darkSpyro

Since the entire discourse and enlightening conversation regarding this issue seems to have magically and mysteriously vanished again, I figured it would be best to summarize some of the most important points for the community here. If you're not interested in reading things that might provoke discussion and potentially polarize opinions, then please discontinue reading now and go back to your daily business.
First, here are the culprits, two "custom" replica/fakes of the most recent "chase" variant Skylanders figures: the "green" series, currently being auctioned on eBay:

http://www.ebay.com/itm/Skylan...=p2047675.l2557

http://www.ebay.com/itm/Skylan...=item3cd9654897

When I originally brought this to the attention of our community, I had absolutely no idea that the Seller is actually someone who participates in this community. His user account name is "Skylanderex". This fact was brought to my attention by a handful of users here, including at least one "Hunter" who apparently has an undisclosed affection for Skylanderex. This apparently created a conflict of interest, because my intent was to warn the community about these replica/fake Skylanders, but by doing so, I was inevitably defaming another user of the forum, even though I originally had absolutely no clue that the replica/fake Seller was a community member.

I need to remind our community that it was not that long ago that we collectively got our knickers in a bunch over a fake "Gold Warnado" that was being marketed on Amazon:
//forum.darkspyro.net/spyro/vi...ic=81773&page=1
From that thread, I will directly quote Matteomax, giving his opinion of the "Gold Warnado" Seller: "This guy is a total and complete ass. Just ban the damn user already."

(Hypocrite much, Matteomax? Sorry, friend; you brought this on yourself.)

Apparently, our community will get the torches and pitchforks out when someone attempts to sell an item that is an obvious unauthentic fake ... but we're OK when someone creates an obvious replica/fake of an existing authentic Skylander and tries to sell it. Or maybe we're only OK with replica/fake Skylanders sellers when they're on Matteomax's personal "approved list" of replica/fake sellers. Either way, that's totally hypocritical and unacceptable.

Regardless, upon further investigation, I discovered that it is illegal trademark infringement for someone to attempt the sale of replica/imitation goods when using the authentic item's trademarks, which would absolutely include the original "re-sealed" Skylanders Swap Force cardboard-and-plastic-bubble packaging that Skylanderex used (illegally) to promote and market his replica/fake variants on eBay. I also learned that the sale of replicas on eBay is not allowed under eBay's published Customer Support policy documents. Here's a sampling:

"Sellers are not allowed to list items that aren't authentic."

"The sale of unauthorized replica and counterfeit items is illegal. It's also against eBay policy. Sellers who aren't sure of the legality or authenticity of their items can't sell those items on eBay. This policy helps protect buyers from purchasing illegal merchandise and helps intellectual property rights owners protect their rights."

"Not allowed: replicas of brand name items."

"Not allowed: counterfeit replacement parts or consumables that weren't made by the manufacturer that the items are labeled with."

http://pages.ebay.com/help/pol...ounterfeit.html
http://pages.ebay.com/help/pol...isclaimers.html

Thus, if you wish to report these replica/fake eBay listings: I suggest the following:

Go to the replica/fake Skylanders eBay listing (see link above near start of this post), and on that page, Click on "Report Item".
On the next screen, there are 3 drop-down selections.
In the first two drop-downs, Select:
"Copyright and Trademark"
"Counterfeit Item or Authenticity Disclaimer"
Then, in the 3rd drop-down, choose either: "Counterfeit, fake, or replica items" or "Disclaimers about the authenticity or legality of an Item".

Now, before anyone rushes in to defend poor little Skylanderex and his fake/replicas, based on the fact that he used the language, "custom", in his eBay listings, just STOP. You're wrong. You're entitled to your opinion, but you're wrong. Again, if we're going to lambaste and lynch-mob the "Gold Warnado" seller on Amazon, we need to be consistent and apply that same standard to Skylanderex. The fact that he's a participating member of this community doesn't absolve him of his criminal activity. The fact that he's apparently on good terms with Matteomax also doesn't absolve him of his criminal activity.

And before anyone goes on the offensive against me for stating the obvious truth in this situation, take a moment to view Skylanderex's account activity on eBay. Right now he is "scalping" a Halloween Fright Rider. His feedback history indicates that he "scalped" multiple Scorpion Striker Battle Packs back in January/February when they were hard-to-find in many areas ($35 on Feb. 2nd, $46 on Feb. 21st). Same deal with Eye-Brawl, who was also difficult to find then ($30 on Feb. 4th, $26 on Feb. 8th, $32 on Feb 13th). I personally don't have any grudge against "scalpers" at all ... but I know lots of users of this forum have stated repeatedly that they really despise "scalpers". Well, before you go defending Skylanderex's fake/replicas (because they're SO COOL!!! *eye-roll*), know that he's a "scalper", and consider that in your summary judgment.

My intent here is to INFORM, and not to argue/fight, as so many users here mistakenly believe.

Agree......again.

And I still agree that it is a Replica and not a Custom...

Just the fact that it could be purple or red instead of green would make a difference.

Wait, are mods deleting our thread? What's going on? As a whole the people in the conversation were decent enough. Is a mod trying to protect someone selling fake Skylander products?

Probably because it points out a user, which I don't approve btw =/

...If he create a custom, he can sell it... I don't get it!

Quote: LloydDXZX

...If he create a custom, he can sell it... I don't get it!

The problem is that it exactly replicates the new chase variant, which is misleading on eBay.

Quote: Reimu

Quote: LloydDXZX

...If he create a custom, he can sell it... I don't get it!

The problem is that it exactly replicates the new chase variant, which is misleading on eBay.

Oh... Ok! I never knew that you can't recreate ex. a real toy or other stuff like this...

Quote: Reimu

Probably because it points out a user, which I don't approve btw =/

I can appreciate that, but it feels like the proper thing to do would be to have the mod close the thread with a post that says why the thread is being closed. As is it just feels like a mod is covering for the ebay seller.

Also, I'm new. Where can I find a list of mods? Thanks.

Probably my fault it got deleted, Sorry all.
Won't happen again.

Bye.

I was just at the variety store and saw this chocolate bar for sale.



Kinda reminds me of this conversation and this other chocolate bar

Companies making their products look similar is nefarious but legit (even if it skates on thin ice).

However, making an item which looks identical to another is a different story.

The prior thread started to delve into how reproducing the figurine was kosher but Activision actually have IP based on the figurine shape so you can't duplicate that to sell - otherwise Chinese knock-offs would be doing that (and may well be).

Which looks like a knock-off of Almond Joys. Oh free enterprise! At least they tried to make it look a little different and with a different name but sheesh!! It's still shameless.

Am I the only one waiting for the axe to fall? I keep wondering if anything I type could trigger it. It's like walking on eggshells.

I for one am glad that this topic keeps coming back to life after disappearing. For someone to re-create a variant and call it custom (to me) is completely wrong. I do not feel it is custom in any way. To me custom implies that they took something that the manufacturer produced and changed it in such a way that it is now different from what is out there. Not that they took a figure and "custom" made it into something that is already made and more desirable than the normal item.

I read "this" thread earlier and did not have the ability to reply to it due to work. But I do recall Jin's name being brought up as an example of custom. Jin took normal figures and made them completely different than designed by adding articulation and other features. Jin did not take a figure and try to make it look like an already released item.

I see a few different issues coming from this situation. Firstly that the seller may be putting custom to make it "legit", but that there can be buyers that are not looking to keep this. Those buyers can purchase just to pass it off later as a legit item. Secondly that a user here is manufacturing their own money based off the Skylanders name. Literally making these at will to obtain profit. Yes, I understand that it cost him to make a mold, including materials and labor. And again labor and materials per item made. But he isn't doing this at a loss for the better of the community.

At the end of the day, I see this as someone who realized that there may be profit to be made from replicating the newest chase figures, and is profiting from it. I feel either deception, or obtaining buyers who will use deception is the intent here. Nothing good will come from this.

Quote: Reimu

And I still agree that it is a Replica and not a Custom...

Just the fact that it could be purple or red instead of green would make a difference.

Exactly. If it had been ANY other color, there would have been zero problems. The fact that it was intentionally designed to be a REPLICA is what makes it illegal.

Quote: Reimu

Quote: LloydDXZX

...If he create a custom, he can sell it... I don't get it!

The problem is that it exactly replicates the new chase variant, which is misleading on eBay.

And therefore a violation of eBay's published policies; correct.

Quote: plebeianprint

It feels like the proper thing to do would be to have the mod close the thread with a post that says why the thread is being closed. As is it just feels like a mod is covering for the eBay seller.

Although I don't want to believe it, you're right; I also have suspected that our moderators could be "covering" for the eBay seller because he's presumably a well-liked user of these forums. I have no proof of that; but the moderators repeatedly deleting this dialogue certainly raises suspicion.

Quote: chaosworrier

Companies making their products look similar is nefarious but legit.
However, making an item which looks identical to another is a different story.

The prior thread started to delve into how reproducing the figurine was kosher but Activision actually have IP based on the figurine shape so you can't duplicate that to sell - otherwise Chinese knock-offs would be doing that (and may well be).

Agree. Thank you.

Quote: siowm6

I for one am glad that this topic keeps coming back to life after disappearing. For someone to re-create a variant and call it custom (to me) is completely wrong. I do not feel it is custom in any way. To me custom implies that they took something that the manufacturer produced and changed it in such a way that it is now different from what is out there. Not that they took a figure and "custom" made it into something that is already made and more desirable than the normal item.

I read "this" thread earlier and did not have the ability to reply to it due to work. But I do recall Jin's name being brought up as an example of custom. Jin took normal figures and made them completely different than designed by adding articulation and other features. Jin did not take a figure and try to make it look like an already released item.

I see a few different issues coming from this situation. Firstly that the seller may be putting custom to make it "legit", but that there can be buyers that are not looking to keep this. Those buyers can purchase just to pass it off later as a legit item. Secondly that a user here is manufacturing their own money based off the Skylanders name. Literally making these at will to obtain profit. Yes, I understand that it cost him to make a mold, including materials and labor. And again labor and materials per item made. But he isn't doing this at a loss for the better of the community.

At the end of the day, I see this as someone who realized that there may be profit to be made from replicating the newest chase figures, and is profiting from it. I feel either deception, or obtaining buyers who will use deception is the intent here. Nothing good will come from this.

Exactly.

I know I said earlier that I wouldn't be responding to this discussion, but I just want to point out that these quotes echo EXACTLY why this topic should remain in discussion. I am extremely relieved to see that there are users here who agree that we, as a community, should be condemning the overt sale of replica/fake Skylanders, regardless of who created the replica/fakes, even if that person is a user on these forums. I am also extremely relieved that there are some intelligent individuals here who are able to discern between a CUSTOM Skylander (which is perfectly legit) and a REPLICA Skylander (which is illegal). There were a couple of other responses to the former version of this thread last night that I would have liked to include in this post ... I don't mean to leave those individuals out; it's just that the thread was deleted, so I can't quote you.

Just DROP it already! You know that the CUSTOM clear green variants of Riptide and Chop Chop won't be removed unless it is bought! Skylanderex clearly stated that they are custom in the listing. And he did NOT replicate the figure! If he did, it would show up ingame as a Special variant, with 2100 gold and it would be level 5, and he would be saying it is a TRUE variant right from the store. Just drop it!

What's this, the third time this thread's been created? LOL

The lesson to take away from this is that if your post is moderated, you should just keep recreating the post and there will be nothing done.

Even if the post includes cursing, invalid accusations, name calling, trolling and flaming. When it gets moderated, just keep remaking it until those in power just get tired of it.

Quote: zookinator

Just DROP it already! You know that the CUSTOM clear green variants of Riptide and Chop Chop won't be removed unless it is bought! Skylanderex clearly stated that they are custom in the listing. And he did NOT replicate the figure! If he did, it would show up ingame as a Special variant, with 2100 gold and it would be level 5, and he would be saying it is a TRUE variant right from the store. Just drop it!

Just to throw it out there, but I can quite easily make and Skylander lvl 5 dead with 2100 gold using the editor, so that one is out. But the special tag, lets be honest here, by the time you get to put it on your portal (If you are one that even knows the tag) it is a little too late. You now can go through the Ebay buyer protection process and hope for the best. But In the end if you buy a fake (mislabeled or not) you are going to have quite a few headaches that you were not expecting. That is the issue here.

Quote: UncleBob

The lesson to take away from this is that if your post is moderated, you should just keep recreating the post and there will be nothing done.

Even if the post includes cursing, invalid accusations, name calling, trolling and flaming. When it gets moderated, just keep remaking it until those in power just get tired of it.

Or the lesson may be: If you stick to your guns on something you know is wrong, and are being supported on gets deleted there may be something else going on.

I am not going to go personal, but this is not the first time certain people in certain positions have been called out.

Yup, Double post...

Quote: siowm6

Quote: zookinator

Just DROP it already! You know that the CUSTOM clear green variants of Riptide and Chop Chop won't be removed unless it is bought! Skylanderex clearly stated that they are custom in the listing. And he did NOT replicate the figure! If he did, it would show up ingame as a Special variant, with 2100 gold and it would be level 5, and he would be saying it is a TRUE variant right from the store. Just drop it!

Just to throw it out there, but I can quite easily make and Skylander lvl 5 dead with 2100 gold using the editor, so that one is out. But the special tag, lets be honest here, by the time you get to put it on your portal (If you are one that even knows the tag) it is a little too late. You now can go through the Ebay buyer protection process and hope for the best. But In the end if you buy a fake (mislabeled or not) you are going to have quite a few headaches that you were not expecting. That is the issue here.

But according to some, people LOVE these knock offs.

It's like my wife getting tired of these knock off bags until I had to buy her a Michael Kors bag. Nothing beats an original.

I've said this a dozen times... if you disagree with the mods, take it to the admin.

A good example was when I had a post deleted (didn't even realize it was moderated, as I didn't know your moderated message alerts are hidden), I went to the suggestions board and got it restored.

It works, if you're in the right.

You can be right, but go about it all wrong. Which is where the cursing, name calling, trolling and flaming come in.

Quote: siowm6

I for one am glad that this topic keeps coming back to life after disappearing. For someone to re-create a variant and call it custom (to me) is completely wrong. I do not feel it is custom in any way. To me custom implies that they took something that the manufacturer produced and changed it in such a way that it is now different from what is out there. Not that they took a figure and "custom" made it into something that is already made and more desirable than the normal item.

Custom does not mean that it is not a copy of something made it mass. It means that is one of a kind, hand made. Your thoughts on what custom implies is just your opinion, and not something the seller is responsible for. You don't have to like it

Quote: siowm6

I read "this" thread earlier and did not have the ability to reply to it due to work. But I do recall Jin's name being brought up as an example of custom. Jin took normal figures and made them completely different than designed by adding articulation and other features. Jin did not take a figure and try to make it look like an already released item.

That's great, but that doesn't change the definition of 'custom'.

Quote: siowm6

I see a few different issues coming from this situation. Firstly that the seller may be putting custom to make it "legit", but that there can be buyers that are not looking to keep this. Those buyers can purchase just to pass it off later as a legit item.

The seller isn't responsible for what the buyer does with item. A buyer could take any custom figure and try and sell it as an original to some unsuspecting buyer.

Quote: siowm6

Secondly that a user here is manufacturing their own money based off the Skylanders name. Literally making these at will to obtain profit. Yes, I understand that it cost him to make a mold, including materials and labor. And again labor and materials per item made. But he isn't doing this at a loss for the better of the community.

This seller is no different then Jin. Do you think people would buy Jin's action figures if they didn't have a strong likeness to a character that some corporation did the marketing to make popular? Would any custom painted skylander figure, no matter how creative, be worth a dollar if Activision hadn't created and marketed the character the figure resembles?

Most of the skylanders on ebay, custom or otherwise, are selling above retail, because of scarcity or perceived scarcity. They are all manufacturing their own money based off the Skylander name, as you put it.

Quote: siowm6

At the end of the day, I see this as someone who realized that there may be profit to be made from replicating the newest chase figures, and is profiting from it. I feel either deception, or obtaining buyers who will use deception is the intent here. Nothing good will come from this.

I honestly don't think that's the case. I see it as a guy who enjoys making custom figures (mostly original ideas from what I've seen in the custom figure thread) and has decided to sell some of them to recoup his costs and hopefully find the figures homes for people who appreciate it. I don't think the seller thought he was going to deceive anyone, but that there's a buyer out there who wanted something that looked like a variant but didn't want to pay a heavy price. If it was his intention to deceive, why did he post pictures of it here on the custom thread.

Quote: UncleBob

I've said this a dozen times... if you disagree with the mods, take it to the admin.

A good example was when I had a post deleted (didn't even realize it was moderated, as I didn't know your moderated message alerts are hidden), I went to the suggestions board and got it restored.

It works, if you're in the right.

You can be right, but go about it all wrong. Which is where the cursing, name calling, trolling and flaming come in.

I agree about the cursing, name calling, trolling, etc. being the wrong way. But sometimes going about it the right way does nothing. But personally I have dealt with a situation that was completely wrong on this site. Went to Dark and never even got a reply (sent both to his pm and email.) Just happened to be someone who is still in a power position.

Once the right way is tried though, sometimes some pressure can be warranted. While some wording may not have been up to the standards here, the intent (I feel) is clean. And only done to help the community. For things to disappear with no official statement repeatedly seems quite odd to me though.

Edit: I appreciate the point by point tear down, but melvimbe, please re-read my post.

I am pretty sure I put quite a few trigger words in to emphasize that this was my opinion and not fact. You even quoted those words.

custom (TO ME) is completely wrong.
I DO NOT FEEL it is custom in any way.
TO ME custom implies that they took something that the manufacturer produced and changed it in such a way that it is now different from what is out there.
I SEE a few different issues
At the end of the day, I SEE this as someone who realized
I FEEL either deception


So thank you for pointing out that this is opinion, but I thought I made that pretty clear with the way I wrote it.

While everyone's shouting here, can I just be the first to actively wonder *how* these are being made? Making a replica like this isn't going to be an easy task, or a cheap one.

Quote: Kung Fu Man

While everyone's shouting here, can I just be the first to actively wonder *how* these are being made? Making a replica like this isn't going to be an easy task, or a cheap one.

You can discuss that in the "CUSTOM FIGURES" sticky thread. Several people already have.

Well I think it's relevant *here*. We're talking fakes and thumping things and whatnot, but knowing what's involved and what to look for in comparison to the original will vastly help people on the secondary market. There are whole discussions for this thing when a KO transformer comes up because not everyone knows what to look for in a fake...but not everyone immediately realizes they may be selling a fake.

So yes, I feel it's worth bringing up here Mr. Backseat Moderator.

It really doesnt matter what any of us think or feel.
Nor does it matter what wording he used in his auction. Nor does it matter what his intent is.

Bottom line. It is illegal.

He did not paint an existing character, he cast a mold from one and made a counterfiet.
The figure did not originate from the rights holders manufacture.

Condemn or condone, either way its illegal.

And the biggest problem is that once it's out of his hands, no one but the buyer will really know if it's the fake or the real thing. There's nothing on the packaging to say "custom made by ___". The very fact that it's in the actual packaging and not open or in a custom container is a big red flag!

Also, using the argument that Jin makes customs of Skylanders does not legitimize this type of "custom", "replica", or what have you. Jin doesn't sell them in the original packaging. Jin makes distinctly unique poses and changes that the naked eye can discern. Even if you were completely new to Skylanders, if you placed Jin's customs next to the originals, you could tell they were different.

This is the crux of the problem, and while it sounds like beating a dead horse, I would hope that it didn't die in vain. Let's get a side-by-side picture comparison of the real varient vs the fan-created one in their respective packages. Better yet, don't indicate which is which unless someone hovers their mouse over it. Have people actually objectively look at them. If they seem the exact same or near enough in the fig AND the packaging , then that's not a "custom" but a "replica". We have pics of both I think. The creator himself has posted
his pics, and there are pics somewhere from a poster on here of the new varient (Or so I thought anyway. Am I wrong?)

Just to help me understand this properly, I've looked up the definition in Webster's.

Replica 1. a copy or reproduction of a work of art produced by the maker of the original or under his or her supervision. 2. any close or exact copy or reproduction.

This looks closer to definition 2. Now, does ebay go by this definition? Has anyone directly asked them? I think that would be helpful.

Now, I recall doing a comparison between doing this sort of custom and doing the same thing with a comic book. Let me see if I can remember the gist. Say you make a custom copy of a popular comic, one that was rare for whatever reason (say, the color on a character was wrong, and later pulled from production). You use an older copy of the same series that wasn't very popular to remake it. The same hue of ink is used, the same same style of drawing, everything. You even have the original wrapping that happily looks exactly the same as the one for the rare. Everything looks the same. You sell it on ebay and even say it's custom. But it has nothing on it to indicate this. It looks legit, it feels legit. For the average eyeball and possibly a number of discerning ones it is the real thing! All anyone has to prove otherwise is your word and the word of the buyer. Now, is that legal? Is that ok? I doubt it. Comic books are a big business. They rake in alot of cash. The temptation would be for some to just fake it and sell it as real, because let's face it, the world market is in the can and some people just want to get rich fast. The creator themselves might call it a labor of love. They might even say it wasn't intentional. But when all is said and done, it just doesn't add up. You tell me using a resin to make it look a certain hue is expensive. Yeah it is. I don't know much about that sort of thing, but even I can tell that! He didn't just do it once and say hey, recoup the cost of production and it's yours. He went out and posted it on ebay. He didn't keep it out of box like so many customs are shown and sold there. No, he had it returned to the box like it was a mint varient! And to top it off, he didn't do it just once, he did it twice! And it turns out that worked, because he got alot more than most customs go for just with that!

Now I know, I'm saying something about someone people love on here. I get it. I really do. There's nothing wrong with caring about people and wanting to defend them. The thing is, when it's clear that their actions are wrong, instead of closing ranks, it's better to have him stop! What if he got in trouble? What if he got sued or arrested? Nobody wants it to get to that point, but if he continues the same action, it could! The making of customs is fine. The wish-fulfillment in making your own "varient" and keeping it is nice. The problem is in the packaging! If he can afford to get resin and all the items needed to make his growing hoard of customs, then he can afford to make or buy a custom box and a custom tag! In art, as I've been reminded by a friend, you have to cover your butt! If you make something that could even be construed as legally dodgy you have to make it clear that you're not trying to infringe on a copyright or a trademark, that this is a fanmade item for fan enjoyment. He has the means to do so. Twice he didn't. What does that tell you?

Quote: Sickboy1138

The figure did not originate from the rights holders manufacture.

Except that it did...

Quote:

Condemn or condone, either way its illegal.

Curious - if I had, say, an old Master of the Universe figure and I popped one of the arms off, cast a mold, created a new arm in a different color to customize the figure, would you say that was illegal?

^ No, UncleBob. It would not be illegal to create a new arm in a different color.

However, it WOULD be illegal for you to cast a mold of the figure, recreate the entire thing as a REPLICA of the original, designed to imitate the original in appearance, seal it up in an original Masters of the Universe package with trademarks that you don't own, and then sell it on eBay.

Take your ridiculous straw man analogies and reprehensible trolling and GET LOST, please.

Quote: UncleBob

Quote: Sickboy1138

The figure did not originate from the rights holders manufacture.

Except that it did...

Quote:

Condemn or condone, either way its illegal.

Curious - if I had, say, an old Master of the Universe figure and I popped one of the arms off, cast a mold, created a new arm in a different color to customize the figure, would you say that was illegal?

If there was an identical rare varient of the MotU figure and you listed it for sale, YES

He made a mold from the original, which is illegal, he cast a counterfiet from that mold, which is illegal, and he is selling it openly which is illegal.
If he had not listed it, no one would ever know that he illegally recreated a trademarked item.

Its the same idea as a tree falling in the woods, if there is no one there to hear it, it still makes a sound.

If he hadnt posted it for sale, it would still be illegal, but no one would know, or care.
But he did and here we are.

Ummm...you're actually allowed to make replicas of items. It's the reason you can take professional photos into Wal-Mart and get them printed.

However, the act of *selling* those replicas is the problem. That's when it becomes a copyright issue and a release is needed.

Exactly, Kung Fu Man.

Skylanderex (or anyone else) can make whatever custom figurines he wants (even replicas). However, he can not SELL them in a major marketplace (like eBay), especially when they're intended to look identical to the authentic rare variants, and ESPECIALLY when they're re-packaged in original Skylanders packaging that is covered with trademarks that he does not own.

There's a reason why Skylanderex doesn't create and sell "custom" run-of-the-mill common Skylanders that look identical to the authentic regular run-of-the-mill common Skylanders ... because there is no profit in that.
BOTTOM LINE: Skylanderex is profiting by intentionally creating counterfeit/replica Skylanders rare variants and intentionally re-packaging them in Skylanders packaging that is littered with trademarks that he doesn't own.

It's ridiculous that people are defending his actions ... or even condoning it.

Quote: BahamutBreaker

words, words, words...

Is that so...?

Quote: BahamutBreaker

UncleBob, I really have nothing left to say to you. Go away and leave this community alone. And if you can't handle that, then at least leave me alone. Thank you.

Yawn.

Quote: Sickboy1138

He made a mold from the original, which is illegal,

Nope.

Quote:

he cast a counterfiet from that mold, which is illegal,

Nope.

Quote:

and he is selling it openly which is illegal.

Possibly. It would depend on a lot of things. This could go either way, really. I'd actually love to see it play out in court...

Quote:

If he had not listed it, no one would ever know that he illegally recreated a trademarked item.

Nope. You know, since the user has been posting his customs on THIS VERY FORUM for awhile now.

Quote:

If he hadnt posted it for sale, it would still be illegal,

Nope.

Looks like I took too long modifying my original post. Anyway, check it out ^, and hope it helps.

Many thanks for your contributions to this dialogue, TheLurk and Sickboy1138. As I stated up above in post #15, it is very encouraging to see and learn that there are some people with intelligence among our community members.

Some folks seem to take the most issue with the fact that he "repackaged" it.

Some folks seem to take the most issue with the fact that he "replicated" it.

Some folks seem to take the most issue with the fact that it was customized to look as close as possible to an existing figure.

I can see how some folks may not agree with any of those things.

I, personally, don't see a problem with the "repacking" of it. Custom figure creators do that ALL THE TIME. It makes the figures look nicer. Period. Making the figure look nice is the whole point of customizing them.

As far as the idea of creating your own mold and such... like I said, I'd really like to see a court case on something like this.

The problem is, he used parts of the original figure (which he already bought) to create the new figure. Paying for the original product is essential to creating both *this* custom and any other customs he makes (since he's using the original bases and RFID chips). It'd be interesting to see a court of law rule on "how much" customization is required for something to be okay to sell.

As for the idea of it looking like an existing variant... whoopie-doo. This comes down to "I don't like how this looks." And I don't care who does or doesn't like it (personally, I'm not a fan of any of the green variants).

I'd also like to point out to all the folks complaining about him "using trademarks/copyrights he doesn't own"...

... do you own the the copyrighted images you're using as avatars?

Is someone going to create a thread regarding all of the copyrighted images and trademarks that Dark52 is using without permission on this site? After all, with the ads on the site, he stands to make a profit.

PS: Learn the difference between copyright and trademark.

To be fair, I don't think it's a matter of intelligence or lack thereof. I do think some people just honestly don't know that it's a problem. If you know someone in the art business like my friend, then you know there are some serious legal traps you can fall into. But I doubt most people really worry about it, as they just don't deal with it.

I have no problem with him making nice customs if he wants to. Wish fulfillment is also good, as I said. But when you fall under trademark and copyright infringement, it's not pretty. What can seem so down-to-earth and innocent can end up being very very bad! There are people who've been burned by accident from it, and if he really wasn't intending it to be like that, then he should just stop placing them in, as Bahamut kindly pointed out trademarked packaging. And better yet, selling them on ebay. If it had been something he'd done for kicks that he was going to keep and showed it off as his own, Activision might have found it impressive and thought about possibly hiring him on. I could've seen them doing that....as long as he stayed on the legal side of things. Sadly, he didn't.

@unclebob I'm sorry but you're wrong on that. Images like this are perfectly fine to use as long as they aren't replicated for sale or profit. Since I am using the Whirlwind avatar free, as a nice pic to decorate my post (which is also free, as I make no profit whatsoever from my words), there is no issue. Also, Dark52 is using the banner ads to pay for the bandwidth and maintenance of the site, hence, there's no profit, nothing left over for him to say, go and buy a porsche (sp?). He is also not selling the images on here for said profit. If he was, he'd be charging us each time we use our avatars (which would be every post), or trying to stick it to us for choosing to show a certain character on our page at the top. Banner ads make money when people click on them and go to the site advertised.

For the benefit of everyone, I'll post up the definitions. Thanks for the suggestion.

copyright: 1. The exclusive right to make copies, license, and otherwise exploit a literary, musical, or artistic work, whether printed, audio, video, ect.

trademark:1. any name, symbol, figure, letter, word, or mark adopted and used by a manufacturer or merchant in order to designate his or her goods and to distinguish them from those manufactured or sold by others.

So in the case of the figure and its packaging in question, it looks like both could be applicable. And before anyone says that we can't use the Skylander images on here, please remember we've had TFB employees on here, and they never complained to Dark52. Nor has Activision. If they had, Dark52 would have mentioned it and had to pull them. Same as any fansite for anything, using images is fine by companies, as long as there is no profit made, no intent to sell or reproduce for sale the images.

I wasn't aware that you were privy to Dark's accounting. Are you SURE he's not making a single cent of profit?

Besides, you are absolutely incorrect. You are absolutely, strictly legally, not allowed to recreate copyrighted images for your own purposes. There's a very, very narrow window for fair use (which is generally educational, news, parody, etc.), but Fair Use is not a strict, definitive legal concept, but is something that is judged on a case-by-case basis.

It is generally allowed, to some extent, by companies because A) There's not a lot of harm in it and It's more trouble than it's worth to go after folks - but that doesn't make it legal.

Here's an interesting thing for you to try. Go to the Steve Jackson Games forums. Register there and create an avatar using artwork from one of their games (I say Munchkin, because I love that game). See how long they let you keep the avatar. SJG is VERY protective of their copyrighted artwork. It wouldn't be very long.

Quote: UncleBob

I, personally, don't see a problem with the "repacking" of it. Custom figure creators do that ALL THE TIME. It makes the figures look nicer. Period. Making the figure look nice is the whole point of customizing them.

So, if I go to torrent sites and download movies I should be paying for, does that make it all right since people do that ALL THE TIME?

Tongue in cheek comment, but people do bad things all the time. Doesn't make it right.

Continue gang. I'm out of this one.

Unclebob, I know enough about website management from people who've actually done it to know 1. Those banner-ads make very little money anymore and 2. That it's always for site maintenance and bandwidth! It costs to make sure this site is working and not down from heavy traffic! You have to even warn the provider if you think you'll have more traffic than normal or they might not be prepared! This is not rocket science.

SJGames can maintain their site however they wish. Activision and TFB however do not own this site, nor have they made it go down for any supposed infringement. You say it's a fine line, but as far as I can tell, it's never been a legal issue to have a fansite with pics of your fandom, as long as you respect that it it's not yours to sell or reproduce for profit!

I feel like I'm doing the same dance over and over. If you wish, you can go and talk to Activision. If this is all legit and no problem, then they would side with you and that would be that.

It seems to me that the ones accusing someone of COMMITTING A CRIME should be the ones to bring the evidence to Activision.

But, since you asked:

Prince (As in "The artist formerly known as the artist formerly known as") Fansite Lawsuits:
http://www.switched.com/2007/1...umber-one-fans/

Twilight Fansite Lawsuit:
http://www.eonline.com/news/26...right-violation

Fallout Fansite Lawsuit:
http://www.gamespot.com/articl...e/1100-6372043/

Pokemon Fansite Lawsuits:
http://kotaku.com/5642547/repo...ures-of-pokemon

And the absolute best one, as it involves the exact same folks who host DarkSpyro.net - Warhammer Fansite Lawsuit:
http://massively.joystiq.com/2...alliances-name/


If you've never heard of legal issues with fansites, some specifically over photos (granted, only a few of my links were simply due to images), then you should probably get out more. Or avoid commenting on things you're unfamiliar with.

And no, just because you don't make a *profit* off of a website doesn't mean that you're not making money off of a website. And guess what - it wouldn't make a lick of difference if it ever would go to court. Okay, it'd probably make a difference in awarding damages, but as far as the guilty/not guilty verdict, it wouldn't matter.

But anyway, it's nice to see you're completely inconsistent in your beliefs. On one hand, someone using someone else's copyrights is bad. On the other hand, someone using someone else's copyrights is A-O.K. Probably because you directly benefit from one and not the other.

Fan sites have been taken down before.
http://www.plagiarismtoday.com...-and-copyright/

Its a fine line, as rights holder you need to protect your property, but dont want to alienate a portion of your fanbase and customers.

Quote: GhostRoaster

Quote: UncleBob

I, personally, don't see a problem with the "repacking" of it. Custom figure creators do that ALL THE TIME. It makes the figures look nicer. Period. Making the figure look nice is the whole point of customizing them.

So, if I go to torrent sites and download movies I should be paying for, does that make it all right since people do that ALL THE TIME?

Tongue in cheek comment, but people do bad things all the time. Doesn't make it right.

Continue gang. I'm out of this one.

I missed this post, but to answer - two sides to this...

A.) Legally - Once I purchase something, package included, I should be able to sell that item. If I want to repackage a turd inside of a Skylanders package, then it's not illegal in any way, shape or form (although mailing it would be an issue).

B.) Morally - So long as the person doing it makes it clear that it's not original, as I stated before, I have no issue with it. I enjoy a nice looking product package - it's a part of the charm (I broke down and bought the NES edition GBASP based off the nostalgic package alone).

Quote: BahamutBreaker

Many thanks for your contributions to this dialogue, TheLurk and Sickboy1138. As I stated up above in post #15, it is very encouraging to see and learn that there are some people with intelligence among our community members.

That's funny. Those that agree with you are obviously intelligent, and those that don't are not. Got it.

I honestly don't really care about the legality and ebay policy. For this one off, I doubt anything will happen other then the possibility of this getting taken down. It's possible (probable even) that the seller could also get bad feedback on this if the customer thinks it's an original. If it were me, I wouldn't attempt to sell it for those reasons alone, but that's me. There is another seller that is making customs to look like variants out there now, and he/she seems to be trying to make a business out of it. I imagine that will be taken down.

It bothers me that people seem to assume that the seller has malicious intent, to mislead the customer into thinking they are buying something they are not. I don't see that.

To me, I'm much more bothered by the auctions of items described as 'rare' or 'hard to find' when they are neither. The description is added to pump up the price for those that don't know what the true market value is. Unfortunately, the words are subjective so it's a matter of perspective.

Quote:

Trademark infringement is a violation of the exclusive rights attaching to a trademark without the authorization of the trademark owner or any licensees (provided that such authorization was within the scope of the license). Infringement may occur when one party, the "infringer", uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the registration covers. An owner of a trademark may commence civil legal proceedings against a party which infringes its registered trademark. In the US, the Trademark Counterfeiting Act of 1984 criminalized the intentional trade in counterfeit goods and services.

Likelihood of confusion is not necessarily measured by actual consumer confusion, though normally one of the elements, but by a series of criteria Courts have established. A prime example is the test announced by the Ninth Circuit Court of Appeals in AMF, Inc v Sleekcraft Boats, 599 F.2d 341 (C.A.9) 1979. The Court there announced eight specific elements to measure likelihood of confusion:
1.Strength of the mark
2.Proximity of the goods
3.Similarity of the marks
4.Evidence of actual confusion
5.Marketing channels used
6.Type of goods and the degree of care likely to be exercised by the purchaser
7.Defendant's intent in selecting the mark
8.Likelihood of expansion of the product lines

http://en.wikipedia.org/wiki/Trademark_infringement

I think in this case, Activision could check off all eight.

@ melvimbe: You assume incorrectly. I do not believe that all of the users who are defending the replica/fakes or Skylanderex are unintelligent. Just most of them.

@ Concept: you're correct. In fact, the "Sleekcraft test" is well-known to be the "gold standard" in trademark infringement litigation.

Quote: UncleBob

It seems to me that the ones accusing someone of COMMITTING A CRIME should be the ones to bring the evidence to Activision.

But, since you asked:

Prince (As in "The artist formerly known as the artist formerly known as") Fansite Lawsuits:
http://www.switched.com/2007/1...umber-one-fans/

Twilight Fansite Lawsuit:
http://www.eonline.com/news/26...right-violation

Fallout Fansite Lawsuit:
http://www.gamespot.com/articl...e/1100-6372043/

Pokemon Fansite Lawsuits:
http://kotaku.com/5642547/repo...ures-of-pokemon

And the absolute best one, as it involves the exact same folks who host DarkSpyro.net - Warhammer Fansite Lawsuit:
http://massively.joystiq.com/2...alliances-name/


If you've never heard of legal issues with fansites, some specifically over photos (granted, only a few of my links were simply due to images), then you should probably get out more. Or avoid commenting on things you're unfamiliar with.

And no, just because you don't make a *profit* off of a website doesn't mean that you're not making money off of a website. And guess what - it wouldn't make a lick of difference if it ever would go to court. Okay, it'd probably make a difference in awarding damages, but as far as the guilty/not guilty verdict, it wouldn't matter.

But anyway, it's nice to see you're completely inconsistent in your beliefs. On one hand, someone using someone else's copyrights is bad. On the other hand, someone using someone else's copyrights is A-O.K. Probably because you directly benefit from one and not the other.

I find it very interesting how much more effective your argument of inconsistency fits you yourself. It's terrible if it's an image used for an avatar, even the site itself must be used to make some shady profit, but somehow, a guy making a remarkably close facsimile to an original down to using the original packaging is totes legit! Wow. That just doesn't work. And no, I didn't want to make this personal. You made it so by attacking my morals.

Alright, I'm looking at the examples you've shown:

1. Prince. From what is suggested on the site, the fans are fighting back against his lawsuit. He claims infringement, but the fans point to fair use and free speech. The fans are in the right I think. There is a matter of fair use, in that they are not making these sites to defame, profit, or otherwise effect him in any negative way. They are showing their love of their favorite artist. In fact, they are helping him by giving people information that can lead to purchases (from legit channels, such as a brick and mortar store, or an official online store) of his music. They do not have downloads of his soundtracks or music videos however. This is a frivilous lawsuit and doesn't help your case.

2. Twilight. Ok, this one has a serious issue. The "fansite" he made had downloads for Twilight recordings (that in itself is a problem!!), and even went so far as to do casting calls as if they were legit! Yes, this is a very very bad "fansite"! To try to compare this to DarkSpyro however, is just ridiculous! There are no deceptions claiming you can say, get into the voice-cast of the next Skylanders game. Dark52, despite having a very nice site, never once claimed his site was the "official one". He's simply given relevant information to fans so they can understand the games, compare them, and enjoy them!

3.Fallout. Once again, it's that issue with downloadable content. While downloadable posterswere fan-created, they're also in a format that is much more in line with those who make something from a game for profit. He didn't make a profit with this, but as had been said on this thread before, if the buyer (or in this case downloader) gets ahold of it, could they then print it and sell it? The avatars on this site are small and don't have much value in printing and reproducing. The optional banners too aren't really something that Activision would think someone would use for profit. The screenshots are obviously screnshots and make for poor choices for those who wish to profit from them. Even the galleries don't have art modified into posters. This is like comparing apples to badgers.

4.Nintendo. Sounds like they had a problem with what they assumed were images from an illegal ROM taken from 2chan and put on a fansite. Thus I think Nintendo was in the right on it. Even before they had the game out, images were being shown, likely from an illegal source. It's very very different from here. The screenshots are taken either after the game comes out, or from official sources, and Dark52 has not been shown to have illegally obtained footage from bootleg roms or other nefarious sources.

5. Warhammer. This one claims that the fansite tried to say it was affiliated with the official site, and had "products" and "services" under the trademark, which they didn't have a right to. The site listed mentioned "download add-ons" which sound like the usual suspicious "tools" that some MMO sites like to scam with. (Yes I played MMOs for years, so I know about these) This too sounds like a reasonable lawsuit. It also once again sounds nothing like Darkspyro. Of course, since there are no Spyro MMOs listed or mentioned here, one can assume they don't exist, but there's always the possibility of a fanmade one. Either way, the content they are being sued over isn't the same as what you're arguing about.

The lawsuit closest to involving anything similar to DarkSpyro is the one about Prince's fansite. The thing is, that one is pretty frivilous. There's no proof that he "suffered" or "lost money" from the content placed on there, nor does it have anything harmful or detremental in any way to him, his career, or his music.

I'm sorry for the long post once again. It seems to be my habit to write it all out on one go if I can. It took awhile, but I wanted to give Unclebob the courtesy of looking at the URLs he kindly posted so I could be better informed on each and respond approprietly. It wouldn't be fair if I didn't, would it?