[DML] DMC and Trademarks

["james" <james@xxxxxxxxxxxx>]

A friend forwarded me a note that this topic had come up again on the
DML...historically, we've made it more or less a habit *not* to respond to
these discussions because it inevitably leads to further arguments with no
positive outcome, and distracts from the substantive, productive tech help
discussions that take place on the DML/DMCTalk. That said, in regards to the
Diamond Select Toy BTTF car, they made a business decision with regards to
assortment and design on their own, with neither mandates nor requests from
DeLorean Motor Company. I don't have any other information than that
regarding what led to their decision.

Let's look at it from another perspective...what does Diamond Select do with
the profits from the sale of this BTTF car? Re-invest it in the DeLorean
community? Of course not! When DMC (Texas) is able to license the logo for
use on a product like this (i.e. Hot Wheels, Sunstar, The Hundreds, video
games) that money goes right back into the DeLorean community in the form of
reproduced parts and better availability of the same. Which would you rather
have - a toy car with the logo on it, or a part that might otherwise go
unavailable for lack of funds?

In regards to the DMC logo trademarks and our ownership of them...we've
spent tens of thousands of dollars on IP over the past ten-plus years and
are very confident of our position. As part of the purchase of the remaining
NOS parts from KAPAC in 1997, DMC (Texas) also acquired the exclusive rights
to improve/reproduce DeLorean parts from the original engineering drawings
and distribute NOS DeLorean parts.  No one in the past 27 years has put
anywhere near as much a time/effort/capital into the DeLorean brand as
Stephen Wynne. No one in the past 15 year years has put as much
time/effort/capital into the DMC brand. He basically took a name that was a
symbol of failure, and as a company we legally and openly applied for
trademark protection for the logos that represent the brand and after
investigation by the USPTO were granted these trademarks. Now, in no small
part to those efforts, the DMC brand is getting positive press/media
attention. Heck, even Jay Leno is warming up to the car! Facebook users can
log in to view this link:

http://www.facebook.com/#!/photo.php?pid=3391454&id=22163434400

Without a doubt, however, that there are absolutely instances where the
stylized DMC logo can be used without a licensing agreement with us. But,
according to the legal opinions we have received, if the use of the logo is
a focal point or adds to the DeLorean-related appeal of the product, that's
when it legally requires a licensing agreement. Basically, if there is
"value-added" by including our registered trademark, or a variant of which
that a reasonable person could confuse with our registered trademark, that's
when a licensing agreement is legally required. That's why a photo of a
DeLorean made into a poster, etc is fine, but a poster/mug, etc with just
the logo on it is not.

DMC has always supported the small scale enthusiasts, too - typically they
aren't making significant volumes or profits from their products, and
typically create products that are only of interest to those within the
DeLorean community. Examples of this include parts and accessories for which
we like, and think make good sense, but don't see the volume to make them
ourselves - which is why we make it advantageous and at a cost next to
nothing for someone in that position to get licensed to use the logo.

For years people have used the internet bully pulpit to question the
legality and ethics of this action. But none have the stepped forward to
actually make a legal issue out of it. If our lawyers are wrong, it's up to
someone else's lawyer to prove it. If we're right - and all legal work and
USPTO actions to date say that we are - then to be honest, I'm afraid that
there will *still* be individuals who disagree and will never be pleased.
Interestingly, however, those that talk the loudest about it invariably have
no interest other than making noise.

In the end, for me at least, it seems that the people who are the most upset
about it really have academic interest at best. The people who do have a
financial interest either work with us or find a workaround. We're eager to
work with the former, and I've not yet seen one instance where working with
us did not lead to better financial results for them in the form of greater
sales volume numbers and exposure.

James Espey
Vice President, DMC (Texas)




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