) to go after the offending people/company with the aim of the lawyers being able to seize their assets and/or impose a hefty fine.
All the legal owner wants to do is stop the fake products being made - they don't particularly want money. All the lawyers want is money. Isn't this a perfect match?
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Anonymous Coward, 25 Aug 2012 @ 6:53pm

Re: Same excrement 'nother sol
The only problem I have with what you wrote is that your belief that the teapublibertarians want zdero regulation is absurd. I could counter by saying the Libdemsocialist want the government want to control every aspect of a product, at the cost of the entrepreneur which is passed on to the consumer making everything too expensive. Neither is true of course, but as an example of government interference, I sub-divided my land. It cost $12,000.00 and took two years. I had a uyer for that property for $92,000. Seemed like a good idea. In two years the market crashed and my property is worth approximately $10,000. I lost $2,000 on the cost and did not sell the land. That is an example og government regulation that needs to go.
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Anonymous Coward, 25 Aug 2012 @ 7:30pm

Re: Re: Re: Re: Well, they should have called it "piracy"
It's just a pen. After the product is released, what advantage has been gained over buying a single pen and copying it?
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ld, 25 Aug 2012 @ 11:30pm

Re: Re: Same excrement 'nother sol
They didn't just rip off the hardware, they also ripped off the company's name so that the original outfit had to replace the things or get blamed for both the component failures and bad customer service because most people wouldn't accept the truth if it was put right in front of them.
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Wally (profile), 26 Aug 2012 @ 10:14am

Re: Re: Re: Re: Re: Well, they should have called it "piracy"
Maybe because they were holding back the shipments a few at a time and the design matched EXACT dimensions and specifications using the EXACT same parts and was being sold by the manufacturer rather than the people who actually created them.
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Grunj, 26 Aug 2012 @ 11:31am

Copied Camp Stove
Some time ago I worked for a camping stove manufacturer. At one point we were shown a copy of our campstove made by a foreign manufacturer and we marvelled at the accuracy and detail to our own product. What was funny though, although this situation itself was not, was this particular model of our stove had a hairline indentation along one side which was hardly noticeable, and was caused by a problem with one of the stamping die. Wouldn't you know it, the copy was identical right down to the hairline indentation along the same side. Wonders never cease to amaze when it comes to copiers.
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Divide by Zero (profile), 26 Aug 2012 @ 12:30pm

Re: Well, they should have called it "piracy"
You forgot Big Pen, bob. I am disappointed in you.
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joe kewl, 27 Aug 2012 @ 6:44am

wow, 30 posts and not one mention of Apple v Samsung
'cause we're all rooting for the Underdog. But become the most capitalized company in the USA AND produce incredible products that area ACTUALLY AVAILABLE FOR SALE (as opposed to being a prop in a movie) and calling a copycat a copycat is suddenly "stifling innovation" instead of "stifling copycat".

One only has to look at Samsung phones BEFORE iPhone vs Samsung phones after iPhone and NOT BE BLIND.

I was not surprised that the jury came back so quickly.
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Dave Nelson, 27 Aug 2012 @ 2:27pm

Nothing to see here, folks. Move along, please.
Twenty or so years ago, Pilot introduced a ballpoint pen (and a mechanical pencil) under the name of Dr. Grip. It was (and still is) a wonderful writing instrument to hold and use. The point is that very shortly after it was introduced, it seemed to me that every pen producer was generating cheap knockoffs. They were even available as freebies from insurance and banking offices. Notice, please, that the instrument, and it's refills, is still available, at roughly the same price, at all major outlets. The "competition" didn't phase it because it was and is a superior product.
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Michael Ho (profile), 27 Aug 2012 @ 4:54pm

Re:
fixed. Thanks for pointing that out.
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Anonymous Coward, 27 Aug 2012 @ 7:17pm

It sucks, but...
I understand that it sucks when someone takes your design and duplicates it. But then I remember owning a pen that looked very much like this in the 1970's. So it isn't really an original design concept in the first place.
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Allen Arseneau, 28 Aug 2012 @ 7:43pm

Not a knock-off
Thank you all for your love and concern for design. I welcome discussion on my pen with any of you. I will be updating the website to post information on our pen to hopefully clarify this situation, as there is much mis-information out there right now. Allen
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TORR, 26 Mar 2013 @ 2:34pm

TORR official response
TORR official response: http://tinyurl.com/cv897aa
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TORR, 26 Mar 2013 @ 2:35pm

TORR official response
TORR official response: http://tinyurl.com/cv897aa
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Jay, 9 Sep 2013 @ 10:18pm

$100 ink pen
Some guy sells an ink pen for $100. Another guy works 2 jobs to buy $100 worth of food to feed his kids. Another guy pays $100 for an ink pen. A different guy "copies" the $100 ink pen and sells it for $10 to the guy working 2 jobs. Who am I supposed to feel sorry for again?
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Jerry Rodriguez, 17 Jun 2014 @ 4:31pm

Can't rip off something that's already a rip off
I know this story is old, but it's important to note that this design is not original. The "creators" of this pen never respond when asked about intellectual property. It's because they don't have any. The idea was patented and is now in the public domain. http://www.google.com/patents/USD258911#v=onepage&q&f=false

The reason it took so long for the pens to be made is because the creators of the project had no experience manufacturing a product. They thought they would just make stuff overseas and get rich doing it. They didn't even know how to properly inspect the finish goods. The Torr pen was as different from their pen as their design was from the original patent. They were delayed because of incompetence. They were expecting things that the dirt floor factory they hired were incapable of producing.
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