Monday, 15 February 2016

The Darker Side of Transformers #5

This article is written to explain the legal wrangling behind the scenes and what led to the issue between Takara and Philip Morris Inc. In accordance with legal agreements, the images displayed here are for educational purposes only and pictures of the Masterpiece toy have been kept to a minimum. 


"Perhaps you had better start at the beginning"

In the 1970s car company Lancia designed the Stratos specifically for entering into rallying but after numerous successes was entered into racing where it also performed well, making the Stratos a no-brainer for inclusion in Takara's Diaclone Car Robots line.

(c) Great Racing Cars

The first Stratos to be made was the numbered 539 model in the Alitalia green and red sponsorship colours as driven in the 1977 Giro D'Italia Automobilistico. This was the Diaclone toy that would become Wheeljack.

(c) The Amazo Effect

The toy's head was changed and it would be later released as the Malboro sponsored number 598 version which had won the Italian heat of the Giro D'Italia in 1976.

Kinda ugly but worth a fortune.

Now at this point I'd recommend having a quick look at Heroic Decepticon's Blog for more pictures of his incredibly pristine sample.

Back in the 70s things were a lot less litigious so Takara never bothered getting permission to make these trademark infringing figures, they just made small alterations so the Alitalia labels become Alitalla and Marlboro became Marlboor. Simples! Hence this toy being known as Marlboor Wheeljack.

30 something years later and Takara unveiled their Masterpiece Wheeljack in 2014 and so naturally speculation began about a potential Marlboor version. Now that lawsuits are much more common Takara licensed the use of the Stratos car from Lancia and were careful to ensure that there would be no legal snags.

But then came the expected Marlboor repaint with a February 2015 release date and things went wrong.

Careful not to use the Marboro logo and other sponsor logos like Agip, Takara presumably thought they'd get away with this one but Philip Morris Inc, the owners of Marlboro cigarettes had other ideas.

Who's Your Baddie?
Universally fans were upset when Philip Morris Inc started issuing Cease and Desists over the trademark infringing toy and various sites who covered the story used words like "aggressive" and "Marlboro resembling" and even "not satisfied" when it came to describing Philip Morris Inc's actions.

But let's be clear: Takara were the bad guys in this.

For a start, Takara originally infringed on Philip Morris Inc's trademark back in the 70s and then sought to profit off it once again with the Masterpiece release. The design isn't "Malboro like" it is Marlboro. Worse still was that the reason that Philip Morris Inc were aggressively pursuing Takara was for a reason that no one disclosed at the time.

The revised deco by Takara.

In February 2015 Masterforce relocated from Brighton, England to Swansea, Wales. Unfortunately for me, I shortly afterwards relocated from my home to the hospital via an ambulance after collapsing following 2 heart attacks which were caused by a blood clot. Now, when you return home after a stay in hospital which has included joys like having a camera inserted into the artery in your wrist then run through your body into your heart, there are two things you don't want to return home to - 1. Emails from a very small minority of customers asking "I know you're in hospital but is there any chance you could get out for a few hours to post my order out?" and 2. A letter headed UNAUTHORIZED USE OF MARLBORO MARKS.

99% of customers were really cool and understood that MF had moved and so I hadn't hired new staff yet so there was no one who could run the business in my absence. Surprisingly, the legal representatives of Philip Morris Inc were also very understanding about why I hadn't replied by their deadline.

Below is part of the Cease and Desist letter where I've highlighted the important information.

What Philip Morris Inc were doing were not trying to stop the sale of Exhaust, they wanted the design changed so if it were shipped into the US they wouldn't fall foul of US law. Under the Tobacco Master Settlement Agreement, tobacco manufacturers are not allowed to advertise to 'youths' and were to actively discourage young people from taking up smoking. This had followed on from Camel cigarettes having to stop using the Joe Camel character to promote it's cigarettes after a 1991 study showed that Joe was nearly as recognisable to children as Mickey Mouse.

Takara's release of Exhaust was very much in breach of that Agreement but it wouldn't be Takara who got into trouble; it would be Philip Morris Inc.

In an email I noted that I was still able to sell anywhere in the world but would agree not to ship to the US, Canada and South America just to be sure and that I'd remove all images of Exhaust that infringed on the Marlboro Marks (the red and white pattern on the front of the car and the smaller green detailing). I did ask if the revised version, as shown above, complied. Here's the response I had:

Note that there was a clear outlining of what would be acceptable and it's not necessarily an unreasonable compromise. So while various "news" sites and podcasts talked about Philip Morris Inc being unreasonable, you have to ask who was really being unreasonable.

When Exhaust was finally released, the bio that was included with the character wasn't known to most collectors as it was in Japanese. The bio claimed that Exhaust was a spy for Marlboor Dynamic, a massive galactic corporation that would steal secrets and technology from it's competitors. While Exhaust acted cool he had an addiction to Cy-garettes (a play on IDW's Cy-Gar that keeps Kup calm).

While neither company is exactly squeaky clean and Philip Morris Inc aren't white knights in shining armour, it was a fairly low blow by Takara to include such a bio when Takara themselves were releasing a cigarette packet on wheels in a children's toy line. I'm sure plenty of people would disagree that Masterpiece Exhaust is a child's toy but it is part of a franchise aimed at children and isn't price pointed beyond affordability as other aimed-at-children-Transformers had much larger price tags like Chomp N Stomp Grimlock. Children aren't stupid either and Exhaust is a pretty cool figure so which would most children prefer - a deluxe figure or a Masterpiece?

Takara went ahead and released Exhaust in the second deco which was still unapproved by Philip Morris Inc but by the time the release came the figure had been dropped by most retailers and Asian distributors which led to the figure becoming pretty expensive for a short time. 7 or so months later a reissue would hit shelves and this time many retailers would stock it "under the counter" as it were or rather than listing Exhaust on their websites would sell them only on Ebay.

The sad thing now though is that thanks to Takara's somewhat immature biography Exhaust is canon - an official part of Transformers history, so a smoking giant robot that turns into a racing car is forever a part of a franchise that makes the majority of it's money from children. Not exactly a high point.

To not end on a somber note, in 1980 Lancia would create the Macaluso Beta Montecarlo Turbo, an updated version of the Stratos which was endorsed by Martini in a very familiar pattern. I'll leave you to imagine what could have been

Picture copyright Automobilsport