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Why the Law Encourages Copycats (And What You Can Do about It)



I recently read an article saying that Thomas Blug, the founder of guitar amplifier maker BluGuitar, accused Blackstar Amplification of “stealing” Blug’s amplifier design. In short, Mr. Blug noted that his product was named the BluGuitar Amp1, while Blackstar’s product was named the Blackstar Amped 1. Both products are pedal-style guitar amplifiers. In comparing the internal electronics, Mr. Blug also asserted that the transformers within the two products appeared to be similar as did one other electronic component. In Mr. Blug’s view, the Blackstar transformer was “a one-to-one copy” of the transformer that is custom made for BluGuitar.

Mr. Blug did not assert that Blackstar gained its knowledge of the electronic components from any breach of confidentiality or violation of a trade secret. Also, he does not mention any active patent in place to protect the amplifier design. Instead, Mr. Blug believes that Blackstar reverse engineered the BluGuitar product by dismantling it to see what components were used. As I write this article, BluGuitar’s YouTube channel still includes the statement that “Blackstar stole parts of the power supply and the power amp from the BluGuitar AMP1 …, paying zero respect to [BluGuitar’s] intellectual property.”

What Mr. Blug is expressing is the commonly held belief that copying is inherently unfair or reprehensible and that some undefined idea called “intellectual property rights” should simply prevent others from copying your creations.

But intellectual property law allows such copying unless the product is actually protected by valid intellectual property rights. In the U.S., the courts have recognized that in many instances there is no prohibition against copying products. TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 23 (2001). Copying is not always discouraged or disfavored because allowing competitors to copy enhances further innovation and competition. Id. Indeed, legitimate copying makes the free market economy work because that encourages competitors to provide an equivalent product at a lower price or at higher quality. McCarthy on Trademarks and Unfair Competition § 1:24 (5th ed.). The public interest is served by such competition. West Point Mfg. Co. v. Detroit Stamping Co., 222 F.2d 581, 589 (6th Cir. 1955).

As a result, copying and reverse engineering are freely allowed, and even encouraged, unless what is being copied is the subject of a restriction on copying that is recognized under the law. Those restrictions typically arise out of intellectual property rights, such as patents, trademarks (including trade dress), copyrights, and trade secrets.

Turning back to the BluGuitar transformer, the design of the transformer would appear to be readily discernible by anyone with the ability to open the case and knowledge of transformer design. Since there is nothing secret about a design that is plainly visible and accessible to be reverse engineered, the transformer design very likely would not be the subject of trade secret protection. Also, Mr. Blug did not mention any employees leaving BluGuitar for Blackstar, and taking with them the precise details of the transformer or any manufacturing techniques that are not evident from examining the transformer itself. So long as Blackstar did not obtain confidential details about the design by unlawful means, the mere fact that it may have copied the design does not misappropriate any trade secrets.

Patent protection could also arguably apply, but a patent application normally has to be filed before there is any public disclosure of the invention (or, in the US, within one year of that date) in order potentially to have patent protection. Again, there is no mention of any granted patents and there are no “unregistered” patent rights in the United States.

While there are unregistered trademark rights (please see my colleague’s excellent article on that), trademarks protect indications of source. In other words, they protect brands and brand identifiers. The BluGuitar transformer, however, does not seem to act as a brand identifier. For example, being an electronic component on a circuit board, it seems likely that the design of the transformer is determined by its function. And features that are utilitarian in nature are not capable of being protectable trademarks. With regard to Amp1 and Amped 1, words like “amp” and “amped” are probably not protectable by themselves when used as brands in connection with guitar amps simply because those are the generic terms for what an amplifier is and what it does. For example, the phrases “this is my guitar amp” and “my guitar is amped and ready to play” illustrate the likely generic nature of the terms “amp” and “amped” in this context.

Turning next to copyrights, while a printed-circuit-board (PCB) design could be protectable under copyright law, there is no indication under the BluGuitar circumstances that Blackstar copied the PCB design. Rather, Mr. Blug contends that Blackstar copied just two components of dozens that are on the PCB. The overall PCB designs appear to be quite different. So, copyright protection likely also would not provide a remedy to BluGuitar’s allegations.

This is not to say that there is nothing that Mr. Blug could do to address the harm that he perceives, but it does seem like the facts are stacked against him. It is not enough to say that someone copied a design that you feel is proprietary. There has to be a basis under the law for excluding others from copying that work, such as through obtaining genuine intellectual property protection. Otherwise, the law encourages your competitors to copy your hard work.

If you have a design, process, invention, brand, or other product of your creation that is important to your business, our experienced intellectual property attorneys can help you determine what protection might make sense for your goals.

This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.

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