[Fritz1970]

ALL BELOW COMMENTS ARE MY OPINION ONLY AND BASED ON MY REVIEW OF ONLY ONE COMPLAINT. THESE COMMENTS DO NOT APPLY TO ANY HK CLAIMS AGAINST ANY FIREARM MANUFACTURER.

Also, I apologize for the huge number of commas in this post. My elementary school english teacher is prolly rolling over in his whiskey bottle.

I've only briefly read one of the complaints, but assuming that they all of the HK the complaints against the various paintball companies are similar, this is NOT a patent issue.

This is a TRADEMARK/TRADE DRESS & UNFAIR COMPETITION issue.

In essence, a patent guards your rights to use a particular method or invention.

In essence, a trademark guards your rights to use a particular brand (name, logo, trade dress (i.e. particular 'look' of your product or packaging), etc.).

"Trade Dress" does not HAVE to be trademarked. It is protected by the federal Lanham Act, and prohibits, generally, knockoffs, forgeries and copycat items/products.

Unfair competition is, in most states, basically a claim for deceptive or fraudulent practices in competition.

NONE of the paintball products likely violate a firearm patent, as they aren't firearms. In any event, while the complaints mention HK's patents, they don't appear to make a claim for patent violation. Instead, they limit their claims to trademark/unfair competition style claims.

Essentially, HK is saying that (a) the paintball defendants are using HK's distinctive brand names (MP5, etc.) and the distinctive 'look' of their products, which HK claims to have registered with the United States Patent & Trademark Office (the names appear to have been patented, but my quick investigation did not locate any trade dress registrations - I may have missed them), without license or permission; and (b) the paintball companies are making products using HK's trade dress and/or passing their products off in a manner that leads consumers to believe that the products have been either made, licensed or authorized by HK.

The first part of the claim - that the paintball companies are using HK's trademarks (the MP5 or USP names, for example) - may have some serious weight. The names are trademarked with the USPTO (for us in paintball, specifically!) and if they are used by the paintball defendants without license, then HK may HAVE to sue in order to protect its rights in the future. Failing to enforce your trademark or trade secret rights can lead to future courts essentially declaring that you have 'abandoned' them - which is why there are a lot of trademark/trade secret claims made.

I did note something of interest in HK's "MP5" trademark application filed with the USPTO. The application states that it has trademarked the "MP5" name for use with firearms, cutlery, clothing, etc., as well as paintball guns. HK has SPECIFICALLY trademarked the MP5 name for paintball guns. However, a requirement for a trademark is that you ARE USING IT IN COMMERCE - while HK is using the MP5 name with regards to firearms and clothing, I am not sure that it has ever used the name in the paintball industry. Whether that distinction will help the paintball defendants, I don't know.

I do know, however, that there appears to have been a problem with HK's trademark registrations in 2008 (for MP5, USP, MP7, etc.), and the application process has been suspended for them. The problem appears to be technical, but I haven't had the time to track down the issue other than it appears due to a misspelling and the fact that HK has related corporate entities operating in the US who have or wish to register the name.

The application also appears to have only been made in August of 2008, and still pending as of April 2009. This may explain the timing of the lawsuit.

The 2nd part of the claim - that the paintball companies are being 'deceptive' in selling look-alike products because consumers might believe that they are HK products - seems far-fetched to me. I do not believe ANY paintball consumer would likely believe that BT's products (for example) are actually HK products.

Whether the paintball defendants' use of HK look-alike design (if, indeed, they have used any HK styling or design) violates the Lanham Act or other laws would really require a close look at the designs of all products, and I haven't had time to do that.

I will note that Coharie Arms (a firearm manufacturer defendant) seems to have very good counsel and is on the attack. I like what I saw of their pleadings; HK will have a tough time with them.

This could have been resolved by negotation between the parties. I'm curious as to why that failed or was not tried. Anyone have any insight?

Fritz