HyperStealth Biotechnology has released a webpage specifically dedicated to cataloging their EuroSpec series of camouflage patterns.
www.hyperstealth.com/EuroSpec-history
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For a second there I thought they were all A-TACS FG…
Well played.
The link talks a bit about copyright. I don’t know why Hyperstealth continues writing about their copyright on these patterns… and 9900 others.
Under U.S. law, as I read it, those patterns cannot be copyrighted in that manner.
“US Copyright Law, Title 17
Sec. 101 – Definitions
“Pictorial, graphic, and sculptural works†include two-dimensional and three dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects
are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”
Thus, “C” copyright is for works of creative art. OTOH, camouflage patterns are inherently intended to be only functional, not aesthetic pieces to enjoy and ponder. 🙂 [It would be disconcerting to have the enemy closely examining your Multicam as they critiqued its use of color.]
This is not legal advice, just a simple observation. Threats of copyright infringement in the U.S. would seem to be baseless if the copyright is not even valid.
JMO, of course. I daren’t enter into legal disputes with the man who holds the mineral rights to Mars and the moon. I have every intention of panning the rivers of Mars.
http://www.hyperstealth.com/copyright/index.html
Mr. Cramer,
If your camouflage pattern is art, like a picture of Snoopy or a Happy Face, then I suppose you have a valid “C” copyright. If however, you suggest that your camouflage pattern is utilitarian; then you should get a design copyright or a design patent.
I can understand that in Monarch Productions, LLC v. Zephyr Grafix, the argument of copyright over a “camouflage” pattern might have some validity, because the issue was over the use of the pattern on hats to wear at football games — strictly fashion. Had the issue been over the use of the camouflage to function as camouflage and inhibit detection of the wearer; then a “C” copyright would be invalid, as such a copyright doesn’t protect utility, just art.
Of course, with patents – utility or design – costing in excess of $10,000 each, I can understand that you might demur from pursuing 10,000 patents. Design copyrights, OTOH, are much less expensive – you might want to consider that. Presently, you have no protection in law for use of your patterns as camouflage. JMO
The above does not represent legal advice.
Regards,
Reed
http://www.uvrdefensetech.com – real camouflage you can’t see 🙂
http://www.simmonsfirm.com/news-preliminary-injunction-awarded.html
Simmons Law Firm Wins Preliminary Injunction in Copyright Infringement Case
Judge orders products from retailers’ shelves
June 1, 2010
East Alton, Ill.
The Simmons Law Firm announced today that its client, Monarch Productions, LLC, was awarded a preliminary injunction that forces retailers to remove certain camouflage patterns from their shelves due to a high likelihood of copyright infringement.
Senior Judge E. Richard Webber of the U.S. District Court for the Eastern District of Missouri issued the ruling May 4 that requires defendants Legendary Whitetails, Zephyr Grafix, A&E Group and Barry Horn to remove “fabric patterns based on, derived from and/or substantially similar to the Mothwing Gameday pattern, including Big Game Camo.â€
The Gameday patterns were designed by Monarch, a company that designs and licenses innovative camouflage patterns for every day wear. They combine camouflage patterns with major college sports logos on apparel such as baseball caps.
Preliminary injunctions are awarded before a case goes to trial. This makes them difficult to obtain because the plaintiff must prove that the defendants’ products are a blatant violation of copyright and have caused irreparable harm without the benefits of the discovery phase and/or trials.
“The Simmons Law Firm is pleased we could secure this ruling to assist Monarch in protecting its intellectual property,†said Paul Lesko, head of the Simmons Law Firm’s Intellectual Property Department. He went on to credit Simmons IP litigator Jo Anna Pollock for her work on Monarch’s behalf that resulted in the ruling.
Pollock said the ruling recognizes the creativity of Monarch’s products. “Receiving such extraordinary relief in the case’s early stages underscores that Monarch is an innovator in the camouflage industry, and that the intellectual property guards protecting Monarch’s patterns are very strong,†she said.
Monarch filed suit in December 2009 against the defendants for ongoing copyright infringement and will continue to pursue monetary damages and permanent injunctive relief.
http://business.highbeam.com/61863/article-1P3-548857211/jordan-outdoor-wins-french-court-ruling
Jordan Outdoor Wins French Court Ruling
Article from: The Shooting Industry | January 1, 2004 | Anonymous | Copyright Publishers Development Corporation Nov 1998 (Hide copyright information) Copyright
inShare0
Jordan Outdoor Enterprises Ltd., announced the successful defense of its rights in a copyright/trademark infringement case in France, and the successful seizure of counterfeit goods in Russia.
In a High Court of Bobigny (France) case, Jordan successfully defended its Advantage camouflage copyright in a lawsuit against the company Midwest France. The court ruled that Midwest France infringed upon the Advantage copyright and trademark, placed misleading advertisements, and committed moral and commercial prejudice against Jordan.
In …
Mr. Cramer,
That is exactly what I said –
“The Gameday patterns were designed by Monarch, a company that designs and licenses innovative camouflage patterns for every day wear. They combine camouflage patterns with major college sports logos on apparel such as baseball caps. ”
If you wish to pursue people who have used your patterns to decorate apparel as simply decoration (sports team hats, etc.); you probably have a copyright case. However, if a company has camouflage patterns developed for, and sold for, use in camouflaging the user; no matter how similar your “C” copyrighted camouflage may be, you have no case for infringement. Camouflage is a verb as well as a noun. When the verb is valid, utility is evident. If there is utility, the “C” copyright does not prevail.
Digital Concealment Systems Inc et al v. FORTNER et al
Filed Wednesday, October 26, 2011
Count 1: Copyright Infringment case:
A-TACS camouflage vs ACS camouflage
Count 2: Copyright Infringment case:
Next Camouflage (same owners as DCS) against Defendents
Next (Vista Pattern) vs Defendants (“Reaper Buckâ€, “Reaper Woods†and “Fallâ€.)
COUNT III Trademark Infringement
(DCS against Defendants)
“Advanced Tactical Concealment System†“A-TACS” name vs. “Alpha Concealment Systemâ€, “ACSâ€
….
I don’t know how deep nesting goes, but this reply is to your January 7, 2012 at 12:32 AM reply.
I don’t see how a DCS suit is applicable to our discussion. Firstly, I have no documentation on that suit and I see no need to pay PACER for it. Without the facts there can be no cogent discussion. The only thing you have done is allude to a legal act performed by DCS and in doing so you have told untruths – unintentionally, I’m sure. Vista is a NEXT camo pattern and NEXTG1 is as well. OTOH, you might have included the NEXT Bonz pattern – http://www.northwesthydroprint.com/NextBonzCamo.jpg – which contains deer skulls and is remarkably similar to the Reaper patterns you pointed to. That would have been honorable and appropriate, IMO.
I am not the only one who states that camouflage used as camouflage is not covered by copyright. This gentleman’s argument is cogent – http://www.ipo.org/AM/Template.cfm?Section=Calendar&Template=/CM/ContentDisplay.cfm&ContentID=15912
COUNT I
Copyright Infringement
(DCS against Defendants)
-12-
Plaintiffs hereby incorporate by reference each of the allegations of the preceding
paragraphs of this Complaint.
-13-
DCS is the owner of all right, title, and interest in copyrights for a fabric pattern referred
to as “A-TACSâ€. A true and correct copy of this fabric pattern is attached hereto as Exhibit A.
-14-
DCS has submitted a copyright registration form reflecting its ownership of the copyright
for A-TACS with the United States Copyright Office. A true and correct copy of a copyright
registration for the A-TACS pattern is attached hereto as Exhibit B.
-15-
Defendants manufacture, advertise, offer for sale, license and/or sell a camouflage pattern
substantially identical to the A-TACS pattern. Upon information and belief, such pattern is
referred to by Defendants as the “Alpha Concealment System†or “ACS†pattern. Goods bearing
such patterns are sold or offered for sale in this judicial district.
-16-
Upon information and belief, a true and correct copy of the Alpha Concealment System
or ACS pattern is attached hereto as Exhibit C.
-17-
Defendants have copied DCS’s A-TACS pattern, thus violating DCS’s copyrights.
􀀃
5
􀀃
-18-
By its copying of DCS’s A-TACS pattern and advertising, licensing, and selling of same,
Defendants are liable for infringement of DCS’s copyrights. Defendants’ unlawful copyright
infringement has been willful, fraudulent, deliberate, malicious and an improper attempt to divert
business from DCS.
-19-
DCS has suffered damages as a result of Defendants’ infringement of its copyrighted
pattern. DCS has also suffered and will continue to suffer irreparable harm as a result of
Defendants’ infringement of its copyrighted pattern unless Defendants are enjoined from
infringing activities. DCS is also entitled to statutory damages as provided by law.
Why create so many variations of the same thing? If you are looking to make the best woodland camouflage, wouldn’t you want to focus on making the most versatile woodland camo and stick with it? I find it hard to believe any army would invest in such a large family of patterns. Is their business model to saturate the market with patterns to claim rights on everyone’s inventions based on similarities, or do they honestly wish to create better camouflage for soldiers?
This page offers some insight into one type of camouflage development, what we ended up with a few good patterns for production, while the rest won’t likely be used, it does offer us protection of our patterns as a buffer from people attempting to adjust our patterns to then claim them as their own.
Thank you for responding. I notice you mention frequently about your scientific approach to developement. Do you intend each pattern to be specific to an enviroment (like CADPAT is for Canadian borreal forests) or is your goal to produce a more generic pattern for teperate woodlands (like MARPAT or DPM)? Do you use a method similar to the US Army’s picture in picture technique, or something else entirely?
The Eurospec development method, “throw a bunch of stuff at the wall and see what sticksâ€, is not our first method of choice when developing. It depends on the customer and the end user. If it’s for a commercial client (hunting/fishing/outdoor recreation/fashion), then maybe 15% of the Eurospec may appeal to the customer. If the client is a non-NATO country then we may look at a few of the Eurospec options or something similar. If the client is a NATO country then we begin to access a few more effective algorithms and patterns. If the country is Canada or U.S. then we access our most effective pattern configurations and algorithms based on previous testing that we’ve done and then begin to modify for the requirements.
We’ve only provided objective testing in the past, we can duplicate the same subjective tests that were recently done by the Army but objective testing will provide millisecond timing (hard data) for both detection and target recognition, in the subjective testing only part of this is determined. The Objective test hides the target causing the test subject to search for it, then once they’ve found it now they must determine what the target is.
The Subjective testing that the Army has used, places the pattern directly in the middle of the frame and then you rank it from 0-100 based on how effective you perceive it works in that particular environment. This doesn’t measure time but feel (subjective), which can vary from person to person. The Army did not have a choice to use objective testing as there were too many submissions to use the Objective methodology (the sheer number of patterns would begin to skew the results as slides repeat and only a limited number of hiding places are available, the subconscious will begin to remember where previous patterns were hidden.
Color is usually determined by either the customers’ requirements or the planned area of operations. I have long maintained that one all-terrain color scheme compromises too much and testing (both subjective and objective) consistently shows this to be true.
Guy – how come you know so much intimate detail of how the US Army tested submissions for the Camouflage Improvement Initiative? Have you been involved in the testing? Do you have a pattern of your own in the race as well?
Lawrence, good to hear from you. I was not involved in their testing. The last U.S. Military test I was involved in was in 2006.
The U.S. Army provided all the interested groups for the solicitation access to the following document (which was also available to the public on the internet long before the solicitation): http://www.armyscienceconference.com/manuscripts/J/JP-003.pdf
I believe that I read that document numerous times to allow me to understand how they did the subjective testing, what pattern styles were effective in that test within their respective environments.
The Army also supplied all interested groups the same photos to examine beforehand which may or may not have been used in the new test. I was then able to gain a better understanding on what colors and particular pattern to use for the intended environments.
This current testing was triple blind: we were told to remove all trade names from the samples before they were submitted. Subjects, researchers and persons administering the tests did not know which patterns were being shown, so the end results could not be biased.
Okay – thanks for clarifying.
Looks like hippy tie dye in camo colors. They can claim copyright on it all they want, I really don’t think any of the patterns above would do well in testing. A few of the above patterns look similar to some of the patterns Natick came up with 4-5 years ago that subsequently performed poorly.
@ Guy Cramer
“Digital Concealment Systems Inc et al v. FORTNER et al”
http://www.northwesthydroprint.com/ReaperwoodsCloseup.jpg
http://www.northwesthydroprint.com/reaperbuck.jpg
http://www.northwesthydroprint.com/Nextvista_lrg.jpg
http://www.northwesthydroprint.com/NEXTG1.jpg
are these the patterns see lawsuit is about?
PS: everything with little spots on it has been stolen from us Germans 😉
What you are showing is Count 2 in the lawsuit: Copyright Infringement Next (Vista Pattern) is owned by DCS vs Defendants (“Reaper Buckâ€, “Reaper Woods†and “Fallâ€.)
Count 1 in that case is for copyright violation with DCS A-TACS pattern (Exihibit A) versus the Defendents “Alpha” pattern (Exhibit C).
COUNT 3 is for Trademark Infringement
(DCS against Defendants)
“Advanced Tactical Concealment System†“A-TACS†name vs. “Alpha Concealment Systemâ€, “ACSâ€
I can’t find the alpha pattern anywhere.
And these law-sites want money…
Regarding all the different hunting real-tree patterns that are available out there: they look all the same to me.
Euro Spec numbers 4 and 7 seem kind of fitting if looked at an angle.
I have looked into the Monarx lawsuit and I simply think that it was a case of poor lawyering by the Legendary team. It appears that they simply launched into a substantially similar analysis without arguing utility at all. This is especially shortsighted when dealing with realistic camo, as realistic depictions of natural camo is held to the virtually identical standard rather than substantially similar. Copyright only prevents copying, it is not a vehicle to monopolize on a concept. Since the very definition of camouflage is a collections of colors and shapes to aid concealment, I think there is also a strong argument that any camo should be viewed through the virtually identical standard. Since all aspects of camo has a utilitarian function, which is not protected by copyright, it should be held to the virtually identical standard. It is hard to argue that it isn’t utilitarian, a defendant will simply need to point to all the advertising that camo companies do. It all speaks to how effective the camo is in concealment, i.e. the effectiveness of the utilitarian function of the camo. They might catch a defendant sleeping who fails to make this argument and win a cheap victory at the district level, but I have no doubt if an appellate court analyzed these issues that they wouldn’t come to the same conclusion. To allow these type of suits to proliferate would effectively give Hyperstealth a monopoly on all camouflage patterns ever created.
Jim,
I think you missed an important aspect of the Monarch suit. Monarch was not mentioning utility because they wanted the copyright coverage. Utility – in other words, how well the pattern worked as camouflage – would have denied them copyright protection (but not copyright).
The articles of clothing involved in the suit were Gameday hats. Both companies were producing what the suit dubbed “collegiate fashion camouflage”. The word “fashion” tells the story. That turns normal camouflage into “art” and removes the functional element.
IMO, Hyperstealth will only win copyright suits where the camouflage is being marketed as fashion, rather than as functional camouflage. They tried to intimidate A-TACS, but fortunately, A_TACS markets their camouflage for use as camouflage. I would expect that A-TACS will win summary judgement.
Hyperstealth has stated on their website that they can make more money through threatening lawsuits than through licensing of patterns:
“Question – Have you pursued copyright violations on your patterns?
Answer – We’ve had success with four cases of copyright infringement against our patterns over the past four years and we are considering a couple of other new cases at this time. The four cases were quickly settled out of court with the infringing companies. We are currently dealing with a trademark violation with another company but that is a different matter. We won our first registered trademark case and we have not yet lost a case.
With infringement, we can choose when and who we go after for violation, it does not have to be an immediate response from us once we identify a potential violator. If someone violates our copyright, the potential penalties and damages we would receive are typically larger than an actual licensed contract would be so we don’t stay awake at night and worry about this. In other words we have a few aces in our hand we can use at any time if required.” from http://www.hyperstealth.com/copyright/index.html
Someone might consider Hyperstealth actions similar to cybersquatting — buying up thousands of celebrity and company domain names for a few dollars each and then demanding thousands of dollars each from the company the domain would normally represent. The US created a law to stop this.