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I do I have some custom templates that I made. Mine have no logos or insignia on them other than a Celtic tribal and my initials. A guy at my LGS was asking if I could do a blood angles set for his army. This is no issue he pays for the materials and I just program my machine. Is this infringement to GW to use the blood angles logo. I don't want any trouble I told him I can make anything he wants me too but don't want to get in to trouble. I can see this land sliding as soon as I cut his out 25 more people will want them.

IP law is a big messy thing that varies from jurisdiction to jurisdiction (and is often never totally clear until a test case hits court)

but directly copying something (especially from a litigation prone company like GW) is never a good idea, so it would be best for him/you to come up with something similar to but not identical to the GW logo

then again if it really is a single set, done for free is probably not going to lead to any issues,

doing lots of sets make it much more likely you'll end up with a C&D letter, as would advertising a service or charging for it

(as with all these things seeking legal advise from a specialist in your jurisdiction would be wise before embarking on anything large scale)

Thank you. Me and him will come up with some custom ones with no logo.

The fact that I can go into a T-shirt or mug printing shop and get a t-shirt with the Apple or Nike logo makes me think you should do what the hell you want.

If you want to do something cool like this I would say go for it, GW has tried to instil a culture of fear surrounding the use of some of their symbology (most of which is taken from other things anyway, and seriously.. a blood drop?! ) and in reality they aren't likely to do (or be able to to do) anything.

Even if you had a webstore with 'Blood Angels merchandise!!!' emblazoned across the top and selling globally I still don't think much would happen (see: the Chapterhouse case), so the odds of you getting in trouble for making something from a local gaming community I would say are infinitesimally small.

 redcell wrote:
I do I have some custom templates that I made. Mine have no logos or insignia on them other than a Celtic tribal and my initials. A guy at my LGS was asking if I could do a blood angles set for his army. This is no issue he pays for the materials and I just program my machine. Is this infringement to GW to use the blood angles logo. I don't want any trouble I told him I can make anything he wants me too but don't want to get in to trouble. I can see this land sliding as soon as I cut his out 25 more people will want them.

I am not a lawyer and I am not giving you legal advice.

A short answer is that if you are worried about it, then don't do it.

A slightly more involved answer is that GW absolutely considers the Blood Angels icon to be protected by both copyright and trademark. GW has failed to register either the copyright or the trademark, so far as I am aware, which means that the public has not been 'put on notice'. This means that in most cases GW would be barred from statutory damages, should GW wish to pursue litigation. That's good for you because GW would have to come up with some other form of damages, e.g. lost profits. As you are not selling this thing, and are only making one of them, GW would likely be hard pressed to come up with a meaningful damages theory.

In terms of copyright, if you copy an extant Blood Angels logo, that would be copyright infringement as such use is the exclusive right of the copyright holder. That said, the purpose and character of the use would mean that it likely falls under fair use. It is not commercial in nature, the use is not likely to harm the value of the copyrighted material to GW, you are only making the one, etc. Even if it was infringement, as the copyright is unregistered, GW would be up gack creek in terms of damages.

As far as trademarks go, a federal judge in the US has already ruled that GW's marks are not famous, which is helpful. Your use would, in short, have to cause consumer confusion in order to infringe GW's mark. You are not offering a product for sale. You are not operating a competing business. GW could claim that you are tarnishing its mark, but again, what are the damages? GW can't get statutory damages because the company is too lazy and inept to register its marks.

At the end of the day, GW first has to find out about what you are doing in order to bring any sort of action against you. Posting your question in this thread has made that more likely than it would have been otherwise, but the probability is still rather small.

If GW did find out, it could mean a cease and desist letter, which it would be prudent to abide by unless you want to hire a lawyer and make a federal case out of it.

In my personal view, if you use your machine for business purposes, don't do what you are describing. If you ever, ever plan on running a business making things with the machine, don't do what you are describing. That's simply safer.

You can also draw your own symbol. GW doesn't have a monopoly on blood and wings.

 redcell wrote:
but don't want to get in to trouble.

Your chance of getting in trouble is exactly the same as if he'd asked you to copy a music CD for him. It doesn't matter how much the record companies hatzors the burning of the CDs, when it's you doing a private, one-off transaction, there's no way they're ever going to know. Whether you're comfortable doing that or not is up to you.

Where you have a chance to run into trouble is advertising the service, putting up somehere where they could possibly see you offer 'will make sanguinary seraphim stuff for $$$.'

It depends on what exactly you are charging him for. You are charging for materials and labor. Not the end product. You are not selling him the ba thing so you are fine.

If he brings you the materials and he supplies you with the image I'd just do it. You can't be expected to know what copyrights and trademarks are attached to every single symbol in the world so unless it's a really obvious and well known symbol I'd just do it. If you're not making money off it and not tarnishing the mark, I'd wouldn't be worried about it.

But that's just me, it does not constitute legal advice

Im no lawyer so take with a tuck full of salt

but so long as you are not advertizing it on there FB page or in front of there stores i dont think you will need to worry about any C&Ds

 Pacific wrote:
The fact that I can go into a T-shirt or mug printing shop and get a t-shirt with the Apple or Nike logo...

You can't. Or at least, not legally. And a lot of print services will either refuse to print it, or will have service terms that require you to claim ownership of your design and accept all responsibility for any copyright issues that may arise from it.

Well.. have to hope that no Apple or Nike legal teams make their way to a certain shopping arcade in Gloucestershire then!

It makes me think that a lot of things depend on where you live in the world and attitudes towards this kind of thing, and whether people are worried by it?

Perhaps it's more of an issue in the US than in Europe for instance. The top ranked of "IP, what's that LOL?!" must surely be in asia. Remember seeing a design on a bag once in Korea that managed to break three different things at once; of a Lego Mario leaping from a transforming Optimus Prime.

But, I think that really this just sounds a bit like a guy wanting to make something for a mate, and the fact that you can be so worried about doing it. Really, who gives a gak? That you even have to ask about it is incredibly sad.

AllSeeingSkink wrote:
If he brings you the materials and he supplies you with the image I'd just do it. You can't be expected to know what copyrights and trademarks are attached to every single symbol in the world so unless it's a really obvious and well known symbol I'd just do it. If you're not making money off it and not tarnishing the mark, I'd wouldn't be worried about it.

But that's just me, it does not constitute legal advice

If it is registered, oh absolutely yes you are expected to know about it.

It is called due diligence. And it is why infringing registered marks/copyrights exposes the infringer to statutory damages.


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 Pacific wrote:
Well.. have to hope that no Apple or Nike legal teams make their way to a certain shopping arcade in Gloucestershire then!

It makes me think that a lot of things depend on where you live in the world and attitudes towards this kind of thing, and whether people are worried by it?

As a practical matter, it depends on how the owner feels about it. Prevailing attitudes mean pretty much squat if those attitudes are not reflected in the statutes.

The blood angels symbol would probably be too simplistic to be protected by copyright, and it is reproduced all the time by players when painting (which is encouraged by GW). In terms of IP protection, it would probably fall under the category of: 'unregistered trademark'. Trademarks are quite difficult to infringe if you aren't trading or advertising in some way. I'm not a lawyer, so please understand that I am not qualified to give legal advice. But I believe what you want to do would be 100% fine, so long as you are not using the symbol to advertise goods or services. Reproducing the symbol on request as part of a custom job would not be sufficient to infringe a trademark.

weeble1000 wrote:
If it is registered, oh absolutely yes you are expected to know about it.

It is called due diligence. And it is why infringing registered marks/copyrights exposes the infringer to statutory damages.

How on earth can you be expected to know? There must be hundreds of thousands if not millions of registered trademarks. You can search the database but for symbols made up of common things (a blood drop and wings for example) you get thousands of results on the US online database, I don't know if that includes any international trademarks.

Obviously if the customer just brought you the codex with the symbol in it, it would be your due diligence to read the paragraph at the front of the book saying that all logos are registered trademarks or copyright, but if the customer just brought you the symbol itself it would be insanity to expect you to know whether or not it's a trademark.

I was under the impression "due diligence" meant "reasonable amount of effort" not "so much effort that it makes your business unviable because you spend hours each day poring over trademarks". I would have thought telling your customer you won't knowingly infringe on a trademark and stopping if you do get a cease and desist letter would be sufficient "due diligence", if it's not then the legal system is seriously fethed up

Are those smaller symbols like chapter markings even registered trademarks? Searching the USPTO database for "warhammer" shows up the main 40k and WHFB logos, searching "blood angels" doesn't bring up anything.

Others have covered the bases.

Now let me tell you what the IP Lawyer at my family's Law Firm said (after reading this thread):

"What they said (i.e "do it")."

You have nothing to fear, and they said to make sure you market it (claimed use) as an "accessory" for GW Products (i.e. What Chapterhouse did).

If you make sure to inform your clients of this, then if GW lawyers come calling, then they will recognize language and use that burned them in the past.

MB

Sorry Skink, that's the law. I didn't make it up.

Registering a mark puts the public on notice of the mark's usage and thereby opens up the possibility of statutory damages.

Trademark infringement is very nearly a strict liability issue. Only one out of the eight likelihood of confusion factors involves intent. Moreover, none of these factors is dispositive, so lack of intent cannot, on its own, result in a finding of no likelihood of confusion. In this case, you would have many factors that weigh in favor of likelihood of confusion:

Strength of the senior mark: Dubious, but note a federal court ruling that many of GW's marks are valid marks in use in commerce.

Similarity of the marks: Oh absolutely yes, if the mark is copied exactly. And it stands to reason that if someone wants an identifiable Blood Angel icon, then the two marks are similar.

Similarity of the products: GW makes its own templates for use in the game. This product directly preempts a GW product.

Bridging the gap: It is reasonable to presume that because GW makes its own templates, because GW has made many different styles of those templates, and because GW makes many accessories featuring its various icons, that bridging the gap is very likely.

Intent in adopting the mark: There's no intention to palm off here.

Evidence of actual confusion: None

Sophistication of the buyers: Probably weighs in favor of no likelihood of confusion. Wargamers can identify out of production products made by the most obscure companies. Very sophisticated and discerning consumers. But the plaintiff would certainly argue that low cost of the products and the young age of customers cuts against sophistication.

Quality of the junior mark: I am assuming the OP can make a good product. Why else does someone want one. The better the quality, the better for the defendant.

And BeAfraid, you should note that in the GW v CHS case, the jury did not seem to apply the 'for use with' fair use finding to the asserted logo marks, which is what we are talking about here. Additionally, trademark infringement is not the only issue either, as GW also claimed copyright infringement of the logos. Note that the CHS Space Wolf Rhino Doors were found to infringe an unspecified GW copyright likely due to the similarity of the icons on the doors, even though they were different from any Space Wolf icon.

Judge Kennelly did rule that a tear drop on a saw blade was an unprotectable combination of two common elements. But he made no such finding with respect to any other icon. And I believe the Blood Angel icon was asserted in the GW v CHS case.

Also, saying 'has a low likelihood of liability' is very, very different from saying 'have nothing to fear'. Getting sued, whether it is justified or not, is something to worry about. Go ask your IP lawyer what his/her hourly rate is .

Ultimately, a situation like this is a matter of weighing risk. It is a little misleading to suggest that there is no risk, if you see what I mean? I'm not saying what you posted is irresponsible or anything, I am just cautioning, in general, about suggesting the absence of risk when risk does indeed exist. People can get hurt.

I agree that at the end of the day, making one template with a winged tear drop for your buddy is no big deal at all. But if that is not all this is going to be, the potentials for loss go up and the risks go up.

BeAfraid wrote:
Others have covered the bases.

Now let me tell you what the IP Lawyer at my family's Law Firm said (after reading this thread):

"What they said (i.e "do it")."

You have nothing to fear, and they said to make sure you market it (claimed use) as an "accessory" for GW Products (i.e. What Chapterhouse did).

If you make sure to inform your clients of this, then if GW lawyers come calling, then they will recognize language and use that burned them in the past.

MB

Yeah that makes sense, don't exactly copy one of GW's templates, just use the BA logo on your own made one. That is fine with precedence behind it!

If you're uncomfortable with doing something then don't do it.
It's easy for everyone else on the board to say "Go ahead. Nothing will happen."
It's not their necks on the line if something does happen.

I think the only grey area would be people thinking they're buying an authorised product. But as you said, this guy is aware that his stuff won't be and no doubt so are the others that will want to buy from you.

I say good luck with this new stream of business revenue!

It's incredible how things have changed over the years.

I remember reading articles in WD back in the day, all the time they were pushing gamers and modellers towards creativity. Including templates for making your own tanks , designing your own terrain and conversions based on the work they themselves were doing, it promoted a real feeling of community and shared experience.

I wonder what they would think if they could look forward twenty years and see the current culture of fear that GW has cultivated around its products, of all of the name changes and vicious backlash against people, normally fan sites and garage casters, who are often only doing it because they are such ardent fans of the game universe. The whole thing is just so ugly, it's a perversion of everything that the company once stood for.

Really, I would stop wanted to make things for their games, find another company and system that allows you more freedom, and perhaps most importantly not to feel that you're doing something wrong. In all honesty, the company that is wearing the skin of 'Games Workshop' these days don't deserve you.

Can't you just use the blood drop/ wings but make the proportions different to GWs?

 Pacific wrote:
It's incredible how things have changed over the years.

I remember reading articles in WD back in the day, all the time they were pushing gamers and modellers towards creativity. Including templates for making your own tanks , designing your own terrain and conversions based on the work they themselves were doing, it promoted a real feeling of community and shared experience.

I wonder what they would think if they could look forward twenty years and see the current culture of fear that GW has cultivated around its products, of all of the name changes and vicious backlash against people, normally fan sites and garage casters, who are often only doing it because they are such ardent fans of the game universe. The whole thing is just so ugly, it's a perversion of everything that the company once stood for.

Really, I would stop wanted to make things for their games, find another company and system that allows you more freedom, and perhaps most importantly not to feel that you're doing something wrong. In all honesty, the company that is wearing the skin of 'Games Workshop' these days don't deserve you.

Lol the GW heresy. Started on a great hobby crusade, fell to the darkside. 20 years previous, they didn't expect to be such a grimdark company.

AllSeeingSkink wrote:

weeble1000 wrote:
If it is registered, oh absolutely yes you are expected to know about it.

It is called due diligence. And it is why infringing registered marks/copyrights exposes the infringer to statutory damages.

How on earth can you be expected to know? There must be hundreds of thousands if not millions of registered trademarks. You can search the database but for symbols made up of common things (a blood drop and wings for example) you get thousands of results on the US online database, I don't know if that includes any international trademarks.

...
...

If you were a serious business working in the area of logo design you certainly would do deep searches for similar trademarks, otherwise you might be cast in damages and mulcted of large amounts of money.

A punter doing a small favour for a friend is subject to the same laws but realistically, how is GW ever going to find out you made a similar version?

In my personal view a teardrop with wings is a fairly generic symbol anyway, whatever GW might claim. I am not a lawyer.

weeble1000 wrote:
Sorry Skink, that's the law. I didn't make it up.

So basically the law is fethed up, gotcha


Automatically Appended Next Post:

 Kilkrazy wrote:

AllSeeingSkink wrote:

weeble1000 wrote:
If it is registered, oh absolutely yes you are expected to know about it.

It is called due diligence. And it is why infringing registered marks/copyrights exposes the infringer to statutory damages.

How on earth can you be expected to know? There must be hundreds of thousands if not millions of registered trademarks. You can search the database but for symbols made up of common things (a blood drop and wings for example) you get thousands of results on the US online database, I don't know if that includes any international trademarks.

...
...

If you were a serious business working in the area of logo design you certainly would do deep searches for similar trademarks, otherwise you might be cast in damages and mulcted of large amounts of money.

A punter doing a small favour for a friend is subject to the same laws but realistically, how is GW ever going to find out you made a similar version?

In my personal view a teardrop with wings is a fairly generic symbol anyway, whatever GW might claim. I am not a lawyer.

Oh I agree if you "were a serious business working in the area of logo design", but it you're just a printing shop, a laser cutter, a machinist, etc and someone comes to you asking you to cut them a set of wings with a drop in the middle I think it's complete and utter insanity to expect the business to spend a huge chunk of time trying to find if the logo is a registered trademark, and in the case of the BA symbol as far as I can see it's NOT even a registered trademark so how in the hell are you going to be able to find out anyway?

It's not the same as CHS, because CHS were going out of their way to make parts and logos that were compatible with 40k, that is their entire business, but for someone who just runs a generic copying/cutting/machining business it would make the business completely unviable if you had to check everything every customer brought you, you'd spend 10 times as long finding out if it's okay to do something instead of just doing it.

Ironically enough, that was precisely a thematic defense CHS made in the GW v CHS case. 'Client gave me the art, no idea it was based on this obscure GW art'.

Doesn't fly though. Copyright infringement is strict liability. So is trademark infringement, mostly. Doesn't matter what your intent is. You can accidentally infringe a copyright.

All you need is access to the asserted work in some way, such as a client giving it to you. Now, you could probably sue the client, but how far will that get you.

Better to have an indemnification clause. The client certifies ownership of the submitted work. Then the client is liable. But not being a lawyer, I don't know if you'd have to go through the infringement case and then sue the client for breach later.

Still not a happy circumstance.


Automatically Appended Next Post:
There may be some precedent related to contractors producing work to a client's spec. I haven't looked into it too deeply.

But when I hire an artist you can bet your boots that I have both an indemnification and a choice of venue clause.

Here's an easy solution: Make it one wing with a drop of blood. It still fits with the Blood Angels, but nobody in their right mind would declare that a wing with a bloody stump is something that was invented any time in the past millennium.

Additional information about the IP and Definition of "Logo."

A Logo is a graphic symbol associated with a company, corporation (or other market entity/agency) or that of a specific product or line.

In the case of GW, they have a logo for GW, they have a Logo for 40K, and they have a logo for Space Marines (that white marine on a black background holding a bolter).

The "winged drop of blood" of the Blood Angels is not a logo, but that would not matter anyway.

In the case of models or toys, one can replicate symbols that would be expected to be replicated in the course of building those models or toys.

Model railroads provide the case-law.

Once upon a time, General Electric sued a small manufacturer of O-Guage railroad Electric/Model trains for paining the "GE" logo on their trains. GE lost, as the judge ruled that a scale model representing a real thing was a fair use of the logo.

Likewise, GE did this again when people began to market brass etched components for model railroads.

The judge again ruled that this was fair use, as people would expect to see a GE logo on a GE model Diesel-Electric locomotive, or generator car.

The same has been found in WWII and Modern Scale Models where Logos turn up on components of military equipment, or indeed the national flags and symbols, which are recognized national logos.

In the case of the winged blood drop... It is a symbol that Modelers make in the regular course of painting Space Marines, and the Chapterhouse case ruled that making parts "intended for use with ......" Is not a violation of copyright or trademark.

MB


Automatically Appended Next Post:
Addendum to the addendum....

Weeble pointed out something which I had not taken into consideration.

GW does and has made such templates before, and could thus be expected to make a Blood Angels one, making it very problematic to produce other items similar, as he mentioned...

So... This is indeed a problem, and even giving them away free is hazardous.

MB


Automatically Appended Next Post:
Addendum to the addendum to the addendum.

Don't need to ask. I have been aware of my father's, uncle's, sister's, aunt's, grandfather's and cousin's rates for a long while (since I was a kid) and dealing with getting legal advise from the firm for suing my doctor (which I am doing in small claims court, because the rulings are not dischargeable by bankruptcy in California Small Claims), and they Constantly remind me:

You know I normally get $X,000 for doing this, so don't come in here unprepared, for blah, blah, blah....

So.


About $2,000/hr.

MB

Leo_the_Rat wrote:
If you're uncomfortable with doing something then don't do it.
It's easy for everyone else on the board to say "Go ahead. Nothing will happen."
It's not their necks on the line if something does happen.

You can say that about anything though. For example: taking a flight on an aeroplane. Yes something bad might happen, but you're more likely to be struck by lightning. If you always try to "play it safe" and avoid all risks (no matter how infinitesimally small) then your life wouldn't be worth living, and you still wouldn't be 100% safe. Games Workshop could sue any one of us, any time, for no reason at all; but it isn't something I'm personally going to worry about, and you shouldn't either.

All the guy wants to do is make his own template and cut a BA symbol into it for a buddy. That isn't illegal, and people shouldn't be so scared of legal bullying that they are unable to express themselves. Yes, there is a one in a billion chance GW might sue you (even if you're perfectly in the right), but it doesn't bear thinking about. Just cut your templates, enjoy your templates, and stop worrying about stupid stuff that isn't going to happen. In the extremely unlikely event that GW do have a problem with it and hunt you down... Tell them to feth off.

"Trademark" is the operative word. GW calls their various faction and subfaction symbols "icons," and absolutely claims them as trademarks, with some success.

Reproducing a mark on a scale model is very, very different from slapping a claimed trademark on a product that will compete with the products made and sold by the owner of that alleged trademark.

The case law is inapposite.