The Elephant in the room

[kev mac]

It's an interesting question and one that I encountered myself quite recently. imo, it's not crossing any lines in that, it's an "out-in-the-open" clone, even if the recipe is freely available online. For example, I'd love to start DIYing but I have a manic job and barely time to vape let alone mix. Plus, I'm sure a skilled mixer would do a lot better than I would with the same given recipe. So long as the price was substantially lower than the original and certainly much lower than the price of local commercial eliquid, I might consider trying it and giving said mixer something practically un-cloneable as a test Just my 2c - it's more palatable than a vendor selling ejuice commercially that's nothing but a clone recipe off google.

I get your point,even though I DIY my skills are basic and two flavor recipes are possible for me but when I start to mix six or so different flavors of clones my results are uneven.So if a mixer with some expertise could successfully clone a favorite juice for a nominal charge I'd be interested to try it.However some recipes probably can not reproduce the magic that goes into some of our favorites and we a result I will continue to give my cash to the original mixing"artist".

 

[zandernwn]

You are making very serious accusations there, also if you find a free recipe online and mix it and sell it it's not really stealing, you haven't caused any loss to the creator. If it comes from like a trademarked brand then it's a different case. Simply saying they stole the recipe holds no value and is crazy difficult to prove. Unfortunately it is one of those things, if you give something away for free, you pretty much allow anyone to profit from it.

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Maybe so and hence why I have not mentioned any names. These recipes are protected under non commercial, no derrivates creative commons licenses. It is not only illegal to make a profit from those recipes without explicit permission from the creator, but it is also in bad taste.

 

[Caveman]

Maybe so and hence why I have not mentioned any names. These recipes are protected under non commercial, no derrivates creative commons licenses. It is not only illegal to make a profit from those recipes without explicit permission from the creator, but it is also in bad taste.

You should have stated the licence in your original post. I agree fully if that is the case. Very bad taste and although I am all for naming and shaming, it might be out of context on this thread. It really is a pity that it is so difficult to prove it though and is probably why we will not see a lot of legal action being taken. It really peeves me that that we share recipes for all to enjoy and someone goes and makes profit from it.

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[zandernwn]

Not that difficult to prove. One of the recipe's ingredients will have been subbed as I know it is not availible in South africa. I am in the process of checking the a available alternatives when I do ill be able to replicate it. I am still deciding if I am going to name and shame or just contact the vendor in SA that has a legit commercial agreement in place to distribute on behalf of the creator and I have already been in contact with the creator to tell of my suspicions.

The part I dont get is why would you base you business model around a recipe that can be taken from you in a heartbeat when discovered? It is not as if he was discreet, these are world famous recipes and are highly rated on all the online recipe resources. They just dont get mixed up in sa that often die to the fact the the concentrates are harder to find or people do no tend to keep these at hand



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[Caveman]

Not that difficult to prove. One of the recipe's ingredients will have been subbed as I know it is not availible in South africa. I am in the process of checking the a available alternatives when I do ill be able to replicate it. I am still deciding if I am going to name and shame or just contact the vendor in SA that has a legit commercial agreement in place to distribute on behalf of the creator and I have already been in contact with the creator to tell of my suspicions.

The part I dont get is why would you base you business model around a recipe that can be taken from you in a heartbeat when discovered?



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It is very difficult to prove. Just to play devils advocate here, you would have to prove that it is impossible that the vendor could not have come across the same flavor profile or ingredients without having access to the recipe, if the vendor could produce notes and test documentation stating that they did in fact come across it in the same manner that would be a major issue. There are just so many variables that legal action is very difficult.

Sounds simpler than it is, although if you are talking about something as iconic as I think you are, it becomes much easier yes. Legally its very difficult especially since its such a new market and there is so much process involved to get the recipe he used and the recipe creator would need to file legal action against the vendor etc etc its probably just not worth it. I agree with your suggestion of contacting the vendor with a legit agreement.

If it is being sold under a brand with a name that is protected, it becomes a lot easier. If it is a recipe found online somewhere, where the original creator does not have brand protections in place, it becomes extremely difficult.

And the part that you don't get is simple really, there are just a lot of shady folks around that don't care and even if it lasts just a while they will still take the chance.

And as a side note, don't think just because it's not available here, you can't get it. I have quite a few ingredients that hasn't been available for a long time here.

 

[zandernwn]

Agreed, on obtaining the concentrates. I have on good authority where he puchased fro hence why I am able to deduct.

You are right, but this is a very prolific profile and I am not sure you are just going to come up with that by youself. I have also been speaking to two very renoun mixers on the sa scene that shares my sentiments.

They key is also that this recipe is commercially availible in SA and is distrubuted under a valid lisence.

I think at the end of the day I will have two very similar recipes to compare side by side. I have narrowed down two alternatiVes for this unique flavoring and I think ill have enough to confront the seller once I prove its the exact same recipe with just that concentrate subbed.

I am not on a witch hunt, but this has to stop somewhere. There are people working very hard to churn out quality recipes and they are being stolen from us.

I have a very recent example where an insanly good juice is about to enter the market with such a unique profile (I have not seen this done anywhere) and yet the juice was bootlegged after it was shared to peers in confidence for feedback.

It has to stop somewhere and I am dead set on calling those out where I see theat happening.

I will first do so discreetly and if there is no joy, I will be banging symbals and let everyone know.

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[stevie g]

If all this is true then why has no one tried to patent a recipe for milk tart you buy at Spar or Pick n Pay.

They didn't create the recipe and it's publicly available but they sell it.

I'm struggling to see the reasoning here.

Wayne's base for strawberry cheesecake was derived from a skiddlzninja recipe, is Wayne now guilty of recipe theft?.

Naming the company will only bring them more publicity. 99.9% of people buying eliquids from the stores don't care about any of this.

 

[zandernwn]

Because the spar milktart did not attach creative commons license when it was issued.

If you fail to see why a recipe carries copyright protection the. You fail to see why I can take coca colas secret recipe and seel it as cola coke

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[zandernwn]

Its not about reason or opinion. its the law

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[stevie g]

Because the spar milktart did not attach creative commons license when it was issued.

If you fail to see why a recipe carries copyright protection the. You fail to see why I can take coca colas secret recipe and seel it as cola coke

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I see,

Quoted from Wikipedia

"There are several types of CC licenses. The licenses differ by several combinations that condition the terms of distribution. They were initially released on December 16, 2002 by Creative Commons, a U.S.non-profit corporation founded in 2001. There have also been five versions of the suite of licenses, numbered 1.0 through 4.0.[1] As of 2016, the 4.0 license suite is the most current."

 

[Lukeness]

If someone publishes their recipes publicly or they are already freely available it would be very hard to prove wrongdoing. Especially when the slightest modification could render it "original".
As for using available free recipes commercially, as long as they don't claim to have invented it then selling it should be fair game, if people like it enough.

 

[Caveman]

If all this is true then why has no one tried to patent a recipe for milk tart you buy at Spar or Pick n Pay.

They didn't create the recipe and it's publicly available but they sell it.

I'm struggling to see the reasoning here.

Wayne's base for strawberry cheesecake was derived from a skiddlzninja recipe, is Wayne now guilty of recipe theft?.

Naming the company will only bring them more publicity. 99.9% of people buying eliquids from the stores don't care about any of this.

Pretty much my reasoning as well. I would love to see something like this go to court though, would be a very interesting case. In the DIY or DIE case it's different, as someone is selling branded goods without a license thereby illegally using a protected brand name for generating profit. If its simply copying a recipe found online, I would say good luck going down any legal route.

 

[rogue zombie]

Pretty much my reasoning as well. I would love to see something like this go to court though, would be a very interesting case. In the DIY or DIE case it's different, as someone is selling branded goods without a license thereby illegally using a protected brand name for generating profit. If its simply copying a recipe found online, I would say good luck going down any legal route.

Afaik you have nothing without trademarks, patents etc.

Look at the nonsense that's happened with 'Rooibos' - no ZA tea brand bothered to patent it and thus it was free-for-all to use.

https://en.m.wikipedia.org/wiki/RooibosFrom Wiki

In 1994, Burke International registered the name "Rooibos" with the US Patent and Trademark Office, thus establishing a monopoly on the name in the United States at a time when it was virtually unknown there. When the plant later entered more widespread use, Burke demanded that companies either pay fees for use of the name, or cease its use. In 2005, the American Herbal Products Association and a number of import companies succeeded in defeating the trademark through petitions and lawsuits; after losing one of the cases, Burke surrendered the name to the public domain.[11]

Legal protection of the name rooibosEdit
The South African Department of Trade and Industry issued final rules on 6 September 2013 that protects and restricts the use of the names "rooibos", "red bush", "rooibostee", "rooibos tea", "rooitee" and "rooibosch" in that country, so that the name cannot be used for things not derived from the Aspalathus linearis plant. It also provides guidance and restrictions for how products which include Rooibos, and in what measures, should use the name "rooibos" in their branding.[12]

 

[Caveman]

Afaik you have nothing without trademarks, patents etc.

Look at the nonsense that's happened with 'Rooibos' - no ZA tea brand bothered to patent it and thus it was free-for-all to use.

https://en.m.wikipedia.org/wiki/RooibosFrom Wiki

In 1994, Burke International registered the name "Rooibos" with the US Patent and Trademark Office, thus establishing a monopoly on the name in the United States at a time when it was virtually unknown there. When the plant later entered more widespread use, Burke demanded that companies either pay fees for use of the name, or cease its use. In 2005, the American Herbal Products Association and a number of import companies succeeded in defeating the trademark through petitions and lawsuits; after losing one of the cases, Burke surrendered the name to the public domain.[11]

Legal protection of the name rooibosEdit
The South African Department of Trade and Industry issued final rules on 6 September 2013 that protects and restricts the use of the names "rooibos", "red bush", "rooibostee", "rooibos tea", "rooitee" and "rooibosch" in that country, so that the name cannot be used for things not derived from the Aspalathus linearis plant. It also provides guidance and restrictions for how products which include Rooibos, and in what measures, should use the name "rooibos" in their branding.[12]

Very right, copyright and patent infringements can very easily become a deep rabbit hole of legal expenses. As far as the creative commons license goes, the non-commercial license is hardly airtight. There have been so many disputes about what it actually entails and if you can really enforce a NC on an online free for all license.

The full text no longer uses the term “commercial purposes”, but only the concepts of “intent or direction” and “commercial advantages”. To our knowledge, the concept of “commercial advantages” is at present neither defined by CC nor in the law of most countries (Keller and Mossink 2008; Wilson-Strydom 2009 p. 15).

 

[cam]

This is really a pain in the backside. I have been mixing for the last 3 years and finally mustered up the courage to launch my own line. All my recipes are 100% original, i dont even look at the ocean of recipes online as they are all clones of clones and lack serious imagination. Now with all this going on, you try and get samples out to vendors and they just dump it in a box of samples filled with a bunch of crappy clones. What is one to do?!

Keep knocking on the door, if your juice is good and niche enough you will get it in eventually, if not maybe look at your profiles, even if they are not clones are the shelves already fill with the same type of juice? not saying they are i dont know you or your juice, but if i use strawberry cream/ yogurt/ cheesecake ice cream etc as an example how many similar juices does a shop need to stock, and why take a risk on a new vendor with a profile that is already in stock from a maker with whom the shop already has a relationship?

 

[RichJB]

Its not about reason or opinion. its the law

Is it, though?

 

[zandernwn]

I am not trying to be synical here, but you guys dont seem to be phased about this happening. I. Fact, it seems from you comments that you are very much for this happening judging bt your comments.

Let me ask you this, if you knew a vendor had stolen a recipe would you still buy it?

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[zandernwn]

So what we are saying here is there is no recourse and that we shpuld all stop sharing good recipes in the community because there are a bunch of shadies lurching and stealing our shit to sell.

It is beyond me that it is ok, maybe the problem is that in south africa we have become so desensitized to dodgy dealings that we dont even lift an eyebrow where something is ethically worng.

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[zandernwn]

Is it, though?

Thank you for this, I never knew this

BUT 1.) Is is US law, is this applicable to SA. I assume it is because copyright is a universally accepted difinition based on the limited reading I have done on it.

2.) It seems the only way to protect your recipes is to stop sharing it... that is an absolutly sad day for diy, I would have preferred an educated and vigilant community that would stand together and stop this from happening instead of allowing these "manufacturers" to get away with it.

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[Lukeness]

That's why Coke and KFC still won't release their recipes publicly. It's too easy to make a tiny change and call your own. Hell, I won't even share my beard oil formula!

 

[RichJB]

Thank you for this, I never knew this

Me neither. The law sure does work in weird ways sometimes.

BUT 1.) Is is US law, is this applicable to SA. I assume it is because copyright is a universally accepted difinition based on the limited reading I have done on it.

SA law may be different. But I lack the insight or expertise to offer any opinion on that. Maybe we have a lawyer in the house who can offer something.

It seems the only way to protect your recipes is to stop sharing it...

Yep. I'm a writer and that's pretty much how it works in creative writing. You will never ever find any examples of my creative writing on the net. I know in advance it's going to be stolen so I absent myself professionally from the public domain.

I would have preferred an educated and vigilant community that would stand together and stop this from happening instead of allowing these "manufacturers" to get away with it.

Wayne (juice) and Dino Ferrari (clone atties) have both addressed this. And they correctly imo are not looking to consumers for solutions. They know that consumers don't care about IP and never will. A consumer will be guided by what suits his pocket, not what suits the manufacturer's income or sales. If there are cheap Nike ripoffs on the market, consumers will buy them. Not all consumers, obviously. But certainly enough that the pirates can make a living and harm the sales of legit products.

The same applies to mech mod safety. The vaping community wants it to be driven by all vapers learning Ohm's Law and knowing battery safety. I can predict with 100% certainty that will never happen. Safety has to be driven at manufacturer level, and IP issues have to be resolved at manufacturer level. That is the only way to resolve these things. And even then, the solutions will likely be less than ideal. But then, very little in today's world is ideal.

 

[Oupa]

I really don't think it is a South African issue only... shady people exist all over the world. If a popular, helpful or valuable recipe or plan or blueprint for anything in life becomes available and known to the general public, it will be recreated/manufactured/sold for profit by various entities if we like it or not, it is a certainty that it will happen. As in all other aspects of life shady people do exist in the vaping community as well. The only way to protect a recipe as your own would unfortunately be not to share or publish it anywhere at all.

Please note that I am not condoning the theft of recipes from public spaces or otherwise, but merely stating that it is a certainty that it will happen. From a legal point of view or outcome, I just don't know...

 

[Caveman]

Thank you for this, I never knew this

BUT 1.) Is is US law, is this applicable to SA. I assume it is because copyright is a universally accepted difinition based on the limited reading I have done on it.

2.) It seems the only way to protect your recipes is to stop sharing it... that is an absolutly sad day for diy, I would have preferred an educated and vigilant community that would stand together and stop this from happening instead of allowing these "manufacturers" to get away with it.

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SA law makes no mention of recipes being legible for copyrighting.

Copyright Act, 1978 (Act No. 98 of 1978, as amended up to Copyright Amendment Act 2002) Chapter 1 (1)

(1) Subject to the provisions of this Act, the following works, if they are original, shall be eligible for copyright- (a) literary works; (b) musical works; (c) artistic works; (d) cinematograph films; [Para. (d) substituted by s. 2 (a) of Act 125 of 1992.] (e) sound recordings; (f) broadcasts; (g) programme -carrying signals; (h) published editions; [Para. (h) added by s. 2 of Act 52 of 1984.] (i) computer programs. [Para. (i) added by s. 2 (b) of Act 125 of 1992.] [Sub-s. (1) amended by s. 2 (a) of Act 56 of 1980.

also interesting

In its simplest form, a recipe is a set of instructions for achieving a particular result. In this regard, it has been argued that the possibility of obtaining copyright protection for a compilation of facts, if any, will depend on the order of the specific facts, not the individual facts themselves.

Copyright legislation in many jurisdictions prevents materials constituting a set of instructions from qualifying as copyrightable works. The South African Copyright Act contains no specific exclusion in this regard, nor have the South African courts had to rule on this issue.

Applying the originality principles set out in the Copyright Act and South African case law, it is unlikely that copyright protection could be obtained for a single recipe, unless it is expressed in a specific, creative or original manner. It is far more likely that copyright protection could be obtained for collections of recipes, such as cookbooks. Further, copyright protection could probably be obtained for photographs of the dishes featured in the book.

So yes, the only way to stop people getting it, is to not share it at all.

 

[zandernwn]

My findings are pretty much in line with this. I have spent the greater of the last 6 hours reading up on it.

It seems recipe copyright is explicitly excluded from sa copright law as well and the only availible form of protection is patenting which requires demonstrable proof of invention in order to qualify.

I would be very interested to hear an expert opinion in this

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[WELIHF]

Most original e-juice recipes are a derivative of a current food product, so theoretically it's also a stolen recipe...

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