Trasvi wrote:Its like trademarking 'Apple'... its perfectly legal to trademark something 'whimsical' over a limited range of products. The 40,000 number, GW (rightfully) believes, is associated with their brand. They can always choose not to pursue a case against 40,000 leagues under the sea (because they would lose), but they can stop people producing 40,000: A space Odyssey.
Indeed, context matters. But a game simply titled "40,000" doesn't mean that it has anything to do with Warhammer 40,000. I could understand trademarking the term "Warhammer" in relation to games of all varieties, as that is the BRAND of the game. 40,000 is a version of the game, not the brand itself.
Coca Cola can't trademark the word "diet" just because they make a product with "diet" in the name. "Diet Coke", sure as the context is there.
Let's look at it this way, how many people would be confused if I released a soda called "coke". Plenty, which is why it's trademarked for it's market. Coke is also a fuel for furnaces, completely unrelated to the beverage.
No one on earth would be confused into thinking that a game with "40,000" in the title has anything to do with Warhammer 40k if the word "warhammer" is left out. "Cola" isn't trade marked by itself by Coca-Cola. The word by itself is meaningless to the brand, as cola is the term for carbonated beverages with kola nuts used for caffeine.
I'll be right back, I'm going to go trademark the word "the" for use in all media.
Sorry for veering off topic.
Please update when summary judgement is posted, as that may decide the fate of this debacle.
Aerethan wrote:Indeed, context matters. But a game simply titled "40,000" doesn't mean that it has anything to do with Warhammer 40,000. I could understand trademarking the term "Warhammer" in relation to games of all varieties, as that is the BRAND of the game. 40,000 is a version of the game, not the brand itself.
...
No one on earth would be confused into thinking that a game with "40,000" in the title has anything to do with Warhammer 40k if the word "warhammer" is left out.
You're right, but this is the same company who thinks they have claim to "skulls", "arrows" and the word "Tactical".
Kroothawk wrote:If GW wins this, you need a ™ on the arrow™ key of your keyboard
this made me chuckle.
trademarking the number 40,000™ out of context seems ludicrous. It may be one thing to trade mark the YEAR 40,000™.
So no 40,000™ leagues under the sea, House of 40,000™ corpses games?
That is nonsense. It's not even the entire brand name. Is GW going to also trade mark the words "war™" and "hammer™"?
I understand trademarking logos or original names like Pepsi and Coca Cola. Those clearly only mean one thing. 40,000™ existed for thousands of years before trademarks.
India should sue GW for using the number "0". They invented it after all.
Just fixed that for you, having a nice little view of the future™!
Trasvi wrote:Its like trademarking 'Apple'... its perfectly legal to trademark something 'whimsical' over a limited range of products. The 40,000 number, GW (rightfully) believes, is associated with their brand. They can always choose not to pursue a case against 40,000 leagues under the sea (because they would lose), but they can stop people producing 40,000: A space Odyssey.
Indeed, context matters. But a game simply titled "40,000" doesn't mean that it has anything to do with Warhammer 40,000. I could understand trademarking the term "Warhammer" in relation to games of all varieties, as that is the BRAND of the game. 40,000 is a version of the game, not the brand itself.
Coca Cola can't trademark the word "diet" just because they make a product with "diet" in the name. "Diet Coke", sure as the context is there.
Let's look at it this way, how many people would be confused if I released a soda called "coke". Plenty, which is why it's trademarked for it's market. Coke is also a fuel for furnaces, completely unrelated to the beverage.
No one on earth would be confused into thinking that a game with "40,000" in the title has anything to do with Warhammer 40k if the word "warhammer" is left out. "Cola" isn't trade marked by itself by Coca-Cola. The word by itself is meaningless to the brand, as cola is the term for carbonated beverages with kola nuts used for caffeine.
I'll be right back, I'm going to go trademark the word "the" for use in all media.
Sorry for veering off topic.
Please update when summary judgement is posted, as that may decide the fate of this debacle.
Do they not already have Warhammer registered? One would assume that if that is the case they would not need to register Warhammer multiple times With its various attached phrases. Anyway if a service allows you to register multiple words in context as easily as one specific term why would you flog that horse to maximOse your protection/claim. Anyone with half an ounce of sense would.
notprop wrote:It's funny that you imagine GW would not keep increasing prices off the back of that eventuality.
A rash of small mum and pop casters would be seen as more reason for them to price as a premier brand. Up, up and away!
GW aren't idiots and such vengeful actions are not part of rational economics.
They'll eat the loss and plan for the future or whatever else their financial division decides.
I'm not sure if this is something that has been mentioned before, but it just occurred to me:
Even if GW loses this case, they are still in a position to win. It would be expensive, but the easiest way of making CHS go away would be to buy it up.
poda_t wrote:I'm not sure if this is something that has been mentioned before, but it just occurred to me:
Even if GW loses this case, they are still in a position to win. It would be expensive, but the easiest way of making CHS go away would be to buy it up.
Chapterhouse is not a publicly-traded company.
The best GW can do is offer to buy Chapterhouse and they'll say "no".
poda_t wrote:I'm not sure if this is something that has been mentioned before, but it just occurred to me:
Even if GW loses this case, they are still in a position to win. It would be expensive, but the easiest way of making CHS go away would be to buy it up.
The real threat to GW is that they actually have their copyrights legally defined in a court of law. If they keep sending C&D letters out afterwards against folks that did not violate the copyrights the court establishes, they might open themselves up to lawsuits by those same mom and pop stores they are trying to suppress. In addition, they might get looked at more closely by regulators for unfair business practices for those C&D letters if they loose the case overwhelmingly. It is really a two edged sword for them.
As for buying CHS out, that would be up to the guys running CHS if they want to even entertain any offers and would be separate from the lawsuit, except as part of a possible settlement.
Kroothawk wrote:On the other hand they seem to have published the email addresses of all their info sources telling them about supposedly foul thing at Chapterhouse.
For those of us unwilling to go diving through legal documents, can you elaborate on what you mean by this?
They actually provided as evidence copies of the emails from various "concerned parties" who informed GW of the existence of Chapterhouse and that they thought they might be doing something wrong. Included in these emails are the email addresses, names and other identifying information.
During the deposition of GW's internal legal staff - it was also revealed that the initial contact with GW concerning Chapterhouse was a member of the administrative staff at Bolter and Chainsword.
The depositions are fairly interesting to read - though nothing too ground breaking. The one for Sandra Casey (head of US GW) doesn't put her in the best light though, she seems a bit unaware of goings on in her little part of the GW kingdom.
Alan Merrett wrote:Q. How does Games Workshop internally refer to
the process where it creates miniatures?
A. Miniatures design.
Q. And what does it how does—it refer to
the people who create those?
A. We call them miniatures designers. You
know, it's miniatures in the plural. Sometimes
people refer to them as miniature designers, but
they're not small. Some of them are quite large
people.
Bit surprised anyone can argue that someone from B&C was 'confused' that Chapterhouse were making genuine GW pieces. If you're a complete noob who knows nothing of the miniature market beyond GW, then perhaps, but not someone who has been in this hobby for a period of time.
Kroothawk wrote:On the other hand they seem to have published the email addresses of all their info sources telling them about supposedly foul thing at Chapterhouse.
Let's hope the judge makes no mistake granting GW copyright over the whole universe
Kroothawk wrote:On the other hand they seem to have published the email addresses of all their info sources telling them about supposedly foul thing at Chapterhouse.
Let's hope the judge makes no mistake granting GW copyright over the whole universe
Well I think gw just wants to own there universe.
To own your universe, you kind of need to prove it's yours first. GW can't even do something as simple as that.
Aerethan wrote:Indeed, context matters. But a game simply titled "40,000" doesn't mean that it has anything to do with Warhammer 40,000. I could understand trademarking the term "Warhammer" in relation to games of all varieties, as that is the BRAND of the game. 40,000 is a version of the game, not the brand itself.
...
No one on earth would be confused into thinking that a game with "40,000" in the title has anything to do with Warhammer 40k if the word "warhammer" is left out.
You're right, but this is the same company who thinks they have claim to "skulls", "arrows" and the word "Tactical".
Why is that strange? After all, Facebook claims they own the word "book".
edit. Oh crap, I wrote "book" there. Facebook might sue me! Oh crap, I wrote "book" again...
GW not saying it owns "40,000" but owns "warhammer 40,000". it doesn;'t own the word "space" or "marine" but own the pharse "space marine". There not saying they own the word but the context in which there used. Chapterhouse decided to sell there stuff for "space marine" to be used with "warhammer 40k" and games workshop designed products. The arrow, skull, roman numerals and etc etc in which he used are by themselves not infirging on anything but by using them and marketing them as "space marine tactical squad markings" and "space marine company markings" he has infringed on gw turf.
tree667 wrote:GW not saying it owns "40,000" but owns "warhammer 40,000". it doesn;'t own the word "space" or "marine" but own the pharse "space marine". There not saying they own the word but the context in which there used. Chapterhouse decided to sell there stuff for "space marine" to be used with "warhammer 40k" and games workshop designed products. The arrow, skull, roman numerals and etc etc in which he used are by themselves not infirging on anything but by using them and marketing them as "space marine tactical squad markings" and "space marine company markings" he has infringed on gw turf.
Actually, they did trademark 40,000. That is what the trademark was issued for. They also have a separate trademark for Warhammer 40,000.
Alpharius wrote:Agreed - The B&C folks are about as distilled and hardcore as you'll find out there.
Hard to believe, but the facts are the facts, I suppose!
Yes, reading the testimony--it looks like someone was just angry that he was making that stuff and reported his site. "Outraged" was the term used in the testimony--looks like it was a case of someone just being spiteful more than confused.
Looks like the two attorneys have a good, professional relationship with each other--lol. The part where the GW attorney was trying to interrupt CH's attorney (Mr. Oh) with "Mr. Oh oh oh oh oh" made me giggle like a schoolgirl.
tree667 wrote:GW not saying it owns "40,000" but owns "warhammer 40,000". it doesn;'t own the word "space" or "marine" but own the pharse "space marine". There not saying they own the word but the context in which there used. Chapterhouse decided to sell there stuff for "space marine" to be used with "warhammer 40k" and games workshop designed products. The arrow, skull, roman numerals and etc etc in which he used are by themselves not infirging on anything but by using them and marketing them as "space marine tactical squad markings" and "space marine company markings" he has infringed on gw turf.
Especially in consideration of that last comment, I'd like to request that you go back to the beginning and read the whole thread. Dakkites with varying positions within the courts and legal system have made details on what is and is not infringing pretty straight-forward.
On another point, I'm disappointed, too, that someone at B&C did that.
AgeOfEgos wrote:Looks like the two attorneys have a good, professional relationship with each other--lol. The part where the GW attorney was trying to interrupt CH's attorney (Mr. Oh) with "Mr. Oh oh oh oh oh" made me giggle like a schoolgirl.
tree667 wrote:GW not saying it owns "40,000" but owns "warhammer 40,000". it doesn;'t own the word "space" or "marine" but own the pharse "space marine". There not saying they own the word but the context in which there used. Chapterhouse decided to sell there stuff for "space marine" to be used with "warhammer 40k" and games workshop designed products. The arrow, skull, roman numerals and etc etc in which he used are by themselves not infirging on anything but by using them and marketing them as "space marine tactical squad markings" and "space marine company markings" he has infringed on gw turf.
Read GW's complaints (and summary of alleged violations) amongst fun things which they allege Chapterhouse infringed upon are the terms "halberd" - "grenade launcher" - "plasma"... Those are just a couple that I recall from one of the depositions. When the GW staff was questioned regarding it (believe it was head of licensing) - he stumbled, fumbled and that eventually conceded that they could not have valid trademarks on such general terms. There still may end up being some there there - but a lot of the claims are frivolous at best. If you read through the settlement hearing, the judge came right out and asked if GW would be willing to settle, or if their goal was to destroy this company who is working out of their garage, take them for whatever legal fees they could and make them go away and die (paraphrased...but only slightly). As opposed to answering the judges question, the GW lawyer skipped along past it. Luckily, the settlement judge is not the trial judge for them...as he seemed to have a particularly distasteful opinion of how GW was playing ball.
Next they will be after the phrase "grim dark" or "gothic" no doubt .
More I see GW doing of late, especially the "don't mention we are releasing stuff or we will cut off your supply of our products" to FLGS more I think they are actually controlled by the whales who wrote Family Guy episodes in South Park . They are certainly regressing to when they used the FLGS to get an idea of the market then put them out of business.
But it is ok for GW stores on facebook to post about getting down to see what the new releases would be, surely even mentioning there will be some breaks their own policy in GW world
Chapterhouse has in every instance
copied unique combinations of colors, symbols, the unique shape of the pad itself (including the
little aesthetic indents on the back of the rim), together with the specific name given to the
underlying character by Games Workshop. (Undisputed Facts #57-68).
This is GW stance in there arguement. It has merit in my opinion.
I'm just saying GW is within it right to try and defend its IP. Chapterhouse seems to have gone out of it way to "borrow" heavily from GW. Some of there own artists were told to make it look like this or that. I'm of the side that says chapterhouse poked the beast a bit too much and went too far. I honestly like some of there stuff and have ordered from them. I just think there going to lose this round.
(iv) finding that the entirety of defendant’s product offering as well as individual products infringe Games Workshop’s copyrights in its Warhammer 40,000 works
This made me chuckle. Are they saying that every single CHS product violates a copyright?.
Yes, all 143 of them. They list each one and which GW product is supposedly infringed.
Typical entry:
CH product: Lashwhip (Tyrant Size) with CH description
Games Workshop Works:
The Tyrant is a Tyranid creature - see product 37
The Lashwhip is a weapon used by Tyranid creatures, including the Tyrant. The lashwhip forms part of the creature's arm rather than being held in the hand.
Games Workshop sells the Tyrant on its Website (URL)
Miniature designed by Jes Goodwin.
So no mention of the CH lashwhip being a copy of the GW piece, or even being substantially similar to it, just a reference to the fact that GW also sells a lashwhip. In the depositions, Alan Merrett goes further and says that they are not claiming copyright infringement on the piece at all, its really the use of GW trademarks that could cause confusion between GW and CH products that is the problem. He does the same for a number of other items in the few pages of his depositions (out of 200) that are posted in the PDF.
IMO Based on Merrett's depositions, many of the copyright claims will be tossed and the CH lawyers will destroy most (if not all) of the rest of the copyright claims. Then its down to trademark infringement and I doubt that those claims will go very far given fair use options.
They seem to hang a lot on the 'confusion' aspect to the customer even when they use the fact that Chapterhouse have a disclaimer on their site as proof that they are using their names for things. Seems a bit of a confused point really, either Chapterhouse are trying to mislead customers or not.
And they cite people reselling stuff 2nd hand that cause people to be confused. But that's true of all figures, there are so many non-GW auctions have I seen on eBay with 'Warhammer' in the title.
So does anyone have an idea how long before we get a judgement at this point? I have no legal background so have no idea how long it would take the court to rule.
tastytaste wrote:So does anyone have an idea how long before we get a judgement at this point? I have no legal background so have no idea how long it would take the court to rule.
could be a week, could be new year. It all depends on the amount of stuff going through the court right now. If they went to trial it could be another year or two. I think the timeline is buried somewhere in this thread, but relatively speaking, if the request for judgement is granted, and the judge hands down his decision..... I'm just going to guess here, but I'd give it maybe 4 months. I do not work in the same legal system or in the same country, so my projection is a guess based on my experience with personal injury litigation.
tastytaste wrote:So does anyone have an idea how long before we get a judgement at this point? I have no legal background so have no idea how long it would take the court to rule.
The summary judgements usually move fairly quickly. Other than what is offered as evidence - it is mostly just the judge reading through everything and deciding things on uncontested facts. His findings are usually released a fair amount of time ahead of the actual trial (which is scheduled to start early December) so that each side can go back and figure out their strategy for moving forward. Most likely in a week or so, we should get another posting where the judge determines when he will rule on the summary judgements.
In this case, GW made a blanket allegation that every single one of CHS’s more than 100 products infringed GW’s undefined universe of copyrights, and that CHS’s reference to GW products to describe compatibility (and use of generic terms such as “assault” and “grenade launcher”) infringed GW’s trademarks. After dragging CHS through more than a year and a half of extensive discovery on these claims, 11 days ago GW abruptly dropped its copyright claims against 32 CHS products, and has also now abandoned a number of its trademark claims.
The undisputed evidence shows that GW’s remaining claims fail as well. Despite its size and sophistication, GW failed to come forward with basic documentation required to establish that it owns the rights it asserts. Despite repeated efforts by CHS and this Court to induce GW to provide discoverable documents related to such fundamental evidence as exemplars of the asserted works, ownership of the works, and use in the U.S. of its alleged trademarks, GW failed to supply such documents and the documents it has provided are too little, too late.
(...)
GW alleges infringement of many miniature toy soldiers, model vehicles, and assorted toy accessories. (SUF 40.) But UK copyright does not extend protection to such “mass produced . . . toys.”
Bently Report, ¶¶ 22-29, 38 (“a toy miniature of a fictional character is unlikely to be protected by [UK] copyright as a sculpture.”);
Lucasfilm Ltd. v. Ainsworth, [2010] F.S.R. 10, ¶ 82 (Ct. Appeal 2010); aff’d, Lucasfilm Limited and Others v. Ainsworth and another, [2011] UKSC 39 (UK Supreme Ct. 2011). Where there is no copyright to own, GW cannot satisfy its burden with respect to its prima facie case of infringement.
As set forth in the Section above, copyright ownership is determined by the laws of the work’s country of origin.
(...)
CONCLUSION
Given the undisputed facts, GW’s claims fail. Inspiration is not infringement; nor is fair competition and comparative. CHS is entitled to summary judgment.
This motion forced GW to answer.
And until the end, GW couldn't be bothered to file a formally correct case and continues its "lackey, make them stop, they annoy us" attitude.
Q I am just trying to understand then the reason "Halberd" appears in this list with that date?
A You know what, I don't know. It is such a long list. I imagine it is on here because your client made some products that we are alleging infringe our rights, and they are something to do with Halberds, I would imagine, but "Halberd" as a trademark, I cannot honestly remember a specific product where we have called out "Halberd" and claimed it as our own word.
Q So is Games Workshop not contending there is a trademark on the word "Halberd"?
A I don't know, without asking my legal department. I would have to question -- you know, as I say, my opinio~ is that "Halberd" we cannot claim as an exclusive trademark.
(...)
Q Is Games Workshop claiming that it owns a trademark with respect to the general concept of Roman numerals combined with arrows?
A Roman numerals combined with arrows, it will be -- I still don't really understand what you are asking. We are not claiming we own Roman numerals and we are not claiming we own arrows, but if there is a unique combination or a way of depicting Roman numerals and/or arrows or other symbols that we use in commerce as marks of trade, rather like, I don't know rather like what, but as a unique combination, and if there is products that your client has made that have those same combinations, then that is where they are infringing that trademark.
(...)
Q So for all the different iterations of the wolves skull icons, have Games Workshop used each iteration as a trademark on product packages for products sold in the US?
A I couldn't swear to that. Actually, we might have done pictures, our artists might have drawn versions of the wolf skull icons that we have used, I was going to say on a novel but I guess that would still be establishing it as a mark of trade. There is the possibility that we have drawn wolf skulls and not used them on the front of actually on a box, if that is what you are asking.
(...)
Q Can you identify instances where -- let's start on page four with lions, where "lions" was used as a stand-alone trademark?
A I cannot actually -- you know, with "lions" I can't. I am struggling to remember or think of a product there that has got pictures of lions on. I am not saying there is not but I would be struggling to identify that. Likewise, "Griffin", "Triptych", on page 4, I believe that is a specific Dark Angel Triptych that we are referring to.
(...)
Q On page 5 now, on Exhibit 114 at the top, again same set of questions trying to identify use of commerce in the US, related to icons related to these entries, and we are going to start from the top with skulls with horns?
A As trademarks, specifically, I mean, we use skulls with horns all the time, but specifically in terms of describing them as a particular use on a particular product in the States as a trademark, I couldn't point at a specific thing, certainly not going back to 1989.
I guess if your major hobby and investment of serious effort and time was with Games Workshop, and that forum no-doubt represents a massive slice of effort, then it is possible that you would go to major lengths to try and protect Games Workshop?
Actually.. I'm completely fishing here, I've got no idea why someone would do something like that! Especially as Marines (the focus of the forum) have been the biggest benefactors of 3rd-party bits. And the Chapterhouse Storm Raven kit surely stands as their crowing glory, for making the standard GW kit look approximately 247% better. Far more likely that Mr. Chapterhouse used his usual 'diplomatic' ability and p'ed off Brother Argos during some forum tete'a'tete perhaps?
After reading The CH MSJ and the depositions, it seems that GW was badly served by their lawyers. There should have been extensive legal briefing meetings with the GW employees on the kinds of questions they would likely be facing before they were deposed.
CH's lawyers just rolled them hard with what appeared to be totally unexpected questions that the deposees should have been prepared for. Admittedly I have not seen all of the transcripts, but I think the deposed GW employees effectively became unintentional hostile witnesses for GW and definitely hurt their case badly.
timd wrote:CH's lawyers just rolled them hard with what appeared to be totally unexpected questions that the deposees should have been prepared for.
Totally unexpected? Riiight!
Chapterhouse lawyer: So you claim trademark and copyright for these 100+ items.
GW: Yes.
CHS: Can you prove your first claim?
GW: Erm, you got me on that one.
CHS: Second?
GW: Same.
CHS: Third?
GW: Same.
CHS: Fourth?
GW: Same.
CHS: Can you prove any of your claims?
GW: You got me on that one. Can you stop them anyway?
timd wrote:CH's lawyers just rolled them hard with what appeared to be totally unexpected questions that the deposees should have been prepared for.
Totally unexpected? Riiight!
My point is that they should not and would not have been unexpected, if GW's lawyers briefed them properly. The GW lawyers (being highly regarded IP lawyers) must have know what was coming and probably use the same list of authorities when defending other IP cases. The GW employees being deposed had no idea of what was happening to them...
Case in point is the deposition of the head of GW Retail North America. During the deposition, the CHS lawyers ask her if she was prepared for the interview, did she look over any documents for the interview, was she briefed by anyone, did she bother to track anything down on her own.
The sum total of her prep entailed a 30 minute conference call with the various GW lawyers and looking over the subpoena. Now, I know that if I am going to have a several hour deposition with the oppositions legal counsel and my job is to prove the validity of the claims made by my company through presentation of things like "First Use in Commerce" claims - I might want to just maybe do a little home work.
The entire thing is a bit of a clown show on their side of things. I imagine they are still waiting for CHS to fold like everyone before them.
Highly regarded IP lawyers should know the necessary requirements for filing an IP case. GW lawyers didn't provide them for 1.5 years.
I take the liberty to not hold them in high regard.
BTW Andrew Meredith Jones above also admitted that he didn't prepare for more than 30 minutes, obviously having no idea of the topic.
Love this one in the motion for summary judgement (by CHS)
In addition, GW fails to alleged that any GW work is infringed by 4 of the 20 newlyidentified
CHS products in its Second Rev. Copyright Claim Chart (nos. 118, 119, 129, and
143), and CHS product no. 110 has not yet been cast, and has never been sold or offered for sale.
(SUF 50-51.) A work that does not yet exist cannot be substantially similar to anything.
In case it has not been said enough, thank you to everyone that is keeping us up to date. I find this fascinating and would be sitting in the dark wondering why GW could have gotten away with this farce for years had it not been for most of the informed posts here.
The results I really hope, again, are in favor of the obvious and blatant - CHS.
Though I would not spend money on their stock without GW, I think this whole issue and GW's absurd, illogical, basically ignorant, and thoroughly . . .grandiose claims are being brought to heel is sorely needed so the hobby (that GW claims to support) can flourish.
Chapterhouse has in every instance
copied unique combinations of colors, symbols, the unique shape of the pad itself (including the
little aesthetic indents on the back of the rim), together with the specific name given to the
underlying character by Games Workshop. (Undisputed Facts #57-68).
This is GW stance in there arguement. It has merit in my opinion.
I'm just saying GW is within it right to try and defend its IP. Chapterhouse seems to have gone out of it way to "borrow" heavily from GW. Some of there own artists were told to make it look like this or that. I'm of the side that says chapterhouse poked the beast a bit too much and went too far. I honestly like some of there stuff and have ordered from them. I just think there going to lose this round.
Unique combinations of colors? Unique symbols? Unique shape?
Utilitarian shapes can't be copyrighted. You can't copyright a 1' cube of plastic. A shoulder pad is a shoulder pad, and GW sure as hell didn't invent them.
Unique combinations of colors? So now people can copyright color schemes? That itself is absurd.
Unique Symbols? An arrow is NOT unique, nor is it specific enough to be copyrighted. GW didn't create arrows, Omega symbols, or Roman Numerals. All of those symbols predate GW and the idea of copyrighting itself.
The ONLY legal leg GW had to begin with, was trademark infringement in the labeling of products or the advertising of them.
GW shot themselves in the foot here. I'm at the point where I wish CHS hadn't gotten this pro bono so that they could counter sue for legal fees(can their lawyers still do this?).
Aerethan wrote:The ONLY legal leg GW had to begin with, was trademark infringement in the labeling of products or the advertising of them.
There trademark leg was weak and anemic.
Company A can use Company B's trademarks in a lot of different ways. They can use them comparatively (Coke vs Pepsi commercials). The can use them to illustrate compatibility (iFrogz, iSkins are designed to protect and work with iPads, iPods and other stuff). You can use them to clarify service (Windows PC technicians, Oracle Database administrators).
That is why GW has gone out of their way to try and say the emails they got were from "confused" individuals. The confusion is necessary to challenge legal use of the various trademarks.
Without anyone getting bent out of shape - assume for a second that GW looses their copyright claims because the court determines them to be derivative, generic and unoriginal. At that point, pretty much anyone and their brother could start cranking out the bits and use a phrase like "Compare this to Games Workshop's Lascannons". That is a perfectly acceptable method of using a mark, even a mark which you are competing directly against (that method is used on various generic items in stores across the US).
So, in the case of the Trademarks - they have to demonstrate that CHS was actually attempting to confuse/mislead their customers (which the archived images show proper attribution in the page footers). Or that they damaged the brand in some way (which the deposition of various GW employees failed to show). It isn't like CHS was trying to sell knock-off Prada items in China town. People who managed to find them knew who/what they were.
Sean_OBrien wrote: It isn't like CHS was trying to sell knock-off Prada items in China town. People who managed to find them knew who/what they were.
Except apparently not just a user but a mod at a hardcore 40k specific marine forum... I'm not buying the confusion on this either. People may not agree that CHS has the right to design what they have but I haven't seen anyone ever claim that they actually thought they were buying a GW product from a completely separately branded and independent bits site where GW's name and logo are only mentioned specifically to say that they're NOT them.
GW shot themselves in the foot here. I'm at the point where I wish CHS hadn't gotten this pro bono so that they could counter sue for legal fees(can their lawyers still do this?).
I think they can still counter sue for reasonable attorney fees. However (based on my non-lawyer understanding), in order for that lawsuit to have any chance, they would have to defeat every single charge GW brought against them and prove that the case was malicious. In general, in US civil cases, both parties have to pay all their own legal fees; it is why you see these troll lawsuits all the time, but usually for patents.
timd wrote:
CH's lawyers just rolled them hard with what appeared to be totally unexpected questions that the deposees should have been prepared for.
Tim
You assume that they were not prepared. Maybe they are just incompetent. You have read GWs rules before, right.
timd wrote:
CH's lawyers just rolled them hard with what appeared to be totally unexpected questions that the deposees should have been prepared for.
Tim
You assume that they were not prepared. Maybe they are just incompetent. You have read GWs rules before, right.
LOL! Yeah I'm familiar with GW rules writing, ever since Rogue Trader. Even started a little magazine called Inquisitor specifically to deal with rules problems.
What I read in the depositions made it appear that they had no clue that these questions were coming and that they had no clue as to why the opposition legal counsel was even asking those specific questions.
Would like to read the full Merrett and Jones depositions, but don't know how to access them...
timd wrote:Would like to read the full Merrett and Jones depositions, but don't know how to access them...
Tim
The depositions are not automatically part of the evidence, depending on what each side decides is useful to their purposes - some, all or none may be entered into evidence. We may end up seeing more as time goes on, that might be it though.
Automatically Appended Next Post:
Warboss Gubbinz wrote:I'm looking thru PACER but i am not seeing the Deposition with that interview. I am working from 208 and up.
Look at 208.2 It has the index of the evidence entered. Find the Exhibit number for the stuff you want to look at. Find the Exhibit number in the title. Read the file. Not sure which interview you are talking about - otherwise I might be able to point you to a specific file...but there are a lot of them there. Took me a few hours to read through everything last night, and it is a good "look behind the curtain" experience for those who are interested in the goings on inside GW.
Not a lawyerly type, but I couldn't help but chortle at the "Compatible with 28mm wargames" bit; GW and 40K essentially comprise of the majority of the entire 28mm scifi wargame market and has painted themselves into a corner there; in order to be compatible with the "28mm wargame market" they have to be compatible with GW stuff, whether GW likes it or not.
Also, the repeated notings of GW failing to produce judge-mandated documents on time and suing CHS for marks they didn't even infringe on makes me wonder if the judge is just keeping from dismissing them and their case just to see how deep of a hole they'll dig for themselves.
So, rather than claim rights to roman numerals and arrows/ chevrons as others have stated, GW are actually claiming the use of a tactical symbol with roman numerals is theirs. Is that a more realistic claim. The use of everyday items in certain combinations does make a unique item that can be copyrighted or trademarked?
The following quote did raise my eyebrow::
"The Imperial Jet Bike is a direct copy from a picture in The Horus Heresy Collected Visions (which the designer acknowledged he had in hand when creating the design thus saving Chapterhous the trouble of sending copies as offered)"
That kind of makes it hard to complain that you are creating original works. I am not a Chapterhouse basher. I use third party companies (Victoria Lamb, Col Gravis) but there has to be a line somewhere. Remember Chapterhouse closed down another designer who released a jet pack similar to the one he had designed for Chapterhouse.
edited to include a jetpack that was gain inspired by the OOP Rogue Trader original.
None of these look similar, let alone a "direct copy".
I'm quite sure CHS's lawyers have those first three pics ready and waiting for that part of GW's claim to be brought up.
Inspired by the GW design? Sure. Infringing on it? Not at all. The designs share pretty much 3 things: the intake looking like a train skirt(note that the architecture of CHS ones are indeed quite different though), the position of the rider(which GW can't claim unless they invented motorcycles) and having thrusters in the back(pretty sure GW didn't invent that either). Is GW going to start suing tank companies for using tracks?
I don't know why CHS shut down that designer, but they might have been within their rights to do so under a contractual agreement that the designer is not permitted to do other work simultaneously, as it would frame a conflict of interest.... without clear detailed information about that case, it's not entirely clear that it relates here, so beyond that, i will treat it as irrelevant.
As for the picture-to-model.... well. That's inspiration. Both are works of art, the difference is one is a painting, of which the jet bike is an element, while the sculpture is something inspired by one element in the painting. Me not knowing exactly, I guarantee I could poke through it and point out differences establishing that it is not in fact a direct copy. Take for instance, muses. You can get some pretty pricey paintings based around muses, and while they capture the object, it is not in fact the object. It is an artistic expression of the object. Then there's that whole other bit where one is a painting, and the other a toy, and that's why we have the whole Luscasfilm thing being used as caselaw.
GW would also have to prove that the parts of the bike not visible in the painting were copied by CHS. This, of course, cannot be proved, and gives CHS run of the mill.
Granted though, it is 01:42 AM and I'm probably off of my rocker
EDIT:
Thank you Aerathan for posting that.
The only resemblance in those bikes is the vaguest suggestion of shape. Vague suggestions are not evidence. You make mention of "jet bike" and the design that springs to the average persons' mind is something similar to what you see above. Maybe it's more like something from stawars' storm trooper bikes or Darth mauls' bike: But on average, people get the image of 1.) a jet, and 2.) a bike.... so.... a jet engine with a seat and some form of steering mechanism. I see 3 completely different models projected from the same idea. Replace "Jet" with "Hover" and your form will start to differ completely. In this case, it would be much harder to argue against similarities between two hover-bike models, because the creative options are more robust here.
None of these look similar, let alone a "direct copy".
I'm quite sure CHS's lawyers have those first three pics ready and waiting for that part of GW's claim to be brought up.
Inspired by the GW design? Sure. Infringing on it? Not at all. The designs share pretty much 3 things: the intake looking like a train skirt(note that the architecture of CHS ones are indeed quite different though), the position of the rider(which GW can't claim unless they invented motorcycles) and having thrusters in the back(pretty sure GW didn't invent that either). Is GW going to start suing tank companies for using tracks?
Which is why I await the professional legal judgement. I may not agree with it but that will be opinion not law based. I just feel that these individuals could have come up with something more unique if Collected Visions had not been involved at all. Without that inspiration, they could have come up with something far better.
alphaecho wrote:
Which is why I await the professional legal judgement. I may not agree with it but that will be opinion not law based. I just feel that these individuals could have come up with something more unique if Collected Visions had not been involved at all. Without that inspiration, they could have come up with something far better.
Do you know how extremely difficult it is to create something with no inspiration?
I defy anyone here to create something that is truly original that took no inspiration from something already in existence.
Light bulbs? Inspired by candles. Candles? Inspired by oil lamps. Oil lamps? inspired by ANY fire. Who invented fire?
EVERY advance in human history is because of inspiration. If we were not inspired to create, we'd be living in caves with no fire.
You think GW has a single model that wasn't inspired by something GW didn't create?
They can't win with that jetbike thing, it only resembles the artwork. If they were to win on that, it's effectively saying that no one can make anything that looks even a bit like something GW has ever made or drawn, even just single pictures in their more specialised publications.
I know. Astorath vs Gary Oldman's Dracula armour...and they both crave blood! And if Coppola went after GW, I'd feel he had a point even if legally he did not.
For all I know, the jet bike designer may have thrown away Collected Visions and finally been inspired by a cloud or interesting rock formation.
Which again, is why I'm interested in where the legal eagles decide where the line in the sand is even if I end up not agreeing with it.
I'm so glad of the history lesson on why we have light bulbs though.
The light bulb analogy is different than this of course, as there was a NEED for lighting that didn't set everything on fire. There isn't ever a NEED for luxury hobby items, though there are certainly demands for them.
I wish 100% that I could be in the court room during the trial(if it gets there) if for no other reason than to see how the case is presented by each side to the jury, who are most likely unaware of what tabletop games are, let alone 40k.
Collected Vision art plus Space Marine bike model (especially focussing on fuel tank) against Chapterhouse model could lead to a jury member going "Rip off!"...or not! Resemblance or similarity could lead to a stronger impression than any amount of legalese.
Some hilarious posts here -- thanks for sifting through the trial accounts and finding all those "I work at GW and I like to shoot the company in the foot" quotes, Kroothawk!
alphaecho wrote:The following quote did raise my eyebrow::
"The Imperial Jet Bike is a direct copy from a picture in The Horus Heresy Collected Visions (which the designer acknowledged he had in hand when creating the design thus saving Chapterhous the trouble of sending copies as offered)"
That kind of makes it hard to complain that you are creating original works. I am not a Chapterhouse basher. I use third party companies (Victoria Lamb, Col Gravis) but there has to be a line somewhere.
As was discussed much earlier in this thread, it is EXTREMELY hard to demonstrate copyright infringement when changing mediums - e.g., a copyright on a painting offers essentially no protection against a sculpture.
Remember Chapterhouse closed down another designer who released a jet pack similar to the one he had designed for Chapterhouse.
Different scenario. There, the original designer created a "work for hire" with CH, then took that same work, added some more detail, and tried selling it to a different designer.
I love how everyone is a legal scholar to best defend either CH, or GW.
If most of us were in a court room involving this case, we'd be bored to absolute tears over the minutia of details that is usually found in court room proceedings, and probably have no idea how what's going on.
alphaecho wrote:Presentation to the jury is the important thing.
I really doubt that this case will ever make it to a jury. Judge will be looking at all of the stuff recently presented and will be taking a long look at the CH MSJ. I suspect he will be trimming the list of copyright claims considerably.
The GW case is crumbling. GW just dropped the copyright claims on 32 items and can't show ownership of 12 more, Most or all of the shoulder pad claims were destroyed as common shapes or combinations of common shapes which are not copyrightable, no copyright protection going from 2D image to 3D sculpture, "C. GW’s Miniature Figures Are Unprotectable Under Governing Law. GW alleges infringement of many miniature toy soldiers, model vehicles, and assorted toy accessories. (SUF 40.) But UK copyright does not extend protection to such “mass produced. . . toys", and more...
alphaecho wrote:Presentation to the jury is the important thing.
Collected Vision art plus Space Marine bike model (especially focussing on fuel tank) against Chapterhouse model could lead to a jury member going "Rip off!"...or not! Resemblance or similarity could lead to a stronger impression than any amount of legalese.
It is very unlikely that this case will ever make it to a jury trial. The pre-trial procedure in civil cases is intentionally designed to keep cases out of the courtroom. Trials are expensive and can be very long and logistically challenging. Over 90% of civil actions never see court. Most are settled either privately by the parties, dismissed for lack of sufficient complaint under Rule 12(b)(6) (which is what this is), thrown out by summary judgment post-discovery, or dealt with in court ordered mediation.
alphaecho wrote:Presentation to the jury is the important thing.
Collected Vision art plus Space Marine bike model (especially focussing on fuel tank) against Chapterhouse model could lead to a jury member going "Rip off!"...or not! Resemblance or similarity could lead to a stronger impression than any amount of legalese.
It is very unlikely that this case will ever make it to a jury trial. The pre-trial procedure in civil cases is intentionally designed to keep cases out of the courtroom. Trials are expensive and can be very long and logistically challenging. Over 90% of civil actions never see court. Most are settled either privately by the parties, dismissed for lack of sufficient complaint under Rule 12(b)(6) (which is what this is), thrown out by summary judgment post-discovery, or dealt with in court ordered mediation.
(2nd year law student)
Corporations sue on patent or CW infringement, because they think they have a case, and chose not to, when they don't. More times than not, pre-trial procedures either convince the other party that they do have a case, and they settle, or convince the plaintiff that they don't have a case, and it's no longer sought.
This is a simplistic version of things, and there are usually multiple aspects of any civil litigation (which to the most of us would be boring and highly detailed). There are some areas where one side has a case, the other has a case, and eventually they discover they are better off with some kind of deal.
alphaecho wrote:Presentation to the jury is the important thing.
Collected Vision art plus Space Marine bike model (especially focussing on fuel tank) against Chapterhouse model could lead to a jury member going "Rip off!"...or not! Resemblance or similarity could lead to a stronger impression than any amount of legalese.
It is very unlikely that this case will ever make it to a jury trial. The pre-trial procedure in civil cases is intentionally designed to keep cases out of the courtroom. Trials are expensive and can be very long and logistically challenging. Over 90% of civil actions never see court. Most are settled either privately by the parties, dismissed for lack of sufficient complaint under Rule 12(b)(6) (which is what this is), thrown out by summary judgment post-discovery, or dealt with in court ordered mediation.
(2nd year law student)
Corporations sue on patent or CW infringement, because they think they have a case, and chose not to, when they don't. More times than not, pre-trial procedures either convince the other party that they do have a case, and they settle, or convince the plaintiff that they don't have a case, and it's no longer sought.
This is a simplistic version of things, and there are usually multiple aspects of any civil litigation (which to the most of us would be boring and highly detailed). There are some areas where one side has a case, the other has a case, and eventually they discover they are better off with some kind of deal.
Are you a lawyer, law student, court bailiff or some such as well?
I think this shows GW has never taken this as seriously as the court system generally expects. I think this will go to trial because I think GW is stubborn enough to believe its paper thin delusion. To put this in perspective much of whats played out in these documents are things that normally expected to occur internally at GW prior to a company even filing a suit with the court.
Howard A Treesong wrote:They can't win with that jetbike thing, it only resembles the artwork. If they were to win on that, it's effectively saying that no one can make anything that looks even a bit like something GW has ever made or drawn, even just single pictures in their more specialised publications.
If that happens then I would hope that someone could convince James Cameron to sue them for copying the Colonial Marines from Aliens for the Cadian Imperial Guard and also for copying Terminator for the Necrons.
no, it's the original Arbites sculpts that remind you of Dredd!
Is stealing from thieves still stealing?
On a more serious note, I did enjoy reading through some of the court documents the other day, I learned a little more about how the lawyers are operating.
... Why doesn't chapterhouses lawyers just point out the Mattel cannot stop other manufacturers making "giant robots which change into vehicles". Or perhaps lucasarts should wade in claining the sentinel is a direct copy of the scout walker ><
More I read the more and more ridiculous this is sounding. I really hope chapter house wins, in fact wins so hard GW could be described as being curb stomped, opening up similar models suddenly hitting the market and a price that reminds GW of what they SHOULD be charging these days.
I ranted when I promised myself I wouldn't, I feel ashamed :(
LavuranGuard wrote:On a more serious note, I did enjoy reading through some of the court documents the other day, I learned a little more about how the lawyers are operating.
What I found surprising is how unprofessional some people seemed, the lawyers and those giving evidence.
LavuranGuard wrote:On a more serious note, I did enjoy reading through some of the court documents the other day, I learned a little more about how the lawyers are operating.
What I found surprising is how unprofessional some people seemed, the lawyers and those giving evidence.
After reading the CH lawyers' document requests, deposition topics list and some of the depositions, here is my theory on the tactics used:
1. Snow the plaintiffs with lots and lots of document requests and deposition topics.
2. ...so that the GW lawyers deny the document requests and produce no documents for the document requests and pretty much ignore the many, many deposition topics.
3. Hidden within all of the document requests and deposition topics were a few documents and topics that might actually help GW's case; sales figures for specific infringed pieces for example.
4. When GW does not provide the documents and ignores the deposition topics CH lawyers slam the door with the amazing amount of information that GW does not know about their own business. The MSJ is basically a list of failures on GWs (and their lawyers) parts for not providing necessary information to support their complaint. I could make a list, but it would be a long one... Reading the CH MSJ would be easier.
LavuranGuard wrote:
Is stealing from thieves still stealing?
In the case of copyrights - not always. One of the ways you can defend yourself is to say, yes - we did copy some stuff from GW...but it wasn't their's to begin with. Depending on how they decided to go forward, it might be in the form of an Equitable Defense proving that GW had unclean hands. There are a few other paths which are in broad terms the same end result as well.
You can't report theft of something you don't own. Because then people start asking you to prove ownership, whether it be police, insurance adjusters, or lawyers.
Anyone here could start selling chaos star products without fear of retribution from GW(You might need to ask Michael Moorcock though). At best, GW has a license to it's use. They don't own it.
and therein lies the problem with GW in this case. They can't prove ANY ownership of 12 items still in the case. That very well may jeopardize the whole case. One has to wonder at the line of thought that the GW board has on this debacle. If I was in charge of GW and this happened, I'd try to make it go away as quietly as possible. It's already been bad PR, and if they lose it will be a PR nightmare.
The amount of money GW stands to lose here as a result of losing the case is far more than they were losing over CHS sales(which again almost always required GW models to use). That is a gamble I wouldn't have taken.
GW should have just licensed. In so many cases GW should do that, but they don't. They want 100% control over this universe they claim to own, even over things that are not part of that universe's IP.
The chapterhouse bike Minus the cowcatcher and the pipes on the back look 99% like a marine bike. The tank, engine, the back"wheelwell" the gun placement, I mean I can get the shouldar pads and such but that bike is seriously close to GW's. Kromlechs is in the spirit of GW's but no real connection. I like some of the stuff Chapterhouse has done, but some items and the way he DID market his stuff was poking GW with a giant stick.
Kanluwen wrote:The chaos star is not owned by Michael Moorcock.
Care to elaborate? Is it owned at all? If so, by who?
It is of course common for copyrights to be sold, especially in the music industry.
But surely if it's IP, someone has to own it. And if someone who isn't GW owns the Chaos Star in both name and design, then they could sue GW for infringement.
Automatically Appended Next Post:
tree667 wrote:The chapterhouse bike Minus the cowcatcher and the pipes on the back look 99% like a marine bike. The tank, engine, the back"wheelwell" the gun placement
Except all those parts that look 0% like a marine bike. Yes, both models have a fuel tank. Yes both models have an engine. Yes both models have a rear section. Yes both models have guns.
The CHS fuel tank is longer than the GW one and rounded on top. The CHS engine looks entirely different than the GW one. The rear of the CHS model quite different than the GW one. The CHS guns both look different and are mounted differently than the GW ones. You were saying?
Kanluwen wrote:The chaos star is not owned by Michael Moorcock.
Care to elaborate? Is it owned at all? If so, by who?
It is of course common for copyrights to be sold, especially in the music industry.
But surely if it's IP, someone has to own it. And if someone who isn't GW owns the Chaos Star in both name and design, then they could sue GW for infringement.
The eight-pointed star was used in Crowley's "Thoth" tarot for the Eight of Wands.
It was the same general look, just with a "zigzag" effect for the lines making up the arms of the star.
tree667 wrote:The chapterhouse bike Minus the cowcatcher and the pipes on the back look 99% like a marine bike. The tank, engine, the back"wheelwell" the gun placement, I mean I can get the shouldar pads and such but that bike is seriously close to GW's. Kromlechs is in the spirit of GW's but no real connection. I like some of the stuff Chapterhouse has done, but some items and the way he DID market his stuff was poking GW with a giant stick.
Man, if those two are 99% similar and reason enough for GW to sue, it's a wonder car companies actually bother make cars these days, what with all the sueing each other they should be doing.
Dawnbringer wrote:
Man, if those two are 99% similar and reason enough for GW to sue, it's a wonder car companies actually bother make cars these days, what with all the sueing each other they should be doing.
It kind of remains me on the guy on BoLS that decred that the Cygnar Cyclone warjack was "ripping off GW" because it had a pair of chainguns. When you are so invested in an IP you cannot see beyond it for reference, everything, no matter how minor the similarity, looks like a ripoff.
Kanluwen wrote:The chaos star is not owned by Michael Moorcock.
Care to elaborate? Is it owned at all? If so, by who?
The eight pointed star isn't owned by Moorcock for the same reason that GW doesn't/cannot own Roman Numerals and Arrows. The eight pointed star has appeared in the archaeological record as far back as 2000 BC in various forms. It has relationships to various astrological phenomena as well as being related to the Compass Rose. Additionally, there have been various religious connotations in different cultures through the ages. The eight pointed star has appeared in a variety of iterations, from overlapping squares to eight acute triangles joined at the base to four intersecting lines which form outward pointing arrows.
Kanluwen wrote:The chaos star is not owned by Michael Moorcock.
Care to elaborate? Is it owned at all? If so, by who?
It is of course common for copyrights to be sold, especially in the music industry.
But surely if it's IP, someone has to own it. And if someone who isn't GW owns the Chaos Star in both name and design, then they could sue GW for infringement.
The eight-pointed star was used in Crowley's "Thoth" tarot for the Eight of Wands.
It was the same general look, just with a "zigzag" effect for the lines making up the arms of the star.
Didn't he claim though that Thoth's memory had imprinted on him from 4000 years previously, or that somehow the star is some form of racial memory?
I'm not sure that such a claim to 'own' the star would be taken seriously in any case, there would be many hemp-wearing earth mothers crying out to say otherwise
The 8 Pointed Star may not be owned by Moorcock, but to deny that GW was "Heavily Influenced" by Moorcock's works, including 8 Pointed Stars and CHAOS for crying out loud is beyond Pant On Head Stupid.
They even took characters from the Moorcock Eternal Champion mythology and used them in warhammer. Plus beastmen and spawn ofcourse as servants of the chaos gods.
Yep, the entire concept of 'chaos' (at least in its original form) was influenced heavily by the 'new wave' of spirituality of the 70's in the UK and US. Moorcock was just one of the writers that was part of it, and there are a whole gamut of other artists involved (Ursula Le Guin, Robert Heinlein to name but two).
Found an interesting snippet from Moorcock on the 8-pointed star, I'm guessing from some time ago:
"I drew a straightforward geographical quadrant (which often has arrows, too!) – N, S, E, W – and then added another four directions and that was that – eight arrows representing all possibilities, one arrow representing the single, certain road of Law. I have since been told that it is an "ancient symbol of Chaos" and if it is then it confirms a lot of theories about the race mind ... "
There is a third jetbike out there that the front half looks like an Imperial Gothic warship prow. I would say that one is more of a rip off of GW than either the CH or Kromlech jetbikes.
I cannot find an image right now, but I am sure someone here can easily find it.
Kaptajn Congoboy wrote:Moorcock keeps winning my Pretentious Git award nearly every time I see him quoted
Haha right, although he has written some bloody good stories!
Shepherd23 wrote:There is a third jetbike out there that the front half looks like an Imperial Gothic warship prow. I would say that one is more of a rip off of GW than either the CH or Kromlech jetbikes.
I cannot find an image right now, but I am sure someone here can easily find it.
Do you mean the Maxmini one?
Although if we are talking about being able to sue someone for generic art-style tropes (gothic in this instance?) then surely the world is GW's oyster.
alphaecho wrote:Presentation to the jury is the important thing.
Collected Vision art plus Space Marine bike model (especially focussing on fuel tank) against Chapterhouse model could lead to a jury member going "Rip off!"...or not! Resemblance or similarity could lead to a stronger impression than any amount of legalese.
It is very unlikely that this case will ever make it to a jury trial. The pre-trial procedure in civil cases is intentionally designed to keep cases out of the courtroom. Trials are expensive and can be very long and logistically challenging. Over 90% of civil actions never see court. Most are settled either privately by the parties, dismissed for lack of sufficient complaint under Rule 12(b)(6) (which is what this is), thrown out by summary judgment post-discovery, or dealt with in court ordered mediation.
(2nd year law student)
Corporations sue on patent or CW infringement, because they think they have a case, and chose not to, when they don't. More times than not, pre-trial procedures either convince the other party that they do have a case, and they settle, or convince the plaintiff that they don't have a case, and it's no longer sought.
This is a simplistic version of things, and there are usually multiple aspects of any civil litigation (which to the most of us would be boring and highly detailed). There are some areas where one side has a case, the other has a case, and eventually they discover they are better off with some kind of deal.
Are you a lawyer, law student, court bailiff or some such as well?
Alpharius wrote:The 8 Pointed Star may not be owned by Moorcock, but to deny that GW was "Heavily Influenced" by Moorcock's works, including 8 Pointed Stars and CHAOS for crying out loud is beyond Pant On Head Stupid.
Indeed, though Mike is well-known for his relaxed attitude to others borrowing his creations, he would, I'm fairly sure, face little disagreement were he to point out that the use of an eight-pointed star as the symbol of Chaos-with-a-capital-C was his innovation.
Vermillion wrote:They even took characters from the Moorcock Eternal Champion mythology and used them in warhammer. Plus beastmen and spawn ofcourse as servants of the chaos gods.
Warhammer 3rd edition's "High Elves" were indeed repackaged Citadel Melniboneans, originally sculpted under contract for Chaosium's Stormbringer game. As I recall the men of Pan-Tang (and their tigers) were likewise reused as Chaos warriors.
So I've combed over the Exhibit's for Chapterhouses' motion for Summary Judgement.
A few things
Per the deposition of the Head of Sales of GW Retail (North America) Sandra Casey: 1. GW is broken up into separate companies that operate under the management group but are separate Legal entities:
2. Games Workshop Group PLC (Corporate Management)
3. GW United limited (UK, this included design studio etc..)
4. GW Retail (North America)
<Insert other branches here>
Just one comment i have to make after seeing this:
Q. And briefly describe what your main duties are.
A. I have overall responsibility for all of the operations in North America.
Q. And when you say all of the operations, can you please describe what these operations are?
A. That includes our manufacturing and distribution, as well as our hobby centers, which are our whole our company-owned stores, as well as the sales that we make through independent retailers, and all the support functions for those.
Q. Who do you currently report to?
A. I report to Mark Wells.
Q. And did you have knowledge of the overall corporate structure of Games Workshop before your preparations for the -- this deposition?
A. No.
I am dumbfounded as to how she has a direct line to Mark Wells but does not understand how the corporate structure is laid out. She's gotta be either lying under oath, completely ignorant to her situation or the CEO's above her have no faith in their managers abilities to comprehend overall company org charts.
Here is part of the deposition that i think is really damaging to GW:
Q. Does any Games Workshop Retail employees create any artwork used for the Games Workshop related products?
A. No.
Q. No sculptures?
A. No.
Q. No graphics?
A. No.
Q. Illustrations?
A. No.
Q. So as far as you know, Games Workshop Retail is not a wholly-owned subsidiary of Games Workshop Limited?
A. I don't know the corporate structure, the legal entity structure.
This goes on for a while then we are treated to this nugget:
Q. Is Games Workshop Retail an its own legal entity?
A. Games Workshop Retail is a legal entity, yes.
Q. And employees of Games Workshop Retail are employees of Games Workshop Retail, meaning they're not also employees of Games Workshop Limited?
A. That's correct.
And then some more about Trademarks and how GW staff access art stored on their internal servers.
Q. Outside of the internal portal, is there a policy or procedure in Games Workshop Retail related to copyrights or trademarks?
A. There is no written policy.
Q. Is there an unwritten policy?
A. Our internal -- there is an internal procedure.
Q. Can you describe that internal procedure?
A. For us to use any copyrighted or trademarked material, we have to get approval from the U.K. team.
Q. And can you give an example of what you mean by what type of materials you would seek approval for?
A. Sure. We wanted to do a limited edition poster that we would give to the first 500 people that bought a Games Day ticket. We wanted to use some of Games Workshop's imagery to do that, so we had to get approval from the U.K. team in order to use that, that image.
Q. And who do you seek this approval from?
A. I'm not sure of the person's name. It's whoever happens to be in charge of the studio team; that changes.
Q. So the -- so this inquiry's directed to head of the studio team?
A. Yes.
Q. Is that an inhouse attorney?
A. I'm not sure if they're an attorney or not, no.
Q. And so this internal relates to both trademark and copyright?
A. Yes.
What i think Chapterhouse is trying to get at is GW Retail by their own admission may be infringing on GW's overall UK trademarks in America? Due to the fact they are separate legal entities, Games Workshop Limited is not licensing anything out to GW retail or even legally drafting anything stating they are allowed access these trademarked items under fair use etc to sell product? Can Weeble or Tad comment on this one?
Sandra Casey is an extreme case of GW preferring yes-men over competence. She is basically a strawman for Mark Wells, that's why she can't answer even basic questions about the company she is supposed to lead.
Howard A Treesong wrote: What's the point of the deposition if they can't seeming answer the most straight forward of questions, it'll just annoy the court surely?
Howard A Treesong wrote: What's the point of the deposition if they can't seeming answer the most straight forward of questions, it'll just annoy the court surely?
Hehehehyhe, probably why CH called on them.
According to the subpeona Sandra Casey was appointed by GW to answer the questions in the deposition.
GW takes compartmentalization to the extreme. They always have. I'm not shocked at all by her answers as its in line with how most people are in the company
Warboss Gubbinz wrote: I am dumbfounded as to how she has a direct line to Mark Wells but does not understand how the corporate structure is laid out. She's gotta be either lying under oath, completely ignorant to her situation or the CEO's above her have no faith in their managers abilities to comprehend overall company org charts.
To be fair, I'm an attorney, and I'm not 100% on the corporate structure of my company; outside of tax and complicated litigation, it's just not a factor in how most employees interact with the company on a day-to-day basis.
What i think Chapterhouse is trying to get at is GW Retail by their own admission may be infringing on GW's overall UK trademarks in America? Due to the fact they are separate legal entities, Games Workshop Limited is not licensing anything out to GW retail or even legally drafting anything stating they are allowed access these trademarked items under fair use etc to sell product? Can Weeble or Tad comment on this one?
Non-issue. It's okay to put limits on how employees use a company's IP (in fact, there should be such limits), without implicating an (implied) license TO that IP from one business entity to a related entity.
Warboss Gubbinz wrote: I am dumbfounded as to how she has a direct line to Mark Wells but does not understand how the corporate structure is laid out. She's gotta be either lying under oath, completely ignorant to her situation or the CEO's above her have no faith in their managers abilities to comprehend overall company org charts.
To be fair, I'm an attorney, and I'm not 100% on the corporate structure of my company; outside of tax and complicated litigation, it's just not a factor in how most employees interact with the company on a day-to-day basis.
I'd be willing to bet you're at least somewhat aware of the "overall corporate structure" for your firm/company though.
I've been in 3 large companies in my career, and I could always give a general org chart/responsibilities response if someone asked, and I wasn't at the top of the food chain either, like, presumably, the Head of GW Retail (North America) Sandra Casey!
...Maybe its more of what was going on before, CH's attorney emphasizing the distinctions of GW's operations, to show their Copyright and Trademarks are limited to what is covered by UK law, since none of that's generated in the US.
Janthkin wrote: Non-issue. It's okay to put limits on how employees use a company's IP (in fact, there should be such limits), without implicating an (implied) license TO that IP from one business entity to a related entity.
Do you mind commenting on why the GW attorney made the statement "This doesn't matter anyways--this is good for pestering witnesses and that's about it" (Not verbatim but along those lines).
How important are the depositions really? Was the GW attorney correct--or just aggravated? Judging from my VERY non-attorney eyes--I don't see why the questions would be out of line--or why the witnesses would not be better prepared to answer the queries. Is that your feeling as well?
/If you feel comfortable answering, if not--no worries.
I am dumbfounded as to how she has a direct line to Mark Wells but does not understand how the corporate structure is laid out. She's gotta be either lying under oath, completely ignorant to her situation or the CEO's above her have no faith in their managers abilities to comprehend overall company org charts.
To be fair, this lady was little more than a secretary before she got promoted due to Chris Woodward's resignation.
I think the reason for the anger was because the Subpoena did not have any reference to asking questions about GW's corporate structure and Foley and Larder thought those questions were wasting deposition time.
Warboss Gubbinz wrote: I think the reason for the anger was because the Subpoena did not have any reference to asking questions about GW's corporate structure and Foley and Larder thought those questions were wasting deposition time.
Concerning wasting deposition time: Aren't Foley &Larder lawyers the ones not willing to provide all documents for a formally correct case, so that Chapterhouse still is not informed what exacly they are accused of?
I am dumbfounded as to how she has a direct line to Mark Wells but does not understand how the corporate structure is laid out. She's gotta be either lying under oath, completely ignorant to her situation or the CEO's above her have no faith in their managers abilities to comprehend overall company org charts.
To be fair, this lady was little more than a secretary before she got promoted due to Chris Woodward's resignation.
That's basically it. I'm wondering why she was even picked to do this.
Warboss Gubbinz wrote: So I've combed over the Exhibit's for Chapterhouses' motion for Summary Judgement.
A few things
Per the deposition of the Head of Sales of GW Retail (North America) Sandra Casey: 1. GW is broken up into separate companies that operate under the management group but are separate Legal entities:
2. Games Workshop Group PLC (Corporate Management)
3. GW United limited (UK, this included design studio etc..)
4. GW Retail (North America)
<Insert other branches here>
Just one comment i have to make after seeing this:
Q. Who do you currently report to?
A. I report to Mark Wells.
Q. And did you have knowledge of the overall corporate structure of Games Workshop before your preparations for the -- this deposition?
A. No.
I am dumbfounded as to how she has a direct line to Mark Wells but does not understand how the corporate structure is laid out. She's gotta be either lying under oath, completely ignorant to her situation or the CEO's above her have no faith in their managers abilities to comprehend overall company org charts.
From a legal point of view, that is a very broad question. The attorney must be more specific if he wants a more specific answer. It may be likely that she does not have complete and comprehensive knowledge of the entire specific structure of a multi-million dollar highly compartmentalized company.
She is not allowed to state what she has "heard" (hearsay) or what she "thinks" (opinion, only admissible from Expert Witnesses). She can only give facts.
If she had said "Yes", he could have asked her specific questions on the entirety of GW corporate ins-and-outs. She would not have known those answers. The lawyer (who is undoubtedly good at his job) will then turn that on her, saying that she is backtracking on her previous testimony, destroying any credibility she might have as a useable witness.
Vermillion wrote: ... Why doesn't chapterhouses lawyers just point out the Mattel cannot stop other manufacturers making "giant robots which change into vehicles".
One, you're thinking Hasbro, not Mattel.
Two, Hasbro was beaten to it not only by a large number of Japanese companies, but also in the states by the makers of the Go-bots(which Hasbro now owns, incidentally). It's not like they own the patent on the toys they licensed to create their brand. In fact, until 1986(the movie and Season 3), there were NO designs created specifically for the Transformers brand. Until then, it was a variety of Japanese toys pulled from various companies(including their partner Takara, Tomy before Takara purchased them, and even Takatoku/Bandai's Valkyrie). In fact, if you were a Japanese fan, you couldn't get certain characters as branded Transformers toys because they were based on toys released by Takara's rival companies in the transforming toy business.
In short, the reason Hasbro can't stop other manufacturers from making transforming robot toys is because they didn't invented the concept, much less patent it. They just borrowed the concept from other, more creative people and made it more profitable.
This has likely be discussed but I'm not searching through 80+ pages to find it, but would Chapterhouse be doing itself a favor if they used more dubious language in their products? Like instead of using Space Marine, they could call it Space Soldier or something. Instead of Melta-Gun, say "Heat Ray."
Using the definition of porn as "I know it when I see it" approach, just looking at CH product line, it does seem that CH is overstepping it's bounds on some stuff, others less so. But the language seems like it'd be an easy way to side step a good deal of the heat from GW.
MisterMoon wrote: This has likely be discussed but I'm not searching through 80+ pages to find it, but would Chapterhouse be doing itself a favor if they used more dubious language in their products? Like instead of using Space Marine, they could call it Space Soldier or something. Instead of Melta-Gun, say "Heat Ray."
Using the definition of porn as "I know it when I see it" approach, just looking at CH product line, it does seem that CH is overstepping it's bounds on some stuff, others less so. But the language seems like it'd be an easy way to side step a good deal of the heat from GW.
i think the gist of the pages was that while they might call it something similar, it would not stop the lawsuit as there are still many things that are taken more or less directly from GW's IP. Take for instance the iconographic pauldrons, or the combi-weapon attachment designs. CHS has started changing some of its products' names, but that's probably got more to do with the suggestion of their attorneys than any effort to eschew the wrath of the almighty GW.
Also, this just in:
looks like GW may now also be pursuing a claim against Lucasfilm et al. for copying htier chaos cultists:
I would like to draw your attention to bottom left corner, bottom right corner and the three middle in the first two rows. Clearly, the tusken sand raiders are ripped off of GW's IP /sarcasm
MisterMoon wrote: This has likely be discussed but I'm not searching through 80+ pages to find it, but would Chapterhouse be doing itself a favor if they used more dubious language in their products? Like instead of using Space Marine, they could call it Space Soldier or something. Instead of Melta-Gun, say "Heat Ray."
Using the definition of porn as "I know it when I see it" approach, just looking at CH product line, it does seem that CH is overstepping it's bounds on some stuff, others less so. But the language seems like it'd be an easy way to side step a good deal of the heat from GW.
The assertion's been that CHS' use of names associated with GW is a matter of describing compatibility with GW products, which is one of the few specific examples of fair use established for trademarks. Haters are going to hate and GW's yet to prove a substantive case... meaning GW's choice to sue CHS is ultimately just as unjustified as if they were to sue CHS for using implied naming, that is there isn't a legal distinction. The distinction that GW is trying to assert is that CHS is trying to assert ownership over trademarks, it might not even have a legitimate claim to... By indicating compatibility there is no assertion of ownership. Might CHS avoid GW's ire by being dubious?-Sure, but if you're acting within you're rights, why would do something to pretend or imply otherwise.
As far as esthetics go, its a byproduct of compatibility.
CHS has started changing some of its products' names, but that's probably got more to do with the suggestion of their attorneys than any effort to eschew the wrath of the almighty GW.
GW's assertion on it claim for unfair trademark use in seeking damages demands CHS' closure and siezure or destruction of all assets because no other remedy can resolve their unfair trademark claim. In the unlikely event that the court were to rule against CHS, the fact that it can change the product description is factual proof that there is a remedial action besides CHS' destruction, so its for that potentiality that they've taken the precaution.
In short, the reason Hasbro can't stop other manufacturers from making transforming robot toys is because they didn't invented the concept, much less patent it. They just borrowed the concept from other, more creative people and made it more profitable.
One could say very similar things about where GW has come up with the majority of their product lines.
Like I said before. It's a good think the Frank Herbert estate doesn't define copyright infringement like GW does, for GW would be getting sued for all the material they stole from the Dune universe for the backstory of the Imperium.
-timeline of exactly 10,000 years after a gigantic war/upheaval
-Astropaths are in the exact same niche as the navigator's Guild in Dune
-the 'Machine Crusade' taking place in each storyline and nearly destroying all of humanity
-That Machine Crusade being the basis of manpower and dogma before technological innovation and reliance
Hell, I think games Workshop easily uses a larger percentage of outside IP as a basis for their own than the other companies that they are chasing after for Copyright Infringement.
It is easy to forget that GW's idea of IP law is far from realistic. So Dune couldn't successfully sue GW for vague similarities or inspiration. And it is a good thing that IP law doesn't work this way, as it would make creative work almost impossible.
Every person doing creative work knows how essential cross inspiration by others is, only some bloghead managers and greedy lawyers are competely alien to how the creative process works and try to force their views on the world. Jes Goodwin would never have thought of sueing others for using an arrow, pelt, skull or wings on miniatures..
AegisGrimm wrote: Like I said before. It's a good think the Frank Herbert estate doesn't define copyright infringement like GW does, for GW would be getting sued for all the material they stole from the Dune universe for the backstory of the Imperium.
-timeline of exactly 10,000 years after a gigantic war/upheaval
-Astropaths are in the exact same niche as the navigator's Guild in Dune
-the 'Machine Crusade' taking place in each storyline and nearly destroying all of humanity
-That Machine Crusade being the basis of manpower and dogma before technological innovation and reliance
Hell, I think games Workshop easily uses a larger percentage of outside IP as a basis for their own than the other companies that they are chasing after for Copyright Infringement.
General story Ideas are one thing. Legally copyrighted material is another.
Automatically Appended Next Post:
Kroothawk wrote: It is easy to forget that GW's idea of IP law is far from realistic. So Dune couldn't successfully sue GW for vague similarities or inspiration. And it is a good thing that IP law doesn't work this way, as it would make creative work almost impossible.
Every person doing creative work knows how essential cross inspiration by others is, only some bloghead managers and greedy lawyers are competely alien to how the creative process works and try to force their views on the world. Jes Goodwin would never have thought of sueing others for using an arrow, pelt, skull or wings on miniatures..
No one has said that Dune and Frank Herbert can't sue Games Workshop. They simply haven't. At this point, the statute of limitations has run and they can't.
IP protection is only as strong as the protection. You want to protect your intellectual turf? You had better goddamned well protect your intellectual turf!
Hey, this is a great idea!
I'm going to use that.
Did you copyright/patent/trademark it?
No.
Great!
My guess is that they are trying to show how the structure of the company is broken down so that they can determine what theoretical damages are or aren't being done to the various branches.
If they show that it's only the UK branch that controls the marketing, branding, websales, and product registration, then GW can't claim that the seperate US based retail branch is being hurt by CH sales inside the US. If anything is being "damaged" they'd only be able to claim their international sales numbers. (Reducing the scope of their claimed sales by several million a year)
Also it illustrates that GW in essence is using un-liscenssed 3rd party to supply the all of the US and Canadian based stores and web orders. I'm by no means a legal eagle but if I go to a 3rd party vendor to have stuff spin cast it always requires a signed piece of paper granting them authorization to produce those pieces. It sounds like there's not even a formal contract held between GWUK and US retail that makes the stuff. I don't know all the implications of that but it may be something that creates a lot of legal fall out.
If the wrong branch of their company filed suit and that branch doesn't hold the copyright then the case would be dismissed. (as each branch is a wholely sepeprate entity) I'd assume that GW isn't that blindly stupid, but nothing surprises me with them anymore.
As I've been out of this case for some time I have no clue on this aspect, it's merely personal speculation.
No one has said that Dune and Frank Herbert can't sue Games Workshop. They simply haven't. At this point, the statute of limitations has run and they can't.
The statute of limitations clock doesn't start running until the offense stops. The offense is ongoing, so the clock hasn't started at all.
If you kidnap someone and hold them in your basement for 20 years - you can not then go to the cops and say...I have been holding this person in captivity for 20 years, but that is OK because the statute of limitations was only 10.
G. Whitenbeard wrote: No one has said that Dune and Frank Herbert can't sue Games Workshop. They simply haven't. At this point, the statute of limitations has run and they can't.
They certainly can sue, but not successfully
G. Whitenbeard wrote: IP protection is only as strong as the protection. You want to protect your intellectual turf? You had better goddamned well protect your intellectual turf!
Hey, this is a great idea!
I'm going to use that.
Did you copyright/patent/trademark it?
No.
Great!
You can't copyright or trademark an idea. Only its concrete "manifestations".
No one has said that Dune and Frank Herbert can't sue Games Workshop. They simply haven't. At this point, the statute of limitations has run and they can't.
The statute of limitations clock doesn't start running until the offense stops. The offense is ongoing, so the clock hasn't started at all.
If you kidnap someone and hold them in your basement for 20 years - you can not then go to the cops and say...I have been holding this person in captivity for 20 years, but that is OK because the statute of limitations was only 10.
I should have been more specific. It depends. That is true in some jurisdictions. In most other jurisdictions, the civil statute of limitations starts running once a party knows of, or should reasonably know of, their injury. See Stone v. Williams, 2nd Circuit, 1992.
As for the "locked up in a basement" scenario, there is a rule in the criminal law system that the statute of limitations can be waived or extended in the case of a particularly heinous crime. Realistically, there is no judge in the land who wouldn't toll (freeze) the statute of limitations to account for the time that the victim was forcibly kept in captivity. The easiest comparison to make is that of repeated child molestation incidents. In those cases, the statute of limitations doesn't start to accrue while the offenses are ongoing. The Jerry Sandusky case is a good example of this.
paulson games wrote: If the wrong branch of their company filed suit and that branch doesn't hold the copyright then the case would be dismissed. (as each branch is a wholely sepeprate entity) I'd assume that GW isn't that blindly stupid, but nothing surprises me with them anymore.
As I've been out of this case for some time I have no clue on this aspect, it's merely personal speculation.
While is would clear Chapterhouse in this case, having it dismissed due to a badly filed case doesn't really help us as a community. GW could come back any time they get their act together and we'd still be no closer to setting some sort of legal standing over 3rd party bits manufacturers. Though at this point, I could see why GW may want to avoid setting that sort of precendent in case it goes against them. They seem to prefer operating in a legal grey area where they can use their greater wealth to bully small operators with C&Ds.
2 years is nothing in a case like this. My dad has been on the expert witness list for a patent case (similar but different) for ... about half my life I think.
General story Ideas are one thing. Legally copyrighted material is another.
The problem is that you cannot copyright "general story ideas," which is largely what GW tries to do. They're attempting to have their IP protections applied far more broadly than has ever been allowed by law before.
rigeld2 wrote: 2 years is nothing in a case like this. My dad has been on the expert witness list for a patent case (similar but different) for ... about half my life I think.
Property cases here, disputes over where the government wants to build stuff sometimes end only when the owner of said property dies or runs out of funds.
Anybody read Harry Harrison's The Stainless Stell Rat? There I am the other night reading through and I come across some characters called "Psimen" and guess what? They are used to send messages psychically through space... but they can't do it whilst the ships are travelling in warpspace Hmmm... you don't think there could be a possible connection here do you?
MisterMoon wrote: This has likely be discussed but I'm not searching through 80+ pages to find it, but would Chapterhouse be doing itself a favor if they used more dubious language in their products? Like instead of using Space Marine, they could call it Space Soldier or something. Instead of Melta-Gun, say "Heat Ray."
Using the definition of porn as "I know it when I see it" approach, just looking at CH product line, it does seem that CH is overstepping it's bounds on some stuff, others less so. But the language seems like it'd be an easy way to side step a good deal of the heat from GW.
i think the gist of the pages was that while they might call it something similar, it would not stop the lawsuit as there are still many things that are taken more or less directly from GW's IP. Take for instance the iconographic pauldrons, or the combi-weapon attachment designs. CHS has started changing some of its products' names, but that's probably got more to do with the suggestion of their attorneys than any effort to eschew the wrath of the almighty GW.
Also, this just in:
looks like GW may now also be pursuing a claim against Lucasfilm et al. for copying htier chaos cultists:
I would like to draw your attention to bottom left corner, bottom right corner and the three middle in the first two rows. Clearly, the tusken sand raiders are ripped off of GW's IP /sarcasm
Nice catch, totally wouldn't have given them a second look, Star Wars is so second nature to me I often take it for granted =P
Okay, that's enough digression. Unless there's new news, or you have something new to observe in the existing filings, it's time for the thread to quiet down again.
Sean_OBrian wrote:Recap has some new documents which were filed by CHS in support of their request which address the various claims made by GW in their complaint table. Each complaint is addressed with the evidence that GW provided and the actual item which they claim infringes (either via Copyright or Trademark).
Seems, that GW finally dropped a hint, what they are accusing Chapterhouse of, but still no evidence that GW owns any of those copyrights or trademarks, as required in such a lawsuit. They even admitted in court to NOT own some (or most that were examined) of them.
Charax wrote:oh some of those filings are just stupid - protesting CHS's Rhino doors with skulls because the Administratum has skulls on it?
more concerning is the apparent obfuscation in some of the filings - stating that they "sell" items that are almost identical to Chapterhouse's products, but neglecting to mention that Chapterhouse got to market first.
Also interesting to note that DakkaDakka and Warseer postings are used to support the case, specifically in cases of things like the Tervigon and Doomseer. We'll probably see bits makers discussing their creations a lot less if they're aware that saying that they were inspired by GW artwork could land them in court.
There are an awful, awful lot of cases of GW presenting artwork as a counter to an actual physical model. Apparently the concept of a transformative work is lost on them.
GW is claiming that a whole bunch of different CH products are infringing on a single GW source. They provide an illustration of a marine with a particular type of shoulderpad, and then state that four or so different CH shoulderpads infringe on the picture. I understand that several things can infringe on a single source. However, in this case, I do not think that the CH pads are different from one another, and have different sources of inspiration. I wonder what the judge or jury will think of GWs claim.
Firstoff, the 224.4 seems hilarious to me. "They stole our hammer design, as evidenced in no source they've provided or can be found." I'm not sure if repeating exhibit images is commonplace for trademark disputes is common practice, but it struck me as funny nonetheless, as if CHS's lawyers were slowly explaining the point to the crying child (GW) .
The landspeeder infringement being compared to the studded shoulder pad seems ridiculous to me; Is GW honestly trying to claim the landspeeder itself is infringed because one of the models riding it has a similar style of shoulderpad? I can't wait to see them try to defend an assortment of studs (Half-spheres) on their rimmed quarter-sphere "shoulder pads."
The closest contention they might have would be Exhibit 3-A-2 for 224.5, but even then it might only be considered inspired by and not a direct copy. Heck, in the case of the Blood Raven pads, it's a clearly unique take on "Bird with blood drop" design that, imo, looks far superior to anything GW produced for them.
224.6 is funny because apparently GW thinks they can copyright the god-knows-how-old heraldry of a lion rampant (iirc), which I'm pretty sure is probably public domain by now. The "Trademark issues only" for the gothic cathedral shoulderpads is confusing and smacks a bit of "Wah wah wah, it looks a bit like our art and not at all like building styles of medieval Europe."
Ditto the above argument for Blood Ravens with the Dark Angel pads. 10-A might have a case, except I'm pretty sure "Human skull with Ram Horns" has been around long enough to be public domain, or is comprised of non-protectible public domain elements and is thus unprotectable (Not a lawyer here, just a layman's observations and assumptions ).
224.7 12-A-1 and 13-A seems a bit like GW is throwing gak at the wall to see what sticks, and failing in this case (I can't even see a single example of that logo on the scanned page). It's more obvious with 12-A-2, but still a blood drop and saw blade seem like public domain unprotectable elements to me, ditto for 14-B and the "Lion Rampant" issue again (Next thing you know they'll copyright chevrons and checkerboards...). 20-B may actually be protectible and infringing,as I don't know if a skull on fire is unique or considered to be made from unprotectible elements.
224.8 is hilarious that they claim a scaled power claw is infringing on general salamander aesthetics (Apparently), and that they can't even provide a working link to a page representing their infringed works. The flesh tearer vehicle icons in 33-B are not evidently sold by GW at any point (They keep using the Dark Angel picture that I still can't find any pics of a flesh tearer in...), and again there's the question of public unprotectible elements.
Now, finally in 224.9 I'm a bity annoyed at CHS's pictures of the combi-weapons, since shooting them upside down on an undetailed side obscures the weapon that seems a lot more similar to GW's product in the website picture. Not sure if the judge/GW will call them on that and ask for better pics. 35-A will have a hard time trying to defend the entire Eldar aesthetic, as they could have actually had a good chance on defending the smaller eldar sigils instead.
Exhibit 37 might have a bit of an argument with the back carapace, but given that GW is trying to defend the tervigon itself with pictures, that could undermine the support they'd otherwise gain from the carapace similarities. Exhibit 42 made me laugh, especially given the very striking resemblance of GW's own 2nd edition Hormagaunts to a certain sci-fi movie monster. GW is definitely not the right company to litigate against CHS for those.
Exhibit 44 is flat-out hilarious ("You can't make girls for our models, even though we don't!"), and ditto for the superheavy not-Tau walker that they are trying to claim borrows the Tau's aesthetics (Next they'll be coming after IKEA...).
224.10, Exhibit 50: Oh, right, GW did try to copyright chevrons. This would be more funny if it wasn't a bit pathetic imo. Exhibits 63 and 64 seem to be complaints that CHS made better stuff inspired by GW salamanders than GW had themselves, since none of it is even a direct copy from what I can tell (Unlike the possibly infringing Flesh Tearer symbols).
224.11, Exhibit 67 is just grasping at nonexistent straws, Exhibits 68, 73 and 74 will probably be tossed once the judge has a look at historical armor designs, Exhibit 69 is trying to claim copyright on a gear (Not even with a skull inside! ), and Exhibit 77 keeps ignoring that they have spherical filters that make them look substantially different (And akin to every other gas mask in modern history. Isn't there some leglaese about function dictating form means you can't infringe a sword or hammer for looking like a sword or hammer or something like that?).
224.12 Exhibit 79-B might be able to have Lucasfilm give CHS a run for their money over the far left head, but the rest could easily be compared to historical helm designs and so probably won't be an issue. Exhibit 82 has no connection besides "Hey look, they're both related to wolves" since I think a full wolf head and a wolf skull adorned with feathers and such will be distinctly different. Looking through Exhibit 83 I get the feeling GW thinks since they copyrighted a wolf head, anything else with any form of wolf heads, fleshy or not, are infringing apparently...
224.13 Exhibit 95 is hilarious, as the picture GW showed doesn't even clearly show the spore that they're supposedly infringing (There's a carnifex in the way).
224.14 Exhibit 105 I can only summarize must be GW copyrighting piles of skulls. I think numerous warlords throughout history might contend with them for the title of "First" in that regard. Exhibit 110 is hilarious ("You're going to steal our idea! In the future!").
224.15 Exhibit 114 appears to be GW claiming copyright on multibarrelled machine guns that they totally invented before the US Civil War. Exhibits 115-119 appears to be GW claiming that US military weapons closely resemble their products, and Exhibit 124 appears to be GW being afraid of girls again.
224.16 Exhibits 125, 127 appears to be simply lazy GW lawyers, and I hope the judge bawls them out on it. Exhibit 126 seems to be a legitimate issue, and CHS may get burned on it since they seemingly copied a lot from GW there.
In short, I think they only have a case for maaaaybe the icons in Exhibits 10, 12, 20, the combi-weapons, and possibly the tervigon back in 37. The rest is silly nonsense that I suspect the judge will be peeved about having to comb through.
Does anyone else find it odd that the pictures in the legal documents look better than the pictures offered on chapterhouse's own website?
This isn't a knock on CHS, but some of the parts look really good in those pics where the website pics are much less flattering. If you upgrade your camera work a bit you would probably get even more orders.
Based on the webstore pics I wasn't too keen on the assault rifles or the clawed powerfist, but in the legal pics they actually look tons better and went from a "no way" to "I think I should get some of those".
paulson games wrote: My guess is that they are trying to show how the structure of the company is broken down so that they can determine what theoretical damages are or aren't being done to the various branches.
If they show that it's only the UK branch that controls the marketing, branding, websales, and product registration, then GW can't claim that the seperate US based retail branch is being hurt by CH sales inside the US. If anything is being "damaged" they'd only be able to claim their international sales numbers. (Reducing the scope of their claimed sales by several million a year)
Also it illustrates that GW in essence is using un-liscenssed 3rd party to supply the all of the US and Canadian based stores and web orders. I'm by no means a legal eagle but if I go to a 3rd party vendor to have stuff spin cast it always requires a signed piece of paper granting them authorization to produce those pieces. It sounds like there's not even a formal contract held between GWUK and US retail that makes the stuff. I don't know all the implications of that but it may be something that creates a lot of legal fall out.
If the wrong branch of their company filed suit and that branch doesn't hold the copyright then the case would be dismissed. (as each branch is a wholely sepeprate entity) I'd assume that GW isn't that blindly stupid, but nothing surprises me with them anymore.
As I've been out of this case for some time I have no clue on this aspect, it's merely personal speculation.
I agree with what you are saying. If you notice there were a lot of questions about if GW tracks sales by sku or model and if/how they retain records. I think that is to show later that GW does not keep track of sales of individual models (at least according to the witness as far as she knows - maybe they do somewhere that she isn't aware of). So if GW tries to say that Chapterhouse alleged violoation of IP by selling model X has cost GW Y amount of dollars but GW has no proof of how much lost sales they have because they dont track sales by model. Therefore GW's alleged damages are just some number pulled out of their ***.
I am no lawyer but every time I read one of these documents it seems like Chapterhouse's lawyers have their act together and GW is being represented by a bunch of clowns.
MisterMoon wrote: This has likely be discussed but I'm not searching through 80+ pages to find it, but would Chapterhouse be doing itself a favor if they used more dubious language in their products? Like instead of using Space Marine, they could call it Space Soldier or something. Instead of Melta-Gun, say "Heat Ray."
Using the definition of porn as "I know it when I see it" approach, just looking at CH product line, it does seem that CH is overstepping it's bounds on some stuff, others less so. But the language seems like it'd be an easy way to side step a good deal of the heat from GW.
i think the gist of the pages was that while they might call it something similar, it would not stop the lawsuit as there are still many things that are taken more or less directly from GW's IP. Take for instance the iconographic pauldrons, or the combi-weapon attachment designs. CHS has started changing some of its products' names, but that's probably got more to do with the suggestion of their attorneys than any effort to eschew the wrath of the almighty GW.
Also, this just in:
looks like GW may now also be pursuing a claim against Lucasfilm et al. for copying htier chaos cultists:
I would like to draw your attention to bottom left corner, bottom right corner and the three middle in the first two rows. Clearly, the tusken sand raiders are ripped off of GW's IP /sarcasm
Nice catch, totally wouldn't have given them a second look, Star Wars is so second nature to me I often take it for granted =P
I wouldn't put it past them, but be careful Lucasfilms might end up trying to see GW first.
If they are, it's something that wouldn't really surprise me at all.
One of the problems with having a 'yes men' culture, of having people working within an organisation who simply brown-nose and with no ability for critical ability and decision making, is that ultimately it is counter-intuitive to the success of the business. Speaking personally it was something I saw start to happen many years ago (after having a couple of really eye-opening conversations), and as far as I could see even back then looked like it was at all levels of the company. At times like this it can cause real problems.
I know this is different, but I was wondering how this could happen. And does it tell us anything about GW? I mean, its just a color on a shoe.....not even a certain material. Any of the lawyers make sense out of this one for us?
Shoes don't apply here mate, there's completely different things at stake here.
If CHS painted up their things, using GW's color schemes to sell it's stuff, there'd be an issue. As it stands, by and large, CHS has not painted things up according to GW's color schemes. In any case, I don't think GW would want to hunt down and harpoon anyone earning profit off of GW's color schemes, as this would well night slaughter the third party retaillers specialising in commision work. If these comissioners couldn't use GW's colors and designs to sell the painted GW armies, then GW wouldn't be selling their product or paint to these parites, and would overall reach a smaller audience as there are a fair number of people who want a salamanders or blood angels army, but don't want the claptrap of having to paint it themselves.
No, the only parallel issue here is that if CHS or any other company created their own line of products, and painted them up like Ultramarines as a way of selling their product. Essentially, you are altering the aesthetic appearance of the model to make it appear like it was in fact something else in order to sell it. Hence why we have the color-on-shoe upheld in court. The color is a distinctive feature of the brand, which has built up a reputation. Copying that color misdirects consumers into believing that shoe B is in fact shoe A..... specifically, Brand B is mistaken for Brand A, and Brand A's hard work and effort is being ridden by Brand B. Brand B taps into the image of Brand A, and eliminates it's own effort in brand building or brand identification. In this sense.... we ahve a parallel.
Otherwise, while I am no moderator, I can only kindly ask you to please keep all non-gaming related stuff to the OT portion of the forum, as many of us get frustrated flying back into this thread hoping for new information. Try to keep everything here relevant to the topic at hand. I know it's cumbersome to plow through the 85 pages, but, really, everything has been said--at least until the next CHS v. GW development arises.
I think it does go to show that the US courts can come up with any decision, regardless of what the books say the law is.
They just agreed that a certain colour is legally protectable. If they're going to decide that, then anything is possible.
Thankfully up here in Canada things are a bit saner. You can have pink insulation that isn't made by Owens Corning.
I also don't think we'll see cases like this in the EU. There are tons of Polish bitz sites that likely will never see GW suing them because the EU doesn't allow for the same degree of bullying through litigation as the US does.
frozenwastes wrote: I think it does go to show that the US courts can come up with any decision, regardless of what the books say the law is.
They just agreed that a certain colour is legally protectable. If they're going to decide that, then anything is possible.
This comment reveals a tremendous ignorance of trademark/trade dress law, in just about every jurisdiction. If you want more information, search for case law on "Pink Panther" insulation, or Sweet 'n Low.
Yes, a color can serve as a trademark. The color identifies the source of a product, which is what a trademark is supposed to do.
@poda_t - Sorry if this bothered you. But I was just trying to figure how that one could happen because it flies contrary to several of the things the "lawyer" types have said on here before. I'll refrain from OT again, it just struck me as completely weird. And it was a recent trademark case that GW could bring up in a trial (if it does get that far). It actually struck me like some of the EU cases for wine and cheese and "regional" type protections.
@frozenwastes - that was my point. If a simple color on a shoe can have a limited trademark, what else that we don't think of as possible to trademark "is"?
@ Janthkin - AH, thank you. Sorry to bother everyone....I thought colors could be...but I did not know a certain color on one part could be......
@Louboutins: I applaud the judge's decision there. fashion shoes with red soles scream to me 'louboutin' (after a few years of education from my girlfriend). The shoes are identifiable from a distance to be Louboutins. However the judge said that it doesn't extend to the case where the entire shoe is that colour - which is imminently sensible. The company has distinguished itself over time by using this distinctive branding on all its products. They don't own the colour - just the right to use a combination of colour and form as the trademark on their products. It is not an obvious or even sensible colour to use in that place,
The difference here is that GW is trying to say that 'skulls' and 'chevrons' etc are part of their image or trademark, when those images are either sensible, used for those specific meanings throughout history, or inseparable from the basic idea which both CHS and GW are using.
Holy hell reading 151 pages of response will take me a while. A few things in the first 40 or so pages I found interesting:
Spoiler:
To the extent GW implies that “the collection and painting of miniatures” by fans implies that such miniatures are protectable by copyright, that is disputed: even assuming arguendo that painted toy soldiers would be protectable under English copyright law, GW concedes (indeed, it insists) that such paintings are the artistic creations of third parties, not GW.
So for all those people saying that the GW legal page says they can't post pics, this. That snippet on the legal notice is referring to GW's stock photos or those posted on their site as their own work. GW can't sue you for posting pics of your own models online.
“None of the designs for the characters, races and armies have any known antecedents.”
This made me laugh. Then GW goes and admits the exact opposite in their depositions. iirc the below answers are from Jes Goodwin, but I could be wrong, it was many pages ago that I read it.
Q And what's the design on the shoulder pad? A It's for -- indicates that he is part of a Devastator squad. Q Does that design have a name? A What, that particular chevron thing? It's a chevron, I guess. It doesn't have a specific name. Q Is the chevron a historical heraldry symbol? A I guess it could be, yes. Q It could be? A Just about every geometric shape you can possibly give me has been used on heraldry somewhere. That's another huge open-ended place to go to, yeah?
Q Is there a standard shape for a Space Marine skull? A It's a skull. No, I don't think it's that -- it's just a skull.
Q I'll rephrase. Before you mentioned a fleur-de-lis? A Fleur-de-lis. Q Can you explain what that is? A It's an ancient symbol. It's a three -- It's a central spike with two curved spikes coming off of it that's been used in heraldry for hundreds of years. Q Are there other symbols you can think of that are like that? A Pick a shape, it's been used. Q Lions? A Yes. Q Griffins? A Yes. Q Crosses? A Yes. Q Skulls? A Yes. Q Circles? A Yes. Q Triangles? A Yes. Q Roman numerals? A Yes. Q And use of all these symbols dates back to the ancient form of heraldry? A Yes. Q Dragons? A Yes.
Q Okay. And so do you remember what was depicted on that shoulder pad? A Yes, it's a rampant griffin. Q What's a rampant griffin? A It goes back to heraldry of depending on what the creature is doing depends on what kind of -- what title it's given. So stood upright with claws out is rampant.
GW admits that “the only work thus far identified by it in this action that is registered in the United States is Registration No. TX0006541286, ‘Games Workshop Complete Catalog & Hobby Reference 2006-2007.’”
Really? The only registered US copyright identified in this entire suit is a catalog? Does GW think that items printed in said catalog would automatically be copyrighted as sculptural works?
GW only began filing for copyright registrations for the works-in-suit more than a year after bringing suit, and after the close of fact discovery, thus denying CHS the opportunity to conduct discovery or depositions concerning any of the alleged applications or registrations. GW MSJ Ex. 11; GW MSJ Ex. 12.
lmfao. Sue someone for copyright infringement, THEN get copyrights. Fire, ready, aim!
No foundation (FRE 602). GW has no evidence of use in U.S. commerce of any of the alleged marks, and offers no evidence of CHS’s trademark use of the marks. There is no evidence that products bearing GW’s alleged Marks At Issue were ever sold in U.S. commerce.
I thought this was interesting. Basically GW has to prove that the marks were used in commerce in the US, which requires them to provide product proof. LEGO has an entire vault of every product they've ever sold for just such an occasion. Every box in first run mint condition. GW may have to start doing this if they intend to push IP weight around in the future.
GW has no evidence to support its contention that any of the alleged symbols is well-known in the United States or anywhere else. Jones Decl. ¶ 7 lacks foundation (FRE 602), and does not allege that the listed symbols are well-known in the U.S., nor that they are famous or recognized in the U.S.
If you show an omega symbol to 100 truly random people in the US, how many of them do you think would recognize it as an Ultramarines symbol? What about a Maltese Cross? Wolf head? Red teardrop? The marks(which GW can't prove they own) are only recognized in the context of 40k by those who are fluent in GW products. 40k in general isn't "well known". An easy 95% of the people I know have zero clue what 40k or GW are.
GW's Statement of Fact No. 17. Games Workshop first discovered Chapterhouse in 2008, when it was selling its products on eBay (Ex 14, GW002525-27, 002530-32, 002535-37, 0002540-42) and a similar auction site called Barterhouse (Ex 15, GW002512-24). The products were sold simply under Games Workshop’s trademarks (e.g. “Iron Snakes; Salamanders and Soul Drinker Shoulder Pads” on Bartertown and on eBay “Space Marine 40K Terminator Squad Bits for Salamanders”; “Space Marine 40K 10 squad bit kit Salamanders Dragon”; “Rhino Armor Kit Salamanders Warhammer 40K Space Marines” and “Resin Drop Pod for 40K Warhammer 40000 Space Marines”). (Exs. 14-15, Ex. 2 at ¶ 8) Games Workshop has received emails evidencing this customer confusion. (Ex. 122).
http://www.thebarterhouse.com/ ???? GW's lawyers are winos? I just thought that this little freudian slip was funny.
I also think it's hilarious that forums can be used as admissible evidence.
I am really somewhat amazed that one of the filings officially declares that GW owns the trademark of "putting lots of skulls on stuff".
15. Many of Games Workshop’s products incorporate a unique image of piled
skulls. Two examples of this unique image are on Games Workshop’s Basilica
Administratum (a building) and on Games$Workshop’s Realm of Battle Board, both
depicted below (Ex. 132, Suppl. Merrett Decl. ¶12):
Page 95 made me chuckle---Games Workshop's Attorneys Statement of Fact was that Chapterhouse Studios's shoulder pads have the same exact features of a Games Workshop shoulder pad. They even put a picture up to show the similarity.
Unfortunately, the shoulder pad photo they used and labeled as "ChapterHouse Power Armour Shoulder"....was actually a Games Workshop shoulder pad. I bet it did look similar
Page 95 made me chuckle---Games Workshop's Attorneys Statement of Fact was that Chapterhouse Studios's shoulder pads have the same exact features of a Games Workshop shoulder pad. They even put a picture up to show the similarity.
Unfortunately, the shoulder pad photo they used and labeled as "ChapterHouse Power Armour Shoulder"....was actually a Games Workshop shoulder pad. I bet it did look similar
its things like that that make me shake my head, while I'm no attorney and wouldnt have the first clue on how to put together a court doc, isn't this something that should be caught? Are the rules Boyz also handling the court docs?
Page 95 made me chuckle---Games Workshop's Attorneys Statement of Fact was that Chapterhouse Studios's shoulder pads have the same exact features of a Games Workshop shoulder pad. They even put a picture up to show the similarity.
Unfortunately, the shoulder pad photo they used and labeled as "ChapterHouse Power Armour Shoulder"....was actually a Games Workshop shoulder pad. I bet it did look similar
not seeing it mate. Both pages 94 and 95 show CHS compared against GW product. I distinctly remember that golden pauldron. I was wondering why somone would ever want to buy a plain SM pauldron when it occurred to me that it would have the exact same dimensions as the other CHS pauldrons, ergo giving a symmetric look to any other pauldron purchased from CHS. Sorry mate, but both of the comparisons on page 94 and 95 are correct.
15. Many of Games Workshop’s products incorporate a unique image of piled
skulls. Two examples of this unique image are on Games Workshop’s Basilica
Administratum (a building) and on Games$Workshop’s Realm of Battle Board, both
depicted below (Ex. 132, Suppl. Merrett Decl. ¶12):
There is that random dollar sign again in another very appropriate place.
I think it must be placed accidentally by lawyers and clerks who are thinking very hard about how much money they are making on the case without doing diligent work.
I would have fired these guys a long time ago. CHS's lawyers are ripping them to shreds.
Piled skulls are a "unique" image? Are the piled skulls on the Basilica and the Battle boards identical? If not, then they are not unique...
SickSix wrote: WOW, GW either is being sneaky or their lawyers are just incompetent.
That's really dumb... at what point do they get a slap off the court? Because what they've done is say "they've infringed on us with this product that looks just like ours" and then submitted a picture of one of their own products purporting to belong to CHS in order to demonstrate this apparent similarity. At best it looks clumsy and ignorant, at worst it looks deceptive.
SickSix wrote: WOW, GW either is being sneaky or their lawyers are just incompetent.
That's really dumb... at what point do they get a slap off the court? Because what they've done is say "they've infringed on us with this product that looks just like ours" and then submitted a picture of one of their own products purporting to belong to CHS in order to demonstrate this apparent similarity. At best it looks clumsy and ignorant, at worst it looks deceptive.
At worst I think it's perverting the course of justice, a criminal offence.
SickSix wrote: WOW, GW either is being sneaky or their lawyers are just incompetent.
1. CH doesn't make plastic shoulder pads
2. That is clearly the back of a GW shoulderpad.
Remember, these are the same GW lawyers who dragged a random guy with no links to Chapterhouse to court for supposedly sculpting a CHS model, and continued to make him responsible even after settling his case out of court.
Guess in US Courts, fraud is a legitimate, legal, common and accepted strategy by lawyers.
On page 79/80 GW has a Statment of Fact regarding how the Chapterhouse Tervigon Conversion Kit shares similarities with it's depiction of the Tervigon. Notably;
This conversion kit contains the same unique characteristics as Games Workshop’s depiction of a Tervigon, including two small hind legs, four large pointed legs that each have a small horn extending off the “elbow” of the leg, several bony protrusions that extend off the back of the creature, and the overall stance of the creature.
Problem is---that description and unique characteristic list--is actually identifying Games Workshop's own model in the picture...heh. Or as the CH response states;
GW very misleadingly claims that CHS’s Conversion Kit “contains the same unique characteristics as Games Workshop’s depiction of a Tervigon, including two small hind legs, four large pointed legs that each have a small horn extending off the ‘elbow’ of the leg, several bony protrusions that extend off the back of the creature, and the overall stance of the creature.”
But those features are not part of CHS’s accused product. Rather, they are features of GW’s own pre-existing “Carnifex” figure
This statement is immaterial because, even if true, it has no bearing on the essential
elements of Games Workshop’s claims or Chapterhouse’s defenses.
I guess if you have nothing substantive to say, you say this...
52. On March 9, 2012, in its second supplemental response to Interrogatory No. 18
(“Rog 18 Response”), GW claimed 110 marks were infringed by CHS—omitting 17
marks alleged in its Second Amended Complaint (“SAC”) , and adding 44 marks not
alleged in its SAC. The 17 omitted marks are: WARHAMMER 40,000; TYRANID;
BLOOD RAVENS MARINES; ALPHA LEGION; BONESWORD; GAUNT;
HOWLING GRIFFONS; LASHWHIP; LUNA WOLVES; MANTIS WARRIORS; MK
ARMOUR; MYCETIC SPORE; SONS OF RUSS; SWARMLORD; THUNDER
ARMOUR; TERVIGON; and YMGARL.
Games Workshop’s Response: Games Workshop does not contest this fact.
Can't quite figure out what this means. They dropped the (trademark?) infringement claims on these marks, but are still going after the copyright infringement for at least some of them?
66. When asked to describe trademark use for SOUL DRINKER and Grenade
Launcher, GW 30(b)(6) witness Andrew Jones contended that GW used them as
trademarks in a title of books and book excerpts.
Games Workshop’s Response: Games Workshop does not contest this fact.
So no 3D/sculptural products or even images at all, and yet they are claiming a 3D/sculptural copyright.
51. CHS product no. 110 has not yet been cast, and has never been sold or offered for
sale.
Games Workshop’s Response: This statement is immaterial because, even if true, it
has no bearing on the essential elements of Games Workshop’s claims or Chapterhouse’s
defenses. Chapterhouse’s creation of an infringing sketch and publication or display of
that sketch online infringes Games Workshop’s copyrights even if it has not sold a
corresponding product.
So folks, don't post any of your sketches or other 40K inspired artwork anywhere on the net or GW will be coming after you for copyright infringement...
9. For many of Chapterhouse’s products, Games Workshop is unable to specifically
identify which Games Workshop work out of its Warhammer 40K universe Chapterhouse
used as the basis for its copies. This is due to the fact that for many of Chapterhouse’s
products, Chapterhouse failed to produce the underlying design documents, even after the
Court directed it to do so on March 6, 2012. (Ex. 133, Supp. Moskin Decl. ¶8). These
products include the Shoulder Pads for Chalice or Soul Drinker – Tactical (product no.
23), Shoulder Pads for Chalice or Sould Drinker – Terminator (product no. 24), Ymgarl
Heads for Tyranid Genestealers (product no. 43), SXV-141 Super-Heavy Asault Walker
SAW (product no. 45), Mark I Rhino Converstion Kit (product no. 93), Rhino Tank
Conversion Kit for Iron Snakes (product no. 106), Gun-Halberds (product no. 112), and
Conversion Beamer Servo Harness Kit for Space Marines (product no. 113). (Id.) As
late as February 29, 2012, when Mr. Villacci appeared for his deposition as document
custodian, he could not explain vast apparent gaps in Chapterhouse’s document
production – notwithstanding that Games Workshop had alerted his counsel 2 days before
the deposition that that was a question he was expected to answer. (Ex. 21, Villacci Tr.
47:14-48:17; Ex. 148, Moskin email dated 2/27/12)
So GW can't figure out which GW products Chapterhouse is allegedly infringing without Chapterhouse providing the necessary evidence?
Surely asking CHS to provide those materials they think will assist GW in identifying infringing items is tantamount to asking them to incriminate themselves. Seeing as GW brought the case, they should have already identified specific examples... right?
timd wrote: So GW can't figure out which GW products Chapterhouse is allegedly infringing without Chapterhouse providing the necessary evidence?
That sounded more to me like the court was asking Chapterhouse to provide design sketches and/or documents detailing the design of potentially infringing items in order to show that they were designed from scratch rather than just copied from something made by GW, and that section quoted was GW pointing out that Chapterhouse had not provided such documents in some cases.
Given that not all sculptors work off concept sketches, I'm not sure how realistic or enforcable that requirement would be anyway.
AgeOfEgos wrote: We might be looking at a different document--are you viewing the Summary Response by CH? I just took a screenshot of the PDF;
note the curvature of the left blue and gold pad. That's wider than the one on the right. CHS's pads are not a square fit on marines. The one on the left is CHS product, the one on the right is GW. CHS has a bit of a different shape to it, CHS' pads are a smidgeon wider than GW's
poda_t wrote: The one on the left is CHS product, the one on the right is GW.
I agree.
oh geeze, okay. I see. That actually completely slipped by me, it took me until now to realize what you were getting at, and it didn't dawn on my that it wasn't a comparison, but a show, using GW product and passing it as CHS product... yeah, i see this now.
So, now GW's attorneys are in real trouble now i think about it. I'm pretty sure this classifies as perjury.
Heh, no worries--I had to read that portion (the document) a couple of times to make sure I wasn't misunderstanding it.
What's interesting is that I've seen at least two instances of that in a cursory glance at the document (this and the Tyranid example I posted). CH's representation actually outright states it was deception in the Tyranid example--whereas I think in this one it's more lack of due diligence. *Shrug*, regardless---a pretty 'doh' moment for the GW team.
Did anyone else notice how often Jes was quoted? His entire deposition regarding Games Workshop's use of symbols seems pretty damaging on a great deal of the claims. (I am not an attorney though).
More or less Jes' deposition shows that 99% of GW's "unique" marks are actually marks that have existed for centuries. The part where GW claims that a pile of skulls is unique to 40k anything is laughable.
Also,(correct me if I'm wrong) but isn't burden of proof on GW? The case has already pointed out that inspiration is not infringement, and meaning is not protectable. So even if CHS told a sculptor "make a female eldar scorpion whatever", as long as the actual features and official branding of the product aren't direct copies, there is no foul. That howling banshee male sketch looks at first glance quite different than the GW female ones.
CHS shouldn't have to prove how they came up with ideas, as that is just inspiration, which means nothing here. If GW insists that inspiration is tantamount to infringement, then they owe Rome some answers.
It is up to GW to prove infringement here, and so far they haven't. And on the things they claim to be infringing, they haven't shown copyright ownership of their own works.
The more I read the worse this case gets for GW. Their legal teams idiocy and their own employees depositions have doomed this suit as it stands.
Did anyone else notice how often Jes was quoted? His entire deposition regarding Games Workshop's use of symbols seems pretty damaging on a great deal of the claims. (I am not an attorney though).
I would have to double check the filing numbers to make sure (read through everything...but at this point speciifc Exhibits and motions relating to them are a blurr)...
But Jes's deposition was one which GW was attempting to keep under seal which the judge said no to. I don't recall it being as exhaustive under the 208 series of CHS documents but it is in the 230 series both in part in the response and in larger part as an exhibit filed by CHS.
Did anyone else notice how often Jes was quoted? His entire deposition regarding Games Workshop's use of symbols seems pretty damaging on a great deal of the claims. (I am not an attorney though).
I would have to double check the filing numbers to make sure (read through everything...but at this point speciifc Exhibits and motions relating to them are a blurr)...
But Jes's deposition was one which GW was attempting to keep under seal which the judge said no to. I don't recall it being as exhaustive under the 208 series of CHS documents but it is in the 230 series both in part in the response and in larger part as an exhibit filed by CHS.
Hi Sean--do you mind elaborating on what affect GW's keeping it under seal would have? Is that specifically in regards to public disclosure--but his testimony would still be considered by the judge--right?
Jes's deposition seemed like an honest guy just telling the truth--without the aid of legal representation helping him frame it
Did anyone else notice how often Jes was quoted? His entire deposition regarding Games Workshop's use of symbols seems pretty damaging on a great deal of the claims. (I am not an attorney though).
I would have to double check the filing numbers to make sure (read through everything...but at this point speciifc Exhibits and motions relating to them are a blurr)...
But Jes's deposition was one which GW was attempting to keep under seal which the judge said no to. I don't recall it being as exhaustive under the 208 series of CHS documents but it is in the 230 series both in part in the response and in larger part as an exhibit filed by CHS.
Hi Sean--do you mind elaborating on what affect GW's keeping it under seal would have? Is that specifically in regards to public disclosure--but his testimony would still be considered by the judge--right?
Jes's deposition seemed like an honest guy just telling the truth--without the aid of legal representation helping him frame it
Sealing it means that it won't be a matter of public record. It will still be used in the procedings, and presented to the judge and any jury. Things that are sealed on those documents show up as black bars. Oddly enough, a few questions to Vallacci are sealed, but the response to the sealed statements pretty much explain what the blacked out part says.
GW wanted Jes' depo sealed likely to prevent everyone from seeing that GW's claims over these marks is unfounded. He says flat out that every symbol they asked him about existed before GW used them.
It is also interesting that GW keeps misquoting Vallacci, using his words out of context and edited in ways that mean entirely different things than what was said. Basically they are falsifying information in their claims, which would just piss me off if I were the judge involved. Between things like that, and the other false accusations mentioned in the last page or so of this thread, GW is sinking fast.
Primarily just keeping things out of the public record as opposed to actually keeping it out of the courtroom.
In the Index of Exhibits in 208.2, there is no mention of a Goodwin Deposition and 10 sealed Exhibits. Some will be relating to things which CHS would like to keep quiet (future releases and business related communications) but the majority of information on the CHS side they would have little desire to keep out of public domain.
On the GW side, you do see a fragment of the Goodwin deposition at the tail end of 213.4 (GW Exhibit 7) and also in 229.4 (GW Exhibit 10 for that series). They cherry pick lines which make them look good in their claim and leave out the rest (though to be fair the other side will do the same).
Now with why they would want to keep it under seal - that would be because it could cause potential harm. The lead design guru demi-god sculptor of Nottingham saying that everything which they use in their iconography has been done before could be harmful to their IP...if no other reason than the next time they go to negotiate a contract with a company like THQ, they might be less willing to kick in the big dollars.
The sad part though is that even in what GW lawyers have cherry picked it really makes people like Jes look like disingenuous spankers:
Q And are you aware of depictions of heads with tentacles other than in the Warhammer 40,000 universe?
A Pictures of them? I'd be pushed to think of it. No, not really.
from 229.4, page 12 - Jeremy Goodwin Deposition, GW Exhibit 10
Are we actually supposed to believe that Jes Goodwin could not think of a single head with tentacles outside of the GW $40,000 universe? We are to believe that he had never heard of a little guy named Cthulhu. Should we believe that he never read the White Dwarf magazines from back in the day when they covered games other than GW and had adverts for D&D and their Mind Flayers?
With someone who can provide such a bold face lie as that under oath - it isn't too hard to figure out why GW has ended up in the state they are in.
Jes's deposition seemed like an honest guy just telling the truth--without the aid of legal representation helping him frame it
Missed that last part...I think you might still have a bit of hero worship to work through though. Nothing to be ashamed of, everyone goes through it at one point in their life or another.
First Exhibit in the bunch, first page of the exhibit...
Although it is hard to read attitude into things like depositions and internet posts - his deposition (like most of the GWHQ staffers) stinks of snarkiness found only in tin-pot dictators and new age gurus who are offended that anyone question their claims to greatness.
Q And are you aware of depictions of heads with tentacles other than in the Warhammer 40,000 universe?
A Pictures of them? I'd be pushed to think of it. No, not really.
from 229.4, page 12 - Jeremy Goodwin Deposition, GW Exhibit 10
Are we actually supposed to believe that Jes Goodwin could not think of a single head with tentacles outside of the GW $40,000 universe? We are to believe that he had never heard of a little guy named Cthulhu. Should we believe that he never read the White Dwarf magazines from back in the day when they covered games other than GW and had adverts for D&D and their Mind Flayers?
With someone who can provide such a bold face lie as that under oath - it isn't too hard to figure out why GW has ended up in the state they are in.
Forget about Cthulhu and DnD, apparently Jes has never watched Star Wars!
Forget about Cthulhu and DnD, apparently Jes has never watched Star Wars!
Was mainly speaking to things which would have popped up within GW's own product, White Dwarf. Cthulhu and Mind Flayers I know for certain did on a regular basis, I don't recall if any Star Wars related material did...after all, it is possible that he has lived in a cocoon of GW material for the past 35 years or so.
Missed that last part...I think you might still have a bit of hero worship to work through though. Nothing to be ashamed of, everyone goes through it at one point in their life or another.
First Exhibit in the bunch, first page of the exhibit...
Although it is hard to read attitude into things like depositions and internet posts - his deposition (like most of the GWHQ staffers) stinks of snarkiness found only in tin-pot dictators and new age gurus who are offended that anyone question their claims to greatness.
While I appreciate the concern, my heroes (child or adult) have never included miniature sculptors--and in the future, a simple "I disagree because of x" will suffice in lieu of an ad hominem. Unless that was simply meant as a joke and I missed it--as heavy sarcasm translates difficult into text.
Regardless, moving on...
What is the next step in this process? A judge reviews and based upon his decision--we move to an actual trial?
Sean- The thing is, he's being interviewed by an "opposing" lawyer in a somewhat hostile fashion. You can't blame him for being a somewhat hostile witness in return.
Not that I'm wanting to take sides here- I would love for 3rd party companies to be free to make things compatible with the 40k universe without walking on eggshells. But, I think your characterization of him based on text (and kind of picking an answer that is not his finest, when he was answering many questions over and over all on the spot) is a little unfair / jumping to a conclusion you can't necessarily make based on the evidence you have.
AgeOfEgos wrote: Unless that was simply meant as a joke and I missed it--as heavy sarcasm translates difficult into text.
Joke...sarcasm isn't well translated.
AgeOfEgos wrote: What is the next step in this process? A judge reviews and based upon his decision--we move to an actual trial?
The judge has them back in the court room on the 11th to make sure that everyone has their requests for summary judgement and responses to the requests and what not in. After that, he will review the requests, evidence provided and any related information and make any summary judgements which may or may not be appropriate. Likely won't see much on that front till mid to late October though.
The court date has already been set though for early December, at which point anything that remains up in the air will be readied for jury trial. Once things get to that stage, the trial normally moves pretty quickly and depending on how much time is allotted for jury selection and preparations regarding getting various witnesses in the same place at the same time...it wouldn't be too surprising to see a jury verdict in the first few months of 2013.
Granted, you can almost guarantee that what ever happens in this case will be appealed. I had never been involved with that aspect though, so I can't speak towards a timeline for getting a ruling on the appeal (and without knowing for sure what the grounds for the appeal would be, who will be filing it and what not...I think it would be hard to say for certain). Historically though from what I recall, those tend to go fairly quick as well since more often then not it is a review by a judge or panel of judges as opposed to all this in the pretrial discovery and motion phase.
AgeOfEgos wrote: Unless that was simply meant as a joke and I missed it--as heavy sarcasm translates difficult into text.
Joke...sarcasm isn't well translated.
AgeOfEgos wrote: What is the next step in this process? A judge reviews and based upon his decision--we move to an actual trial?
The judge has them back in the court room on the 11th to make sure that everyone has their requests for summary judgement and responses to the requests and what not in. After that, he will review the requests, evidence provided and any related information and make any summary judgements which may or may not be appropriate. Likely won't see much on that front till mid to late October though.
The court date has already been set though for early December, at which point anything that remains up in the air will be readied for jury trial. Once things get to that stage, the trial normally moves pretty quickly and depending on how much time is allotted for jury selection and preparations regarding getting various witnesses in the same place at the same time...it wouldn't be too surprising to see a jury verdict in the first few months of 2013.
Granted, you can almost guarantee that what ever happens in this case will be appealed. I had never been involved with that aspect though, so I can't speak towards a timeline for getting a ruling on the appeal (and without knowing for sure what the grounds for the appeal would be, who will be filing it and what not...I think it would be hard to say for certain). Historically though from what I recall, those tend to go fairly quick as well since more often then not it is a review by a judge or panel of judges as opposed to all this in the pretrial discovery and motion phase.
Ahh, ok--thought it might be as it was kind of out left field .
So--I've read multiple times that these cases are almost 'always' decided in a settlement prior to a proper trial. With it advancing to this stage--is that still the case or are most decided before this step (and we might be looking at an actual trial).
That was a good point that hasn't really been talked about RE: appeal. So in the end---this firm does not represent CH in an appeal pro bono---GW simply has to come back again and drown CH in another case (provided no further pro bono)?
Thanks for the insight--helps us non-litigious types digest what's going on!
RiTides wrote: Sean- The thing is, he's being interviewed by an "opposing" lawyer in a somewhat hostile fashion. You can't blame him for being a somewhat hostile witness in return.
While I would agree with the opposing part, I haven't seen much hostile on the part of the CHS legal team. The GW legal team though is full of hostility (some could even read bigotry into it as well as noted in the Oh, oh, oh Mr. Oh remark made by Moskin.
The manner in which he automatically answers No, has the full question stated, requests for it to be restated and then cuts the CHS attorney off again with another No...that isn't really a response that I have seen as a result of simple questioning. More often then not, the lawyers taking depositions are very calm and casual in order to create a relaxed state on the part of the witness. They may end up reasking the same questions again later on in the deposition in an attempt to trip them up, but the time stamp shows that that part of the interview was fairly early in the process.
It is a good bit different than in court testimony in that regard - though even there, lawyers are not allowed to be hostile to witnesses and can face severe penalties if they do (which if Moskin thought the CHS attorney was being hostile he would have likely played that card).
That was a good point that hasn't really been talked about RE: appeal. So in the end---this firm does not represent CH in an appeal pro bono---GW simply has to come back again and drown CH in another case (provided no further pro bono)?
Although the selection of pro bono cases is unique to each firm as to why and how much they want to devote to them - I would guess that W&S would gladly take this case to the supreme court. They are largely an IP firm and probably want this as a feather in their cap. If they win here but it doesn't make it through the appeals process - they wouldn't have the feather. Most the expensive stuff is already done with. All the hours of depositions and case law research (billable hours) are behind them for the most part. It would sort of like paying $10,000 to have an engine and transmission rebuilt for a car but not paying $400 for new tires.
Now, if they were to loose at this point - they might consider cutting their losses...but I don't see it going that badly for them. GW on the other hand almost has to appeal any decision which goes against them. Even if it is a slim to none chance of winning the appeal, their position relies on an iron grip.
That was a good point that hasn't really been talked about RE: appeal. So in the end---this firm does not represent CH in an appeal pro bono---GW simply has to come back again and drown CH in another case (provided no further pro bono)?
!
Well, the first step will be the Motion for Summary Judgement decisions. I can't see GW winning on its MSJ and if CH's MSJ is granted, the case is thrown out of court and the suit is finished. Judge has determined that there is not enough of a case to take it to trial. Don't know if you can appeal the loss of an MSJ. Sean, can you answer this?
There is nothing to stop GW from filing a new suit based on the new CH pieces that are not included in the suit, but without new lawyers the suit will probably again fail. I would think that any judge looking at a new suit would look at the old one and be less than impressed. A new suit might well look like harassment.
I would imagine that CH's lawyers would be happy to do the appeal. I think they are having too much fun ripping up their opponents.
Any Summary Judgements can be appealed, however it is a lot more difficult from my understanding. I have been involved in them, just not in any appeals of them. Because they are a based on a simple evaluation of the law and evidence provided...you basically have to prove that the judge didn't properly understand the law (not easy...and not something most other judges are quick to grant).
I don't think there are other grounds for appeal regarding Summary Judgements though - but it isn't something which I have specific knowledge of.
Regarding anything stopping GW from filing suit again...they would be cautioned against it most likely by legal counsel. I forget the specific term off the top of my head (few pints into the night right now) - but if you file a case like this and loose...the court can basically bar you from filing cases against anyone for a period of time as a punitive measure. Although I don't think that specifically will happen here, a judge will likely take a less favorable opinion of GW the second time around...especially against the same defendant for effectively the same claims.
My wife tells me it has something to do with res judicia or something like that - but she hasn't been in a courtroom since I started to make enough money for her to shop for shoes all day long. Before that though, she was a practicing IP attorney...so she might have something to go on.
Sean_OBrien wrote: Any Summary Judgements can be appealed, however it is a lot more difficult from my understanding. I have been involved in them, just not in any appeals of them. Because they are a based on a simple evaluation of the law and evidence provided...you basically have to prove that the judge didn't properly understand the law (not easy...and not something most other judges are quick to grant).
I don't think there are other grounds for appeal regarding Summary Judgements though - but it isn't something which I have specific knowledge of.
Regarding anything stopping GW from filing suit again...they would be cautioned against it most likely by legal counsel. I forget the specific term off the top of my head (few pints into the night right now) - but if you file a case like this and loose...the court can basically bar you from filing cases against anyone for a period of time as a punitive measure. Although I don't think that specifically will happen here, a judge will likely take a less favorable opinion of GW the second time around...especially against the same defendant for effectively the same claims.
It's claimed that the head with tentacles is 'a reference to' the Ymgarl in the RT book. But that drawing didn't have tentacles, it had a face like a leech, or like the plastic chaos spawn, it looked nothing like the Cthulhu head they currently have.
Automatically Appended Next Post: Oh, and if you want to see some aggressive questioning look at pages 161-162 of the document Sean_OBrien linked to in which the lawyers starts a 'yes he did', 'no he didn't' argument.
At the very least it would make for a decent dramedy movie. I can't see a serious movie about IP law selling well. But if it were done as a comedy in a serious enough way, perhaps.
When I read the Jes' deposition, I imagine him sitting there all snug and superior like the main character of the movie 'Social Network' during his depositions. Except in this case the character would be losing terribly instead of paying the annoying people to go away.
Goodwin might not be that snarky, but his attitude from what bits I've read was less than helpful. Saying that he's never seen a face with tentacles outside of 40k is ludicrous. Might as well have said that he'd never seen an octopus.
I still sympathize with Jes. He is in a awkward situation, when his superiors instructed him that being inspired by anything is a crime. He answers frankly enough to bring the not-of-this-world-view of GW's legal team into trouble, so they want to stop the protocol from being published.
Another proof that the design team are basically nice folks cursed with a crazy higher management.
Kroothawk wrote: I still sympathize with Jes. He is in a awkward situation, when his superiors instructed him that being inspired by anything is a crime. He answers frankly enough to bring the not-of-this-world-view of GW's legal team into trouble, so they want to stop the protocol from being published.
Another proof that the design team are basically nice folks cursed with a crazy higher management.
A fair enough point. Alas, most artistically creative people prefer not to have to deal with the business of their art. Some people just want to make things that look cool.
I wonder how much creativity at GW is stifled by management demanding more space marines and skulls on everything. Perhaps the skulls are just from sculptors who are tired of doing grimdark, so they do it sarcastically, thinking that there's no way the designs would get approved. A year later GW releases a gaming board with skull pits built into it. And what will you put on your skull table? Why a skull tower of course. And then a skull altar, with skull rocks.
Castle Greyskull was more creative than any of this latest nonsense.
Kroothawk wrote: Is it possible to aquire the rights on the protocols of this lawsuit?
Would make a fine base for a sitcom
Didn't White Dwarf make it to The Big Bang Theory? Perhaps they can make use of it?
Cheers
Andrew
White Dwarf made it into Peep Show. Admittedly it was in the line "I'm cancelling. Cancelling out of shame. Like my subscription to White Dwarf!" so it wasn't exactly a good thing
So it looks like on the latest ones you need to purchase from pacer the court gave GW some breathing room to change their statements:
Pursuant to the August 21, 2012 hearing and the Court’s Minute Entry dated August 23,
2012 (Dkt. 219), the Court granted, in part, Plaintiff Games Workshop’s Motion for Leave to
File its Unredacted Memorandum, Statement of Facts, and Exhibits Under Seal (Dkt. 206) in
support of Games Workshop’s Motion for Summary Judgment (Dkt. 213). Subsequent to the
hearing, the parties identified the specific portions of the subject documents that require
redaction pursuant to the Court’s order.
Plaintiff Games Workshop hereby files under seal an unredacted version of Games
Workshop’s Memorandum in Support of Plaintiff’s Motion for Summary Judgment; a redacted
version of Games Workshop’s Statement of Undisputed Material Facts; unredacted versions of
Exhibits 16, 21-22, and 107, and redacted versions of Exhibits 17, 24-26, 34-35, 37, 41-47, 53-
59, 64, 66, 69, 70, 73-75, 82-85, 96-102, 104-106, 115, and 119-121.
Plaintiff Games Workshop is simultaneously filing the unredacted versions of these
exhibits.
Warboss Gubbinz wrote: So it looks like on the latest ones you need to purchase from pacer the court gave GW some breathing room to change their statements:
No.
If you follow the bouncing ball...both parties filed large parts of their evidence under seal. They then had to justify why the court should keep those items out of evidence. The judge agreed in part and disagreed in other parts. They then had to file the evidence to be entered into the record with the appropriate portions redacted in compliance with the judges determination. No new evidence would be allowed to be entered in regarding their filings for summary judgement (though they can normally continue to file additional information in their filings against each others summary judgement requests).
Warboss Gubbinz wrote: So it looks like on the latest ones you need to purchase from pacer the court gave GW some breathing room to change their statements:
No.
If you follow the bouncing ball...both parties filed large parts of their evidence under seal. They then had to justify why the court should keep those items out of evidence. The judge agreed in part and disagreed in other parts. They then had to file the evidence to be entered into the record with the appropriate portions redacted in compliance with the judges determination. No new evidence would be allowed to be entered in regarding their filings for summary judgement (though they can normally continue to file additional information in their filings against each others summary judgement requests).
So all of that egg on GW's face from the CHS response will stay? Awesome.
Warboss Gubbinz wrote: So it looks like on the latest ones you need to purchase from pacer the court gave GW some breathing room to change their statements:
No.
If you follow the bouncing ball...both parties filed large parts of their evidence under seal. They then had to justify why the court should keep those items out of evidence. The judge agreed in part and disagreed in other parts. They then had to file the evidence to be entered into the record with the appropriate portions redacted in compliance with the judges determination. No new evidence would be allowed to be entered in regarding their filings for summary judgement (though they can normally continue to file additional information in their filings against each others summary judgement requests).
So all of that egg on GW's face from the CHS response will stay? Awesome.
Pretty much. BTW - for those who are looking to get back on the timeline...the pertinent info can be found here:
Basically what I said above. GW will be filing and the documents will be filtering out through the Recap site over the next little while (because of the way that it works - it is hard to say exactly how long it will take before they are available for download though).
Additional filings can be made in support of claims or for consideration (like the Geiger Image which CHS entered in), but the original record stands (just as all the various complaints, dropped complaints, new complaints and everything else that GW has flip flopped about on). All of that stuff can be called upon later as it is part of the record and can be used to show things like overreaching claims and what not...some Judges really do not like plaintiffs that try to overreach in their complaints and it can hurt the party in question later on.
So wait, anything that GW may have conceded defeat on will still be part of the evidence? Basically once something is entered in it can't be taken back?
If that is the case, then good Lord I can't wait for this to move forward. The judge gets to see GW pass their own products as CHS ripoffs, and then that evidence gets passed around in court. Love it.
Question, what would happen if GW decided to withdraw at this point in the case(not saying that they would, but devils advocate and all that)? Would CHS have any recourse against GW for starting all this?
Obviously both parties have every reason to see this through to the end and beyond, I'm just interested in what would happen if GW more or less wanted this all to go away.
Thanks for the clarification. My guess is that GW feels they have enough case law that all the "egg" will not matter. I personally don't see it that way but i'm not a lawer so that point is moot.
I cannot fathom what is going thru Judge Kearny's head on this one. I've read his statements and the motions thru the case. At best he treats this as a unique case and judges it on its merits (not alan's either). At worst he agrees with GW and says the current case law is enough to overlook all the discrepancies.
Either way GW will appeal this and continue to throw money at it until it gets to the highest court possible. I just hope CHS's pro bono continues for the appeal process.
Aerethan wrote: So wait, anything that GW may have conceded defeat on will still be part of the evidence? Basically once something is entered in it can't be taken back?
If that is the case, then good Lord I can't wait for this to move forward. The judge gets to see GW pass their own products as CHS ripoffs, and then that evidence gets passed around in court. Love it.
Question, what would happen if GW decided to withdraw at this point in the case(not saying that they would, but devils advocate and all that)? Would CHS have any recourse against GW for starting all this?
Obviously both parties have every reason to see this through to the end and beyond, I'm just interested in what would happen if GW more or less wanted this all to go away.
No take backs, no redos... Well sort of, they can petition the court and say...Oops, we goofed. Mind if we change that picture which shows our plastic shoulder pad which we have marked as theirs?
Remember though, the summary judgement will be entirely on the basis of law and facts. CHS disputes all the facts which GW puts forward...at the same time, GW disputes pretty much all the Law which CHS puts forward. The judge will make a determination if any of the disputes put forward are in fact invalid and make rulings based on that. There are several points which the judge will likely deal with, but the larger portion would move forward to the jury trial.
If for some reason GW were to back out of this case (as opposed to try to settle out of court with a shut up and go away sum of money), CHS would likely file for a Declaratory Judgement. Normally you file for one of those when they first send a C&D letter - though all it requires is the belief that one party may well attempt legal action against you in the future (for the most part...again, not a legal scholar...just been involved in a fair amount of these and married to one - but the actions taken by GW in general would likely allow it to apply to the controversy clause). Depending on the judge, the circumstances and the specifics of the case - the result can range fairly broadly.
Honestly - if I were a bits maker in the US (or an army builder software seller...or dealt with any product GW sniffs at on a commercial level) I would probably file for a declaratory judgement yesterday. The worst thing that could happen is the court could decide that you are not under threat of litigation. The best thing that could happen is the court could rule that your actions are perfectly legal under existing laws and you can move forward regardless of attempts by GW to stifle you (sending C&D letters or threats of suit). They would need to appeal the courts ruling first to get back into the game to sue you - though at that point, jurisdiction is established, so you don't have to worry about them choosing a court which is on the other side of the country from you.
Can this even go to summary judgement without GW providing evidence that they own the trademarks and copyrights in question? Because they still don't bother to supply the court with the necessary info for an IP case like this. And when asked, acknowledge that almost none of their claims have any merits. I am still baffled that this pseudo case is still going on.
Kroothawk wrote: Can this even go to summary judgement without GW providing evidence that they own the trademarks and copyrights in question? Because they still don't bother to supply the court with the necessary info for an IP case like this. And when asked, acknowledge that almost none of their claims have any merits. I am still baffled that this pseudo case is still going on.
That is one of the issues which the judge will address in terms of Facts in Evidence. There are varying levels of proof which are excepted for the various IP types. Registered Copyrights and Trademarks have more weight - however if you have an old notebook with a story in it...you have a copyright on that story even if no one has ever read it. Trademarks require use in commerce. Although GW doesn't actually have proof of the specific date used in commerce or registered trademarks on many of their claims - they have definitely sold certain things (that is part of why they entered in their entire 2007 Catalog as evidence earlier). Other claims though are without merit. If a product is not sold that is called "Excorcist Space Marines" blah blah - then that particular mark has not been used in trade. It was used in a book, or on a website...but until it is used to identify a product it can not be considered a trademark. An attempt could be made to say it is copyrighted and the icons related to them are copyrighted, but that is more difficult.
The other issue of course is that in large part - the existing Trademarks, registered or not, may well be deemed irrelevant. If no copyright violation is found regarding the designs of items that CHS is selling, than the use of GW marks is acceptable to identify CHS products as being compatible for use with the corresponding GW products. You see the same thing happen with all manner of aftermarket products. It is also an acceptable use of a Trademark to say "Our stellar assault troops are better than Games Workshop's Space Marines" provided that you don't violate a copyright claim that is held up. Again, you see this all the time in the Coke versus Pepsi commercials or State Farm versus Geico versus Progressive Insurance commercials. A trademark doesn't prohibit anyone from using the mark - it only ensures that they are not attempting to do business under that mark (if it is held up as well).
Lots of the marks though will likely not be held up. They are too generic or have been used descriptively in fiction, mythology and history over the years.
Warboss Gubbinz wrote: So based on what your saying, would it be too far a stretch to assume GW at this point is just hoping the case gets thrown out without prejudice?
Warboss Gubbinz wrote: So based on what your saying, would it be too far a stretch to assume GW at this point is just hoping the case gets thrown out without prejudice?
At this point, GW is probably trying to find out what CHS magic number is...you know, everyone has a price and all that.
After that, they are probably hoping that they will get a good pull on the jury, as that can make or break a case as much as any actual legal standing or facts can.
If you have watched various cases like these over the years, you will have seen some surprising results happen from a jury. Sometimes they are held up on appeal, sometimes they are thrown out on appeal - but jury trials are something which it is hard to predict no matter how much right is on the side of either side of a case.
After that, they are probably hoping that they will get a good pull on the jury, as that can make or break a case as much as any actual legal standing or facts can.
Yes juries can be unpredictable, but I really can't imagine that GW's lawyers would want to bring this case (big thuggish Redcoat English company goes after a little US guy working out of his garage with pro bono legal help) before a US jury, especially with what little will be left of this case after the judge sorts out all of the GW shenanigans in the MSJ phase.
I'm still thinking that this case is being run from Nottingham and that the people running it think they are in an English court, not a US court. Really looking forward to reading the MSJ decisions...
I've never wished for jury duty, but man I'd pay good money to be in that jury. Hell even being in the room would suffice. I just want to hear word for word GW's case explained to the jury. Then to hear CHS's defense, which at this point could be effortless.
I might just have to make a trip to Chicago for this.
Sean_OBrien wrote:At this point, GW is probably trying to find out what CHS magic number is...you know, everyone has a price and all that.
After that, they are probably hoping that they will get a good pull on the jury, as that can make or break a case as much as any actual legal standing or facts can.
After all what GW has done to Chapterhouse, there will be no magic number. Esp. as it would mean Chapterhouse going out of business, the GW case being so extraordinary weak and CHS's defense being pro bono.
And GW laywers show no social or legal competence at all to positively impress a jury, they rather alienate them from the start with their claim of owning the copyright of the world. Can't think of normal people having that much patience as the current judge.
Aerethan wrote:I've never wished for jury duty, but man I'd pay good money to be in that jury. Hell even being in the room would suffice. I just want to hear word for word GW's case explained to the jury. Then to hear CHS's defense, which at this point could be effortless.
I might just have to make a trip to Chicago for this.
More enjoyable and insightful than Games Day Chicago for sure
Aerethan wrote: I've never wished for jury duty, but man I'd pay good money to be in that jury.
I have a feeling that GW doesn't want any well informed 40K player in the jury box, not even the so-called "white knights". Considering how they're trying to push the "confusion" aspect as part of their case, they'd want uninformed non-players ruling.
I'm interested in seeing the jury selection questions when it comes time.
IF CHS can bring up the "Compatible car parts are legal" argument to the jury and frame it in that light, I think GW will be in deep gak. No matter how they try to frame it, most laypersons will see them as selling toys (Fancy toys, but toys nonetheless) and not art pieces, so if CHS frames it as "We're making toys that are compatible with their toys," GW is sunk imo.
darkPrince010 wrote: IF CHS can bring up the "Compatible car parts are legal" argument to the jury and frame it in that light, I think GW will be in deep gak. No matter how they try to frame it, most laypersons will see them as selling toys (Fancy toys, but toys nonetheless) and not art pieces, so if CHS frames it as "We're making toys that are compatible with their toys," GW is sunk imo.
Part of the issue that CHS lawyers have been stressing is that GW's copyright is limited based on what UK's laws recognize... since the UK wouldn't categorize GW's products as "art" (mostly because of production volume) the US court can't consider their copyright in that light since the copyrights are held in the UK. This limits the extent GW can claim these copyrights, implying simply that few if any of them are actually held by GW even before the scrutiny of US law is applied. The bar for how transformative a distinct product has to be to be uniquely different from their inspiration, is lowered as a result... while the standard for the specificity of "copying" is raised. This makes it more difficult for GW to say they have a claim to everything that seemingly looks like their products.
It is also important to note that various aspects of the CHS defense will pivot when they go from pretrial to the actual jury trial.
Right now, they want to get as much thrown out as possible based on the law. For that purpose, they are attempting to disprove the marks were used in commerce and failing that that the marks were used in a manner which is allowed under the law. If the judge bites and agrees with them - those portions will be removed from the complaint by the summary judgement action.
In the same way, they are attempting to establish that GW doesn't own certain copyright claims which they have made (by establishing that some design work was done by freelance artists or prior to the...I think 1989 rewrite of UK copyright laws - don't quote me on the date for that as I am very unfamiliar with UK law). Failing that, they want the courts to consider them as manufactured goods under UK law as they will have almost no protection at this point (the design right expires after 10 years or something along those lines). Failing that, they want to establish that the copyrights are of too broad and generic of concepts to be held up against anything other than an exact copy (based on their expert witness testimony). Failing that, they want to establish that the components which CHS sells are not infringing on the whole of the GW product (see the Tervigon example for the most poignant claim). If the judge bites on any of those hooks - those claims could be thrown out during the summary judgement action.
Once they get to trial though, they will likely look at their chosen jury pool and figure out which way is the best way to handle it. While there will definitely be law figured into things - don't overlook things like the "Big Bad Evil Foreign Company Trying to Smash the Fun Loving Local Boy who Just Wants to Make Toys for the Children" defense.
While that aspect won't likely be enough to win the case outright for them, it would go a long way in tipping the scales in the favor of CHS over GW (one of the reasons why all the silly superlatives in the intro to all the GW complaints may end up biting them in the butt later on).
Failing that, they want the courts to consider them as manufactured goods under UK law as they will have almost no protection at this point (the design right expires after 10 years or something along those lines).
Wow... just wow. So one possible result of this suit is that any GW figures/models made before 2002 would no longer have any copyright protection in the UK and USA?
If so, this is pretty mind boggling in terms of GW legal strategy fail and what would happen in the realm of garage production and eBay sales.
I wonder if Forge World models would retain their copyrights. Their lower production numbers might save them...
Failing that, they want the courts to consider them as manufactured goods under UK law as they will have almost no protection at this point (the design right expires after 10 years or something along those lines).
Wow... just wow. So one possible result of this suit is that any GW figures/models made before 2002 would no longer have any copyright protection in the UK and USA?
If so, this is pretty mind boggling in terms of GW legal strategy fail and what would happen in the realm of garage production and eBay sales.
While that sounds great for recasters I find it unlikely that it'll actually work like that. Seems just a bit too easy that the right to use and reproduce the design of something just becomes a free-for-all after only 10 years especially when the original is still in production.
Failing that, they want the courts to consider them as manufactured goods under UK law as they will have almost no protection at this point (the design right expires after 10 years or something along those lines).
Wow... just wow. So one possible result of this suit is that any GW figures/models made before 2002 would no longer have any copyright protection in the UK and USA?
If so, this is pretty mind boggling in terms of GW legal strategy fail and what would happen in the realm of garage production and eBay sales.
While that sounds great for recasters I find it unlikely that it'll actually work like that. Seems just a bit too easy that the right to use and reproduce the design of something just becomes a free-for-all after only 10 years especially when the original is still in production.
The specifics are something which I am less familiar with...I think we would need to find one of those legal types who wears a wig to court in order to get a specific interpretation of the law:
Protection is limited to the United Kingdom (UK), and lasts either 10 years after the first marketing of articles that use the design, or 15 years after creation of the design - whichever is earlier. For the last 5 years of that period the design is subject to a Licence of Right.
Further to answer the question of what a design is:
For the purposes of registration, a design is legally defined as being "the appearance of the whole or part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of the product or ornamentation.
And what a product is:
You can register a three-dimensional product such as an industrial or handicraft item (other than a computer program), or two-dimensional ornamentation alone, eg. a pattern intended for display upon a product, or a stylised logo. In all cases, the term "product" can mean things like packaging, get-up, graphic symbols, typographic typefaces, and parts of products intended to be assembled into a more complex product.
Again - there is a lot of stuff there, but I am inclined to view what GW sells as products with a protected design...not as art work with a copyright. How the court will view things...can't say for certain. If you read the deposition and expert report from the UK wig wearing legal expert...it seems to agree in principal with how I view things.
GW's defense is that it doesn't make a difference because of international copyright treaties which grant protection in nations which are signatories under their own laws (not under the laws of the creator's country of origin). The problem with that is that it only grants the copyright protection if it would qualify for copyright protection in the creator's country to begin with. So...if it is a design - well...GW will actually have to be creative in order to keep in business.
This all comes down to the fact the GW brought this on themselves.
They write rules for models they don't make, and they increase the prices of their products EVERY YEAR to the point where many of their fans simply can't afford what they could just two years ago.
They have created the 3rd party bits market all on their own. And have seemed to be completely blind to this fact and continue to grind on with their awful business practices that got them into this in the first place.
Another thing, is the information black out. They are doing this so that 3rd parties can't get a clue as to what's coming out and release their own version before GW does, thus nullifying any claim to copyright by GW.
Cliff notes: I don't want GW to go out of business because I do enjoy 40k. But I have to laugh at their self imposed predicament and their total inability to defend their position competently.
Kroothawk wrote: I still sympathize with Jes. He is in a awkward situation, when his superiors instructed him that being inspired by anything is a crime. He answers frankly enough to bring the not-of-this-world-view of GW's legal team into trouble, so they want to stop the protocol from being published.
Another proof that the design team are basically nice folks cursed with a crazy higher management.
That's my take, too... (I know this is a little late but this thread took off a bit and left me behind )
White Dwarf made it into Peep Show. Admittedly it was in the line "I'm cancelling. Cancelling out of shame. Like my subscription to White Dwarf!" so it wasn't exactly a good thing
Dakka ate my post! I swear I replied earlier.
Thats a shame, I could just imagine the converstion between Sheldon and Leonard;
S: That's it, I'm going to sue!
L: Don't you need to own the copyright before you can sue?
S: Well it never stopped Games Workshop!
The specifics are something which I am less familiar with...I think we would need to find one of those legal types who wears a wig to court in order to get a specific interpretation of the law:
I'm avoiding working on my thesis right now, I'll wander over to the library and see if there is a textbook on UK industrial design law.
The specifics are something which I am less familiar with...I think we would need to find one of those legal types who wears a wig to court in order to get a specific interpretation of the law:
I'm avoiding working on my thesis right now, I'll wander over to the library and see if there is a textbook on UK industrial design law.
Its good to be the king. As opposed to finishing up some end of fiscal year reports, I went ahead and read the case law which the CHS expert witness sited and followed up with the sited cases in those...several hundred pages later, I still feel more or less the same as I did before. Still don't claim to be an expert - but what I have read thus far more or less confirms my prior statement and beliefs.
Someone in the UK could actually find out for themselves by filing for a License of Right on one of the designs which are older than 10 years old. Have GW balk at that and then file for a Settlement of Terms of the License Right. That would cause the governing body to way in on whether or not GW is working under designs or copyrights. I am guessing that it would cause a good panic in Nottingham.
Automatically Appended Next Post: I'm reading through Chapterhouse's motion for summary judgement. There is some crazy gak in there:
"GW did not produce any sales invoices or purchase orders for any sales in the U.S. (or Illinois) for any product."
I know american discovery is different than up here, but really?
"“[t]here is no way for this Court [or CHS] to know that this alleged sales sheet bears any relation to reality and is not simply something Plaintiffs generated on a home computer for the purposes of this litigation.”" -- Pretty much accusing the opposing side of fabricating evidence - them's fighting words.
"GW has no evidence that the senders were from the U.S. (SUF 73-74.) Apart from the fact that there is no evidence these emails are from U.S. consumers, they do not evidence confusion. To the contrary, the senders are notifying GW legal about CHS, and it is clear they are not confused about the source of CHS’s products. GW’s own in-house counsel (and 30(b)(6) designee on confusion) forwarded one of these emails to a colleague noting “another one who clearly is not confused!”" --- Heh heh heh
I'm pretty sure the statement about GW not producing invoices or purchase orders is because in the original claim GW is claiming lost revenue due to CHS's products. The onus for this case is on GW to prove their sales were harmed.
Ah, no the sales data was sought with regards to the trademark claims.
Chapterhouse is arguing that GW has the onus to show that it actually used the specific trademarks in commerce in the US, and that it hasn't:
Chapterhouse Motion page 17 wrote:
GW cannot establish it sold product in U.S. commerce for any mark. Despite CHS discovery demands seeking evidence of use of GW’s marks in commerce and dates of first use,
GW provided only bare allegations of dates of first use in U.S. commerce for each alleged mark, but failed to specify the nature of the use for each mark or identify the Bates numbers for any corresponding documents. See SUF 52 (Rog. 18 Response); (SUF 54-56.) Kearney Decl. ¶83.
GW concedes that its U.S. retail stores do not carry its full range of products. (SUF 59.)
When asked “[w]hat records does [GW] have that demonstrate that this product was actually sold in the US?”, GW’s 30(b)(6) witness answered “I really don’t know.” As “a global company…centralized…in the UK,” “you would need to talk to somebody in the American business” about records that the “American sales business keeps…” (SUF 60-61.)
CHS served GW’s U.S. business, Games Workshop Retail, with a document subpoena and deposed it. (SUF 16.) Its 30(b)(6) witness confirmed that its stores do not carry the full range of GW’s products, and that it has no records to determine whether a particular product was actually sold in the U.S., and no records of dates or geographical locations of any product sales. (SUF 61.)
The GW motion says something to the effect of - but the Chapterhouse website had the trademarks listed.....
Page 19
"Games Workshop’s ownership and priority of use of its registered and unregistered marks can scarcely be debated here given the evidence of sales presented by Games Workshop (Undisputed Facts #1-2); by Chapterhouse’s having named all of its products using Games Workshop’s preexisting names and by Chapterhouse’s admission on its website that
Games Workshop owns all of the marks in issue."
I don't know jack all about US copyright law, but the impression I'm given when I read the motions side by side, claim by claim is that Chapterhouse is banging on the law and the facts, and GW is banging on the facts and sometimes the table.
Aside from all that, it is really really weird that GW refused / could not provide real sales data, couldn't provide contracts or employment records for it's sculptors and had to have in house counsel swear an affidavit about disappeared /lost contracts.
I don't know jack all about US copyright law, but the impression I'm given when I read the motions side by side, claim by claim is that Chapterhouse is banging on the law and the facts, and GW is banging on the facts and sometimes the table.
Mostly the table. They don't provide the basic facts which are needed in order to support their claim for valid marks. Even registering the trademark, in order for it to be valid - you must prove first use in commerce. Until that point, the mark itself is not a Trademark...it is just a logo, or sometimes just a word or three strung together.
The geographic data is important as well for a different reason. First - it must be sold in the US in order for it to have a valid trademark in the US. So, at a minimum they would need to demonstrate that. Second, in order for the district court to have jurisdiction on a claim, it must be sold within the district. Chances are that CHS will eventually concede that many of the items were sold in the district...however it will reflect badly on GW that they don't even have their act together to offer up the minimal level of support for their trademark infringement claims.
A long document, Andrew Jones under oath, starting at Page 226 of 244 (numbered in the document as page 213) stating that GW does have sales records for the US and can produce reports for individual SKUs.
Question: For example, if we are talking about the Space Marine Rhino vehicles that Games Workshop offers for sale, would it be able to determine the number of Space Marine Rhino vehicles sold in the US in the last
fiscal year?
Answer: Yes, I would hope so.
So, when they said they couldn't produce them....
With regards to the whether or not the trademarked items in question were ever sold in the US:
Q Again, so the retail range in the US typically consists of around 800 to a thousand different products.
A Something like that, yes.
Q What is the overall range of products offered by Games Workshop?
A I don't know the total number but it is perhaps 2,000 to 3,000 products in the real extended range.
GW admits that 2/3rds of their trademarked products aren't normally sold in the US and GW didn't provide real sales data... really starts backing up their 'you can't prove you sold it here' defence.
Before this there are some interesting questions around licensing agreements with regards to Sabertooth Games and Fantasy Flight.
Is this whole suit unique in the apparent quality of the lawyers on both sides (One apparently competent and one apparently decidedly not)? This whole thing seems to me like it's a looney toons of what actual proceedings should look like
Q What are the copyrightable elements that Games Workshop contends is being infringed by Exhibit 102, the Chapterhouse product in front of you?
A It is the size, the shape, the context. There's lots and lots of textural elements, both on the illustration and actually on the page, and in fact throughout the whole book from which this page has being photocopied.
Q You mentioned the size, the shape and the context. What's specific about the shape?
A It is kind of roundish, a bit like an American softball, roughly, in shape.
17 Q So Games Workshop contends that it has a copyright on the roundish shape about the size of an American football?
Chapterhouse is arguing that GW has the onus to show that it actually used the specific trademarks in commerce in the US, and that it hasn't:
That is the case. GW has provided no proof that any of the trademarks were ever used in commerce or that any of the infringed products were ever sold in the US or in the district. There needs to be a valid paper trail which GW probably could have easily provided, but did not.
As Sean says:
"The geographic data is important as well for a different reason. First - it must be sold in the US in order for it to have a valid trademark in the US. So, at a minimum they would need to demonstrate that. Second, in order for the district court to have jurisdiction on a claim, it must be sold within the district. Chances are that CHS will eventually concede that many of the items were sold in the district...however it will reflect badly on GW that they don't even have their act together to offer up the minimal level of support for their trademark infringement claims.
"GW did not produce any sales invoices or purchase orders for any sales in the U.S. (or Illinois) for any product."
I know american discovery is different than up here, but really?
Each deposee is sent a substantial list of subjects on which they will be expected to answer questions in their official capacity. The head of GW US was supposed to be able to answer questions on US sales and was unable to provide sales numbers answers for any the infringed products and brought no sales records with her. Either she has never had a deposition taken or she just blew off the list of questions. Since no specific sales numbers were provided in any of the depositions, indeed, "GW did not produce any sales invoices or purchase orders for any sales in the U.S. (or Illinois) for any product."
"Games Workshop’s ownership and priority of use of its registered and unregistered marks can scarcely be debated here given the evidence of sales presented by Games Workshop (Undisputed Facts #1-2); by Chapterhouse’s having named all of its products using Games Workshop’s preexisting names and by Chapterhouse’s admission on its website that
Games Workshop owns all of the marks in issue."
The issue is not whether or not GW owns the trademarks, but whether or not they have used them in the US and in the district and whether proof of this usage has been provided.
I think these problems can be laid mostly at the feet of GW's lawyers not being nearly emphatic enough in their instructions to the deposees about what things they were supposed to know or at least be able to access during the depostion. In the GW USA head's deposition she says that she read over the questions and talked briefly with a GW lawyer, spending about an hour on the project. Given the long list of questions she was supposed to have answers for, this is completely unprofessional.
darkPrince010 wrote: Is this whole suit unique in the apparent quality of the lawyers on both sides (One apparently competent and one apparently decidedly not)? This whole thing seems to me like it's a looney toons of what actual proceedings should look like
It might come down to the instructions each side has recieved. and the relative merits of the case. There is only so much you can polish a turd.
13 Q You mentioned the size, the shape and 14 the context. What's specific about the shape? 15 A It is kind of roundish, a bit like an 16 American softball, roughly, in shape. 17 Q So Games Workshop contends that it has a 18 copyright on the roundish shape about the size of an 19 American football? 20 MR. MOSKIN: Objection.
The objection is based upon the fact that GW thinks they own the shape of the American SOFTBALL, not football, as asked. A sphere; they own the rights to a sphere.
[GW]MR. MOSKIN: No, because I want to take a short break and speak with the witness.
Probably only interesting to me, but in my jurisdiction talking to your client while they are in the middle of doing a deposition is a big no no. By the book you aren't really even supposed to sit with them if there is a lunch break.
Also interesting to see how much trash talking Merret does about Chapterhouse's casting and sculpting quality. Even refuses to touch a resin piece because it might be toxic.
8 MR. MOSKIN: The witness has agreed to give you
9 another 30 minutes. We are continuing the rest of
10 this deposition under protest. Please try to make use
of the time wisely.
12 MR. OH: Again for the record, 30 minutes is less than
13 the aggregate two hours that previously counsel agreed
14 to, and again we are conducting the rest of this
15 deposition under protest also.
16 MR. MOSKIN: You are? Okay, good. You have already
17 had more than 44 minutes that you requested when we
18 broke off Mr. Merrett's deposition. Let's go ahead.
19 Not to mention the time wasted yesterday when he was
20 available all day, all afternoon.
21 MR. OH: Mr. Moskin --
22 MR. MOSKIN: Oh, Mr. Oh, oh, oh, oh. 23 MR. OH: This is characteristic --
24 MR. MOSKIN: It is very characteristics of you.
25 MR. OH: Of you.
The objection is based upon the fact that GW thinks they own the shape of the American SOFTBALL, not football, as asked. A sphere; they own the rights to a sphere.
Hey if Apple can own the rights to a rectangle with rounded edges....
Had a scattered thought re: sales data and licensing - witness for GW mentions not knowing exactly what subsidiaries are out there and which one has signed licensing agreements because some of the corporate structure is set up for tax purposes.
If I was GW, I'd have assigned the trademarks and copyrights to some shell company in bermuda / ireland / netherlands and be charging massive fees to the UK and US companies to strip the profits out. I wonder if some of that is going on.
Meandering on....
Q What documents have Games Workshop provided to the defendants showing the trademarks used on a product for each of the years associated with these dates?
A Games Workshop, to the best of my knowledge, has supplied you with possibly tonnes, certainly pallets full of documents about this case. Gill Stevenson, who heads our legal team up, has got all the details of that. I can't tell you exactly which of these hundreds of trademarks we have actually sent you products about.
Sounds a bit like the left hand doesn't know what the right hand is doing with regards to the lawsuit, if the Head of legal thinks they've turned over pallets of info.
czakk wrote: because some of the corporate structure is set up for tax purposes.
Interesting statement there, as companies get tax breaks for certain things unless they do those things specifically for the tax benefits.
Works a little differently outside of the US. You guys have an economic substance over legal form doctrine where as most of the commonwealth still uses legal form over economic substance - unless there is a specific anti-avoidance rule in the UK tax code they'd be good to go.
The IP originated in the UK so the IRS can't really contest it's transfer to a tax haven, and from there it is just a matter of justifying the fee charged to the US sub.
Chairman's Preamble:
"My favourite graph in our internal reporting shows the sales in each country going as far back as we have records. 1988, I believe. The really great part about it is that it has over 20 years of data. You can see proper trends over 20 years, and if your intention is to build a business that lasts, which mine always has been, then ‘long term’ means decades."
Automatically Appended Next Post: The only reason I even thought of a double irish is some of the testimony looks like a different sub company is signing licensing agreements
Sounds a bit like the left hand doesn't know what the right hand is doing with regards to the lawsuit, if the Head of legal thinks they've turned over pallets of info.
Head of licensing. To be honest, of all the depositions which have been revealed so far - I really feel sorry for him. He comes off as actually attempting to answer the questions honestly and to the best of his ability. He also believes that other people are doing their respective jobs (keeping and providing employment records, keeping and providing sales records).
There is a separate deposition (or at least portions of it) of Gill Stevenson (GW's Internal legal counsel). The specifics for her testimony are in reference to the email informants which GW had. The importance of that particular line of questioning was both to establish confusion caused by the manner in which CHS used the GW trademarks nominatively as well as to establish jurisdiction in regards to that claim by GW:
You can read the emails in Exhibit 122 there, and it is fairly clear that the only confusion is relating to general IP law and not whether those were official GW items. The other thing of note are the regions from which the emails originated. Two are quite clearly from the UK (one bears a yahoo.co.uk address and the other is a BT internet address) the third email which is part of GW evidence to support their claim of confusion originated in Sweden (based on the final line of the message which indicates a http://dejting.se.msn.com/ - which would be a Swedish URL).
Sounds a bit like the left hand doesn't know what the right hand is doing with regards to the lawsuit, if the Head of legal thinks they've turned over pallets of info.
Head of licensing. To be honest, of all the depositions which have been revealed so far - I really feel sorry for him. He comes off as actually attempting to answer the questions honestly and to the best of his ability. He also believes that other people are doing their respective jobs (keeping and providing employment records, keeping and providing sales records).
There is a separate deposition (or at least portions of it) of Gill Stevenson (GW's Internal legal counsel). The specifics for her testimony are in reference to the email informants which GW had. The importance of that particular line of questioning was both to establish confusion caused by the manner in which CHS used the GW trademarks nominatively as well as to establish jurisdiction in regards to that claim by GW:
You can read the emails in Exhibit 122 there, and it is fairly clear that the only confusion is relating to general IP law and not whether those were official GW items. The other thing of note are the regions from which the emails originated. Two are quite clearly from the UK (one bears a yahoo.co.uk address and the other is a BT internet address) the third email which is part of GW evidence to support their claim of confusion originated in Sweden (based on the final line of the message which indicates a http://dejting.se.msn.com/ - which would be a Swedish URL).
man I hate it when these things just stop mid subject. >.<
Sounds a bit like the left hand doesn't know what the right hand is doing with regards to the lawsuit, if the Head of legal thinks they've turned over pallets of info.
Head of licensing. To be honest, of all the depositions which have been revealed so far - I really feel sorry for him. He comes off as actually attempting to answer the questions honestly and to the best of his ability. He also believes that other people are doing their respective jobs (keeping and providing employment records, keeping and providing sales records).
There is a separate deposition (or at least portions of it) of Gill Stevenson (GW's Internal legal counsel). The specifics for her testimony are in reference to the email informants which GW had. The importance of that particular line of questioning was both to establish confusion caused by the manner in which CHS used the GW trademarks nominatively as well as to establish jurisdiction in regards to that claim by GW:
You can read the emails in Exhibit 122 there, and it is fairly clear that the only confusion is relating to general IP law and not whether those were official GW items. The other thing of note are the regions from which the emails originated. Two are quite clearly from the UK (one bears a yahoo.co.uk address and the other is a BT internet address) the third email which is part of GW evidence to support their claim of confusion originated in Sweden (based on the final line of the message which indicates a http://dejting.se.msn.com/ - which would be a Swedish URL).
man I hate it when these things just stop mid subject. >.<
The depositions? Yeah it's annoying, but if you expect the judge or jury to read everything entered into evidence, you had better prune out anything non essential.
Well, the trademarks were properly registered, and copyright exists as soon as you create a work of art. But for some reason Chapterhouse's lawyers caught GW with their pants down and GW wasn't able or wasn't willing to provide evidence that they actually used the trademarks in commerce in the U.S. or that their sculptors were employees.
At least that's how it looks from my Canadian perspective. American litigation is a bit backassward, especially around discovery, so there could be some cunning plan going on that I don't have the context or understanding to recognise.
At least that's how it looks from my Canadian perspective. American litigation is a bit backassward, especially around discovery, so there could be some cunning plan going on that I don't have the context or understanding to recognise.
Cunning plan by GW's lawyers? LOL!
I think the CH lawyers cunning plan was to snow the deposees with lots deposition questions (and there were lots of questions) in hopes that they will be overwhelmed and not do due diligence on the questions that really matter (which the GW lawyers should have keyed them on). It would appear that the plan has worked...
At least that's how it looks from my Canadian perspective. American litigation is a bit backassward, especially around discovery, so there could be some cunning plan going on that I don't have the context or understanding to recognise.
Cunning plan by GW's lawyers? LOL!
I think the CH lawyers cunning plan was to snow the deposees with lots deposition questions (and there were lots of questions) in hopes that they will be overwhelmed and not do due diligence on the questions that really matter (which the GW lawyers should have keyed them on). It would appear that the plan has worked...
Tim
so, can you provide a better suggestion of how to defend against a broad claim that specifies everythign and details nothing? If there are so many inconsistencies and broad sweeping claims, the easiest way of destroying the claim is by doing what CHS has done. Lord knows, I've seen the same attempted whenever our firm filed claims, with the liability arguments lasting as longer than four years.
czakk wrote: Well, the trademarks were properly registered, and copyright exists as soon as you create a work of art. But for some reason Chapterhouse's lawyers caught GW with their pants down and GW wasn't able or wasn't willing to provide evidence that they actually used the trademarks in commerce in the U.S. or that their sculptors were employees.
At least that's how it looks from my Canadian perspective. American litigation is a bit backassward, especially around discovery, so there could be some cunning plan going on that I don't have the context or understanding to recognise.
Only a few were properly registered and properly used. Most of their Trademark claims were not (other than a the big list which is often seen at the front of such books - not a valid method of registering Trademarks). You can search the registered marks fairly easily here:
When it comes to unregistered marks and the enforcement of registered marks they have to be able to provide the evidence supporting their claims of use in commerce. Regarding who generally dropped the ball...that would be the whole lot of them IMO. You can see their full list of claimed marks several different places - and in reading through it...you can also see deficiencies on many different levels (from the mark not being valid on the face of things like Halberd to the mark never being used in commerce).
At least that's how it looks from my Canadian perspective. American litigation is a bit backassward, especially around discovery, so there could be some cunning plan going on that I don't have the context or understanding to recognise.
Cunning plan by GW's lawyers? LOL!
I think the CH lawyers cunning plan was to snow the deposees with lots deposition questions (and there were lots of questions) in hopes that they will be overwhelmed and not do due diligence on the questions that really matter (which the GW lawyers should have keyed them on). It would appear that the plan has worked...
Tim
so, can you provide a better suggestion of how to defend against a broad claim that specifies everythign and details nothing? If there are so many inconsistencies and broad sweeping claims, the easiest way of destroying the claim is by doing what CHS has done. Lord knows, I've seen the same attempted whenever our firm filed claims, with the liability arguments lasting as longer than four years.
IMHO CHS is doing the correct thing - it's GW's response that seems clownshoes.
I think the CH lawyers cunning plan was to snow the deposees with lots deposition questions (and there were lots of questions) in hopes that they will be overwhelmed and not do due diligence on the questions that really matter (which the GW lawyers should have keyed them on). It would appear that the plan has worked...
Tim
IP litigation is complex. GW alleges over a hundred separate infringements, each of which requires a separate defense argument, which means a separate inquiry into the facts behind each.
Frankly, I'm surprised CH's lawyers were able to be as concise as they were.
Sounds a bit like the left hand doesn't know what the right hand is doing with regards to the lawsuit, if the Head of legal thinks they've turned over pallets of info.
Head of licensing. To be honest, of all the depositions which have been revealed so far - I really feel sorry for him. He comes off as actually attempting to answer the questions honestly and to the best of his ability. He also believes that other people are doing their respective jobs (keeping and providing employment records, keeping and providing sales records).
To be clear his full title is "Head of Legal, Licensing and Strategic Projects". So I wouldn't feel sorry for the guy. He should know exactly what's going on, especially in something as important as this. His testimony showed him as totally incompetent in his position.
Regardless, GW has royally screwed the pooch. They could of simply taken the tact of, if not actively encouraging, at least ignoring 3rd party suppliers that picked up where they left off. 3rd parties help increase satisfaction with the products. Heck, the tervigon kit supplied by CHS even required you to purchase a GW model to use.
Instead, they lay trademark claim on items that have never been sold and copyright claim on such generic pieces like shoulder pads or guns or other designs that they pretty much took from history. I could almost imagine them as trying to claim trademark on "Archers with Bows".
Personally, although I like 40k and I do purchase quite a bit of stuff from them, I think GW needs to be properly backhanded on this.
Fortunately we've already seen some good things come out of it. Full miniatures for the listed items in the various Army books are finally being launched and additional products will be rolled out with white dwarf rule supplements. This is a great thing for the hobby. Heck, just seeing all of those different shoulder pads available for purchase straight from GW is awesome (and yes, I've ordered some).
I'd mostly agree with the above, especially as ch has been completely eclipsed in quality and quantity by many other excellent bits makers. GW are giving them more publicity than ch is generating with new interesting product at this point.
To be clear his full title is "Head of Legal, Licensing and Strategic Projects".
My bad, I was actually getting his position confused with the position of Merrett. Hard to keep the specific titles of who is doing what with whom straight.
Sidstyler wrote: My respect for GW as a whole has kinda gone down the gakker after this thing. And I didn't have much left to begin with.
You have to spend money to make money. You have spend money to protect your IP's.
It was only a matter of time when a company that relies on bullying will get caught with their pants down. This is what I expected from the beginning as this company does everything on the cheap.
They are getting what they fully deserve for being cheap.
Besides the few things we have heard rumors about, how do you think that GW lossing this (I think it's inevitable) will change the way that they operate in the future?
plastictrees wrote: I'd mostly agree with the above, especially as ch has been completely eclipsed in quality and quantity by many other excellent bits makers. GW are giving them more publicity than ch is generating with new interesting product at this point.
I agree. To be honest I think the best outcome from here is if everyone forgets about this and chapterhouse and their horrible sculpts crawl off and die in a corner somewhere. After how badly they handled this, I'm sure GW would rather people forget about the whole thing, too.
Shepherd23 wrote: Besides the few things we have heard rumors about, how do you think that GW lossing this (I think it's inevitable) will change the way that they operate in the future?
The seemingly obvious result would be that GW focuses more on ensuring that all options in each book are covered by the model range, so there is less scope for 3rd parties to fill the holes. Of course, in the short term that may actually result in fewer options being offered in books for armies with less complete model ranges... but in the long term would mean that each army book actually has a complete range, which IMO can only be a good thing.
Of course, that doesn't do anything to counter the companies that are offering cheaper alternatives to existing models. GWcould use the economy of scale available to them through their far superior market presence to just lower prices to the point where it is no longer economical for smaller companies to compete... but I can't really see that happening.
plastictrees wrote: I'd mostly agree with the above, especially as ch has been completely eclipsed in quality and quantity by many other excellent bits makers. GW are giving them more publicity than ch is generating with new interesting product at this point.
I agree. To be honest I think the best outcome from here is if everyone forgets about this and chapterhouse and their horrible sculpts crawl off and die in a corner somewhere. After how badly they handled this, I'm sure GW would rather people forget about the whole thing, too.
While I can understand that they are not for everyone - they are apparently for someone. If not, GW would have never gotten to this point with them if they didn't think there was something they needed to stifle.
As far as what significant might come out of all of this...I think probably the most Earth shattering would be an opinion rendered by the judge which affirms the LucasFilm position regarding toy soldiers and design rights. That would effectively put 90% of GW products into the public domain because the way the design right statute is written. It would also put large portions into a position where they will not be able to become registered design because they lack the necessary newness or individual character. Some of the more recent figures like the Dark Eldar would be past the 12 month time limit for registering the design (which would put them into the 10 year unregistered design bracket - with a license right granted after 5 years).
If the judge further rules that things like the artwork for the Tervigon are not artwork, rather concept art (that is design documents) than they would also fall into the above categories.
GW would by necessity have to actually create new concepts and innovate. It would be pressure for them to do something other than rerelease 20 year old ideas in new packages with a higher price tag.
As a result, you would likely see a lot more "not" manufacturers pop up. The trademarks which are deemed valid would still be in place - but it would let people expand on the various IG units which were mentioned in past Codices but never brought into being in any meaningful way. Truescale, artscale and finescale versions would likely pop up by the truckload. In order to remain competitive, GW would have to reevaluate pretty much their entire existing business model, pricing and in store policies (not to mention force their hand with single army releases as opposed to these ridiculous waves).
Sean_OBrien wrote: While I can understand that they are not for everyone - they are apparently for someone. If not, GW would have never gotten to this point with them if they didn't think there was something they needed to stifle.
To be honest, I think this came down mostly to how CH went about it. I would be very surprised if companies like Puppets War and Maxmini aren't doing a boatload better in sales than CH... But the big difference for GW was that CH was the one promoting their 3rd party add-ons using GW's (alleged) trademarks. I would strongly suspect that was a much bigger factor for GW than how many people were actually buying this stuff.
To be fair, Puppet's War was founded in the year, GW started to sue CHS, and only had a dozen or so products back then. And CHS only released a handfull of new products in the last 2 years handicapped by the lawsuit.
I still see nothing wrong with the way CH went about advertising their products. They came out and said that this item was for this GW set. Maxmini, puppetwars and the rest hint at their intended use, but everyone in this hobby know exactly what they are intended for.
It's not some happy accident that all of Kromlechs ork bits and bodies have the same connection features that GW orks have. It isn't a coincidence that maxmini and puppetwars vehicle add-ons fit perfectly on GW Chimera and Rhino hulls.
Everyone complains that CH was purposely taunting GW with the way they advertised, I believe they were just being honest about what all other 3d party producers are doing as well. They all make bits that allow you to build stuff cheaper than GW, better/different than GW OR what GW hasn't produced.
So if you want to hate CH, then at least hate them because you don't like their work, not the way they work. It really is no different than what everyone else is doing.
There is a big difference, in the eyes of the law, between saying; "This is a Space Marine Shoulderpad" and "This is a shoulderpad compatible with Games Workshop Space Marines".
Steelmage99 wrote: There is a big difference, in the eyes of the law, between saying; "This is a Space Marine Shoulderpad" and "This is a shoulderpad compatible with Games Workshop Space Marines".
Since the dawn of the internet age - the disclaimers at the bottom of web pages have been found to be suitable in identifying (or making clear of a lack of) any connections with the originator of 3rd party parts. Still, since I don't recall the nominative use being contested at the Supreme Court level - it is something which they could rule as not being a valid defense. All the current cases have stopped withing their district court systems.
Hi.
Just to note the Case/Cover is an OPTIONAL extra for an Iphone.
And the page makes it clear it is a third party retailer of an acessory for another companies product..
And the advert for a Ford Mustang Body Kit IS PREFACED with the name of the company making it.To make it obviuos it is an after market alternative
Eg
Another Realm. Sci fi parts.
Shoulder Pads !!!
Your Games Workshop 40k(tm) Space Marines (tm) minatures are awsome! Add more variety with ARs range of shoulder pads that fit these cool minatures and those from other manufactures...
Is absolutley within fair use of trade mark use for defining intended pupose.
As it stated the owning companies TMs belonged to that company, and these after market replacement parts were designed to fit this particualr product.
40k(tm) parts for cool conversions and customisation!(Using GW plc trademarked logo for 40k.)
Space Marine (tm) Shoulder pads.
Pick from the full range of Index Astartes(tm) Codex Chapters(tm) and Chaos Marine Legions(tm) too!
(And then go on to show pictures of sample shoulder pads on GW plc minatures .)
IS NOT fair use of trademarks for intended use.But a blatent use to increase sales infering licence aproval of items by the frequent and flagrent use of owning companies trade mark .
CH was told they were in breech of trade mark use, and THEY CHANGED thier web page layout to conform.
(So CH DID breech trade mark use, and this issue was resolved.)
However , the follow up acusation of copyrite infringment, is not so well thought out or probably justiofied.
But I belive GW plc would NOT have jumped on CH without the original mis use of GW plc trademarks ...
Lanrak wrote: Hi.
Just to note the Case/Cover is an OPTIONAL extra for an Iphone.
And the page makes it clear it is a third party retailer of an acessory for another companies product..
And the advert for a Ford Mustang Body Kit IS PREFACED with the name of the company making it.To make it obviuos it is an after market alternative
Eg
Another Realm. Sci fi parts.
Shoulder Pads !!!
Your Games Workshop 40k(tm) Space Marines (tm) minatures are awsome! Add more variety with ARs range of shoulder pads that fit these cool minatures and those from other manufactures...
Is absolutley within fair use of trade mark use for defining intended pupose.
As it stated the owning companies TMs belonged to that company, and these after market replacement parts were designed to fit this particualr product.
40k(tm) parts for cool conversions and customisation!(Using GW plc trademarked logo for 40k.)
Space Marine (tm) Shoulder pads.
Pick from the full range of Index Astartes(tm) Codex Chapters(tm) and Chaos Marine Legions(tm) too!
(And then go on to show pictures of sample shoulder pads on GW plc minatures .)
IS NOT fair use of trademarks for intended use.But a blatent use to increase sales infering licence aproval of items by the frequent and flagrent use of owning companies trade mark .
CH was told they were in breech of trade mark use, and THEY CHANGED thier web page layout to conform.
(So CH DID breech trade mark use, and this issue was resolved.)
However , the follow up acusation of copyrite infringment, is not so well thought out or probably justiofied.
But I belive GW plc would NOT have jumped on CH without the original mis use of GW plc trademarks ...
The first time I recall looking at their website - they had a disclaimer at the bottom (wasn't as large as it is now - but it was there). I don't recall ever seeing their website without one. GW has not entered evidence showing their website without one either - so I am hesitant to agree to that claim (might have been - just not since I have been looking).
And yet GW can't/won't prove ownership of any such trade marks as would have been misused.
So by the end of this we might see such marks being defaulted to whoever used them in commerce first. CHS may end up having the rights to sell X as a Space Marines Ultramarines Shoulder Pad.
Perhaps not. Either way, GW hasn't shown ownership of hardly a damn thing so far.
I may be mistaken, but pretty much anyone who has any actual knowledge of GW products is going to be able to determine that items they find on CH website are not GW items. The same goes for Maxmini, Kromlechs, Puppetwars and the rest of the 3d party producers. And do any Of them even have a GW disclaimer on their sites? I really wonder if GW came at CH because they believed that USA law might have been more on their side. I constantly hear about other countries not being very copyright/trademark friendly when it comes to companies outside their own country. Just look at China. GW could have a whole division of attorneys to prosecute all the knockoff artists over there.
CH was told they were in breech of trade mark use, and THEY CHANGED thier web page layout to conform.
(So CH DID breech trade mark use, and this issue was resolved.)...
Did they? Prove GW owns the trademark. Given the case so far, it hasnt been proven in court they OWN the trademarks.
Shepherd23 wrote: I may be mistaken, but pretty much anyone who has any actual knowledge of GW products is going to be able to determine that items they find on CH website are not GW items. The same goes for Maxmini, Kromlechs, Puppetwars and the rest of the 3d party producers. And do any Of them even have a GW disclaimer on their sites? I really wonder if GW came at CH because they believed that USA law might have been more on their side. I constantly hear about other countries not being very copyright/trademark friendly when it comes to companies outside their own country. Just look at China. GW could have a whole division of attorneys to prosecute all the knockoff artists over there.
The difference there is that afaik none of those other sites use supposed GW trademarks in their descriptions. They are purely generic, and the only people who find them are people who are already looking for alternatives to what GW produce.
China couldn't care less about IP law. And at the end of the day, taking down 1 person in a country with well over a billion isn't going to make a dent. His brother/cousin/friend will just pick up where he left off and keep going. Same in Russia.
Now, GW could very easily price those companies out of existence, but they won't. To them, price=prestige. If they lower prices, they think it will lessen the perceived value of their products, which isn't true at all. I've stated it in several threads, that no one is buying GW because of any perceived high value. They aren't the Porsche/Mercedes/BMW/Bentley of models. 99% of the tech in a bentley can be found in almost any other modern car, but the people who buy bentleys buy them for the prestige and perceived value of them. GW is not Bentley. At all. They make toy models, many of which are cool looking, and many of which are terrible looking. Bentley doesn't make terrible looking cars. They only have the awesome ones.
GW is in no way a prestige brand, yet they behave as though they are.
Now, GW could very easily price those companies out of existence, but they won't. To them, price=prestige. If they lower prices, they think it will lessen the perceived value of their products, which isn't true at all. I've stated it in several threads, that no one is buying GW because of any perceived high value. They aren't the Porsche/Mercedes/BMW/Bentley of models. 99% of the tech in a bentley can be found in almost any other modern car, but the people who buy bentleys buy them for the prestige and perceived value of them. GW is not Bentley. At all. They make toy models, many of which are cool looking, and many of which are terrible looking. Bentley doesn't make terrible looking cars. They only have the awesome ones.
GW is in no way a prestige brand, yet they behave as though they are.
I agree with you completely. GW has always stood by the belief that they are the best of the best and nothing else out there is even close to the quality that they produce. In reality (As I see it), they have the best sales. This is easily proven. They do NOT have the best models, individually or as an entire range. There are several companies that have produced better lines and better models. Personally, I find Space Marines to be horrible models that lack inspiration. It has always amazed me that they are the top selling model range in this hobby. I just do not see it.
All of the 3rd party marine bits do something to take a boring generic model and make it into something that is, at least, interesting. The CH rhino and drop pod add-ons for the Salamander-like chapters are a great way to add some interest to models that are otherwise flat and generic.
Its sad that GW has decided to step away from their roots. I remember when GW used to encourage individualizing your models/armies. Now they want every model out there to look like every other model. Its just sad to see how they have fallen.
I think the CH lawyers cunning plan was to snow the deposees with lots deposition questions (and there were lots of questions) in hopes that they will be overwhelmed and not do due diligence on the questions that really matter (which the GW lawyers should have keyed them on). It would appear that the plan has worked...
Tim
so, can you provide a better suggestion of how to defend against a broad claim that specifies everythign and details nothing? If there are so many inconsistencies and broad sweeping claims, the easiest way of destroying the claim is by doing what CHS has done. Lord knows, I've seen the same attempted whenever our firm filed claims, with the liability arguments lasting as longer than four years.
I think you missed the point of my post. I was hypothesizing on what the strategy was. Never said it was not a good strategy. I think its was a very good strategy especially in light of the apparent ineptitude of GW's lawyers. They don't seem to be making a strong (professional) effort in this case.
.
. They are certainly regressing to when they used the 
