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"Fool me once, shame on you, fool me three or more times, shame on...?"

I can understand what you're saying with regards to the judge giving the Plaintiff the benefit of the doubt, but now that he's been Pants-On-Fire at least twice that we know of, isn't that likely to skew the Judge's perception?

 sourclams wrote:
"Fool me once, shame on you, fool me three or more times, shame on...?"

I can understand what you're saying with regards to the judge giving the Plaintiff the benefit of the doubt, but now that he's been Pants-On-Fire at least twice that we know of, isn't that likely to skew the Judge's perception?

Well...one would think so. Honestly, I do not know what is in the mind of the Judge. No one but Judge Kennelly knows that. He is probably hoping that the case settles out. It is also very difficult to get a clear picture from publicly available information. For example, what has Kennelly been saying in status conferences? We mostly have results rather than reasoning, and one must infer reasoning from the rulings. That is fraught with pitfalls.

At the end of the day, it is a jury that will decide this case. But pity the jury. There could very well be a verdict form in this case longer than the one in the Apple v Samsung trial. We also do not know how long the trial will be. GW wants to put Alan Merrett on the stand for 7-9 hours! As well at Nick Villacci, again 7-9 hours! 7-9 hours is two trial days, so GW is looking for a 4 day trial on Nick Villacci and Allen Merrett alone!

Isn't it in GW's best interest to flail around as much as possible to show that YES, GW INVENTED SHOULDER PADS AND THE GOD-EMPEROR, IGNORE THAT FRANK HERBERT STUFF AND JUDGE DREDD!! in order to lend at least some legitimacy to their claimed IP? The gaming world understands (well, most of it) that GW material often blatantly rips off pop Scifi/Fantasy of the time, but maybe they can do enough smoke and mirrors to convince non-gaming lay people otherwise.

In my professional sphere, the more time you talk about things that lack substance or untrue, the greater the likelihood that you run out of money and/or get fired. I'm wondering when a ruling comes down from on high that tells them to shape up or shut up, because surely GW will keep flailing for as long as anyone will let them.

 sourclams wrote:
Isn't it in GW's best interest to flail around as much as possible to show that YES, GW INVENTED SHOULDER PADS AND THE GOD-EMPEROR, IGNORE THAT FRANK HERBERT STUFF AND JUDGE DREDD!! in order to lend at least some legitimacy to their claimed IP? The gaming world understands (well, most of it) that GW material often blatantly rips off pop Scifi/Fantasy of the time, but maybe they can do enough smoke and mirrors to convince non-gaming lay people otherwise.

In my professional sphere, the more time you talk about things that lack substance or untrue, the greater the likelihood that you run out of money and/or get fired. I'm wondering when a ruling comes down from on high that tells them to shape up or shut up, because surely GW will keep flailing for as long as anyone will let them.

The same generally holds true for juries. The more you talk about things that lack substance or are untrue, the greater likelihood that people will start to think that you are full of . Some cases get better over the course of a trial, and that is where you want to be, a case that builds on itself to a crescendo in closing arguments. Other cases sound good at first, but very old, very quickly. Some cases sound more and more like BS the more you hear about them.

In my research we track impressions as evidence is presented, and you can see patterns like that.

Well, at least the US law system is not based on all criminals to be honest and ethical, only their lawyers

 Kroothawk wrote:
Well, at least the US law system is not based on all criminals to be honest and ethical, only their lawyers

Kroot - we get it.

Can you you know stop with the snark in regards to the US legal system?

Glass houses and all that, yes?

I'm still thinking that the judge is giving GW as much rope as it wants, letting GW spend as much money as it wants, letting GW waste as much time as it wants, etc. Come trial time, any copyright claims that do not have ownership proven and any copyright claims that do not correlate a specific infringed GW model to a specific CH model are going to get tossed out. Judge will say "You have had three years to get this stuff together and have failed to do so. Without this stuff there can be no claim so I am throwing it out." Perhaps he wants them to completely commit to their current course and let the trial start before tossing the unsupported claims. GW will then look just as foolish to the jury as they do to us in this thread and the jury will act accordingly.

Just read the first post in this thread from 12/23/2011. I guess not much has changed...

 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.

timd wrote:
I'm still thinking that the judge is giving GW as much rope as it wants, letting GW spend as much money as it wants, letting GW waste as much time as it wants, etc. Come trial time, any copyright claims that do not have ownership proven and any copyright claims that do not correlate a specific infringed GW model to a specific CH model are going to get tossed out. Judge will say "You have had three years to get this stuff together and have failed to do so. Without this stuff there can be no claim so I am throwing it out." Perhaps he wants them to completely commit to their current course and let the trial start before tossing the unsupported claims. GW will then look just as foolish to the jury as they do to us in this thread and the jury will act accordingly.

Except to do that would be a massive waste of the judge's time(that's x amount of hours over 3 years that could have been spent on other cases, very far from trivial) and a major violation of ethics and bias on the judge's part.

IF the judge is giving GW rope to hang themselves with, it's not so that he can pull the rug out from under them last minute and win CHS' case for them. That's not only not his job, it also undermines the whole point of a trial.

 Platuan4th wrote:


Except to do that would be a massive waste of the judge's time and a major violation of ethics and bias on the judge's part.

IF the judge is giving GW rope to hang themselves with, it's not so that he can pull the rug out from under them last minute and win CHS' case for them. That's not only not his job, it also undermines the whole point of a trial.

I probably overstated any direct intent on the judge's part. As you say, its not the judge's job to win CHS's case for them, but its also not his job to police the plaintiff's case to make sure he has a viable case. He can offer less than subtle hints (as he has been doing) that there are problems with the plaintiff's case, but its not up to him to fix the complaint. If the case is STILL weak when the trial starts, he has every right to slap GW silly for wasting an incredible amount of everyone's time and money.

This case has already been a massive waste of the judge's time...

Ruling re time of trial. Good read - re waste of time issues.

Each side gets 20 hours tops to present their case, bring forward their witnesses, cross examine the opposing side and make any objections / sidebars. If you read the order the Judge estimated it would have taken GW approx 40 hours by their own estimate.


This bit in particular will be fun:

In addition, the Court notes that Games Workshop has identified a large number of trademarks and copyrights that it contends Chapterhouse has infringed, as well as a large number of allegedly infringing products. To minimize jury confusion and avoid unnecessary waste of time, the Court expects the parties agree upon some reasonably simple way of making reference to particular trademarks / copyrights and infringing items throughout the trial.

Games Workshop has proposed to use the “claim charts” that it provided during the discovery process.

Chapterhouse objects to this because the charts include allegedly extraneous or argumentative information.

The Court directs the parties to confer promptly and to attempt diligently, in good faith, to agree upon a system for identifying the intellectual property rights and allegedly infringing products that are at issue. A party’s failure to comply with this directive may result in a decrease in its allocation of time. The parties are to submit a status report regarding this issue by no later than May 7, 2013.

czakk wrote:
Ruling re time of trial. Good read - re waste of time issues.

Each side gets 20 hours tops to present their case, bring forward their witnesses, cross examine the opposing side and make any objections / sidebars. If you read the order the Judge estimated it would have taken GW approx 40 hours by their own estimate.


This bit in particular will be fun:

In addition, the Court notes that Games Workshop has identified a large number of trademarks and copyrights that it contends Chapterhouse has infringed, as well as a large number of allegedly infringing products. To minimize jury confusion and avoid unnecessary waste of time, the Court expects the parties agree upon some reasonably simple way of making reference to particular trademarks / copyrights and infringing items throughout the trial.

Games Workshop has proposed to use the “claim charts” that it provided during the discovery process.

Chapterhouse objects to this because the charts include allegedly extraneous or argumentative information.

The Court directs the parties to confer promptly and to attempt diligently, in good faith, to agree upon a system for identifying the intellectual property rights and allegedly infringing products that are at issue. A party’s failure to comply with this directive may result in a decrease in its allocation of time. The parties are to submit a status report regarding this issue by no later than May 7, 2013.

Holy Crap! That's like the Judge throwing down a broken pool cue and saying that only one person is coming out alive.

I had a very interesting conversation with Stan Johansen of Stan Johansen miniatures about the GW shenanigans. He was the producer of the "Space Marine" miniatures. GW came after him with the same "Cease and Desist" letter that others have reported. He basically said it wasn't worth the aggravation for him so he changed the name to Alternative Armies. He wasn't sure if FGU did anything with the actual rules but was sure they had been contacted. I know the owner of FGU, he ran the game store where I discovered miniature wargames in the 1970's. I may have to look him up out of curiosity.

Another interesting story - Princess Ryan's Space Marines, another game from the 1970's. According to Stan, GW went after them but to their surprise the owner of the company was a very-well-off DC patent attorney! The game was written for his daughter and he basically told them to take a walk. They bought him out for a sum that was, according to him, "enough to pay for her education". Fighting fire with fire!

 Sean_OBrien wrote:
Not sure what that is in relation to - but first is important in all aspects of IP...trademarks, copyright and patent...though filing is generally a technicality, even with regards to patents as prior art that is not registered with the patent office has priority over a registered patent.


If you are talking specifically to the case of the Asgard Miniatures Space Marines - they were advertised in Dragon Magazine and reviewed there. They also were advertised in White Dwarf magazine (I don't recall if they were reviewed there though). The advertising is often enough evidence to establish "doing business" in a geographic region - and with the magazines having near global distribution, it establishes a priority of rights to Asgard, and all subsequent owners of the production rights for the product.

In the same way, the FGU game Space Marine was also advertised in most of the game magazines of the time and IIRC was reviewed in White Dwarf (Issue 8 off the top of my head...but I might be off by one or two issues up or down). Again, that establishes two companies with a higher priority of rights to the term "Space Marine" as a trademark.

A third one - which is often overlooked...but a heavy hitter in this field is actually Hasbro, by way of Kenner through their Aliens Action Figures. Although the term used in the Aliens movies was Colonial Marines - the term used on the Kenner Action Figures was Space Marines. They started using that term with their first Alien licensed product in 1979 through to their last in 1997 or 1998. Because they used the term and it wasn't part of the license itself - ownership of the term (if any ownership were to exist) would have been transferred to Hasbro when they purchased Kenner. Granted, the earlier 1979 range was extremely short lived...apparently little kids were not quite ready to play with toy monsters that want to suck your face, lay an egg in your chest, burst out and try to eat you...

http://www.alienlegend.com/Memorabilia/Kenner/index.htm

If you click on the cards, you can clearly see that each are labeled as Space Marines - not Colonial Marines.

With a one week time limit as well.



Now we see some of the consequences of having a stupidly sprawling statement of claim. That said, I have some issues with this approach, and with this sentence in particular:

"The Court directs the parties to confer promptly and to attempt diligently, in good faith, to agree upon a system for identifying the intellectual property rights and allegedly infringing products that are at issue."


I am torn between thinking that GW should have been forced to clarify all this post discovery. How can CHS do this work when the Plaintiff hasn't narrowed / specified claims.

But on the other hand the Judge has given CHS the chance to dictate how GW presents their case. And if GW doesn't play ball there is a chance he'll cripple their trial by taking away time.

I wonder how many spare bodies W&S has to throw at this issue

czakk wrote:
With a one week time limit as well.

I wonder how many spare bodies W&S has to throw at this issue

Enough to let a lot of junior lawyers bloody their claws in GWs guts and enough senior lawyers to stand laughing over GWs carcass.

Jack_Death wrote:
I had a very interesting conversation with Stan Johansen of Stan Johansen miniatures about the GW shenanigans. He was the producer of the "Space Marine" miniatures, and GW did come after him with the same "Cease and Desist" letter that others have reported. He basically said it wasn't worth the aggravation for him, so he changed the name to Alternative Armies. He wasn't sure if FGU did anything with the actual rules, but was sure they had been contacted. I know the owner of FGU, he ran the game store where I discovered miniature wargames in the 1970's, I may have to look him up out of curiosity.

Another interesting story - Princess Ryan's Space Marines, another game from the 1970's. According to Stan, GW went after them but to their surprise, the owner of the company was a high-powered DC patent attorney! The game was written for his daughter and he basically told them to take a walk. They bought him out for a sum that was, according to him, "enough to pay for her education". Fighting fire with fire!

Alternative Armies were actually the old Asgard Miniatures line which were produced by Bryan Ansell to support Laser Burn. This was before he sold the company off and went to work for Citadel/GW. Over the years, the Asgard line was passed through different companies finally ending with Alternative Armies most recently.

Stan Johansen did some miniatures which were sold to support the FGU game "Space Marines". I hadnt heard that GW had come at him, but it is inline with their other actions. Unfortunately, the response is rather typical. All too often companies neither have the time or the money to defend against a claim, no matter how right they actually are.

Jack_Death wrote:

Another interesting story - Princess Ryan's Space Marines, another game from the 1970's. According to Stan, GW went after them but to their surprise the owner of the company was a very-well-off DC patent attorney! The game was written for his daughter and he basically told them to take a walk. They bought him out for a sum that was, according to him, "enough to pay for her education". Fighting fire with fire!
]

Thanks for the confirmation of this Jack. Had heard that GW money had changed hands when Princess Ryan's Space Marines became Princess Ryan's Star Marines, but had not heard anything about the sum or that the owner was a patent attorney.

T

Is this cap on trial time normal? I don't think I've seen a judge do this before.

 Ouze wrote:
Is this cap on trial time normal? I don't think I've seen a judge do this before.

Normally - yes. Judges have to schedule their next trials several weeks to months in advance. If litigants were just allowed to drone on and on - their trial calendar would not be able to be set until the day before closing arguments.

czakk wrote:
With a one week time limit as well.



Now we see some of the consequences of having a stupidly sprawling statement of claim. That said, I have some issues with this approach, and with this sentence in particular:

"The Court directs the parties to confer promptly and to attempt diligently, in good faith, to agree upon a system for identifying the intellectual property rights and allegedly infringing products that are at issue."


I am torn between thinking that GW should have been forced to clarify all this post discovery. How can CHS do this work when the Plaintiff hasn't narrowed / specified claims.

But on the other hand the Judge has given CHS the chance to dictate how GW presents their case. And if GW doesn't play ball there is a chance he'll cripple their trial by taking away time.

I wonder how many spare bodies W&S has to throw at this issue

Yea, but the same threat hangs over CHS as well. If CHS doesn't 'play ball', the defense could lose time! The Court could dock the Defense time for objecting to the Plaintiff's objectively vague claim chart. Hell, even the Court and the Plaintiff admit that the chart is confusing and misleading. The Court had to require the Plaintiff just recently to identify which CHS products were accused of infringing which alleged icon marks!

Clearly, that information is NOT contained in the claim chart in any intelligible manner.

One way to look at it is that the Court has put the parties into a game of chicken. This claim chart has been hotly disputed since day 1, and I believe it is the subject of a MIL, though I could be wrong about that. In any case, the Court does state that the defense alleges the chart is vague and misleading. The defense obviously has a problem with it.

The Court did not say that the claim chart was an unacceptable solution, merely that the Plaintiff wants to use that and the Defense objects. I bet my boots that in a week's time GW will be complaining that CHS sandbagged and was being obstructionist, sort of like when Moskin defended his decision to hang up in the middle of a meet and confer in the Gallo v Rallo case by saying his feelings were hurt when opposing counsel insinuated that he was a liar, when in the same case he was later sanctioned for falsely injecting the notion of dismissal with prejudice in settlement negotiations, much like he has been sanctioned in this case for deliberately, or at least recklessly, making a factually incorrect statement in an affidavit.

“Despite Ms. Thomas’ denial, the reason I terminated the meet and confer that I initiated on May 18 was her sarcastic comment to me, after I confirmed the delivery of the roughly 1,000 pages of documents referenced in my May 15 letter: ‘Right, The check is in the mail.’…I declined to continue the conversation after effectively being accused of lying.”

That appears to be Moskin's pattern of behavior. Sandbag, obstruct, conceal, spoliate, and act like opposing counsel is being unprofessional. Seriously, the man makes a statement like the one above in an affidavit and later is sanctioned for "requiring the plaintiff to file multiple motions to compel that were granted by this Court." Maybe Ms. Thomas had a good reason to not take Mr. Moskin at his word.

Moskin is probably going to pull the same shenanigans that he has been pulling for years, if his demonstrable pattern of behavior continues. I can imagine a paraphrase of the memorandum to look like this: 'Look, we tried to be reasonable, but opposing counsel needlessly objected to reasonable offers, wouldn't work with us, and it is their fault that we do not have a compromise. We should just be able to use the claim chart that has been around this entire case and they should be docked time for not cooperating.'

That is my bet, and I'll give odds.

Can one of you guys point me to this oft-amended chart?

 Ouze wrote:
Can one of you guys point me to this oft-amended chart?

It should be attached as an exhibit to the most recent round of MSJs. Maybe czak can dig up a link for you. I am going to bed now.

weeble1000 wrote:
Holy Crap! That's like the Judge throwing down a broken pool cue and saying that only one person is coming out alive.

I think they should move everything to an unused boiler room of the (former) Robert Taylor projects, properly strewn with rusty nails and broken bottles. Then to add to a surely electric match they should arrange for a mid trial break for an intermittent round of "Southside Street-Bum" vs "Metra Yard Hobo" in a bare knuckles drag out fight over a hamsteak and a gallon of box wine. Seats would sell like hotcakes.

 paulson games wrote:

weeble1000 wrote:
Holy Crap! That's like the Judge throwing down a broken pool cue and saying that only one person is coming out alive.

I think they should move everything to an unused boiler room of the (former) Robert Taylor projects, properly strewn with rusty nails and broken bottles. Then to add to a surely electric match they should arrange for a mid trial break for an intermittent round of "Southside Street-Bum" vs "Metra Yard Hobo" in a bare knuckles drag out fight over a hamsteak and a gallon of box wine. Seats would sell like hotcakes.

Shhhhh,,,,,,,

The first rule about "Court Club", is nobody talks about "Court Club"....

In some ways that would actually make this case more reasonable, not less.

Here's question for all you internet lawyers: My understanding is that GW has to prove some sort of damage to their bottom line in this case, correct?

So, the question becomes: what happens when they no longer produce anything like the line in question. I'll use the current cessation of BFG as an example: what happens if someone starts producing 'not bfg' ships that look similar to GW's products now that GW no longer is producing them?

 BaronIveagh wrote:
Here's question for all you internet lawyers: My understanding is that GW has to prove some sort of damage to their bottom line in this case, correct?

Incorrect. Copyright law allows for statutory damages of up to a fixed amount.

Copyrights don't currently expire in the US, and statutory damages are not needed in order to sue(I think statutory is the correct term).

Anyone can sue for copyright infringement of their own work, even if no financial impact occurred from it.

Sometimes they may also sue for damages, either statutory, punitive, or both(as well as legal fees).

"Statutory damages" = "amount of damages that the statute allows you to collect, regardless of showing of actual harm."

It can get expensive pretty quickly, as all those RIAA music-copying cases demonstrated.

So those values exist regardless of any reported/perceived loss of revenue?

So if GW says "They cost us $1,000,000 in sales" but the cap on statutory damages is $500,000, the balance is negated?

To the same degree, GW could claim no damages, yet be awarded them?(strictly as an example, I don't imagine this case to be anywhere near that point).

However, they have to have actually copyrighted the work in question. They can't just claim that something that resembles their product superficially (example: a spaceship has the same style of 'fins' on it's aft or that 1890's style prow that a GW product does, despite the fact that they would not be confused by the common man for actual GW products)