Update 7/7/22: There have been further developments on the TWSBI/Narwhal dispute, which I have written about here: Update to the Fountain Pen Drama.
Today we’re dealing with something a little bit outside the usual two-weird-patents-a-week schedule. I’m going to give you a breakdown of the unconventional methods two companies are trying to stop people from copying their stuff. It is a story of jealousy, fraud, and antitrust violations. There are some patents in it, but fewer than certain people would like!
Background on Fountain Pens
But first, a history of pens!
The fountain pen was a pretty big innovation in its day. Just imagine, a pen that you didn’t have to repeatedly dip into an ink well! No more spills! Just classy mfers slinging ink like pros. That opened up a whole world of innovation relating to how you fill the pen with ink. Enter Pelikan’s piston-filler patent:
The knob at the end of the pen unscrews, and pulls a plunger back as it does. As the plunger moves back, it draws ink up through the nib. Much tidier than using an eye-dropper! And since the patent issued in 1928, it is very firmly in the public domain. Anyone can make a piston-filled fountain pen according to that design. So not only does Pelikan still make them, but a variety of other modern pen makers do as well.
Being such an old technology, there is not a lot of room for innovation in the fountain pen field anymore. You do still see some inventions, for example in the niche of retractable nibs, but by and large pen makers try to distinguish themselves by the visual design of their pens. One pen model of particular interest for this post is the Kaweco Sport. Here is a picture of one of mine, which I have set up here as a highlighter:
The Sport is a small pen, with a faceted cap. Kaweco, and the Sport in particular, is a well-known brand in the fountain pen world. The original Kaweco started in 1889, and then went bankrupt in 1930. The brand was picked up by a small company, but was revived in its present form in 1994, when a new company bought the rights to the name. The general design of the Sport seems to date back to 1934, according to a history of Kaweco’s products. So this is a product that has been around, in one form or another, for a very long time.
Kaweco’s Dirty Deeds
Although German and Japanese brands dominate the international pen market, fountain pens are also popular in China. In the past decade, Chinese companies have been producing a wide variety of pens, including some which are, let’s say, heavily inspired by other companies’ designs. The first point of drama focuses on Kaweco’s attempts to stop others from copying their designs. A good example is the Delike Alpha, which has a very similar shape to the Sport but with a slightly longer barrel.
Now, if Kaweco had any sort of intellectual property protection in its designs, that would be relatively straightforward. For example, if they had a patent or a trade dress registration, they could stop infringing goods from being imported to the countries where they had those protections.
However, they have no such patents. Being such an old design, any patent on the Sport would have expired many decades ago. Not to be deterred, Kaweco did attempt to get trademark protection for the shape of the Sport in Europe, betting that it would be a sufficiently distinctive shape to get protection:
However, this trademark application was rejected by the EU IPO. There is a whole legal decision on it, since they appealed the original rejection, but the most interesting part (to me) is:
The fact that the registered item combines several purely decorative or functional elements of other commercially available pens (large diameter, long, angular cap without clip) does not mean that the overall shape is perceived as distinctive. Rather, it is a minor variant of common shapes, the components of which all have a purely functional or decorative meaning. Overall, the registered design does not show any special features with regard to the relevant category of goods (fountain pens, ballpoint pens, rollerball pens and other writing implements with caps).https://euipo.europa.eu/eSearch/#details/trademarks/017891541
You may disagree with that reasoning–I know many people in the fountain pen community do. As things stand, however, Kaweco has no legal tools for protecting their pen designs.
Lacking legal recourse, Kaweco decided to take a more creative approach. I am providing screenshots from a statement they made below. I cannot directly verify the authenticity of the statement, but I can corroborate the part about the trademarks:
Kaweco definitely has registered these trademarks. For example, U.S. TM Reg. No. 6,367,047 covers the Moonman mark and U.S. TM Reg. No. 6,367,049 covers the Delike mark. To the best of my knowledge, Kaweco has never sold any product under any of these names, whether in the United States or elsewhere. Based on their own admissions, it appears that they registered the marks purely to use as a tool to prevent competition.
Now, if the people who make these pens were to actually challenge the false registrations, they would likely prevail on the basis of their prior use. But rather than deal with the courts, the Chinese manufacturer appears to have sidestepped the issue by changing the Moonman brand (now “Majohn”) and proactively registering the new name internationally. Under a new USPTO program, third parties can challenge invalid registrations where a mark has not actually been used in commerce, but Kaweco’s Moonman U.S. registration is based on a foreign trademark registration, and will not be eligible for that program for another couple of years.
To be clear, I like Kaweco’s products and own a few myself. I’m not even going to get into whether these Chinese pens actually are copied from Kaweco’s. Some are pretty clear copies, while others look nothing like Kaweco’s pens and use only a faceted cap. The real issue here is whether Kaweco actually owned these designs and whether their response wa reasonable (or even legal).
I believe the answer to both of those questions is a clear no. I could legally make a perfect copy of the Kaweco Sport, slap an UNMAKEME logo on it, and sell it down the street from Kaweco’s headquarters. Since Kaweco didn’t have any legal recourse for stopping Moonman and other brands, they essentially stole a competitor’s name and used used that ill-gotten trademark registration to block the competitor’s sales. They can wring their hands and clutch their pearls all they want, but what Moonman et al. did was perfectly legal.
All that Kaweco stuff went down last year and is pretty much settled at this point. Delike, Wing Sung, and Majohn nee Moonman are still selling pens, Kaweco won’t be able to pull the same trick twice, and they probably won’t face any consequences for what they did.
TWSBI’s Strong Arm
This second piece of drama is still unfolding. TWSBI is a pen company operating out of Taiwan. They distinguished themselves by selling affordable piston-filler fountain pens at a time when that was largely a feature of expensive, premium pen brands, such as Pelikan and Montblanc. In the years since, they have released a wide variety of pens, with innovative and interesting designs. Again, I like TWSBI and own their products.
In March, TWSBI sent out a letter to pen retailers. Once again, I can’t directly verify the authenticity of this letter, but people in the know seem to be taking it seriously:
Now, rather than arguing that the visual design of their patents was copied, TWSBI is arguing that the functional internal components (the piston mechanism) were copied. If you are interested in the details of how the TWSBI patent goes together, here’s a breakdown video.
To the best of my knowledge, TWSBI holds no patents on the piston design, and as noted above, this technology has been around for nearly a century. That means, just like Kaweco, TWSBI has no recourse in the courts for stopping these competitors.
Since Kaweco’s trick wouldn’t work a second time, TWSBI threatened to pull their products from anyone who does business with their competitors. If that sounds shady, I agree! I also think it may run afoul of antitrust protections, but I am not an antitrust expert. The TWSBI ultimatum set a deadline of May 1st, so we will see what happens next!
The Ethics of Copying
So that’s the current state of play. Intellectual property rights are made conspicuous here by their absence–none of these disputes focuses on patents or trademarks. Despite that, these pen makers clearly feel strongly that they own their designs in some sense, and feel aggrieved that other people are copying them.
In the discussions surrounding these issues, I have seen people complain repeatedly about Moonman’s ethics. They claim that, even though Moonman might not have done anything illegal, it was still ethically wrong to copy other people’s pens.
To a patent attorney, this is a serious head-scratcher. Unrestrained copying is what exists in the state of nature, and people obviously dislike that. But while humans invented intellectual property to stop people from copying, we also created it with specific limits, because we recognize that an unlimited monopoly is often actually worse than unlimited copying. Once a patent’s lifetime runs out, we want people to copy it, to promote competition and to make the technology available to more people.
What’s more, the ethical argument seems to hold no water at all when talking about designs and mechanisms that you didn’t even invent. The Kaweco Sport was designed by a different company 90 years ago, and the piston mechanism was invented by Pelikan in the 1920s. I have a ton of spoons in my house, not one of which was made by the original inventor of the spoon–are they all knockoffs?
The things I’ll be watching for are whether Kaweco or TWSBI face any regulatory scrutiny because of all this. The FTC might have some strong words for them, if these issues make it there. Moonman seems uninterested in fighting back, and I’m sure U.S. sales of their products are a small part of their sales volume anyway. Narwhal is a small American pen maker who seems to have had bad luck getting caught up in this, so they are probably going to suffer the most.
I also will mourn the loss of the coolest brand name in fountain pens. I can respect not wanting to spend the money to prove a point, but “Majohn” just doesn’t have the same ring as “Moonman.” That said, Majohn did get the last say. Shortly after the Kaweco story broke, Majohn released the RS1:
I call it my spite pen.