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Orem, Utah

General discussion of the jury verdict begins with this post.

Chapterhouse Studios submitted a motion to dismiss the lawsuit that Games Workshop filed against them on the basis of lack of specificity.

Basically they're saying that Games Workshop needs to cite specific instances of trademark or copyright violations. This makes sense to me, since there isn't really any way to defend yourself against vague claims.

I have yet to find any response from Games Workshop's legal team.



For those of you who are new to this topic, Chapterhouse Studios is one of many companies that creates conversion parts for Games Workshop kits. The difference between them and other companies is that Chapterhouse openly acknowledges on their website what conversion parts will fit with what GW kits.

Altogether, I personally wonder whether GW has a case at all, or if they were banking on Chapterhouse to be unable to defend themselves legally (Chapterhouse has a lawfirm defending them pro-bono).

The implication if Chapterhouse wins the case, is that third party conversion bits will be able to openly acknowledge that the parts they are creating are meant for specific GW kits (and be able to specify which ones).


By the way, it is likely that this topic will get out of hand, and eventually be locked. I understand that many people here have very strong feelings on this subject, so let's try and keep it civil for as long as we can.

This message was edited 2 times. Last update was at 2013/06/17 17:15:52


 
   
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Best of luck to Chapterhouse with that. It is true that there were no specific instances cited, with the exception of the superheavy walker (which is totally not a trademark or copyright violation) which was also (wrongly) attributed to Paulson games.

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Normally, an objection based on specificity would give the Plaintiff the opportunity to amend their complaint. Is there any deadline or hearing date on the defendant's motion?

-James
 
   
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odinsgrandson wrote:By the way, it is likely that this topic will get out of hand, and eventually be locked. I understand that many people here have very strong feelings on this subject, so let's try and keep it civil for as long as we can.


This! Please keep it civil AND on-topic.

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I expected a motion to dismiss since that is pretty standard in any civil case. I don't know if that will happen or not. The problem is that unless prejudice is applied, GW can simply come at CHS again with another lawsuit.

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Motions to dismiss are virtually always filed. It's just how litigation is done.

As Breotan stated, the plaintiff can either amend his complaint or even refile a new complaint most of the time.


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Cadia

odinsgrandson wrote:Chapterhouse Studios submitted a motion to dismiss the lawsuit that Games Workshop filed against them on the basis of lack of specificity.

Basically they're saying that Games Workshop needs to cite specific instances of trademark or copyright violations. This makes sense to me, since there isn't really any way to defend yourself against vague claims.

From what I remember, it was pretty specific. It mentioned the various shoulderpad insignias, the shoulderpad shapes themselves, things like that.

Like Breotan said though: a "motion to dismiss" is pretty standard in civil cases. Trying for it on the basis of "lack of specificity" is pretty standard in most IP styled cases.

I have yet to find any response from Games Workshop's legal team.

When was the motion filed?

For those of you who are new to this topic, Chapterhouse Studios is one of many companies that creates conversion parts for Games Workshop kits. The difference between them and other companies is that Chapterhouse openly acknowledges on their website what conversion parts will fit with what GW kits.

Ehhh. That's not really why GW's going after them. CH overstepped the "acceptable line" that most of these third parties operate within--which is to say; they don't tread on Forge World's toes and start producing doors for vehicles, etc.

Altogether, I personally wonder whether GW has a case at all, or if they were banking on Chapterhouse to be unable to defend themselves legally (Chapterhouse has a lawfirm defending them pro-bono).

The implication if Chapterhouse wins the case, is that third party conversion bits will be able to openly acknowledge that the parts they are creating are meant for specific GW kits (and be able to specify which ones).

Not...really? The implication is that if Chapterhouse wins the case then third party conversion manufacturers will be able to actually flatout copy GW's established IP/artwork. CH used a lot of established GW iconography(the "Dragon" head that they used for Not Salamanders stuff, the scaled cloaks, the shoulderpad styling, etc); which is really what GW's opposed to.
   
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Kanluwen wrote:Not...really? The implication is that if Chapterhouse wins the case then third party conversion manufacturers will be able to actually flatout copy GW's established IP/artwork. CH used a lot of established GW iconography(the "Dragon" head that they used for Not Salamanders stuff, the scaled cloaks, the shoulderpad styling, etc); which is really what GW's opposed to.


To be entirely fair a lot of these designs were not exactly original even when GW was formed. "Dragonscale" cloaks etc have been around in fiction for almost as long as there has been fiction.

I'm not disagreeing with you on some items being a bit close to the mark, however, much of it was generic enough, in my view, to be fine.

   
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Kanluwen wrote:
Not...really? The implication is that if Chapterhouse wins the case then third party conversion manufacturers will be able to actually flatout copy GW's established IP/artwork.


Yeah, I mean, they designed that Chaos star, they should have full exclusive rights to protect their IP!

Oh, hang on a minute....

This message was edited 1 time. Last update was at 2011/03/23 16:50:06



 
   
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Kanluwen wrote:
Not...really? The implication is that if Chapterhouse wins the case then third party conversion manufacturers will be able to actually flatout copy GW's established IP/artwork. CH used a lot of established GW iconography(the "Dragon" head that they used for Not Salamanders stuff, the scaled cloaks, the shoulderpad styling, etc); which is really what GW's opposed to.



Just like after market manufacturers of automobile parts use the logos and highly similar designs for automobiles like the Ford Mustang and virtually every other car that someone might want to customize. The fact of the matter is that the action that GW is suing CHS over is something that has been commonplace in other industries for decades.

http://www.bodykits.com/

See this link for an example of what I'm discussing. These third party manufacturers make products that directly compete with similar products offered by the auto manufacturer and use trademarked product names from the automobile manufacturer in their advertising. For example, you can find an advertisement for the following:

"Ford Mustang Extreme Dimensions Duraflex Fiberglass Hot Wheels Body Kit."

Extreme Dimensions is the manufacturer of the body kit designed for use on the Ford Mustang, which is a trademarked name owned by Ford.

You can also find aftermarket parts manufacturers that make custom parts for just about every other piece of your Mustang you can imagine, from Floor Mats and Steering Wheels to Gas Cap Covers and engine parts. Many of these items will feature the trademarked Ford running mustang logo. Each of these parts are designed to replace a part already manufactured by Ford.

If this is legal in the automotive industry, why is it not legal in "plastic army men" industry?

This message was edited 2 times. Last update was at 2011/03/23 17:01:58


 
   
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SilverMK2 wrote:
Kanluwen wrote:Not...really? The implication is that if Chapterhouse wins the case then third party conversion manufacturers will be able to actually flatout copy GW's established IP/artwork. CH used a lot of established GW iconography(the "Dragon" head that they used for Not Salamanders stuff, the scaled cloaks, the shoulderpad styling, etc); which is really what GW's opposed to.


To be entirely fair a lot of these designs were not exactly original even when GW was formed. "Dragonscale" cloaks etc have been around in fiction for almost as long as there has been fiction.

I'm not disagreeing with you on some items being a bit close to the mark, however, much of it was generic enough, in my view, to be fine.

While "Dragonscale" cloaks have been around in fiction, I don't think that they've really been something you see on Spacemen.
I'm not as up on IP law as Polonius or a few other members here would be; but I'm fairly certain that the context would matter.

   
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Kanluwen wrote:While "Dragonscale" cloaks have been around in fiction, I don't think that they've really been something you see on Spacemen.
I'm not as up on IP law as Polonius or a few other members here would be; but I'm fairly certain that the context would matter.


I'm not going to get into specifics, because I am sure there are a lot of arguments and counter-arguments about what kind of "generic" style designs are permitted (I know next to nothing about IP law either ). Indeed, I feel that this lawsuit is more about GW trying to stamp out anyone from making anything even remotely like their own product(s). Which to me is insane because GW did not create most of the looks, designs, etc they claim as their own. Many existed previously in fiction, history, etc. Many were also created "in model" by other companies before hand as well.

   
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Kanluwen wrote:
I'm not as up on IP law as Polonius or a few other members here would be...



Then stop talking about it.

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This conversation has even begun to boggle my internet-hardened mind.

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Ozymandias wrote:
Kanluwen wrote:
I'm not as up on IP law as Polonius or a few other members here would be...



Then stop talking about it.

Only when everyone else does.
   
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While I don't want any bitz sites to go down (variety is the spice of life, yes?), I can't help but feel like CH shot themselves in the foot by not playing the "it's a space-man upper arm protector shield, *hint hint*" game.

Most of the other bitz sites barely hide the intent of their products. It's obvious what is designed for what, and such details are often heavily hinted at in product descriptions. CH could have saved themselves a lot of trouble (perhaps not all the trouble, but they could have been much more secure) if they simply made all the product names/descriptions generic.

I realize it's silly to look at a thunder hammer and read "star-viking war god's smashy stick," but if it'll protect bitz sites from GWs zealous legal team, why not do it?

EDIT: Unless of course GW just hasn't gotten to all the more clever sites yet*

This message was edited 1 time. Last update was at 2011/03/23 17:19:36


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Chapterhouse should just pick up and move to St. Martin/Maarten. No one seems to care about IP or anything else pertaining to business law on that island. For example The Soprano's Bar even used the sopranos logo lol.




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Though I don't practice, I recall from law school that motions to dismiss being generally one of those dot your i's, cross your t's things ... it does happen with rather comical regularity that the plaintiff whiffs on properly answering the motion, and loses the case right out of the gate ... which is why it's done.


I can think of a few parallels to our wargaming ...
It's like an Illegal Procedure in BB.

This message was edited 1 time. Last update was at 2011/03/23 17:39:15


 
   
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Pennsylvania

Kanluwen wrote:
SilverMK2 wrote:
Kanluwen wrote:Not...really? The implication is that if Chapterhouse wins the case then third party conversion manufacturers will be able to actually flatout copy GW's established IP/artwork. CH used a lot of established GW iconography(the "Dragon" head that they used for Not Salamanders stuff, the scaled cloaks, the shoulderpad styling, etc); which is really what GW's opposed to.


To be entirely fair a lot of these designs were not exactly original even when GW was formed. "Dragonscale" cloaks etc have been around in fiction for almost as long as there has been fiction.

I'm not disagreeing with you on some items being a bit close to the mark, however, much of it was generic enough, in my view, to be fine.

While "Dragonscale" cloaks have been around in fiction, I don't think that they've really been something you see on Spacemen.
I'm not as up on IP law as Polonius or a few other members here would be; but I'm fairly certain that the context would matter.


Sigh... you really should have stopped with the first underlined part.

Rather then go into bona fides, I'll just point interested folks towards my posts in the mother of these threads here and here (the first attempts to aggregate links to Polonius' great efforts, the second addresses my attempt to illuminate the problem with protecting ideas). Context does, indeed, matter, but it's far better addressed in the posts linked then can be profitably dealt with here.

For those wanting a nutshell version of the point: under (US) IP law, you cannot protect an idea using trademark or copyright law (and a discussion of patent law is beyond this example). Company A making, say, a line of toys featuring futuristic space soldiers wearing reptile skins does not prevent Company B from making a line of toys featuring futuristic space soldiers wearing reptile skins. Context, of course, comes in when asking if there is actual copying, or derivation, but that's a very different (and very technical) question.

The easiest way to think about it is to imagine a sliding scale from Idea---Expression. The closer something is to the expression pole, the easier and more completely something can be protected by IP law.

For example;
Transforming robots------------------------------------------------Optimus Prime
Idea------------------------------------------------------------------------Expression
Unprotectable------------------------------------------------------Highly protectable
   
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Some interesting tidbits:

The original filing representative of GW stepped down and left the law firm, that firm will continue to represent GW though:
MOTION FOR WITHDRAWAL OF HEIDI L. BELONGIA AS COUNSEL FOR PLAINTIFF GAMES WORKSHOP LIMITED
I, Heidi L. Belongia, hereby move this Court to withdraw my appearance as counsel for
Plaintiff Games Workshop Limited on the basis that I will no longer be associated with the law firm of Foley & Lardner LLP. Aside from my withdrawal, Foley & Lardner LLP will continue to represent Games Workshop in this matter.


The judge has his own Wiki page: http://en.wikipedia.org/wiki/Matthew_F._Kennelly

weeble1000 over at Warseer, obviously a lawyer, posted some interesting comments:
Games Workshop's complaint alleges willful infringement. It means that Games Workshop is alleging Chapterhouse infringed with malicious intent. In other words, Games Workshop says Chapterhouse knew its actions were, or were likely to constitute infringement and did it any way as a means of causing harm to Games Workshop.

So Games Workshop says that at some point Chapterhouse Studios said, "Yes, we know that we are breaking the law but we don't care."

I don't think that there's any compelling evidence of that. To bring you up to speed, it is a state of mind issue. Infringement can occur even if you aren't aware of it. In order for it to be willful, you have to know that it is infringement, or at least the plaintiff must prove that you knew by the standard of clear and convincing evidence.

It's hard to prove, because even if you blatantly infringe, there's still the question of whether or not you had reason to believe it was infringement. In this respect, ignorance is a valid defense. The combination of it being difficult to prove what someone knew at a specific time and the high standard makes willfulness rather difficult to prove.

I hope that helps.

The claims in the complaint aren't illegal in and of themselves. They're broad, unspecific, and arguably unsupportable. Games Workshop may have been advised about this, I don't know, but it doesn't change the way the complaint is written.

The "context" argument addresses the issue that there have been some underhanded and less than respectful, although not necessarily illegal, legal practices on the part of Games Workshop. For example, nothing says that you can't file a complaint less than a week before Christmas, but it is certainly frowned upon. Similarly, nothing says that you have to be open to settlement negotiations, give informal extensions, or treat your colleagues with professional respect.

Now, given that one can expect that Games Workshop is being advised by well-informed and competent legal counsel, it is reasonable to believe that Games Workshop is aware of the fact that the claims of its complaint are broad, unspecific, and arguably unsupportable. One can also argue that Games Workshop is ultimately responsible for how this lawsuit has been handled, even if it did not have a hand in the actions of its lead counsel. Even if Games Workshop believed everything it's done has been completely fair and legal, its actions and the actions of its counsel are not really in dispute here.

This opens Games Workshop up to a potential antitrust counterclaim from Chapterhouse Studios. Chapterhouse can likely make a counterclaim of malicious litigation based on this "context." Now, this would be subject to a very high standard of evidence, but it would be on par with Games Workshop's claim of willful infringement against Chapterhouse Studios.

I don't think either claim would succeed in court, on the basis of the way jurors typically treat such issues, but the suggestion that Chapterhouse Studios willfully infringed Games Workshop's marks or copyrights is equally matched by the suggestion that Games Workshop filed malicious litigation. However, I do think that Games Workshop's behavior with respect to its market position in this case offers somewhat more compelling evidence.

This is why I think it is important to consider Games Workshop's potential liability in this case with respect to malicious litigation. Many people are very willing to discuss Chapterhouse Studios's alleged willful infringement. Doing so without considering potential allegations of malicious litigation against Games Workshop is only looking at one side of the malicious intent potentially involved in this lawsuit.
(...)
I did a little research while I was at the office earlier today (don't tell my clients). I believe a claim of malicious litigation requires the result of the litigation to favor the defendant. It's like a willfulness claim in this regard. The litigation can be considered malicious if the plaintiff knows the suit is frivolous or without merit. If the result favors the plaintiff, the lawsuit must logically have had merit. It works as a counter claim because as the facts of both cases are the same, the issues can be tried together. Like willful infringement, the jury would have to find in favor of the defendant in order to then find in favor of malicious litigation.

If GW's case gets thrown out or dropped, I think a malicious litigation counter claim would survive because the case would have either been dismissed in favor of the defendant or dropped by the plaintiff, both of which satisfy the requirements for a claim of malicious litigation. I could be wrong about this though.


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Yeah, the arm chair lawyering by those with no background gets old, but THIS IS THE INTERWEBZ! Where people aren't about to let the lack of having the slightest idea what they are talking about slow them down one bit! ;-)

And they'll get angry at others for disagreeing.

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Glasgow

This is a subject thats just going to be a mess.

Chapterhouse winning means its better for the masses. But GW losing means theres absolutely no way for them to protect even the slightest bit of their I.P; which is bad for us anyway. (especially those who don't know much about wargaming; like being new to it; and buy shoddy gear)

GW winning means resentment by some aspects of the community; and the community losing another website. But GW can defend their I.P. without blatant copies that damage the brand (gogo poorly-made conversion kits. Probably not Chapterhouse stuido's ones; but it opens the way for questionable sites even more.)

There really can be no 'winner' and 'loser' for us; we'll lose out either way. GW winning would be for the best for those who love Warhammer.

 
   
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Mr Hyena wrote:But GW losing means theres absolutely no way for them to protect even the slightest bit of their I.P; which is bad for us anyway. (especially those who don't know much about wargaming; like being new to it; and buy shoddy gear) .


This is simply not true. I'm not even sure what would make you think that.

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hell if the only people allowed on the internet were people who have a clue what they are talking about the internet would cease to exist.

I just don't want GW to win because I hate them as a company...simple really, I don't give a damn about IP violations, I just wanna see GW fail...again.

 
   
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Mr Hyena wrote:But GW losing means theres absolutely no way for them to protect even the slightest bit of their I.P; which is bad for us anyway. (especially those who don't know much about wargaming; like being new to it; and buy shoddy gear)
This is an incredible hyperbole. IP law is not a binary pass/fail; some aspects are protected, and others are not.

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MVBrandt wrote:Though I don't practice, I recall from law school that motions to dismiss being generally one of those dot your i's, cross your t's things ... it does happen with rather comical regularity that the plaintiff whiffs on properly answering the motion, and loses the case right out of the gate ... which is why it's done.


All too true. This literally just happened late last week in a case I was involved. The plaintiff didn't respond to the motion to dismiss and the case was tossed out, with the judge even going as far as to reverse several earlier decisions relating to this case involving the plaintiff and defendant due to "general incompetence" on the part of the plaintiff.
   
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Glasgow

Polonius wrote:
Mr Hyena wrote:But GW losing means theres absolutely no way for them to protect even the slightest bit of their I.P; which is bad for us anyway. (especially those who don't know much about wargaming; like being new to it; and buy shoddy gear) .


This is simply not true. I'm not even sure what would make you think that.


But thats the thing; what really will stop bit companies from making and labelling that their bits are designed for warhammer 40k if this wins? If this happens; GW will lose alot of money; and armies will recieve less support; maybe with some even being squatted.

Nobody wants that to happen.


I just don't want GW to win because I hate them as a company...simple really, I don't give a damn about IP violations, I just wanna see GW fail...again.


But other companies aren't any better.

This message was edited 3 times. Last update was at 2011/03/23 19:14:07


 
   
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Mr Hyena wrote:But thats the thing; what really will stop bit companies from making and labelling that their bits are designed for warhammer 40k if this wins? If this happens; GW will lose alot of money; and armies will recieve less support; maybe with some even being squatted.
Nobody wants that to happen.

Yeah, nobody wants aftermarket products, because everyone knows that aftermarket products are the end of the world, and you don't want the world to end, do you?

This message was edited 1 time. Last update was at 2011/03/23 19:25:13


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Canada

Damn... does this mean if we want to buy bitz from CH then we'd better hurry up and order them soon?

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Southampton

GW are far too precious about this and it's their own fault for not releasing stuff. If you create a demand for a product and then don't actually supply the product, expect somebody else to step in.

It's not like GW don't borrow heavily from other sci-fi and fantasy sources. I'm surprised Gene Roddenberry didn't come knocking when he read the fluff for Vulcans... sorry I mean Eldar.

Anyhoo, Chapterhouse

   
 
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