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 Sean_OBrien wrote:
If you dig through the documents you will find one which is the claims chart. That will state what GW finds offensive. More often than not, they don't say "Trademark" or "Copyright" rather they will point to a figure or picture that illustrates what is being sold. Sometimes it is clear that they are alleging trademark claims, other times you have to sort of use your melon. There are well over 100 claims, and only a small handful of them were dealt with in the initial summary judgement ruling (which may be back up in the air depending on what the judge decides to do regarding the USPTO issues).

Given the performance of GW lawyers in this lawsuit, I wouldn't be surprised if they don't really know the difference, or hope that the judge and jury don't know the difference, so that some muck might stick by chance, like with the shoulder pad. GW is still in their "Lackay, make them stop their doings, they annoy us" mode.

 jonolikespie wrote:
How can it be a trademark issue?

I'm not a lawyer but wiki answers says:
"Trademark provides an individualized right to use a distinctive mark, sound, color, word, design, etc, to indicate a particular source and quality of branded goods or services. It is infringed when someone uses the brand to falsely indicate or suggest goods or services came from the rightful brand owner, and not the knock-off producer."

Chapterhouse have never claimed to be selling GW products, nor have GW claimed as much. GW are simply arguing that Chapterhouse have taken a design GW claimed they owned and used it without permission.


Also as to the competition thing, warmachine seems to have surpassed WHFB in most areas so while it has no relevance to the case it is hard for GW to keep pushing that mindset.

You are correct in your understanding - but that doesn't mean that they are not making that claim.

Right, of course, I forgot we were talking about GW

Edited for being off topic. -Mannahnin

Thank you for that highly insightful and relevant comment, Dozer Blades.

Fortunately, the mods and most of the posters have been keeping this pretty reasonable thus far.

On-topic does anyone know what document 285.0 on Pacer is? Apparently it was uploaded on 20/2, but the servers are down at the moment.

285 is this from a few pages back:

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Thursday, February 14, 2013:

MINUTE entry before Honorable Matthew F. Kennelly:Hearing held on Motion to
seal [284]. Motion is entered and continued generally. (or, )

286 is up, a new winston and strawn lawyer:

In the Matter of GAMES WORKSHOP LIMITED, v. CHAPTERHOUSE STUDIOS LLC and JON PAULSON d/b/a PAULSON GAMES Case Number: 1:10-cv-8103

AN APPEARANCE IS HEREBY FILED BY THE UNDERSIGNED AS ATTORNEY FOR: CHAPTERHOUSE STUDIOS LLC

Imron T. Aly


From his online bio:

Imron Aly is a partner in the firm’s Chicago office. His practice focus is patent infringement and trade secret misappropriation litigation.

Mr. Aly's experience includes litigating and managing patent infringement and trade secret matters for pharmaceuticals, medical implants and devices, DNA arrays, mechanical production assemblies, computer business methods, and financial trading systems, among others. Before joining Winston & Strawn, Mr. Aly was a partner at Kirkland & Ellis LLP.

Given the number of lawyers W&S is moving through this case, I think it's become a great source for pro bono hours for a good chunk of the firm.

Either that or they're all closet wargamers wanting to have a laugh at someones expense....

I'm looking at his bio above and I'm not 100% sure why he's coming into this.

Cheers

Andrew

Maybe for the mechanical production assembly thing.

 Debbin wrote:
Maybe for the mechanical production assembly thing.

What "mechanical production assembly" thing? Can you elaborate or post a link to it? It sounds interesting.

CHS refiled its motion for reconsideration, and a motion for summary judgment.


Automatically Appended Next Post:
Oh, this motion for summary judgment is something special. See their undisputed facts document (290.0).

14. In the 1979 movie Alien, characters wore armored space suits with shoulder pads nearly the size of the actors’ heads:

17. Robert Heinlein provided a source of pre-existing references for the GW Space Marine, including with respect to oversized and disproportionately large shoulder pads:

18. Dr. Grindley provided several examples of non-GW futuristic miniature soldiers that were designed with oversized, disproportionately large shoulder pads, one of which (the Asgard miniature) was created in 1983, before any GW Space Marine:

etc....

Automatically Appended Next Post:
---------------
292 onwards is gws motion for summary judgment.

Sorry, 289.1 is better than 290.0.

TBH I think chs missed a good one in not includingJudge Dredd and the caprain and old ultramarine minis.

Judge Dredd might be mentioned in the expert's report - he apparently pointed out a number of comic book characters, but CHS chose to highlight the Marvel one.

CHS is gunning hard for those shoulder pads.

czakk wrote:
Sorry, 289.1 is better than 290.0.

Some useful snippets from this:

“[C]ommon geometric shapes cannot be copyrighted.” Kelley, 635 F.3d at 303 (citing
Copyright Compendium II § 503.02(a)-(b)). The U.S. Copyright Office refuses to base
copyright registration on simple, basic three-dimensional shapes, such as the “size and shape” of
GW’s purportedly “iconic” shoulder pad, or other “common geometric figures or shapes in three
dimensional form, such as the cone, cube, or sphere . . . [T]he creative expression capable of
supporting copyright must consist of something more than the mere bringing together of two or
Case: 1:10-cv-08103 Document #: 289-1 Filed: 03/04/13 Page 11 of 17 PageID #:15819
11
three standard forms or shapes with minor linear or spatial variations.” Copyright Compendium
II § 503.02(a)-(b).


GW alleges it is additionally entitled to copyright protection for its shoulder pad product
at entry 156 for its “use of arrow and trim.” SUF 7; Cooper Decl. Ex. 1. However, the U.S.
Copyright Office has specifically refused to base copyright registration on “a standard symbol
such as an arrow or a five-pointed star . . . .” Copyright Compendium II § 503.02(a)-(b)
(emphasis added).


After careful consideration, the Copyright Office consistently determined that the
“sculpture portion” of GW’s Assault Squad Shoulder Pads was “too minimal” and therefore
Case: 1:10-cv-08103 Document #: 289-1 Filed: 03/04/13 Page 14 of 17 PageID #:15822
14
“lack[ed] the authorship necessary to support a copyright claim.” SUF 25-27. The Copyright
Office did not take its duty lightly or make this determination rashly. It involved multiple levels
of review over the course of six months and apparently included substantial back-and-forth (both
email and telephone conversations) between the Copyright Office and counsel for GW. Id. The
Copyright Office also had the benefit of reviewing the deposit materials submitted with the
application, whereas GW did not submit any sculptures into the record for the Court’s
examination on its First Phase summary judgment motion. SUF 27. CHS respectfully requests
that the Court consider and give deference to the Copyright Office’s careful and reasoned
decision here.



And here my local GW manager insists that this suit has zero to do with copyright, and only trademark issues. Some people and their white knight tunnel vision.

I am not even sure GW's lawyers can decide if there chasing coyright or trademark infringemen anymore and consider them interchangeable.

And here my local GW manager insists that this suit has zero to do with copyright, and only trademark issues. Some people and their white knight tunnel vision.

Now this where I find this comment rather amusing as as telling as how the GW propaganda machine is churning the current information about the lawsuit. 2 Years ago when this action took place I heard nothing about any trademark issues. Nothing. It was all about Chapterhouse infringing on the corporation's copyright material. Times have changed. Groping for straws.

As far as the White Knight tunnel vision comment? When a corporation indoctrinates their employees with Jargon from their products, such as "Virus bombing a store" (which means firing all employees at a given store/area). You get this type of stuff and mentality from some of their overzealous employees as well as management.

 Adam LongWalker wrote:
Groping for straws.

I really think that sums up the case for them at this point. They CLEARLY don't know what to do now that one of that little guys haven't backed off after the C&D letter and they seem to be unsure how much of their case was a bluff now that they actually have to press the issue. Or I suppose more specifically I get the feeling there is a big divide among the GW folks, some are fully aware they have no case without the trademarks but they have been telling the others that it is in the bag for such a long time they believe it.

 jonolikespie wrote:

 Adam LongWalker wrote:
Groping for straws.

I really think that sums up the case for them at this point. They CLEARLY don't know what to do now that one of that little guys haven't backed off after the C&D letter and they seem to be unsure how much of their case was a bluff now that they actually have to press the issue. Or I suppose more specifically I get the feeling there is a big divide among the GW folks, some are fully aware they have no case without the trademarks but they have been telling the others that it is in the bag for such a long time they believe it.

A few quotes from my local manager(I like the guy, but on this we disagree 100%):

"The case is a slam dunk, there is no way GW could lose"

"The case has nothing to do with copyright anymore, it is purely trademark infringement that is being argued"

"I went to college for trademark law"(unverified, but if so working at GW seems a tad lackluster for someone with a 4 year degree).


He also insists that since this is the internet, NONE of the people here are lawyers, and all advice or opinions given in this thread are those of laymen who don't understand what is happening.

Clearly, just from the few snippets I posted, one does not need a law degree to understand that the case very much includes copyright claims, and those claims are being hit hard by the defendant. It doesn't take a lawyer to understand "Copyright office said no, so the court should take that opinion under heavy consideration".



For some reason he also has it in his head that intent means something here. My understanding(which I'd like the legal ones to weigh in on) is that intent to infringe is a moot point if said infringement never actually happened.

If I say "I'm going to copy a space marine" and subsequently create something that(as far as the law is concerned) is NOT infringing on the protectable aspects of a space marine, then everything is in the clear. I've never heard of intent to infringe but failing to infringe being something that one could sue for and win.

In all honesty, intent to me doesn't matter, as the products are still different enough for me to distinguish which company made which product.


On the trademark claims, afaik some form of real popularity is required in order to say that X is stealing business from Y because they are using this massively recognized symbol or name. Astronomical odds against anyone in the jury knowing that a GW space marine is, let alone recognize the shoulder pad by itself. We're not talking McDonalds' arch here, we're talking about a single design element that is incomplete by itself. GW's logo is not a SM shoulder pad.
So how can you say someone is confusing the public, if most of the public doesn't even know who you are or what your product is, and those that do already know the difference between GW and CHS' products.

 Aerethan wrote:
On the trademark claims, afaik some form of real popularity is required in order to say that X is stealing business from Y because they are using this massively recognized symbol or name. Astronomical odds against anyone in the jury knowing that a GW space marine is, let alone recognize the shoulder pad by itself. We're not talking McDonalds' arch here, we're talking about a single design element that is incomplete by itself. GW's logo is not a SM shoulder pad.
So how can you say someone is confusing the public, if most of the public doesn't even know who you are or what your product is, and those that do already know the difference between GW and CHS' products.

Answer: GW logic

Okay I'm only quarter of the way through 289.10 (It's 150 pages) and Prof Grindley is my new hero.

Not because of what he's saying, but the way he's saying it. That GW lawyer must have torn all his hair out in frustration

For example

Q. Well, I care about that point so is there any way for me to determine which example -- for each picture which category each falls into it?

A. If you care about it, I suggest you do the research

Prof Grindley, I salute you.

Andrew

He's quite entertaining. He caught the fact that GW was using photos of and comparing painted products when it's all sold unpainted.

And stuff like this:

1 A. There is an insignificant similarity in
2 that they both represent future soldiers but the
3 Chapterhouse products are female and the Games
4 Workshop products are male

Link to the testimony:

http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.289.10.pdf

What is the good Professor an expert on?

EDIT: nevermind, I should have finished reading the transcript before asking that.

 Ouze wrote:
What is the good Professor an expert on?

Dr. Grindley is a tenured associate professor of English at Eugenio Maria de Hostos Community College and consortial professor at The City University of New York. SUF 10. His academic training has included extensive research a nd publication on popular culture’s appropriation of Medieval tropes and he regularly teaches classes on science fiction literature and film.
Id. Thus, his analysis included historical military as well as contemporary science fiction and cinematic sources in evaluating the alleged creativity that went into producing GW’s shoulder pads.

His CV etc..

https://cunyonline.digication.com/carl.grindley/Publications

Well, ok, I have another procedural question while I have you at hand (and thanks).

Why is the witness answering questions after an objection without the objection being ruled on first? This seems to happen fairly constantly. Are the rulings on the objections not part of the transcript?

There isn't a judge present, just a court reporter.

They are just registering that they think something is wrong with the question and they'll hash it out with the judge later as to whether the question is admissible or not. Sometimes it gets used to rattle the other lawyer or put your deponent on notice to answer carefully (although it isn't supposed to be). Pretty much the only question that you can tell a deponent not to answer is one that touches legally privileged information (that sort of happens at the start of this deposition).

And for what I've seen of US procedures in comparative law classes those objections tend to be made whenever there just might possibly in some viewpoint be a slight chance it could potentially make even the most miniscule of differences, so unless something is really obviously egregiously wrong, pretty much all of us not admitted to the relevant bar are best off just ignoring them completely.

Oooh, I didn't realize this was a deposition. Thanks.

11 Q. Do you believe Star Wars Episode I is
12 derived from Star Wars Episode II?
13 A. No, I would not. I would say Star Wars
14 Episode II and Star Wars Episode I are derived
15 from Star Wars Episode IV.
16 MR. COOPER: He got you there

Nice.

Back to Prof. Grindley - he's clearly a nerd, clearly knows his sci fi and pop culture, and clearly isn't an idiot:

Q. Okay.
15 A. Now, more specifically, there are
16 examples, for example item 129, where the Games
17 Workshop Land Raider vehicle, that's on page 28 of
18 the exhibit, clearly as far as I'm concerned in my
19 opinion clearly derives from a Mark V tank.
20 Q. Let me rephrase my question here.
21 Is there any way for me, looking at
22 your report and your exhibits, to figure out for
23 which pictures in your expert opinion Games
24 Workshop must have seen and copied consciously or
Chapterhouse / Games Workshop
Unsigned
Page 97 - 100
97
Grindley, Carl 2/21/2013 9:09:00 AM
1 unconsciously and which pictures are just
2 representative of tropes in a genre?
3 A. That's also an impossible question to
4 answer because there are many, many pictures of
5 Mark V tanks and if I were in the United Kingdom I
6 would go to the Imperial War Museum and see one.
7 Q. Okay. But you could --
8 A. So it's impossible to say whether or
9 not a person saw a specific photograph of this
10 particular tank or merely saw a photograph or the
11 actual tank itself, but I would definitely say in
12 this specific situation of item 129 that Games
13 Workshop's designers must have definitely seen a
14 Mark V tank. There can be no other explanation
15 for that level of similarity.
16 Q. So you could have said that in your
17 report, right, Games Workshop must have seen a
18 Mark V tank, here are representative pictures of a
19 Mark V tank?
20 A. Indeed, I say in particular, a Games
21 Workshop Land Raider, there's a striking
22 resemblance to a British Mark V tank, and then I
23 produced a picture of the British Mark V tank.

And

Q. So if the person who came up with the
6 description flamer for Games Workshop testifies
7 that they have never read Starship Troopers --
8 A. All right.
9 Q. -- you would believe that would be
10 absurd?
11 A. I would believe that would not only be
12 absurd but probably a lie. I don't believe that
13 there would be anyone working in anything to do
14 with science fiction who has not, either as a
15 child or young adult or as an adult, not read this
16 novel.
17 Q. So if there were multiple people from
18 Games Workshop saying they have never read
19 Starship Troopers, you would call them all liars?
20 MR. COOPER: Objection.
21 THE WITNESS: No, I would not call
22 someone a liar.
23 BY MR. KEENER:
24 Q. You would believe they are lying?

Not that his deposition is going to change the world or anything, but at least someone is injecting a bit of reality into the affair.


Automatically Appended Next Post:
Heheheh

Q. Are you aware whether the courts
2 addressed the issue of whether any specifics Games
3 Workshop items are original or not?
4 A. Oh, wait, I would like to change my
5 answer on that.
6 Q. Okay.
7 A. I don't think it's a court opinion so
8 maybe I'm not changing my answer, but I do know
9 that I think last week, because I read the BBC
10 News because I'm also a British citizen, I know
11 that last week in the United Kingdom, I believe --
12 I'm not entirely even sure if there was legal
13 proceedings involved in this but there was some
14 horrible scandal where Games Workshop attempted to
15 stop someone from distributing a book on Amazon
16 that used the term "space marine."
17 Q. Let's limit ourselves to the court in
18 this case. Have you read any opinions by the
19
j
udge in this case?
20 A. No