Third-party Transformers toys have grown from resin heads to full combiners, so how do they exist at all? Author and former intellectual property attorney Bill Ray returns to give John DeLuna a 101 on intellectual property. Bill explains trade secrets, patents, copyright and trademark, and why third-party makers avoid Autobot and Decepticon symbols and official names. He closes with a forecast for how Hasbro and Takara might change course.
A Decade of Third Party
John frames the discussion with milestones. Fans Project’s 2008 City Commander armor turned Classics Optimus Prime into an armored Ultra Magnus, after an earlier cartoon-accurate Cliffjumper head. In late 2011, TFC’s Hercules brought a full third-party Devastator at an unheard-of total price. John counts 80 third-party makers and about 765 product listings on one large online store as of late summer 2018.
Bill Ray’s Background
Bill is a Wake Forest law graduate licensed in Maryland. He has done intellectual property work for a law firm, in-house for major corporations and as a trademark researcher at the Patent and Trademark Office.
Patents and Design Patents
Bill outlines the four types of intellectual property: trade secret, patent, copyright and trademark. Trade secrets rarely matter for toys. A utility patent covers a new, non-obvious idea, like a robot that turns into a truck, but expires in roughly 10 to 15 years. Design patents cover an exact appearance. Bill says Takara has filed design patents, including one he came across on Classics Astrotrain, while Hasbro has largely not. Because design patents protect only exact copies, they matter for knockoffs, not third-party designs.
Copyright and Third Party
Copyright protects an expression, not an idea, and covers derivative works. Bill uses Mastermind Creations’ Feralcons, close cousins of the Predacons, as an example of where third-party designs start to overlap. Enforcing copyright means proving copying and access, which adds legal cost. Bill stresses infringement is a civil dispute, not a crime, and that Hasbro can choose not to enforce. He calls the Transformers Wiki technically infringing but not worth pursuing.
Trademark: The Line Third Party Won’t Cross
Trademarks identify the source of goods and must be defended and used, or they can be lost. That is why third-party toys use invented names and never carry Autobot or Decepticon symbols. Bill notes Hasbro could argue confusion broadly, since its core customers are children. He wonders whether ToyHax’s reproduction symbols are tolerated as non-trademark use or quietly licensed. He also cites trademark lapses behind names like Autobot Jazz, and a period when Bumblebee was unavailable because of another toddler toy.
Where Third Party Goes Next
Bill expects coexistence while third-party makers stay small next to Hasbro’s retail business. The likeliest trigger for a crackdown, he says, is movie-licensed third-party products, since film studios tend to enforce more aggressively.
Bill writes fantasy novels as William Ray, starting with Gedlund, and is on Twitter and Facebook as VerinEmpire.
Contributors: John DeLuna, Bill Ray (guest)
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