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If you haven’t been following this entire affair, see our posts here and here. Apex Tactical Specialties has issued the following press release:

LOS OSOS, Calif. – As most of you know Apex Tactical Specialties was among the five companies contacted by lawyers on behalf of Smith & Wesson regarding the ‘Dream Gun®’ we prepared for exhibit in the Brownells booth at SHOT Show. The letter was in fact a cease and desist order and we spent most of yesterday dealing with the fallout of that letter . . .

After our initial shock, we came to realize that there was a gross misunderstanding on the part of the lawyers as to the purpose of the pistol we collaborated on. We say on the part of the lawyers, and not Smith & Wesson, for a reason which we’ll make clear shortly. The ‘Dream Gun®’ was intended to be and is indeed a one-off custom build. It is not for sale nor is it intended to be the first in a line of ‘Dream Gun’ models. It is simply an example of what current, and hopefully future, M&P owners can do with their pistol with the parts they can purchase from Brownells.

This unique, one-of-a-kind aspect was missed by the lawyers whose understanding of the firearms industry might not be as broad and in-depth as that of those actually running companies.

How do we know this? Well, this morning James Debney, President and CEO of Smith & Wesson, personally called us to apologize. He explained to us that the cease and desist letter should never have gone out and that Smith & Wesson fully supports Brownells’ effort to spotlight what avid gun owners can do to personalize their firearms. In other words, James Debney gets it. He understands the firearms industry, and there is no better proof of that than the fact he called himself.

The firearms industry is a small, close knit industry where most issues like this are handled with informal, personal phone calls before the need for lawyers arises. This even applies to the industry’s biggest companies, like Smith & Wesson. It is a great tradition and an important part of our industrial culture, and it is one that James Debney understands and respects.

On behalf of Apex Tactical Specialties we want to thank James Debney for stepping in to this firestorm, facing it head-on and resolving it quickly and with class. James Debney is a class act and his actions this morning, personally calling all the companies involved to apologize, reflects brilliantly on the Smith & Wesson brand.

To you, our customers, we cannot begin to thank you enough. Much of what was said online was said in defense of Apex. That means a great deal to us and to all those working at Apex. We will always work to ensure you get our best effort and that our company and its products live up to your expectations.

Finally, all this would not have been resolved without the efforts of Brownells President Matt Buckingham. Late yesterday we found out this was all soon to go away because Matt was talking directly to James Debney. Apex has a great relationship with Brownells and they are one of our largest customers. They are also good friends. As gunsmiths ourselves, we have a deep appreciation for Brownells and the Brownell family who have been champions of gunsmiths everywhere. As a small business you can be sure of one thing when dealing with Brownells – they will never make you feel small. Matt Buckingham stepped in yesterday to make sure Apex, DP Custom Works, Blowndeadline Custom and SSVI had a strong voice in the discussion and for that we very grateful. Thankfully, the man on the other end of the phone line, James Debney, saw things the exact same way.

Randy Lee & Scott Folk

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  1. I like the M&P 45 I own yet can’t stand the idiocy put forth by S&W… once that gun is transferred it is no longer theirs…they own the intellectual property but not the gun because of the name-sake… S&W needs to hire another law firm

    • In this age of intellectual property licencing, I wouldn’t be so sure that a lawyer could figure out a way to argue that S&W still owns your gun

      • Please do not use the term “intellectual property”, as there is no such thing. Copyright, trademarks, and patents are separate things, none of which are property as defined by law.

        This is exactly why there is such confusion on issues like this. And no, S&W doesn’t get to tell you how to use your gun or how it should be displayed.

        • Intellectual property is a category of intangible personal property. See, e.g., 21 U.S.C. § 853 which discusses property which may be subject to civil forfeiture. It includes “rights, privileges, interests”, which pretty well covers copyrights, patents, and trademarks.

    • No, S&W needs to fire the idiot who gave the law firm the green light to send the notices. Lawyers under contract by a client do not act without the client’s say-so.

    • The problem here is being dramatically misunderstood. S&W is not claiming they own your gun and that you’re just licensing it.

      S&W thought Brownells was creating a new model of M&P for sale with the help of Apex et al. Brownells has the right to make their fancy new gun to sell, but they don’t necessarily have the right to put a S&W trademarks (“M&P” or the S&W logo) on a new custom model. This is not a new concept – the “Talo” model guns all have agreements with their original manufacturers, and I presume Wilson Combat worked out a deal with Beretta before they went into that line. Also recall that Brownells now sells guns, which is a fairly new development. If I were S&W, I’d also be rather wary of someone selling heavily modified firearms with my name/trademarks on them.

      But when revealed on further investigation that this was simply an example gun with a bunch of example mods, S&W terminated the C&D because it was based on a false premise… this was just an advertisement example gun, not a new model for sale. I honestly don’t think there was any foul play here. For all I know, S&W did some investigation before they sent off the C&D… they just got the wrong answers, maybe.

      • If they actually did any investigation into Brownells’ “Dream Gun” series of up-mods to guns, then they wouldn’t have ever sent the C&D.

  2. The original reported communication from the IP Attorneys representing S&W looked really bad. S&W still has some negative feelings in the gun community dating back to their caving to the Clinton Admin. These are facts.

    That said. I think many are being overly critical of S&W in this instance. IP attorneys commonly throw Cease and Desist letters around for good or ill. The way the law works in the US is that if you don’t actively defend your Trademarks and certain IP you can lose it to the Public Domain, I am oversimplifying a bit here of course as there are legal complexities. The point being IP/Trademark Attorneys are often overly aggressive because if they don’t object immediately to violations they may lose the ability to do so in the future.

    From all indications this is what happened in this case and should be written off as representatives of a company trying to defend their IP/Trademark and said company acknowledging when they were in the wrong and doing their all to make it right. Isn’t this what we want out of companies we do business with? No person is 100% right all the time and we can’t expect corporations made up of people to be right every time either.

      • It’s reasonable to believe that S&W’s attorneys really did send these letters out without authorization or knowledge by S&W personnel?

        If yes, cool. Happy ending and it’s all understandable.

        If no, or unlikely or highly unlikely, then it’s likely a “whoa we got a ton of backlash for this, better recant and let’s go ahead and blame it on the attorneys and say we’re actually totally cool with this stuff.” 😛

        • I’ve worked for two very old patent holding companies (both we formed before 1900).
          Both take the outlook that they don’t want anyone but patent lawyers to worry about enforcement. They pay the lawyers enough, and you need the people working on innovation to keep working on new things. Not policing old things.

        • Yes it is reasonable. They probably send out large numbers of these to protect Trademarks. Once again, the way US law works is that companies have to explicitly protect their Trademarks by identifying potential violations and notifying the parties involved. If they do not, they can lose their Trademark. I doubt they are asking the CEO of the company every time they send one.

          Anyone really trying to make hay of this probably doesn’t understand the basics involved in Trademark law in the US.

          “Failure to Police

          Trademark rights may also be lost when a trademark owner fails effectively to police its mark against eroded distinctiveness, which may occur as a result of the presence of confusingly similar third-party marks in the market. For example, if many third parties subsequently begin using the same or a similar mark in commerce in connection with goods and/or services similar to the trademark owner’s after the owner has already begun to use its trademark, and the owner does little or nothing to police its mark, the mark is likely to lose some or all of its value as a source identifier in the marketplace. As a result, the trademark will become weaker, and in some cases it may lose its distinctiveness entirely.

          To help avoid such adverse consequences, the trademark owner should police its mark by enforcing its trademark rights through various legal means, such as (a) sending demand letters, (b) initiating opposition or cancellation proceedings with administrative entities, (c) proceeding with litigation in the courts and/or (d) entering into licensing and/or other agreements with third parties, as may be appropriate under the circumstances. While some courts have determined that a trademark owner need not necessarily prosecute every infringing third-party use of its mark, such third-party uses can still affect the distinctiveness of the mark in the mind of the public. The optimal policing and enforcement efforts for particular marks may vary with the particular circumstances involved, such as the nature and importance of the mark, the nature of the trademark owner and the size of its legal budget, and the number and nature of the potential third-party trademark infringements.”

  3. When is S&W going to make alloy/steel frames again for their pistols? If you are making a gigantic full size pistol – what is wrong with it being a bit heavy and made of materials with greater tensile strength?

    If you’re making a custom bbq gun, why a polymer frame?

    • Good question. I miss the 3rd gen Smith semi-autos. That would’ve been an excellent platform for a BBQ gun.

      • Hell yes! Bring back the 5900/6900 series and let the designers raid S&Ws patent bin to integrate all the goodies that have been invented since then.

        Right now, the Lionheart LH9 is the spiritual successor to the 3rd gen S&W semiautos, and it’s a fantastic piece of kit.

    • “When is S&W going to make alloy/steel frames again for their pistols? If you are making a gigantic full size pistol – what is wrong with it being a bit heavy and made of materials with greater tensile strength?”

      It’s my understanding that current production methods for alloy/steel frames are much more expensive than polymer. They would have to charge a significant premium which would be made worse by the limited number of people who would be willing to pay such a premium.

      As always I could be wrong.

      • An alloy framed M&P would be pretty cool. Give it a licensed Apex style trigger to sneak it into production series. They want to be super cool about it make it use 1911 grips.

        • They still make the 5900 series I guess, but only for LEOs. It wasn’t selling enough, and the market wouldn’t pay what S&W wanted to sell them at, so they discontinued it. If you look around at Gander Mountains and etc. you can occasionally find a lightly used police trade in.

    • Shhhhhhhh. Keep it on the low down, yo.

      Those 3rd gens are terrible. They weight a ton, ammo selectivity is marginal (feed and stove pipe issues) and they’ll lose the war for the allies.

      Never mind that I can win in a field of 80 competitors in CDP division in IDPA with my old tart 4516 or fair well with my 4006 in SSP. If you see them as police trade-ins at the local shop, run fast; it’s full of fail. The price is too good to be true.

    • When the American gun consumer re-discovers alloy/steel gun frames & parts.

      Until that time, it is much more profitable to squirt cheez-whiz into molds with the occasional bit of steel embedded in the mold and peddle that as an “advancement” in firearms technology – for the same price they used to sell steel-framed guns. The profit margin is higher on squirting cheez-whiz into molds.

  4. I didn’t read this closely but it looks like much ado about nothing. The IP attorneys probably get paid to be on the lookout for any abuse of the S&W trademark. For example if any other gun or part maker uses the logo without permission, they’re sending a cease and desist letter. A cease and desist letter is not a lawsuit by the way.

    One of the dangers of not protecting your trademark is that being lax may cause problems when you do have a real trademark problem. Clearly they might want to run it by somebody who actually knows the gun industry first before sending these letters. In my opinion this is an example of “internet kerfuffle” – TTAG is great and it’s good to be industry savvy, but 20 years ago this would have been a minor thing settled by a phone call and a chuckle.

    • “but 20 years ago this would have been a minor thing settled by a phone call and a chuckle”

      And that’s how it should have been handled in 2015 as well. Instantly running to social media to publicly post business correspondences is a bush league move.

  5. S&W need to reign in their lawyers. There is a web site with gun manuals on it. It has a red box which states that S&W lawyers made them remove all their Smith manuals. ALL other gun companies products are listed. I have one S&W gun. Will never have a second until the attitude toward their customers changes.

  6. Couldn’t really tell from previous photos, but these full side view of the M&P…. well, ugh! Looks like a late night YouTube project – have a few beers, get out the Dremel tool to hand-carve some more serrations in the slide, then tie the gun to the back bumper on the F-150 to drag around in the gravel for awhile for that weathered look.

    The custom Hi-Point in the video looks much better!

  7. You guys are not going to believe this.
    I had not kept up in the news so I did not know about this particular controversy.
    I own several M&P’s.
    Great Guns.
    Not the best trigger actions in the world, but great guns.
    Apex Triggers are great, great triggers.
    For almost every M&P I bought, I also bought a drop in Apex trigger to make it better.

    COINCIDENTLY, I just recently bought an M&P 9mm Shield.
    I took it to the range and fed it a couple boxes of rounds.
    I thought this was OK for what I expected of an M&P.
    But I thought another Apex trigger couldn’t hurt so I just ordered one from Apex directly.
    While I was on the phone with their great customer service person, I made the remark that
    Smith and Wesson ought to contract out with Apex to make a certain line of custom guns.
    I swear.
    I said this would make the customers happy.
    Everyone would be happy.
    S&W is promoting Apex and Apex is promoting S&W.
    And the customer has an additional choice.
    Everyone is happy.

    Smith and Wesson, talking to lawyers to sue companies that do indeed enhance your guns?
    That’s a wrong business decision, S&W.
    Your standard guns do meet a need for your customers.
    And I know you have a pro shop.
    I am surprised you had not thought of this before.
    Apex does support you in a way.
    Don’t take that away.

  8. “James Debney is a class act”

    Who do you think ordered he lawyers to send the ‘fvck you” letter? Do you really think that a major national law firm with gross billing of more than TWICE the gross sales of Smith & Wesson did this on its own?

    What a joke.

  9. I appreciate them sort of clearing the air, but honestly APEX is pretty heavily vested in S&W’s success. If all M&P owners were to throw a short buss level tantrum and boycot Smith for this, APEX would have a rough go only selling the one or two products they make for other guns, meanwhile S&W would just continue to print money selling to cop shops.

    • S&W never quite made it to the “print money” level in LE sales. Glock did and still does pretty much have the LE market cornered. S&W pissed away most of the LE market share when officers nationwide realized that M&P pistols, especially in 40 S&W and 357 Sig, were not holding up long term compared to Glock and Sig pistols, some of that was design issues and a lack of upgrades to overcome design flaws, but most of it was a decline in quality control. In LE circles, word travels fast when front sights and slides start flying off pistols on the firing line which are the top two of several failures experienced by TXDPS when they attempted to transition to M&P 9’s a couple of years ago. Design flaws along with durability and quality control issues is why S&W lost what ever hard fought share of the LE market they had gained and they’ll probably never get be able to win back the trust LE officers briefly held for M&P pistols.

    • The best lawyers I’ve consulted with remind me time and again that the best outcomes are invariably found by staying out of the court system, and dealing with lawyers as little as possible.

      As one liked to say:

      “We have the finest legal system in the world… but justice never comes cheaply.”

  10. Smith and Wesson’s corporate leadership needs to focus more about real problems such as quality control and less about trademark infringement by manufacturers and distributors of aftermarket parts. If I were a SWHC shareholder, I would demand answers on who’s responsible for wasting corporate time and effort on this ridiculous cease and desist order, how much corporate profit was squandered on attorney fees related to the order, and how this latest PR debacle will affect investor returns.

    Sounds like a culture of asleep at the wheel upper management persists at S&W; first the quality control debacle with M&P pistols that amounted to pissing away millions in LE sales; now this embarrassing incident of going after Apex and other small businesses that give shooters a reason to still want a S&W firearm.

    Maybe someone in S&W corporate management should ask why customers (such as myself) should have to spend another 160 bucks for an Apex trigger group to install in a M&P Pro Series C.O.R.E. pistol which should have left the S&W “Performance Center” with a great trigger to start with.

  11. S&W did the right thing.

    They made a mistake, admitted it and acted quickly to correct it.

    A sincere apology to each company, by the company president, not some “Press Release” apology. Via a phone call, not an email.

    That is the most important thing to get out of this event. And an example for others to learn from as well.

    We all make mistakes. How we deal with the results of those mistakes is what matters most.

    Disclaimer: I own a Shield and a full size M & P in .40 and am pretty satisfied with both firearms, both in performance for what I have them for and in cost.
    Yes, I’ve owned and tried other similar pistols.

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