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Zippo sues Blu too!

Sue Blu seems to be the mantra in the vapor and tobacco industry this year. Now the legendary American cigarette lighter company Zippo is getting into the act. It seems that Zippo rolled out a product called "Blu" back in the 1930s, back when cigarettes were a more-or-less ubiquitous recreational product, unquestioned except by an occasional health curmudgeon or religious fanatic. Zippo's Blu was not a vaporizer or cigarette, of course, but produced the flame necessary to ignite those odd burning sticks people used to use. Lawyers for Zippo argue that use of that name, even down to the funky spelling, in the smoking-product accessories realm, is a close enough match to create consumer bewilderment, and thus to constitute trademark infringement.

As the vapor industry moves beyond it's first, unregulated decade into a period of what investment gurus call "commoditization", a certain amount of squabbling over legal rights to product names is inevitable. We have just seen that candy makers are up in arms over use of time-honored monikers of their sweets to sell e-liquid flavors. Zippo just wants a little of that action, it would seem.

Ironically, Blu's masters at Lorillard are not the perpetrators of the infringement, merely its purchasers. The product name was already in use by an independent e-cigarette manufacturer when Lorillard bought that company up in 2012, the first move by Big Tobacco to muscle in on the reputedly healthier alternative that was harming cigarette sales. Zippo stood to lose even more from the proliferation of the e-cig. Who needs a lighter when cigarettes don't burn any longer. More cigarette lighters may get lit as personal torches in rock-concert rituals than to initiate a cigarette break. And Bic swallowed up that market anyway. The lawsuit against Blu e-cigs may well be designed to dispel gloom at Zippo's corporate offices.

Patent infringement is another vaping industry issue that is contributing to full employment for American lawyers as we move from vaping industry's first decade into a period of greater regulation. Over in the courts of Los Angeles, Imperial's lawsuit against Lorillard's Blu, along with a raft of independent e-cigarette companies, over legal rights to Chinese engineer Hon Lik's invention, bubbles along like a Dickens novel. Here again the principals of the lawsuit are not the original wronged and offending parties. Imperial Tobacco of the UK had nothing to do with the invention of the e-cigarette. Far from it – the tobacco lords of Players and Galoises would have viewed the invention with horror, if they had even been aware of its existence at the time. The suit was brought against real e-cigarette companies – Big Tobacco was not yet involved – by the Chinese company Dragonite on behalf of its earlier avatar Ruyan, the world's first e-cig firm. Some damages were paid by the independent Blu before Lorillard bought it. Other damages are still pending, and some of the companies in question have folded.

But in 2013, Imperial Tobacco bought Dragonite's patent for $75 million, and in early 2014, renewed the lawsuit through a Dutch subsidiary called Fontem. This is a practice called IP trolling ('IP' stands for "intellectual property" and refers to patent, trademark, and copyright issues).

Another contender has appeared on the playing field. Herbert Gilbert, the American engineer who invented the first e-cigarette in the 1960s, has been brought into the matter by John Cameron, of late the ill-famed CEO of TheSafeCig, to claim that his 1963 patent belongs to Cameron's new enterprise Emperor Brands.

Gilbert received a patent for a prototype vaping device in 1963, but it was never marketed, and Hon Lik's vaporizer was invented independently, apparently without knowledge of Gilbert's work. Gilbert was brought out of obscurity early in 2013 by Jon and Robert Deak, and appeared in a YouTube promo for Seminole E-cigarettes, which they were publicizing in partnership with the Seminole Tribe of Florida. This partnership had emerged in the course of the battle for control of TheSafeCig between the Deak brothers, the company's founders, and Cameron, the CEO they had hired in 2011, and then attempted to fire when customer service and product quality foundered in 2012.

TheSafeCig finally went belly up by April 2013, and just a few months later, Cameron unveiled Emperor Brands, and its product "1963", named in honor of the year of Gilbert's invention, apparently in a bid to emphasize the brand's ownership of the Gilbert patent. It appears that Cameron coaxed Gilbert away from the Deak brothers, into his own camp. The Emperor Brands website claims to have a pending patent bid called "Duration Technology", for a device that offers more puffs per volume than other vaporizers. The site states the intent to keep on developing its intellectual property claims by developing products in-house and by acquiring others. It calls its own patent the most defensible in the industry, and calls Ruyan an IP troll, avowing that its own patents are in a position to undermine those of Ruyan.The companies Imperial, Dragonite, and Fontem are not mentioned, but the Emperor Brands website seems to have been uploaded as early as September 2013, before the Imperial purchase had been announced. Gilbert is quoted on the site, saying that his work had been unrecognized until his association with Emperor Brands. He chooses not to mention his YouTube appearance with the Deak brothers earlier that year. Gilbert says he is honored to be on the Emperor Brands team and to have their product named in honor of the year of his invention.

The saga continues. Watch this space.