Copyright infringement in commercial diving poses a growing safety concern.
In December 2021, ADCI issued an official advisory notice regarding a “bargain brand” TYT torch. The torch was produced in Turkey and reproduced designs owned by Broco, Inc. and Rankin Industries – without permission or proper validation.
Beyond the obvious legal ramifications of manufacturing and selling equipment built using copyrighted intellectual property and design patents were the far more serious safety issues.
During its analysis of the bargain torch, Broco discovered that – in addition to intellectual property infringement – the torch was poorly constructed with inferior materials in such a way as to make it extremely difficult to service. This all served to make the torch potentially dangerous to the end user.
Unfortunately, this incident was not an isolated one. By August of this year alone, Kirby Morgan Dive Systems, Inc. had issued two separate safety bulletins regarding counterfeited products. This equipment – Kirby Morgan® 28 BandMasks® in both cases – were manufactured and sold in China and solicited as genuine Kirby Morgan products, right down to the duplicated serial numbers and branding.
According to the Kirby Morgan safety bulletin, the counterfeit masks were virtually identical to the original product. But man-testing proved that the counterfeit KMB 28 had, “severe breathing limitations once in the water, [and] use could lead to serious injury or death.”
A broader, persistent issue
Brands establish themselves on the tested reliability and dependability of their products. Their reputations are predicated on the ability to consistently do their due diligence in designing, testing, and certifying products that the end user can rest assured knowing will do the job – reliably and above all, safely.
And in our industry, hard-working men and women not only rely on the tools and equipment they use every day for their livelihood – in many cases, their very lives depend on them.
Copyright infringement and intellectual property theft transcend basic issues of profit and industry stature. It’s an issue of life and death.
“If you’re cutting corners by using equipment that isn’t directly from and guaranteed by a trusted manufacturer, you’re literally gambling with your own life,” said Pete Greenwell, Business Development Manager Worldwide at Ocean Technology Systems (OTS). He added, “Manufacturers go to great lengths to guarantee that the products they provide are safe to use, and divers are looking to them to provide products that will keep them safe.”
Though OTS hasn’t had to contend with many serious issues like the ones plaguing Kirby Morgan, the provider of underwater communications equipment is no stranger to the problem.
Greenwell admitted, “We have fortunately not experienced a lot of issues with people trying to rip off our products. There have been instances of people copying some of our technologies, but nothing like a blatant steal. Fortunately for us, much of the communications products that we produce, for example, relies on software, and to rip off that software is not a simple process. Hardware, on the other hand, is easier to reverse engineer.”
Since its founding in 1977, industry veteran and worldwide leader in engineered inflatables, Subsalve, has experienced many instances of product counterfeiting and other incursions on its intellectual property.
“We’ve got a registered trademark that’s recognized worldwide,” said Richard Fryburg, Subsalve’s president. He added, “During 45 years in business, it has been brought to our attention that our products have been counterfeited using our trademark in other countries. Companies outside of the U.S. are manufacturing counterfeit products that are not to industry standards and third-party inspection procedures. Using products that are not made by the original manufacturer is putting divers and operations at risk. It’s as simple as that.”
Phil Newsum, Executive Director at ADCI, stresses the importance of understanding just how potentially perilous it can be to use any piece of equipment not up to standards. “The commercial diving and underwater industry has had to deal with copyright infringements and ‘knockoffs’ of industry-recognized equipment. Often, these are far inferior to the actual item – whether it’s a lift bag, helmet or shackle for rigging. It needs to be understood that even a simple piece of non-life support equipment can cause fatal consequences if it isn’t designed and constructed to the exact standards of the original.”
Beyond the equipment
In addition to outright counterfeiting products, some bad actors seek to forge third-party certifications by circulating fake or doctored certificates purportedly issued by the International Marine Contractors Association (IMCA) on their websites or marketing materials.
This not only sends the false message that a particular company is verified to be in compliance with current safety standards, it also puts them at an unfair advantage in competitive bidding for available jobs. When this happens, not only are those companies who follow the proper safety protocols and the required avenues of product certification at a disadvantage financially, it also puts lives at risk.
Fryburg acknowledges, “There are those who are manufacturing equipment who represent that they comply with IMCA standards, when in fact, they do not. They’re creating or using counterfeit certificates – either quality, conformance or third-party certifications. And in a competitive bid for international work, this puts those of us following the proper, required course at a disadvantage in competing with companies that are not held to the standard that we hold ourselves to.”
In December 2021, Allen Leatt, Chief Executive of IMCA, acknowledged the problem of fabricated certificates and issued the following statement:
“It is hugely concerning that people are being misled in this way, and investing in a qualification that doesn’t exist. IMCA’s certification is highly regarded as crucial to the safe, efficient and environmentally sustainable running of operations offshore, and we take any counterfeit or fraudulent activity very seriously.” He added, “I would urge our members to be vigilant and bring any certificates that arouse suspicion to our attention.”
Knowing the difference
Clearly, when counterfeit products so closely resemble the original articles, discerning what is and is not properly vetted, safe equipment can be extremely difficult. As seen with the KMB 28 masks, organizations who manufacture these knockoff products go to great lengths to copy the original. Understanding what to do and how to identify genuine products is critical.
“Because some of these imitation products look so much like the actual original, end-users won’t often notice the difference until the item fails during the course of an operation or during training,” Newsum acknowledges.
Fryburg adds, “We sell a lot to the armed forces – and there are particular standards that must be met when you supply to these organizations. Sometimes even buyers in that space themselves aren’t familiar with certain requirements, and products go out that aren’t meeting certifications. It can be extremely difficult.”
Considering the difficulty involved in knowing the difference between a genuine product and a substandard knockoff and what’s at stake, getting it right is critical. The onus is, by and large, placed on the end user. The solution? Education.
Knowledge is key
Ultimately, it’s up to each and every person in the field to ensure everyone along their entire chain of personnel remains vigilant. And it all starts with awareness and information.
“We have to educate the end user to help them recognize that they should reach out for proof of certification or proof of certificates of tests and conformity if there’s a doubt,” Fryburg declares. He adds that in turn, Subsalve relies on its extended customer base for news from the front regarding suspect products.
“We have a network of dealers and distributors worldwide that acts as the watchdog – they’re our eyes and ears on the ground to help us stay informed of what’s happening region by region.”
Newsum adds that efforts are being made to help support everyone to help avoid issues with counterfeit equipment. “Industry safety meeting and conferences will also discuss this issue and work to educate stakeholders on identifying subtle differences between the original and ‘knock offs.’”
According to Newsum, the wider problem is exacerbated by the fact that oftentimes, companies perpetrating these infractions operate in countries that don’t have the same cultural context for intellectual property and copyright laws. “What makes this so challenging is that most, if not all of these ‘knock off’ [products] come from countries where copyright infringement culturally isn’t an issue. In their minds, if you manufacturer something, it’s perfectly acceptable to try and replicate it so that they will no longer be dependent on the manufacturer of the original or to break into the market for profit. But, this can come with dire costs, most notably the loss of life,” Newsum admitted.
At the end of the day, it’s a matter of trust. End users trust that when they use a particular piece of equipment, it’s going to function as promised by the manufacturer. And that means functioning safely. A person in the water can do everything right, but if their equipment fails because of substandard manufacturing and materials, the ultimate price could be paid.
Greenwell concludes, “If there’s an accident with a diver that results in a loss of life, the family – rightfully so – is going to try to find where the blame lies for that. And the first things they’re going to look at are training and equipment. It’s important for us stay vigilant and do the obvious things like verifying equipment and maintaining and supporting the integrity of dealer networks so that equipment and the divers who use it stay safe.”