2010 SHOT Show in Vegas, Baby

Ever since those childhood days of cap guns, playing cowboys and Indians, and envying my grandfather’s collection of shotguns and hunting rifles, I, like many American boys, have been fascinated with guns and firearms. Unfortunately, I may have had the only mother in Oklahoma who thought her son should stay away from those dangerous things and my father, being a professional golfer, had little interest in his father’s love of hunting. Still, I was fascinated by rifles, pistols, and most things military history and I vowed, as I eventually did, to own a Garand, an M9111, a Beretta, and various other well-known guns when I became an adult (and had the means to afford them).

I never did get into hunting and college, law school, and graduate school kept me out of the military, but my interest in guns eventually led me to sports shooting, historical reenacting, and, of course, airsoft. Now, as an attorney, I am frequently asked to attend and speak at various industry conventions, seminars and functions, most notably the ASR Shows, but, in researching other speaking opportunities, I stumbled upon the largest “gun show” in the U.S., the SHOT Show.

As you probably know, the SHOT Show is an annual tradeshow for the shooting, hunting, and firearms industry and it is the biggest event of this type in the world. “SHOT” is not actually an acronym, but it is generally accepted to be a general reference to shooting and stands for "Shooting, Hunting and Outdoor Trade" (show). It is open only to those in the trade and the press, not to the public and, until I began to represent clients in the industry, assumed it would forever remain off limits to me.

Access was also a problem in that it has been held in Orlando, Florida several times, alternating inconsistently with Las Vegas, Nevada as a venue. Technically, the show, owned and sponsored by the National Shooting Sports Foundation, rotates between Las Vegas, Nevada, Orlando, Florida, New Orleans, Louisiana, and several other U.S. cities, but Orlando and Las Vegas have been its de facto home over the last ten years. Now, finally, the stars have aligned and I’ll be attending the show next year. The next show will be held in Las Vegas on January 19-22, 2010.

If you’re there, look for me. I’ll be the wide-eyed attorney marveling at all the things gun-related.

For more information, take a look at their Web site at www.shotshow.org.

David Baker

The Airsoft Lawyer

Wizard-Con Comes to Anaheim

In the seemingly eternal struggle between San Diego and the greater Los Angeles megalopolis (nay, Orange County) for the soul of the popular media fan and, in particular, the mega-event known as the San Diego Comic-Con International ("SDCC"), Wizard Entertainment has fired another salvo by setting up their own comics convention in Anaheim. Venued at the Anaheim Convention Center, which would love to entice SDCC 90 minutes north in Interstate 5, what is being called "Anaheim Comic-Con" is slated to begin April 16, 2010, and run through the weekend over what is promised to be a fun-filled and exciting three days. Wizard Entertainment, best known for their monthly magazine, Wizard, chronicling all things comics (most notably, all things Marvel, DC, and Dark Horse) has a bit of checkered history with comics and popular media conventions, holding them in an on-again-off-again pattern in other cities such as Baltimore and Toronto to very mixed reviews.

One of the things that sets SDCC apart from other conventions, aside from its sheer mammoth size, has been the non-corporate feel that is has been able to portray despite its wildly uncontrolled popularity. Indeed, with 125,000+ raving fans, a San Diego Convention Canter filled to capacity for five and a half days, and an army of media vans and reporters, it is surprising that SDCC has been able to maintain its small town sensibilities and loyalties. In contrast, I understand, many of the Wizard events have come across as haphazard and hackneyed with the profit motive barely hidden behind the Batman cowl or Superman cape. Still, it will be in my backyard and I am still smarting from the loss of Gen-Con West, the West Coast version of the Indianapolis-based Gen-Con gaming convention, so I will almost certainly attend, if for no other reason that to quench my thirst for another few months until July and the real Comic-Con returns.

For details, visit their Web site at www.wizardworld.com.

If you go, let me know your thoughts and impressions.

David Baker
The Airsoft Lawyer

Learn from Others' Mistakes

I don't know where I first heard the advice (neither Dad nor Grandpa was much for offering pithy advice), but my kids have often heard me say that the average person learns from the mistakes of others while the truly inspired person learns from the mistakes of others. I'm sure some, perhaps Teddy Roosevelt or Abraham Lincoln, set out the same advice in much more flowery prose. Still, the lesson is the same.

Although I've never been a party to a lawsuit, I offer these words of wisdom to my clients, some of whom choose to follow it, others whom choose to ignore it. (Another piece of advice comes to mind, Those who refuse to study history are doomed to repeat it.) Most recently, this came up in a battle royale over monetary sanctions being sought against a corporate client who continues to refuse to abide by a Federal Court discovery order.

When I spoke with their corporate counsel about opposing the motion for fees, he referred me to an expert the company had used in earlier litigation. Then, when I called the expert, he related how he had helped the client in a similar matter years earlier to reduce the fees from $565,000 to a mere $420,000. In the present case, the opposing party is seeking only $80,000. Talk about not learning your lessons.

David Baker
The Airsoft Lawyer

LCAD - Lion Claws Appreciation Day

John Lu is well-known in airsoft circles as the godfather of large, organized airsoft operations. With familiar names like Operation Bulldog, Operation Irene, Operation North Wind, and, most familiar to southern Californians, Operation Lion Claws, serious airsofters know John and his Best of USA Marketing as a hallmark of fun, exciting, multiple day airsoft battles. Operation Lion Claws is held over the 3-day Memorial Day weekend and, the last two years, it was based in the foothills above Hesperia (on a Boy Scout Camp) on a massive area of operations (or AO) with scrub terrain, ridgelines, tree-lined canyons, disbursed buildings, and a criss-cross pattern of dirt roads. The action is fast, furious, and about as close to the real thing as an airsofter is going to get.

John recognizes that those of us lucky enough to play at Lion Claws, in the heat of the high desert, long for a similar event during the cooler months of fall and winter and over the last couple of years he has sponsored a smaller, one-day event known as Lion Claws Appreciation Day. Although Lion Claws hosts 600 to 800 combatants, LCAD is a much smaller affair, with about 150 airsofters, both male and female, and the action uses a much smaller portion of the AO. It also breaks the day into two distinct battles with a lunch break conveniently placed between the two.

This year, we played the Hunt for the Lion Claws Angels in the morning (the Angels are local models and actresses, several of whom are now veterans of other battles) and the Search for John Lu's Remains ("Warlord" John was killed at the end of the May battles) in the afternoon. Playing as US Marines and allied with the Russians, we had to fight our way through a very tight S-shaped canyon to push the hadji's into a tight corner and recover John's skeleton. LCAD was a nice way to get in one last big battle before heading into the holidays.

David Baker

The Airsoft Lawyer

Desert Shooting - Real Steel

In the airsoft community, real firearms and the shooting of real ammunititon is often referred to as "real steel" and it is revered for the strength and significance it carries, being, as it were, the inspiration for the entire industry and sport of airsoft. Of course, in many countries other than the United States, and even in many citites, counties, and some states, the possession of real steel and the discharge of live ammunition carry significant criminal penalties, including jail time.

There's also the problem of Federal firearms laws applicable to automatic weapons and the very practical problem of knowing someone (let alone owning) an automatice weapon like an M16, G3, oe MP5. As such, not everyone has access to real firearms and many of us never get the opporuntity to fire the real versions of the airsoft guns we love so much. Needless to say, those of us who own real firearms and have access to local gun ranges or, better yet, the vast expanses of the local desert, take every chance we get to drive off road, pull our guns out of the gun bags, lock in a clip, set up a few ragers, and start blasting away.

Tristan and I were lucky enough to have a free Saturday last month and we grabbed the opportunity to head off into the relative wilderness and plink with our .22, our 9mm, and the new Mossberg .30-.30. Just exercising our 2nd Amendment rights. And having a blast.

David Baker

The Airsoft Lawyer

Can You Trademark a Shape?

Can you trademark a shape? If so, how about a sound or a color or a motion? Perhaps surprisingly, yes you can. But it isn’t easy.

Commonly known as non-traditional trademarks, protection can be afforded shapes, sounds, colors and more. More importantly, they can even be registered with the U.S. Patent and Trademark Office. However, the registration process for non-traditional trademarks is not for the inexperienced or the faint of heart because registration can be very difficult, even though they may fulfill the essential function of identifying the commercial origin of a good or service in a unique manner.

If you have been using a non-traditional trademark to identify the source of your products, then you already know how valuable (and powerful) these marks can be. If you don’t think so, just ask Coca-Cola about its fluted bottle shape, or ask MGMG about its iconic lion’s roar, or ask NBC about its familiar three-note chimes. But, as we mentioned, it isn’t easy and numerous companies have been on the losing end of a registration battle, including Harley-Davidson, which tried (unsuccessfully) to trademark the sound of its motorcycles.

Still, the value inherent in such marks, especially those which may already have established the coveted “secondary meaning” in relationship to their owners, may outweigh the challenge of proving, registering and protecting these non-traditional trademarks.

David Baker
The Airsoft Lawyer

Biggest Trade Secret Case in History?

Is an Alameda County jury verdict earlier this week the biggest in the nation's history? Maybe so. Many attorneys are calling Tuesday’s Alameda County jury verdict in favor of Taiwan Semiconductor Manufacturing Company (“TSMC”) and against competitor Semiconductor Manufacturing International Corporation (“SMIC”) of Shanghai, China potentially the single biggest trade secret misappropriation case in U.S. history. Even though the damages phase of the trial did not begin until today, estimated damages could exceed SMIC’s market capitalization of $1.09 billion.

At the center of the lawsuit was TSMC’s claim that SMIC continued to use confidential technology it had obtained from TSMC even after the parties had reached a $175 million settlement of California state and Federal court actions in 2005. While rejecting SMIC’s counterclaims, the jury decided in favor of TSMC on 18 different issues, including misappropriation of confidential TSMC technology and failure to abide by the terms of the 2005 settlement agreement. Trade secret cases are not easy to win, but they can result in significant monetary damages, as this case illustrates.

One moral of the story – Abide by the terms of settlement agreements and, at all costs, avoid infringing on your competitor’s misappropriated trade secrets.

David Baker
The Airsoft Lawyer

Idaho Military Museum

On our midweek trip to Boise, I convinced Mrs. Baker to let me check out the Military Museum located alongside Goodwen Field. Not the biggest or most impressive museum, but it does provide quite a bit of information about the various incarnations of the U.S.S. Boise and there are several armored fighting vehicles onsite. Hours are limited to afternoons. However, the entire experience should probably take less than an hour. While you're there, watch for A-10 Wart hogs of the Idaho Air National Guard practicing take-offs and landings.

For more photographs, take a look at http://davidbakertheairsoftlawyer.shutterfly.com/

David Baker

The Airsoft Lawyer

Marching thru History

Although I couldn't get anyone to go with me (yes, Tristan, this especially means you), this year's Marching thur History event at Prado Dam Regional Park was quite enjoyable. There were reenactors from many different time periods, especially the American Civil War and World War II, as well as a nice assortment of military vehicles.

In past years, the MVPA was allowed to offer rides on the group's Sherman and Stuart tanks (Tristan and I rode the Sherman two years and I'll never forget the rush of charging through the underbrush and powering across a small, muddy creek. This year, there weren't any rides as the Army Corps of Engineer, which oversees the Park, had given in to pressure from the Audubon Society over the nesting habitat of a plover (or similar small bird). In fact, last year's event was cancelled, in part because of this dispute and another dispute over the rights to various aspects of the reenactment events.

Tristan and I have been considering joining a reenactment group (I used to be an active member of the 9th U.S. Division of the California Historical Group) so that we could take a more active role in events like this and Old Fort MacArthur Days. We're also looking forward to participating in one or more events commemorating the 150th anniversary of the American Civil War such as the reenactment of the Battle of Gettysburg in July 2013.

I didn't see many airsoft guns at Marching thru History, in contrast to Fort Mac, but airsoft doesn't make any guns reflecting periods earlier than WW2 anyway. The event is a great way to see history brought to life, if only for a weekend, and I saw many kids running from encampment to encampment, eager to see what the next tent held. Of course, eveyone's favorite time of day was the World War 2 batttle, in Sicily this year, and the firing of the big guns caught everyone's attention. Next year, look for me on the battlefield.

For more photos of this year's event, take a look at http://davidbakertheairsoftlawyer.shutterfly.com/.

David Baker

The Airsoft Lawyer

MGA Finally Gets Some Good News

After being pummeled by a series of devastating rulings and Court decisions in their ongoing battle with Mattel over rights to the Bratz doll line, MGA Entertainment finally received a bit of good news. In a separate battle with Art Attacks Ink, again involving rights to the Bratz dolls, the Ninth Circuit Court of Appeals sided with the District Court and upheld a determination that Art Attacks had no right to the Bratz designs. While the Mattel claims were based on the creation timing and employment status of original designer of the Bratz dolls, Air Attacks had argued that their t-shirt designs of similar characters had served as the basis for the Bratz dolls even though the t-shirts were only sold from a booth at the fair and from a Web site with very limited access to the general public. Consequently, the District Court held that there was no proof that MGA was even aware of the Air Attacks designs let alone that there could be any relationship between them.

The moral of the story? Make sure your designs are well-known before you claim infringement or misappropriation.

David Baker
The Airsoft Lawyer

ASR Bikinis

Just returned home after several days at the Action Sports Retail (or ASR) Show in San Diego. Our intellectual property seminar, entitled "Protecting Your Intellectual Property in Good Times and Bad Times" went well, but was about as lightly attended as the overall show. In years past, the aisles have been, quite literally, elbow-to-elbow. However, the trend since the winter show in 2008 (February to be more precise) has been for much fewer exhibitors and attendees. This year there was no Agenda Show (ASR's funkier cross-town rival) as it had moved to Huntington Beach in July (to coincide with the U.S. Surf Open) and the weak economy contributed to further weaken the show.

If we made one mistake, it was scheduling our seminar on Thursday afternoon. Based on conversations with exhibitors large and small, most arrived early Thursday with plans already made to get away Thursday afternoon and return home by Friday evening even though the show runs through early Saturday afternoon. Through 2008, the show ran through Sunday, but everyone, especially owners, were long gone by Sunday morning.

Overall, we had a nice crowd, many of whom were fairly knowledgeable about trademarks and copyrights, and the crowd interaction made for an enjoyable time. Of course, the real pleasure was walking the main floor and checking out the scantily clad bikini models. Unfortunately, my observations on that topic are best reserved for a completely different blog.

Look for us again at the ASR Show in February (and watch for our Webinars between now and then, especially the "hot topics in airsoft" Webinar coming up soon).

David Baker
The Airsoft Lawyer

Trade Secret Cases Can Backfire

Trade secrets, by their very nature, can be a company’s most prized possession. And when employees make off with a former employer’s trade secrets, such as confidential prospect and customer lists, secret formulas, computer software code, and the like, it has not been uncommon for the employer to file a lawsuit to prevent the employee from using the trade secrets for their own financial gain and, if possible, to recover the secrets. However, a recent California Court of Appeal decision serves as notice that employees must be careful in how they proceed, particularly if they do so in “bad faith.”

In FLIR Systems, Inc. v. Parrish, 2d Civil No. B209964, 2009 WL 1653103 (Cal. App. 2d Dist. June 15, 2009), the Court of Appeals affirmed a $1.6 million attorney fee award to the defendants upon a finding that the action was brought in bad faith. The decision provides some insight into the various factors that may contribute to a determination of bad faith and highlights the importance of considering carefully whether to bring a misappropriation claim against former employees. This is especially true when there is little or no evidence of actual damage, or of actual misappropriation or threatened misappropriation.

In 2004, FLIR acquired the assets of Indigo, a manufacturer and distributor of microbolometers, devices used in connection with infrared cameras, night vision, and thermal imaging. Defendants Parrish and Fitzgibbons were officers of Indigo and continued to work there after the sale. After about a year, Parrish and Fitzgibbons decided to start a competing company based on a business plan originally developed by Fitzgibbons several years before FLIR acquired Indigo.

In 2006, defendants began negotiations with Raytheon Company and assured FLIR and Indigo that they would not misappropriate Indigo’s trade secrets. Not satisfied, FLIR and Indigo sued defendants on the theory that they must have misappropriated trade secrets in order to compete with FLIR by mass producing low-cost microbolometers. Raytheon promptly terminated the business discussions with defendants, forcing them to abandon their fledgling business and to sue FLIR and Indigo.

At trial in late 2007, the Court found there was no misappropriation or threatened misappropriation of trade secrets because it was undisputed that defendants received no funding for their business, never actually started their new business, had no employees or customers, did not lease any facility or develop technology, and did not design, develop or sell any infrared products. In successfully defending the FLIR and Indigo misappropriation of trade secrets and California Unfair Competition Act (Civil Code Section 3426.4) claims, the trial court ultimately denied permanent injunctive relief and awarded defendants $1,641,216.78 in attorney fees as the prevailing party.

In its June 2008 statement of decision, the Court held that plaintiffs had brought the action based on the doctrine of “inevitable disclosure,” essentially arguing that even though there was no evidence of actual disclosure it was likely there would eventually be disclosure of the FLIR and Indigo trade secrets. However, California courts have repeatedly rejected the “inevitable disclosure” doctrine and the Court found FLIR and Indigo to have brought the action in bad faith. In issuing its ruling, the Court considered the following factors significant:

• The absence of any economic harm.

• The absence of any evidence of misappropriation or threatened misappropriation of trade secrets.

• Evidence that the defendants had an anticompetitive motive in filing the lawsuit.

• Failure by the defendants to identify what trade secrets would be subject to the permanent injunction.

• The imposition of unnecessary settlement conditions during negotiations.

• Defendant’s experts admitted there was no scientific methodology to predict trade secret misuse and agreed that no trade secrets actually had been misappropriated.

The FLIR decision is a reminder to employers to exercise caution when deciding to file litigation against former employees for trade secret misappropriation, particularly where it appears the employer is merely fearful or suspicious of wrongdoing. In such cases, the employer risks not only dismissal of its claims but the possibility of significant monetary sanctions.

David Baker
The Airsoft Lawyer

Too hot for airsoft?

The Roughnecks battle on Saturday at Coppermine in Riverside County was fun, if altogether much too hot. The game began with its usual leisurely attitude and the standard start time of 9:00 a.m. sharp" rolled on in to the standard REAL start time of about 10:00 a.m. Late arrivals, the lengthy "safety briefing," the description of the operation, and generalized lallygagging all contributed to a game that began much later than it should have, particularly because of the intense, late summer heat. In fact, by the end of the battle, the temperature in the Tundra read a cool 111 degrees (not counting all the gear we were humping and the steep terrain we traversed).

Besides the oppressive weather, the operation itself left quite a bit to be desired. Again as usual, the op was weighted to the advantage of the Desert forces and Woodland was weighed down with new players, three (3) disparate objectives, a force ration of 2:3, and multiple, hidden components all necessary for victory, multiplied by Desert needing only to prevent Woodland from accomplishing one of its objectives and an overzealous Desert force that had Woodland force4s surrounded before action even began. Although I play on both sides, much of my time is spent on the more challenging Woodland force and I have yet to figure out why Desert, who proclaims to be the more professional group, virtually always insists on having grotesque advantages from the start of the scenario.

In any event, Woodland fought all day at a disadvantage, the heat having knocked quite a few players on their collective rears, first of which was Tristan (Reaver), and it seemed like we were figging uphill for most of the battle. Combined with Desert forces, proclaiming airsoft is a "game of honor," who had a really hard time acknowledging their hits, the conclusion was foregone. The only real question was how many real casualties we would absorb by the end of the day.

Don't get me wrong, heat, wonky scenario, and all, it was still a lot of fun. It's just that when players post their gripes on the Roughnecks forums, like most forums, they end up getting flamed and labeled as poor sports. Of course, I can't help wondering what we'll do that unknown Saturday in the future, when EVERYONE shows up wearing Desert. Then, who wins and who loses?

David Baker
The Airsoft Lawyer

Roughnecks Battle

For those of you who live in southern California and are interested in woodland, or outdoor, airsoft milsim combat, I invite you to an open game with the Roughnecks. My son and I have been playing military simulation-style airsoft with the Roughnecks since January 2007 and we have had nothing but a safe, fun (if often physically demanding) experience.

The Roughnecks compete in local and national events, practicing their tactics in private settings, but they also open things up to the airsofting public in a series of "open" battles which are generally held on the first and last Saturday of each month. Every battle is different, made so by the varying number and identity of participants, as well as the varied terrain of different battlefields, and the scenarios we play. No two events are the same and very few are even similar.

We maintain a series of open forums on the Roughnecks Web site at www.radairsoft.com. I use the call sign "Thunderbird" while my son uses "Reaver." Drop by and introduce yourself.

This weekend, we'll be playing at one of the Roughnecks' largest fields, known as Coppermine, and the event should be well attended. If you're interested, simply send me an e-mail at dbaker@hkclaw.com or dcbakeresq@gmail.com and I'll give you the particulars.

David Baker
The Airsoft Lawyer

Action Sports Retail Conference

Many, if not all, of the most important issues facing the airsoft industry in the United States involve the attempt to enforce trademarks and trade dress rights held by "real steel" gun manufacturers. With heavy weights like H&K, Colt, and Armalite flexing their muscle of their respective intellectual property, this will become an even more important issue in the years to come. Of course, intellectual property rights are not reserved to the airsoft industry and many of the same challenges facing airsoft manufacturers, distributors, and retailers have been vetted by other industries such as the action sports retail industry (or "ASR" in common parlance).

For those who are interested in learning more about intellectual property, I will be presenting a seminar at the upcoming ASR Show in San Diego on Thursday, September 10, 2009. More information is available at my law firm's Web site located at www.hkclaw.com and at the ASR Web site located at www.asrbiz.com.

Of course, you can also contact me by e-mail at dbaker@hkclaw.com or by telephone at (714) 432-8700.

David Baker
The Airsoft Lawyer

Introductions

Introductions are always important and none so important as the introduction to someone you've never met before who accepts the mantle of blogger. Why listen to me and my thoughts , or, better yet, why read them? Excellent question.

I am an avid airsofter and an intellectual property lawyer who has successfully combined my hobby with my profession over the last several years. I don't kid myself that I am the best in either field or, necessarily, the only one in both, but I can say that I bring passion, perseverance, and an annoying sense of humor to everything I do.

The law, as we were taught in school, is a harsh, spiteful mistress whose whims are ever changing, especially as they relate to a hobby and a sport so unusual as airsoft. Just keeping up with developments in airsoft gun design, secondary weapons, field availability, specialty stores, and the relative pettiness of team formation and organization is hard enough without the added concerns of trademark licensing (and possible infringement), the vagaries of trade dress, international paranoia over the very existence of the hobby, local ordinances regarding the discharge of weapons (and toys), and the pressures of competition between specialty stores and bog box outlets as well as the competition between well-known legacy manufacturers and clone knock-off artists. It keeps me on my toes.

And, of course, when I'm sitting at my desk dealing with weighty legal issues or arguing a case in the nearby District Court, where would I rather be? On the field, lining up my next shot.

I hope this Blog can shed a little light on the issues that airsofters face, whether they be players, collectors, retailers, distributors, manufacturers, or a combination thereof. And, I hope to bring a little levity to boot.