Kickstarter pen case copied by person who set up their manufacturing?

Notcot has a story about what looks to be a sneaky trick pulled on some folks who launched a cool pen and ruler sleeve campaign on Kickstarter (which raised $280,000). Another company is selling a pen in a sleeve that looks an awful lot like Pen Type-A, and it seems like the person who set them up with a manufacturer in China is behind the copycat pen.

Yesterday, Fab.com led me to their sale of Torr Pens, which initially simply looked like a strange rip off of the insanely successful Pen Type-A Kickstarter project. Simple enough, things get ripped off - but usually the design rip offs don’t end up circulating in areas that claim to focus on authenticity and great design.

But where this got even crazier is that Torr Pens’ website and the Fab page had pictures and a James Bond parody video of the same guy who organized the manufacturing of and spent late nights washing, smelling, drying, and reassembling the Pen Type-A’s with the kickstarter designers CW&T. They even say in their update that he hugged them when he saw them last. It’s a painful story, but we can only hope hearing all that CW&T has gone through from the manufacturing issues to this new level of complication they’ve run into while still trying to fulfill their immense pen orders a year later can help educate other designers going into similar processes!

UPDATE 2/26/2013: Torr has posted a response titled "Response to cyber-slander and overhyped Kickstarter uproar."

Kickstarter Nightmare: Pen Type-A & Torr Pens

Mark Frauenfelder is the founder of Boing Boing and the editor-in-chief of MAKE and Cool Tools. Twitter: @frauenfelder. Come and hear Mark speak at the ALA conference in Chicago on July 1.

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The technology that links taxonomy and Star Trek

http://profiles.google.com/stephen.schenck Stephen Schenck

God damn, that’s enraging.
- http://profile.yahoo.com/65CSAR3QATRNKJW4NYNB2BESZE JohnQPublic
  
  It is, but it’s certainly not unexpected. It’s like watching nature. You expect a system based on competition for limited resources and wealth to be free of such activities? On the contrary, it thrives on it and always has. Some develop technologies while others emulate, reverse engineer, or plain old steal it for their economic benefit.
  This seems more personal because it’s a small, but kind of popular endeavor that has a potential for a charismatic narrative.
  Right or wrong, here, the cost and complexity involved in taking this to court would be absurdly non-viable unless you reach sizes closer to Samsung and Apple.
  - sparksseventyfive
    
    Yes, but it’s especially gross because this guy actually sat there and worked with them before he stole it. It’s not like he just saw it on the internet and thought, “I’ll rip that off.”
    
    He took their plans, used their (crowdsourced) money to spool up factories, and then sold their goods with his name on them. Even in a perfectly lawless environment (which this is not) that would be an unusual low.
    - http://profile.yahoo.com/65CSAR3QATRNKJW4NYNB2BESZE JohnQPublic
      
      oh yeah, don’t get me wrong – I have no respect for the lowlife thief making these TORR pens. I just have grown to expect this sort of thing to happen. It totally sucks and it is gross.
- http://twitter.com/beep54orama B E Pratt
  
  I think we need a Bill Gates reference here……
johnfoster

hmph… save yourself at least a hundred bucks by making a pen that you could lose without crying about it.

http://www.instructables.com/id/Save-200-in-2-Minutes-and-have-the-Worlds-Best-W/
- headcode
  
  Yep. Then again, some people like to enjoy the design of the objects they use. I’m into mechanical pencils. Sure, I could just grab any old plastic mechanical pencil and put good lead into it, but I love the look, feel and weight of my Graf von Faber-Castell propelling pencil. It is just plain elegant.
Andy Reilly

Design theft via Chinese manufacturing, color me not surprised. The only reason Intel builds their latest semiconductor designs in Oregon instead of China is because they know they will never have the level of security they need to keep their industrial secrets safe.
- Sagodjur
  
  Maybe they just like good microbrews…?
- bcsizemo
  
  I guess that’s why AMD builds their stuff in Asia…they have nothing of value worth taking at this point!
  (I jest, I love AMD.)
- Vian Lawson
  
  Did you miss the bit where it was a Stanford-educated Bostonian who did the actual ripping off?
  - ChicagoD
    
    So a Stanford-educated Bostonian is genetically incapable of stealing someone else’s intellectual property and manufacturing it in China, where absolutely nobody would even blink at the theft? Come on, now.
    - http://www.facebook.com/people/Michael-Walsh/100001992361976 Michael Walsh
      
      Al Capone was born in Italy, but found Chicago more conducive to his business model, so why not a Botonian Stanfordite finding China more suportive of piracy?
Wade Sims

As someone who works in the IP litigation industry (on the tech-friendly side), you would be astounded how frequently this happens. As much as we rage over astronomical IP damages, the whole reason those laws existed in the first place was because manufacturers were blatantly ripping off the IP holders. It’s not just cheap knock-offs of Coach and LV bags in Chinatown, or even a few boxes falling off the back of a truck. Very large tech firms whose names are commonplace are quite guilty of injecting massive sums of money into manufacturers, enabling them to copy the IP of the original owner and manufacture (and thus sell to the tech firm at an absurdly discounted price) a cloned product without any of the royalties.

There is an entire manufacturing culture that refuses to respect the intellectual property of U.S. companies. I’ve been saying it for years: if you outsource all of your material wealth overseas and retain nothing but the intellectual property wealth, you will have no wealth at all. Whoever controls the manufacturing controls the production. Your manufacturer surely has access to your IP secrets, since they’re the ones making it, so you better damn well be sure they’re going to respect your IP, else you’ll wind up with knock-off clones tanking your profits.
- EH
  
  What, if anything, qualifies as legally-protectable IP here?
  - Boundegar
    
    The uhh… design?
    - EH
      
      Are design patents legit now? Last I knew they were in a gray area at best.
      - TimRowledge
        
        There’s a several part explanation of design patents on http://www.core77.com – they’re real things.
      - EH
        
        Of course they’re “real things,” the question is “how real?”
- Sagodjur
  
  Hey, it even happened to Tony Stark in What if Iron Man Sold Out?
  
  http://www.comicvine.com/what-if-what-if-iron-man-sold-out/37-39514/
http://twitter.com/KEdwardK Keith Edwards

Who knew there was a down-side to manufacturing in China?
sparksseventyfive

One thing worth noting is that it’s not as simple as a “Chinese manufacturing” story.

The manufacturing company — and the “Design Firm” selling the knockoff of the design — are both run by Allen Arseneau.

Born in Boston, educated with a Stanford MBA. Was working with CW&T to help them *not* fall victim to the dangers you all are (accurately) noting above.

This isn’t about “those guys”. It’s about an MBA-educated white guy without any ethics. Who knew there could be a downside to that?
- fuzzyfuzzyfungus
  
  “It’s about an Ivy MBA-educated white guy without any ethics. Who knew there could be a downside to that?’
  
  Everybody who has been paying the remotest attention?
- EH
  
  Correction: Stanford is not Ivy League.
  - sparksseventyfive
    
    Noted. Corrected, thx.
http://profile.yahoo.com/65CSAR3QATRNKJW4NYNB2BESZE JohnQPublic

Nice Pen. Looks like something TSA would nab from you though.
tempo

What could CW&T have done to protect themselves? What should people in their situation do in the future?
- Guest
  
  Not manufacture in China.
  - sparksseventyfive
    
    Yeah, but again, they were working with an American-Chinese company, and it’s the American who’s gone and done this.
  - bcsizemo
    
    Kevin O’Leary would not be pleased.
    
    http://abc.go.com/shows/shark-tank/bio/kevin-oleary/276282
    His big stickler to anyone who wants to build something in the US is, but we can make MORE money having it made in China.
EH

On the upside, Torr was apparently able to get endorsements from Steven Tyler and Joe Lo Truglio.
John Park

Original designer did a great session at Foo Camp about the long, hard road to getting this pen made in China, which lead to the second run being made in the US. Sad to hear this coda to the story.
stuck411

IP theft doesn’t just happen overseas is the caveat to this. The downside is that there’s going to be years of legal fighting but even then there may not be a decent resolution. (For example, the MBA douchebag could file bankruptcy if the case looks to be going against him but his assets are properly hidden away inside of blind trusts and Cayman Island bank accounts.)
- billstewart
  
  I assume that’s a Mitt Romney snark, but they really are different cases.
  
  Blind trusts are still your property, so they can still be seized in a lawsuit, but they’re designed in a way that you can avoid conflict-of-interest problems (e.g. you’re Secretary of Defense, so it wouldn’t be possible for you to directly invest in the aircraft industry without the potential for favoritism.)
  
  Cayman Islands bank accounts and similar systems sometimes work just by hiding their ownership, because almost nobody knows that John Doe #12345 is really Joe Deadbeat, whose ex-spouse or ex-business-partner can’t seize the money because they can’t find it or don’t even know it exists. But often they work because they’re directly owned by a Caymans corporation (which has to pay some small fees but the Caymans government doesn’t charge income tax on the interest or profits), and the US or UK investor in the corporation is only liable for taxes on the dividends it actually pays him.
nerdydog

from his linked in mission statement:
“(1) Reducing risk means reducing costs and lead times of the design and prototyping phases, optimizing designs for production, and providing legal protection in the US and in China.”

one would hope that some sort of contract would be signed between these parties, namely an NDA, before even speaking of the actual product. followed by some sort of bill of services before doing any work. I know its possible to take advantage of small start ups, but this guy is being accused of literally breaching his self-professed mission statement and business model. something seems fishy about that.

if he is guilty, seems like it would be an easy win in court, despite being drawn out and sucky to deal with for months/years. hopefully the ire of the internets will be enough rip allen a neau arse and prevent the need for such legal proceedings.

I look forward to a happy update.
Daneel

I’ve been following this whole train wreck with interest. I own one of the Pen Type As, and very nice it is too. It’s been clear throughout the process that the designers haven’t really known what they were doing, and they were warned by many backers that this would happen.

The guy that’s ripping them off is a complete wanker though, and so brazen about it. I believe Fab.com have (at least temporarily) pulled the sale of the knock-off, so that’s good.

I wonder if anyone has told Steven Tyler his endorsement is being used to sell knock-off goods?
- http://twitter.com/etwasch etwas
  
  This is the statement from Fab.com, they seem to be nice:
  We want to thank you to everyone who took the time out to bring this to our attention. As you may be aware, we have a no ‘knock off’ policy at Fab. We take claims like this very seriously. Upon learning of this issue yesterday, we immediately contacted both Torr and CW&T and from what we’ve been told and understand, this is not a knock off situation, but rather a dispute between two parties that previously had a business partnership. At the time that we commissioned the sale with Torr, we were not aware of the backstory. We love the pen and its design and will gladly sell one or both products once they resolve their differences. But in the meantime, we don’t feel it’s our place to get in the middle of a disagreement between designers, so we have pulled the sale.It is not intended as a judgement on the matter, we look forward to hearing back from Torr and CW&T once they come to an amicable resolution. Thank you again for your input on this.
  —– FAB CRACKERJACKS 23.08.12 14:37
  - benher
    
    A surprisingly lucid response to calamity!
Gregory Booth

Has anyone checked out the About Us section on the Torr Pens page? It currently pops up an info box that says “this guy is a douche”.
- voiceinthedistance
  
  Hmmm. Was this cross posted to 4chan? Boing Boing readers would most likely only suggest that type of tactic, but not follow through. It’s worth a chuckle while waiting for karma to catch up with the guy, though.
http://www.facebook.com/peter.dilworth Peter Dilworth

Although this is a very neeto pen, I think the heart of the problem here is that it is just another pen. There are gazillions of pens in the world, and this pen looks like another pen. If they had made something more original like, I don’t know, a box that transforms toast into sweaters, or something else with truly original design content, I think it would be easier to make the case that wrong had occurred here.
- http://profile.yahoo.com/65CSAR3QATRNKJW4NYNB2BESZE JohnQPublic
  
  Yes but just because it’s cylindrical, has a pointy end that writes doesn’t make it “just another pen”. To an IP lawyer and to designers, it has distinctive qualities that make the design unique and worthy of legal protection. It’s a bit like saying “Hey, the Ferrari is just a car. It has four wheels, a body, some seats, and a steering wheel”. Yes… but…
http://twitter.com/digitalArtform Joseph Francis

Meanwhile the Chinese person in the previous post gave us all for free an inventive idea for separating egg whites from yolks using a soda bottle.

http://boingboing.net/2012/08/23/howto-separate-eggs-with-a-pla.html#comment-627126366
immovableobject

Reminds me of how Google and Samsung ripped Apple’s designs off. I guess the folks who believe that ideas should be free will applaud the competition. After all there were certainly pens and rulers before the kickstarter guy thought of combining them that way. Let him go commiserate with Apple. Maybe he should have applied for a design patent.
- http://profile.yahoo.com/65CSAR3QATRNKJW4NYNB2BESZE JohnQPublic
  
  You bring up an interesting point here. The same people who will condemn the IP theft of the original pen design may be the same people who condemn the RIAA taking action against music piracy. In both cases, the original artist/designer loses control over the distribution rights of their licensed work because of IP theft.
  
  It’s a bit inconsistent isn’t it?
  - Tynam
    
    The difference is, with the RIAA the original artist has *already lost* both control of and profit from their product. Because of the slave-labour nature of music industry contracts and the RIAAs oligarchic control, the musician doesn’t see any of the profit from CD sales – it goes to Sony and Disney lawyers.
    
    With the pen, however, the actual designer makes money from the sales. Until he gets ripped off. This is exactly what IP law was originally designed to prevent. (So is the current state of the music industry, but the RIAA members have succeeded in suborning copyright to serve the exact opposite of the purpose for which it was intended.)
  - wysinwyg
    
    I believe the condemnation was due to the fact that when the RIAA won a multi-million dollar settlement against the Pirate Bay they spent all that money on lobbying for enforcement rather than using it to compensate the original artists.
    
    I’ll repeat that just to make this issue a little more clear: The RIAA is using IP as a means to use the legal system to steal money from artists. They do not respect IP any more than the pirates do. Probably less, in fact. RIAA has more in common with this Allen Arsenau guy than with the kickstarter project guys. So actually it’s completely consistent.
GrigorijGregKail

Maybe this wouldn’t have happened, if CW&T (the original makers of the pen) wouldn’t have delayed the shipment by OVER A YEAR. There are more than 600 backers sitting around and listening to all that hogwash about terrible Chinese manufacturers for 13 months, while the Torr guy just made the same bloody pens with no fuss and is selling them.
- sparksseventyfive
  
  Grigorij, the Torr guy who “just made the same bloody pens with no fuss” is the very same guy that caused the production hold-ups for cw&t. They were depending on him to deliver, he didn’t, and then he released their product with his name on it.
  
  That’s what makes this story so fucked up.
- BarBarSeven
  
  In the great scheme of things, few people in the world actually give a crap about a pen release date being delayed—including people who gave a crap about this pen—to write as passionately as you do about the topic. Which is all to say, you clearly are a shill of some sort irregardless of what your IP address is.
  - GrigorijGregKail
    
    My previous comment has mysteriously (wink mod) disappeared - here it is again (edited a bit):
    
    I have paid 75 bucks for this pen (incl. some cards and shipping) and one year later I still haven’t received it. I’d see how would feel about this. I haven’t tried to sell anything to anybody – all I wanted is to complain about the original pen situation, but apparently my residence in Beijing somehow robs me of this privilege here and I have to explain my IP situation to people, who operate on assumptions and no common sense. It seems I have chosen the wrong venue to bring my complaint.
Antinous / Moderator

Hmm. Several defensive commenters in this thread had IPs that located to Beijing.
- sparksseventyfive
  
  I am SHOCKED.
  
  But also, grateful to an attentive moderator who pointed that out. It seemed obvious from the tone, the not-quite-perfect-English, and the time of day, but it’s great when community management is taken this seriously.
  
  The Torr Pens guys don’t know how the internet works, that’s for sure. But I expect they’ll understand it better when all this is over.
  
  By now they’ll have hired someone to deal with this for them, someone’s cousin, a “social media guru.” And perhaps they’ll be more creative in their defense than they have been in their design.
  - Antinous / Moderator
    
    Two commenters using the exact same phrases was a bit of a hint that I should check.
  - GrigorijGregKail
    
    @boingboing-542ef5a46249a15c851ab4eb222a9ec1:disqus You are SHOCKED? Don’t let your assumptions take over your thinking – not the entire Beijing is focused on making a PR campaign protect some TORR dude. In fact, since the Torr guy is an American, why would he hire somebody in Beijing? Yes, I am not a native English speaker – I am half-German/half-Russian, if it makes any difference.
    - Antinous / Moderator
      
      If I thought that you were an astroturfer, you and your comments would be gone.
- GrigorijGregKail
  
  I live in Beijing (almost two years now). Does it make my comment invalid? No, I am not in the pen or manufacturing industry. Yes, I am a backer of this kickstarter project. No, I have not received my pen yet – the one, that I have paid for a year ago. I am not defensive, I am a guy, who got terrible experience in backing this project. Is it a problem?
  - Antinous / Moderator
    
    The fact that you’ve switched from an untraceable RIPE IP to an APNIC IP over the course of six hours, combined with you being a first-time commenter in a thread which has clearly been astroturfed doesn’t do much for your credibility.
    - GrigorijGregKail
      
      Thanks to the the Great Firewall, the only way to get to Facebook and Twitter is to use VPN or proxy, which I let run sometimes, but can not do this all the time, because the network is too slow. The fact, that I am using my facebook account to logon, and it is connected to Kickstarter, by the way, does not add the credibility? Wow…
      - Antinous / Moderator
        
        You’re not logged on under FB.
cakey pig

Why not send Allen a message on LinkedIn? http://www.linkedin.com/in/allenarseneau
http://twitter.com/tsiatko Morgan Miller

Arseneau needs to be ripped a Neau Arse.
- Layne
  
  Well I hope this MBArsehole has a backup plan for:
  1) Getting sued out the ass for ripping off their idea and product. Not very hard to prove the connection when you essentially collaborated with them on a nearly identical product.
  
  2) Never getting a shred of business again. This story blows up and links to his name for a long, long time. Who in their right mind will EVER trust him with an IP venture again?
myob1776

The designers could have taken steps to protect themselves, not the least of which would have been a detailed and clear agreement with the manufacturing source setting forth things like production targets, delivery schedules, quality control mechanisms, and of course who owns what. These agreements are quite common and, if done right, stand a very good chance of being enforced even in China. It might be nice to pretend that all of that ’legal mumbo-jumbo’ isn’t necessary, and in cases where a design is just a modest success it might not be. But when you hit a jackpot, as the designers did here, the money attracts competition. And if you leave yourself exposed, that competition is going to take full advantage of your mistake.
- Daneel
  
  If they didn’t have a cast iron legal agreement, does that make it acceptable that Allen Arseneau is taking advantage of them?
  
  Seems like Stanford would definitely have taught him about business ethics on his MBA.
  
  http://csi.gsb.stanford.edu/stanford-business-school-named-leader-in-teaching-ethics-corporate-social-responsibility-and-environmental-sustainability
http://profile.yahoo.com/A7KAONKDWH7UZP3MCRV66XIJNE Sean

Things to do today:

Contact Torr Customer Service at http://torrpens.com/customer-service/ and let them know that their pen is very nice; but I’m interested in the original, and might they have contact information for CW&T?
thecleaninglady

I blame the MBA: it teaches people to only ask one question: is this profitable (including possible legal expenses)? Asking the question “is this ethical” only draws blank stares and laughs from such crowd.

“Business ethics” is an oxymoron. In business as in war, the entity with least compassion wins.
Marcelo Teson

Something similar happened to a friend of mine in the food industry – they came up with a product, took it to a manufacturer, decided to part ways and go to a different manufacturer, and sure enough, the first manufacturer and their spouse came out with a competing product.

The lesson here is before you take your product ANYWHERE, you have everyone who’s ever seen it sign an NDA. Then you sue the pants off them if they break it. Thankfully my friends had that and they were able to enforce their ownership. Not much you can do about sending it off to China, but as people have noted, it’s not the Chinese that ripped him off, it’s their American buddy.
- Antinous / Moderator
  
  The people who were ripped off don’t have the money to vigorously pursue a lawsuit against an opponent who has already made a profit off the product and has associates who can retreat to China.
omnivore

The should have equipped the design with DRM.