Is it legal to make composite canoe off an existing design?

So I have an OT Appalachian that's 76# that I really enjoy and a raven stripper that I built last winter at 59# (I'm still not sure how I will do with it in the very bony sections of the Allagash).

Can I legally use the Appalachian as a male mold to make a composite version?

I see no problem. as long as you don't make a mold, and start selling Appalachian copies.

My solos that I copied, from my strippers, lost almost 15#,
A 16' Stripper solo, at 50# weighed in at 36# as a Carbon fiber copy.
I build all my hulls with flotation chambers by the way.

Jim Dodd said:

I see no problem. as long as you don't make a mold, and start selling Appalachian copies.

My solos that I copied, from my strippers, lost almost 15#,
A 16' Stripper solo, at 50# weighed in at 36# as a Carbon fiber copy.
I build all my hulls with flotation chambers by the way.

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Thanks, some of your builds got me thinking about this even before the raven was completed.

Yes it is my understanding you can copy any product without patent infringement as long as it is for your own use. If you start selling them and going into production that is where you get in trouble.
This info from my own dive into patent protection for something I invented. It failed patent, but I tried.
Jim

I doubt there is a patent on the Appalachian canoe, nothing new or novel there. A design could be copyrighted though I guess but I suspect the same thing applies, for personal use not an issue. Even if you were to start selling them I think OT or whichever corporation owns them would be hard pushed to claim you were depriving them of income.

Boatman53 said:

Yes it is my understanding you can copy any product without patent infringement as long as it is for your own use. If you start selling them and going into production that is where you get in trouble.
This info from my own dive into patent protection for something I invented. It failed patent, but I tried.
Jim

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Thanks!

How much does the design of a canoe need to change to be original. I am having a design of a canoe made on a cad program. I plan on selling (very limited production) but do not want to infringe on a patent. There doesn't seem to be many things to change for a basic canoe design.

Again, maybe spitting hairs (and I’m not a lawyer) if it became a question and you could prove all of your design was generated with your CAD program you would have some cover. That doesn’t mean there might not be conflict, just that you didn’t steal it.
Most boat plans are sold to build one boat only, anyone building more would owe the designer usually a reduced but additional fee. Really hard to enforce. I’ve sold boat plans and I know at least one individual has made multiple boats to sell, in-fact it is his favorite boat. The deal we made was when he teaches a class at the WoodenBoat School (building this boat) he would encourage the students to buy the plans for themselves. Everyone was happy.
Certainly don’t copy anyone’s ads to promote your canoe.
Jim

Bothwell Voyageur said:

Even if you were to start selling them I think OT or whichever corporation owns them would be hard pushed to claim you were depriving them of income.

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that’s not how it works. First, they would be legally entitled to all the money you made off the sales of their trademarked/copyright/patent protected design/product.
If they found out someone was selling a trademarked/copyright/patent item, the company would issue a cease and desist letter. If you would continue after that letter they would sue you and you could be liable for paying them all the money you made off the product, plus legal fees, plus any additional damages they could point to.

Keep in mind, the cease and desist letter and law suite under these circumstances aren’t as much about collecting the money (assuming small volume of sales) as it is about saying they will protect their property. Otherwise, many people make small sales could add up to be a lot.

But again, this is only the case if you sell it. Making for your own use won’t be a problem.

I am a lawyer with a background in intellectual property law and can answer this question with some confidence as to U.S. law. I make no representations about the laws of other countries. To be clear up front, I am not in this or any thread on this site ever giving legal advice in the attorney-client sense to any individual, but only discussing general legal principles as I might in a publication or lecture.

Copying a boat hull by using its hull as a plug and then molding an identical hull is called "splashing". The short answer is that it is legal to splash a hull unless that hull is validly registered under the 1998 Vessel Hull Design Protection Act ("VHDPA"), which very probably no canoe currently is.

The longer answer is that the United States Supreme Court, in the 1989 Bonito Boats case, decided that splashing was legal and that any state law that tried to make splashing illegal was invalid. Under lobbying pressure from some boat manufacturers, Congress gave boat hulls some limited form of legal protection by passing the VHDPA in 1998.

Protection under the VHDPA is very limited.

First, the VHDPA does not apply to any hull that was publicly available prior to October 28, 1998. This, by itself, renders the vast bulk of historical canoe hulls ineligible for VHDPA protection, and hence available for legal splashing.

Second, registration protection under the VHDPA for new hulls designed after October 28, 1998, only lasts for 10 years. After that, the protection expires and splashing the hull becomes legal.

Third, it is mandatory that a VHDPA registered hull bear a conspicuous notice that must state that the design is protected and contain the year in which the protection first commenced along with the name of the owner of the design. I've never seen any canoe with a VHDPA notice on the hull.

Fourth, that is not surprising because probably no commercial canoe has ever been registered under the VHDPA. There have been a grand total of 538 hull registrations granted under the VHDPA, and none since February 27, 2013. You can see every VHDPA registration HERE. I looked through this entire list about 10 years ago and found only a small handful of oddball, one-off canoe registrations, for which the 10 year protection period has now expired. In fact, it only takes a minute of perusing the registration list to determine that there have been no canoe registrations in the 10 years since October 2012, which means that no current canoe is protected by the VHDPA.

Dave Yost told me in 2009 that none of his hulls had ever been registered under the VHDPA, and I got the impression that he had never actually heard of it. Only one lawsuit has ever been litigated under the VHDPA and the splasher won. In short, the VHDPA has been vastly underutilized and has been essentially a practical failure as a hull protection law.

I want to emphasize that the above analysis only applies to physical hull splashing in the U.S. Even though physical canoe hulls can be protected only by the VHDPA—and none probably is for all the reasons above—a hull designer's written hull plans and drawings can be protected by U.S. copyright laws. Therefore, while it may be legal to physically splash mold a hull, it may be illegal to make that very same hull from copyrighted plans or drawings for which you did not obtain a license.

Thanks for the insight Glenn !

So could a manufacture splash a hull and sell the copies without fear of legal retribution from the original designer, or is this just legal if the splashed hull is used for personal use?

Taterstein said:

So could a manufacture splash a hull and sell the copies without fear of legal retribution from the original designer

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Yes . . . as long as that designer's hull is not currently registered under and protected by the VHDPA's 10-year protection period, which no canoe likely is, as discussed.

Federal intellectual property laws are a balanced compromise between two philosophies. The first philosophy is that inventors of something sufficiently original and creative as to qualify for patent, copyright or VHDPA protection are rewarded by a monopoly on making and selling that thing for a limited period. No one else can.

The second philosophy is that inventions and creative things should be publicly available to everyone to make, sell and improve so that science, technology and art can progress unhindered. The law contemplates that this second philosophy should apply to everything that can't meet the high originality and creativity requirements of the monopolistic intellectual property laws, and that that philosophy should also apply after the monopoly periods for qualified things expires.

Therefore, if manufacturer A's line of canoe hulls never qualified for VHDPA protection, or were never registered, or were registered and the 10-year protection period has expired, then anyone can legally splash, make and sell that line of canoes.

The names of the particular hulls may or may not be trademarked, so that would have to be checked out in the trademark registry. If a name is validly trademarked, the hull can still be made and sold by the splasher but he would have to use a different name for the hull.

Fascinating! I’m a lawyer, but not an IP lawyer, and I can honestly say I had never heard of the VHDPA. Learned something new today.

First, let me welcome both Taterstein and jagnweiner to first post site membership. Feel free to ask any questions and to post messages, photos and videos in our many forums. Please read Welcome to CanoeTripping and Site Rules! Also, please consider adding your location to your profile, which will cause it to show under your avatar, as this is in many ways a geographic sport. We look forward to your participation in our canoe community.

Back to hull splashing, I suspect it has happened many times in canoe history. Notwithstanding its clear legality after the Bonito Boats decision in 1989 and subject to the limited protections of the little-used 1998 VHDPA, some in the industry have expressed the view that splashing is nevertheless commercially unethical.

I won't comment on ethics, but will say that I don't think it takes much for a competitor (or any canoe designer) to "design" a hull he can call a new canoe. I mean, just add or subtract a half inch from any one or more of 50 places on an older canoe and you can claim to have designed something "new". I suspect commercial splashers have probably made such small tweaks over the years in order to avoid even non-legal claims of 100% copying of earlier hulls.

Glenn MacGrady said:

please consider adding your location to your profile,

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Done!

Glenn MacGrady said:

I mean, just add or subtract a half inch from any one or more of 50 places on an older canoe and you can claim to have designed something "new". I suspect commercial splashers have probably made such small tweaks over the years in order to avoid even non-legal claims of 100% copying of earlier hulls.

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In reading about the development of some of the current Northstar offerings it is apparent they did just this when splashing popular Bell canoes. In some cases a minor stretch of the overall length, in others a slight scale up said to be done for today’s bigger/heavier paddlers (e.g., Wildfire to Phoenix). It’s also interesting how popular moulds have been transferred among different makers, like the Nomad and Wildfire moulds.

Many years ago when Blue Hole canoes was in existence they commissioned me to measure and document their canoes. They had no drawings of their boats. They sent me a boat to measure and I was working on refining my work and translating the line to offsets when they folded. I still have the drawings someplace. Sadly I never got paid but that’s the way it goes sometimes.
Jim

There is a splashed Prism for sale in Williamsburg, VA.


I'm kind of puzzled. I'm assuming it was a male mold copy, because if you made a female mold for producing hulls you'd hopefully have the good sense not to advertise off the parent Wenonah canoe. From the male- mold builds on this site it sounds really labor-intensive and not economical for production.

The most logical explanation I see is the boat was made but unwanted for some reason.