Last year, I got all twisted up in a blog about a non-glazing company’s attempt to trademark a fairly common glazing industry term, thinking that none of us could ever refer to or use that term (“glass”) ever again. Within a couple of hours of the blog being posted, I received an email from a trademark and patent attorney pointing out the error of my ways. I came to understand that it’s not quite as complex or conspiratorial as I thought it was. Every once in a while I see the same sort of thing, and all I think is, “it’s déjà vu all over again.”

    A couple years ago, Google introduced Google “Glass,” connecting the wearer to the internet through a pair of eyeglasses. Google Glass hasn’t done so well in its marketplace, although glass appears (for the time being) to be doing fine in our world. If you go to the Google Glass web site these days, you get one of those pages that implies there’s more to come, but nothing’s available yet.

    I initially thought none of us would be able to use the name glass again if Google was granted the trademark. The attorney pointed out that like the name “Apple,” now more closely associated with phones and tablets than with fruit, the use of “glass” as a term can still be used by others, but just not as a trademark for a product. The grocery store still sells McIntosh apples (the fruit, not the computer) without fear of Apple suing them for using the term “apples” or “McIntosh” for in-store labels, coupon ads, etc. Makes sense, right?

    In another case along these line, Kellogg’s was so concerned about protecting the sanctity of its mascot for Fruit Loops cereal, Toucan Sam, that in 1995, it sent a protest letter to a band called the Toucans, a four-member group playing Afro-Caribbean music at weddings and festivals. Kellogg’s buried the band in legal papers, but the band didn’t change their name.

    According to the US Patent and Trademark Office (USPTO), “A trademark identifies goods or services as being from a particular source.”  For example, when mentioning Corvette, you think Chevy. Solarban, you think PPG, not anyone else. When you mention Silpruf, anyone with any experience in using sealant knows you’re talking about Momentive, you’re not talking about the manufacturer of 795, Dow Corning.

    Using common industry terms and trademarking them is a bit confusing to me. (ref: “Generic Terms Are Not – and Can Never Be – Trademarks”). For example, if one were to attempt to trademark “curtain wall,” thus precluding its use by anyone else in the industry, would such a general name necessarily make customers think of that company? And, one would think that common industry terms cut so wide a swath that surely the USPTO wouldn’t grant protection of the term.

    The legal implications of registering and using a specific trademark almost always requires using a lawyer to assist in the process, to avoid the pitfalls, which seems to be a cost worth bearing.

    And if you don’t use an attorney in that process, I’m reminded of an old anecdote: first thing Monday morning your receptionist calls, saying there are two parties waiting for you:

    60 minutes is here with a camera crew, and they’re asking to talk to you.

    Some attorney is on the phone, and he wants 15 minutes of your time, but he didn’t say what it was about.

    Which one do you chose? Meanwhile, I’ll go back to my day job in the glass curtain wall and building envelope biz. Sure is fun and exciting, isn’t it?

    Happy Birthday, USA! 239 Never looked so good; here’s to many more!

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  • Being a blog writer naturally entails reading other industry blogs. Two recent ones piqued my interest. One addressed what to do legally or ethically about “grandfathered” glass installed before the original CPSC Federal Safety Glazing Regulations (16CFR 1201) were first issued in 1974. The other one linked to a map showing what minimum wage would be required to earn a livable income in each of the 50 states.

    On the first topic, the blogger asked if there’s a legal or ethical obligation to comment about glass in doors and sidelights that doesn’t meet the CPSC standard if the glass in question isn’t in the present project’s scope of work. As I see it, the legalities of the issue have nothing to do with doing what’s needed to prevent someone from getting hurt. So, yes, tell the owner he has glass that someone could fall through and injure themselves. Ethically, they should change it. Document in writing that you told them.

    Even if they’re not legally required to replace the grandfathered glass in some cases, I’m surprised that the building’s insurance carrier doesn’t make that a condition of issuing a policy.

    An analogy: When the FAA and the NTSB determine the cause of an airplane accident, they have the power to mandate changes in airplanes, procedures, or maintenance. Maybe that’s what’s missing here. We know it’s unsafe to keep pre-CPSC 16CFR 1201 glass in a hazardous location, so perhaps our industry should lobby the state legislatures or possibly Congress to get these grandfathered-clause glass situations corrected. They could even allow some time to make the change. Would that work?

    Regarding the minimum wage topic, I recall my first minimum wage job was flipping hamburgers at a national chain for $2.15 an hour. No, it wasn’t a living wage; it wasn’t meant to be. It paid for the usual things for a high school kid: most notably senior prom and a NICE leisure suit. A couple of good summer jobs like that set me up to go to college, which helped me land jobs that paid better (much better) than minimum wage.

    Things have turned so far around that the unemployed take minimum wage jobs to help pay the bills while waiting for something better to come along. Unfortunately, many ended up getting stuck there, thus reducing their standard of living, because nothing better came along.

    And, it’s not all their fault, either. Corporations, in order to reduce their operating costs, often only hire part-time workers because they don’t want to have to pay a living wage and other benefits that come with full time employment, such as health insurance. That was their model for success, and they have a right to decide how to run their businesses.

    I’m not arguing that model is wrong, but what’s gotten lost is there are people working two or three of these jobs, and they’re so dependent on them to raise their families that the need for minimum wage jobs to pay livable wages is coming to the fore. They’re not able to work any one full-time job that might sustain them, so they either cut back, do without health insurance, do without a family vacation, etc.

    The cost of raising minimum wages will be that the price for a hamburger out on the street will be what’s normally charged at the ballpark on a summer night. I’m OK with that, if it’s helping working people working earn a decent living. I know of a regional convenience store chain here in the Midwest that does that, so I’m buying all my gas there. I’ll happily frequent those types of businesses.

    And, I hope that all of us in the glass biz will do that, too, as paying our employees a livable wage is good for business and for company morale. And, it should be shouted from the rooftops when we find businesses willing to do that. Granted, it’s a fine balancing act. But, there should be good publicity for those that pull it off.

    If you’re already doing that, I’ll buy anything from you that my present employer doesn’t already sell, like shower doors or skylights, if I’m ever in the market.

  • Field Notes 13.05.2015 2 Comments

    Have you seen the new acronym “BECx” – building envelope commissioning? No, it has nothing to do with GANA’s BEC. I’m still trying to get straight in my head why this is needed. After talking to a former colleague, it seems like this is NFRC all over again, with another set of players trying to get their noses under the building envelope tent. Just last week, I saw the first set of specs that required a Building Envelope Commissioning Agent (BECxA – funny how the acronyms all run closely to and with each other, isn’t it?).

    Basically, building envelope commissioning includes another player on the design team – during design development or schematic design – whose primary role is to confirm that the specifications adequately address the building envelope’s various performance requirements. That means everything, not just glass and glazing, but also brick, panel, precast and other wall assemblies, will all have to meet the same performance standards we in the glass/glazing biz have come to know and love, such as ASTM E283, E330, E331, AAMA 501.1 thru .6, etc. The building commissioning standard, ASTM E2813, is meant to address energy, environment, safety, security, durability, sustainability, and operation (Section 1.6) issues, but as of this writing it doesn’t include verification or checks for structural issues, such as seismic, deflections. Why not? I couldn’t get an answer.

    The building envelop commissioning agent frequently weighs in on the design, checking envelope wall submittals, helping spec correct materials/wall systems/constructions, and then testing either with pre-construction mockup testing and/or post-construction field testing. The people making the argument for commissioning say the commissioning protocol confirms that the architect’s specs actually get delivered. Really? Doesn’t the architect or their consultant already do field checks?

    I’ve yet to see a project in which there’s a wholesale change to different materials (system, glass, etc.) after field testing is completed, or after shop drawings are approved, have you? The proponents seem to think that a major switch-out for cost savings by the GC or glazing sub is “done all the time.” I certainly don’t know any architect or owner who would approve a pay request IF that were done.

    For smaller scale projects where the schedule and cost of conducting a performance mockup is not justified, the frame and glass manufacturers, along with NFRC certification, provide validation for the system as a whole in previously conducted air, water, and performance testing. Field testing for air/water integrity isn’t increased or lessened over typical specifications. Unless the building commissioning agent makes them test all over again to confirm the same performance before approval of the product for a given project, the validation comes in field testing of that existing product line. Doing thermal testing in the lab is hard enough; doing it on-site is much more difficult. Isn’t NRFC certification enough to confirm thermal performance? Why go through the trouble of conducting another thermal test if it’s not?

    So, the unanswered questions for me are:

    1. Who is advocating this?
    2. What value does it add to the project that justifies the additional costs over what’s now typically required?
    3. Is the owner willing to pay the costs of another consultant on the design team or added costs to install the walls?

    Plus, the standard covering the commissioning agent certification (E2813), calls for competencies that in practice will limit the qualified people to those with more than 20+ years in the business, and who have worked for a GC or exterior wall subcontractor delivering these goods. Naturally, the more experienced the person is, the more expensive the cost of providing commissioning services will be.

    For large projects, we all know mockups can prove structural, air and water performance, as well as some thermal validation. Field testing does the same, with or without a pre-construction mockup. Thermal can be proved prior to construction, notably if an NFRC-certified set of products (glass, spacer, and framing) is furnished. Does the owner really want to pay to do air, water, thermal and structural testing in the field on an installed wall if a pre-construction mockup wasn’t done? And, do we really need another player whose hand needs to be held to prove what we’re doing is what we said we’d do? Or, is it that the other wall systems (not glass and glazing) need to be validated?

    Maybe the other wall systems haven’t been held to the same standard as we in the glass and glazing biz have been, and that this is the way to catch them up to our world? I’m not sure; no one’s ever explained it to me. This scenario opens up a whole ‘nother can of worms I’ll hold for a future blog.

    Please, I’m slow on the pickup: just why is another player required? And what value do they add to the project? I’m not seeing the need – not yet, anyway. I’d love to hear from the advocates for building envelop commissioning.

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