Issue link: https://read.dmtmag.com/i/622612
I DA U N I V E R S A L J a n u a r y - Fe b r u a r y 2 0 1 6 11 LEGAL LINE Robert W. McIntyre IDA Association Legal Counsel Continued on page 48 N ot that many years ago, the a er- market was actively characterized by the OEMs as "counterfeiters," "will-fi ts," and many similar derogatory descriptions. Adver- tisements, brochures, and sales campaigns were driven by the emerging a ermarket companies commanding more and more of OEM parts sales, and thus, the support of independent repair and service companies, which competed with OEM dealers. For those of us around at that time, many of the OEM arguments had some weight, as the a ermarket suppliers started, in some instances, in basements and backstreet shops. Primitive "reverse engineering" was the rule, with guesstimates regarding materials, manufacturing methods, and life expectancies. e good news was that the OEM products were not that good, either, so a Wild West scenario prevailed. "Brown envelope" OEM specifi cations, back-door sales of parts to be copied, and the emergence of the non-North American market for parts created and lost some fortunes in our industry. What happened next is history. All of a sudden, the survivors of this era now were in the a ermarket as genuine technological and performance equivalents of the OEMs, and, incredibly, the OEMs started to turn to the a ermarket compa- nies for both line-installed products and parts sales. One OEM "secretly" bought its undercarriage for parts depot Counterfeits distribution in Europe and the Middle East from an a ermarket supplier. Another bought under- carriage directly from a large a ermarket suppler for installing on new machines in the factory. Tier One OEM suppliers started to supply the a ermarket distrib- utors, and a few opened their own a ermarket sales organizations, as well. Complicating this already murky picture are Tier One suppliers to the OEMs in certain markets that supposedly are prohibited from selling to the a ermarket in other markets: OEMs "looking the other way," when convenient, to provide a supply of parts for their machines and preserve those important customer relationships when other channels are unattractive or impractical. A good example of this is certain diesel pistons with a very distinct design that are patented by a Tier One supplier, but made under license by a foreign supplier in a large and emerging market. is supplier also sells the "same" piston kits through an intermediary. Are the Tier One supplier and the OEM "looking away" – knowing that the OEM dealer and parts system in this market cannot fully perform – simply to preserve the happiness of the engine owners? Hopefully, the "back-door" pistons are made to both the patent holder and OEM's specifi cations, but there is no assurance that corners have not been cut to increase profi ts. Unfortunately, if failures occur, the Tier One and the OEM may be painted with the same brush. In essence, in the last 10-20 years, the original European a ermarket companies have either evolved or disappeared and are now joined by a truly worldwide community of "OEM-quality" suppliers, many of whom are IDA members. A machine can be completely rebuilt with pumps from Canada, gaskets from Turkey, engine parts from India and Italy, driveline parts from Spain and Taiwan, and undercarriage from Korea – all nominally OEM equivalent. is overhaul of the market and players has changed the playing fi eld forever. e former "counterfeiters" are now being copied by the next wave of "will-fi t" pretenders, just like immigrants. e second generation is established, but the newcomers are doing whatever it takes to fi nd and live the dream. Technology has played a signifi cant part in this revolution. CAD, FEA, and similar digital engineering and manufacturing technologies are available to all, and all are within reach of aspiring counterfeiters.