Irrespective of anything else, you cannot simply sit back and say "well I asked them (once), and they never got back to me."
You want to make the part.
You have to drive them to give you an answer or at least put more effort into it.
If you want it badly enough you won't just sit back and "wait", you'll need to take the initiative.
This may require they make some effort. They won't make that effort based on one casual approach, you'll need to show you are serious.
That may mean making a nuisance of yourself but be prepared to be told "no" just to make you shut up.
Ask yourself if there is something in it for them and something more in it for you.
First rule: never approach the lawyers.
Lawyers can't answer your question.
If you say: "If I make this part, will you sue me?" they may smile enigmatically and lick their lips.
If you ask them "Is it OK for me to make this?" they will think about it and decide you are asking for free legal advise and that it is not in their interests to answer it.
Especially if there is no legal impediment to you doing so.
The natural response for the legal people is to do and say nothing that may prejudice any future possible litigation.
Second rule: make it a commercial query, not a legal query.
You don't really want to know where you stand legally, you want the manufacturer to say "Go ahead. We don't have a problem."
Except, chances are they may sit and worry about liability if they
allow you to go ahead as this may be tantermount to authorising you. This means they will go back to the legal guys and and ask a legal opinion about something else. The legal guys will now advise "No." It is the safest thing to do.
The advantage of asking a commercial question is you ask a commercial manager, the sales and marketing manager would be best.
He might ask himself "What's the risk?" and ask the legal people but he ought also to ask "What's in it for us?"
This is a much safer question and you may want to think about how it could be a benefit to them and to you.... you don't want to pay royalties, you want to sell them a service and show them how to generate some good PR.
As the manufacturer, if you approached them and said "I need this part, can you still supply it?" the probable answer is "This is a discontinued part. We no longer manufacture nor hold stocks." End of story.
They sell nothing and they have an unhappy customer or would be customer.
But, why don't they make it?
Low volume.
Not worth their effort.
Of course, at the time they obsoleted it they expected people to move on to newer models. But by now anyone who moved on, has moved on and anyone who has one now is an enthusiast.
Now think about it.
They really don't want to make these parts.
OK.
But does that mean they don't want owners of these bikes to be able to maintain or restore them?
With the passage of time, their attitude to these older bikes may well have changed.
That means they have a possible need to be able to supply these parts but not manufacturer them.
But they are a natural target for enquiries for replacement parts (as are owners clubs who often want to link up with sympathetic manufacturers to gain access to drawings, old tooling etc etc and are often humoured)
So, if it was me I'd re-approach them and say that you want to be able to supply these parts.
Option 1: as an independent supplier.
Option 2: and/or as an approved retro-manufacturer.
Option 3: sell via the original manufacturer
What you want is to be able to make parts for your clients and access the enquiries they may receive but which you never would see.
It may be that what you and the manufacturer can do is collaborate on the manufacture of "Heritage" parts whereby they can either refer enquiries to you or use you as an approved sub-manufacturer for any enquiries for obsolete parts.
What I'd guess you'd like is to be able to manufacture other parts as and when they become obsolete, acquire old tooling, drawings etc. and perhaps not just for this manufacturer.
See if you can't put together a really attractive proposition that will make them some money, not huge amounts, but which will make them some real good PR and help them build better long term links with their clients.
They don't want to under take small volume manufacture but I'd bet they'd like to to be able to support some of the owners of older models but without all the hassle.
So, it may come to nothing but:
[ul][li]you must be more persistent[/li]
[li]you may need to try and find a deal they may find attractive[/li]
[li]forget the lawyer, you need to talk to their sales and marketing director. Lawyers would like to sue you, or anyone. Sales and Marketing guys are always looking for more money, more income and grandiose schemes to let them look good to their bosses. You don't want to pay royalties but if you and they can't find some attractive win/win deal for both of you, it shouldn't be for lack of trying.[/li][/ul]
In the end, you may get no where.
You may get no response but at least document a lot of effort, a lot more effort than one contact, to show willing.
Then, if you decide to go ahead, what's the worst that can happen? they sue you.
They sue you.
Small business? providing a service for their clients they can't or won't provide themselves? will that look good for them? In the end, what can they expect to win from you and why would they want to sue you, even if legally they can? Spite? a matter of principle? The negatives may do them more damage.
They would have to balance the possible benefit to them of winning the case (nil? any possible profit or damages will have been eaten up by lawyers) against the possible negative publicity.
I'd guess you might produce your own drawings and your own design for the part with some insignificant differences from the manufacturer's part and market it as an "equivalent" part and that there is no implicit or implied warranty or endorsement by the original manufacturer.
I have no idea how legal any of it is but in most cases of copyright, patent or trademark protection, protection is only obtained by one person being willing to sue another.
If the manufacturer sues, have a rethink. If they don't be happy.
But don't initiate any legal actions.
But I'd suggest seriously that a liaison between you and the manufacturer might be more profitable than going it alone. I'd spend some serious thinking time on how to put together a good proposal for them.... but maybe think about "heritage" parts for more than one obsolete model and more than one manufacturer's product (even if it is just as a concept) and show something in it for them for them to take you seriously.
I'd have the package pretty well fully finalised (even if just conceptually) so that it is a "go or no go" decision, not a "nice idea" lets get some one else.
Also, try not to ask questions with "yes or no" answers that put you in a hole. Try to ask either or questions where they get to look at different options in a go ahead package... you need to start with an assumption that it will all go ahead and get them to work along with you.
There is always a risk.
In the end, you can always just go ahead and see what happens.
But be careful acting on advice like this if you think local law might put you in jail....
JMW
