rigeld2 wrote: I think I know the answer, but can CHs counsel change their mind on the pro bono representation?
Not normally - a contract has been entered...though there are likely a variety of clauses which would allow them to revoke their side or change the agreement.
Automatically Appended Next Post:
Pacific wrote: Can't imagine GW offering a settlement to be honest. That would require them to make a concession or acknowledgement of some sort, which I don't think is within the vocabulary of their company culture.
Again, it ends up being an issue where their representation looks at the case and provides advice based on the situation on the ground. GW could pay off CHS and then just pretend like this never happened. You see those sorts of settlements happen fairly often. Generally the pay off is accompanied by various clauses which prevent both sides (in this case especially CHS) from talking about what the agreement actually entails. It would place a cloak over who actually wanted the agreement and what the terms were. Much speculation, but no closure to the issues of the case.
Automatically Appended Next Post:
scipio.au wrote: Would that be worthwhile to CH's representation though? Surely a big win is worth more to their reputation in IP than a settlement?
Again, it would largely depend on what the offer actually entailed. While law firms enjoy a feather for their hat - they also enjoy money in the bank. If the settlement offer included a clause for compensating the expenses of the CHS legal team, plus a little bit extra to make it worth their time...it may well be well received by them as well. Keep in mind though, unless there is a specific clause in the representation contract which CHS and W&S entered into...the interests of W&S can not override the interests of CHS (including a big payoff to shut up and go away).
They might rather have a go in court, but they also have to provide honest and truthful legal advice to CHS. Honestly and Truthfully - if someone offered me a few million dollars to go away, I would have to seriously consider the offer.
AndrewC wrote: I think it unlikely that CHS will accept a payoff. Sometimes punching the bully in the face, or kicking them in the crotch, is just too attractive.
YMMV.
Cheers
Andrew
I dunno.
these folks have families to feed, too. besides, pro bono representation agreements often contain clauses stipulating that a good offer (however they might further define such) being refused could allow the firm to withdraw from further pro bono representation, AFAIK.
Oh I agree, I just feel on the balance of probabilities a refusal is more likely than an acceptance. Just look at some of the... more verbal descriptions of Nick. There is a certain 'stiffness' in the neck when it comes to GW. He doesn't seem to accept critism as to the rights or wrongs of his actions, and that may colour any decision.
Not long to go now before we get a clearer picture.
Also, if GW did settle, that would be more or less an admission that they're in the wrong. Because if they do settle, what can they do to the other 3rd party companies? Sue them? If they can't win against CHS, then there's nothing they can do against others. Everything that popped in this suit will just be used against them again.
Tannhauser42 wrote: Also, if GW did settle, that would be more or less an admission that they're in the wrong. Because if they do settle, what can they do to the other 3rd party companies? Sue them? If they can't win against CHS, then there's nothing they can do against others. Everything that popped in this suit will just be used against them again.
They can still strong arm people by way of attrition. Not everyone can afford to lawyer up against a $300,000,000 company, and not everyone will get pro bono representation.
That said, if GW settled, any future threats against companies might be better put together with the expectation that the little guy will fight back.
GW put together a terrible case and rushed it out the door. They were overly zealous and quite arrogant about it. They expect smaller companies to bow down and fall in line.
Now if GW lose the case altogether, then smaller companies will view that differently, in that they may often decide it's worth fighting over.
As for settlement, at this point I don't think CHS has any reason or need to settle. Then again perhaps he has a number in mind that would mean he could just walk away from the entire industry and retire somewhere.
If GW wanted to settle with me in this case, my demands would be far beyond a simple dollar amount. Free models within a certain degree of moderation for life would be item number 1.
Now if GW lose the case altogether, then smaller companies will view that differently, in that they may often decide it's worth fighting over.
As for settlement, at this point I don't think CHS has any reason or need to settle. Then again perhaps he has a number in mind that would mean he could just walk away from the entire industry and retire somewhere.
If GW loses altogether, the matter becomes one of settled law. GW could no longer bring cases unless they are substantially different against anyone in the US (being a Federal Court Case)...well they could, but the case has a much greater chance of being dismissed from the outset and potentially GW being sanctioned for being overly litigious (doesn't happen too often - but it does happen).
I am sure that CHS has a number in the back of their head - pretty much everyone does. It isn't always specifically tied to this case or that, rather it is a number which is pondered from time to time which would allow them to stop doing what they are doing and go do something else they would rather do.
In the case of CHS, a number which is high enough would not need be a number that would cause them to walk away from gaming at all. It could be a sum which is sufficient to roll out a line of products like Mantic, PP or Infinity. As opposed to scratching together bits and pieces over the course of a decade - they could push it out in a single go. A few million would be enough if that were there number - and for GW that would only represent dropping the dividend payment by 10 cents or so per share for a single year.
frozenwastes wrote: If I were to be summoned for jury duty, I would go, but I would inform the court that I intend to exercise my right to practice jury nullification if I deem it necessary. And that I would explain to my fellow jurors what their rights are related to jury nullification as well.
I can't imagine a prosecutor who would ever let me sit as part of the jury after hearing that.
I definitely don't support juries for civil cases. The people deciding those need to be experts on the applicable law, not just whomever can be swayed by either side's narrative the most.
Judges are people too, and many times far from experts in applicable law in civil cases, to say nothing of not being experts in rather relevant areas such as the applicable technology in patent cases. As a 'jury' consultant, this year alone I have consulted on as many bench trials as jury trials. If you think a judge is automatically better than a jury, consider the impact of replacing the collective wisdom of a jury of one's peers for the just as potentially biased opinion of a single individual whose biases there is no decent system to probe, account for, or remove. The jury selection process culls bias, and is more effective at doing so the more robust the process is allowed to be. Try convincing a Jude to recuse him or herself.
The sum of a jury is greater than its parts.
I would love to continue discussing the American jury system, but I fear that this is not the thread to do so.
Apart of Chapterhouse, I believe there are more resin SMEs being sued this way just making miniatures that RESEMBLES GWs one way or another (such as slant-cut rifle muzzle)
Sean_OBrien wrote: Again, it ends up being an issue where their representation looks at the case and provides advice based on the situation on the ground. GW could pay off CHS and then just pretend like this never happened. You see those sorts of settlements happen fairly often. Generally the pay off is accompanied by various clauses which prevent both sides (in this case especially CHS) from talking about what the agreement actually entails. It would place a cloak over who actually wanted the agreement and what the terms were. Much speculation, but no closure to the issues of the case.
That sounds a bit like what happened with Paulson Games earlier on in this saga, to be honest.
Purely out of interest, by the way, what s this "jury nullification" that frozenwastes mentioned?
AndrewC wrote: Oh I agree, I just feel on the balance of probabilities a refusal is more likely than an acceptance. Just look at some of the... more verbal descriptions of Nick. There is a certain 'stiffness' in the neck when it comes to GW. He doesn't seem to accept critism as to the rights or wrongs of his actions, and that may colour any decision.
You will find this amongst many companies and individuals who have had dealings with them over a period of time. I've heard some absolute corkers over the years, both directly and from others I have known who have worked with or for the company, concerning the way the upper management has gone on and behaved with people. It's meant that for anyone aware of it there is a general reservoir of 'ill will' that feeds into this kind of thing, and who knows could even be part of the reason that CHS have managed to get Pro Bono representation.
Unsubtle troll is unsubtle - I'm sure I'm not the only one who was curious, and the explanations given by the IANYLs in this thread have often been short and clear.
Dysartes wrote: Purely out of interest, by the way, what s this "jury nullification" that frozenwastes mentioned?
Quick cliff notes version - jury nullification refers to the jury saying that while the defendant is guilty of the law as written...the law sucks, so we will let them off. For various reasons, it isn't nearly as popular now as it was back when our courts were first getting started, but it is still an existing part of the system. The basic principle though is to provide a direct feedback from the people regarding laws. If a law is nullified often enough, it can effectively demonstrate that the law no longer represents the will of the people (see the Fugitive Slave Act).
Currently, because of the lack of instruction on the matter - a jury is more likely to just find someone not guilty as opposed to opting for the more technical jury nullification.
Jury behaviour is definitely a complicated factor in a civil case. It's all about selling a story. While the judge will instruct them and tell them to not base their decision on some things and to base it on others, in the end, it'll be a group of people deciding which story they buy into the most.
The whole discussion about jury duty, civic responsibility, getting out of it, etc., matters in the US. Other places in the world might have juries made up of citizens that see their jury duty as being part of their participation in a system they believe in, but I'm not so sure that's the case for a civil case in Chicago. It's entirely possible that the jury will indeed be full of people who don't want to be there or who were unable to say what they needed to in order to be excluded.
The jury nullification thing I mentioned earlier is a manifestation of my cynicism with the adversarial court system. If I sit on a jury, I don't care what the judge advises or tells me what the law is. When it comes down to it, she won't be there when we deliberate and vote. So I will be only concerned with producing a verdict that I think is just given the information I have at the time. And that means if I disagree with the law in its entirety, I'll vote not guilty out of principle.
Jury selection is probably done with the intent of removing people who already have a principled stance on the particular laws of the case. If it's a pro-stance, the defendant doesn't want the person and if it's a opposed stance, the plaintiff doesn't want the person.
It'll be interesting to see what happens with the jury in this case. My prediction is that jury selection will moderate things and it'll be boring.
Some new documents up on recap, haven't had a chance to read them yet but CHS's looks like motion practice to try to exclude / strike various exhibits and GW seems to have filed a hybrid motion of some sort trying to head of arguements and exclude evidence and prevent lines of questioning during the trial.
251.0 MOTION by Defendant Chapterhouse Studios LLCin limine (A...
251.1 Declaration of Jennifer A. Golinveaux
251.2 Exhibit A-H to Declaration of Jennifer A. Golinveaux
252.0 Certificate of Conference by Games Workshop
253.0 MINUTE entry before Honorable Matthew F. Kennelly: The Co...
Automatically Appended Next Post:
Ah, here is something of interest, summary judgement should be out in two weeks, but the trial will be delayed:
MINUTE entry before Honorable Matthew F. Kennelly: The Court anticipates ruling on the pending motions for summary judgment within the next 10−14 days.
However, a recent development in the Court's trial schedule will necessitate a continuance
of the trial date in this case to a date sometime after the first of the year. The case is set for a telephone status hearing on 11/15/2012 at 9:00 a.m. for the purpose of resetting the trial date. Plaintiff's counsel is to get defendant's counsel on the telephone and call chambers at that date and time.
Lots of fun stuff hidden away in the two motions. For ex, what the hell is going on at the end of GWs motion?
"4. The Parties Should Be Precluded from Mentioning or Referring to Either Party’s Billing Arrangements With Its Lawyers .
The Parties should be prohibited from offering any statement, reference or criticism of how the Parties employed their attorneys, including how or whether the Parties’ are represented on a pro bono or cash fee basis, or who is paying any litigation expenses. Such matters are not irrelevant and would be raised solely to unfairly prejudice the Parties’ position without any probative value. Fed. R. Evid. 402, 403. Games Workshop has taken no discovery on the issue of Chapterhouse’s billing arrangements, notwithstanding that it has spent lavishly on videotaping depositions, flying attorneys around the world for depositions when Games Workshop has simply used telephone or video links; has hired a jury consultant and has employed teams of lawyers as against the two lawyers employed by Games Workshop. The legal fees and expenses incurred are not relevant to any issues for the jury’s consideration, and would serve to unduly prejudice Plaintiff, mislead the jury, and waste time. Fed. R. Evid. 402, 403."
Is Mr Keener trying to play the old 'rich city slicker lawyer vs simple country lawyer card' or is this a valid concern down in the states? - Also he needs to hire a new proof reader, document is littered with errors.
Automatically Appended Next Post: Or is he laying the ground work for taxing the bill if costs are awarded against gw?
I'd say they want to head off a line of argument like...
"GW has issued a lot of C&Ds over the years and businesses have capitulated specifically because they couldn't afford the legal battle that's happening right now. So why could Chapterhouse be the one? Because we're working for free. The only reason this business can get the justice they deserve is if we work pro bono."
Or something like that. IANAL and I'm not a public speaker, but I could see that being worked into an opening/closing statement.
Ah yeah - jury trial. Used to judge only civil trials. IIRC there was also a settlement conference where someone said something to the effect of - we want the trial to bankrupt them.
Anyhow, seems a bit florid. Also a bit on the nose to complain about discovery made necessary because of your own vague claims.
Still digging through the documents while attempting to do actual paid work...and something which is REALLY interesting jumped out (which will likely be redacted later on...so download and save now).
That is big document containing CHS exhibits for their pretrial limine motions...the interesting part that jumped out so far starts on page 95. It is the breakdown of the value of the trademarks in terms of US sales. Year by year for a bunch of items from 2004 till 2012.
Automatically Appended Next Post: BTW - for those interested in the trial date - the Judges minute in entry 253 states that an issue with the court's calender has caused the date to be pushed back until after the first of the year.
Kroothawk wrote: You mean the part of the document marked "Highly confidential"?
That's one of the consequences of starting a lawsuit. People get to look at your private gak.
Those would be the ones.
A lot of private stuff is kept private under normal circumstances. Previously that set of documents was filed under seal and I would guess it was a mistake (either on the part of the court record keeper or on CHS lawyers) that they are part of the larger file. Like I said - save it, as it is quite likely that they will disappear from the "official" records sooner rather than later.
Reading CHS's motion over dinner. Same theme as their motion for summary judgement - pointing out every time GW told the court one thing and then turned around and did something else, getting the public domain stuff out of the trial (arrows, roman numerals) and trying to get the late documents knocked out of the trial.
Automatically Appended Next Post: Now on to GW's motion. Most important thing, GW is planning another suit against Chapterhouse:
"Additionally, during the course of this litigation, Chapterhouse has designed, developed, and released additional products which are not at issue in this case and for which no discovery has taken place and which are the subject of a second planned lawsuit. While Games Workshop believes that many of these new products continue to infringe Games Workshop’s copyrights and trademarks, they are not at issue here and are being addressed in a separate complaint."
Yah, basically the limine motions just formalize the objections which each side brought up in the previous pretrial filings. There are some interesting bits in the supporting exhibits, but they aren't directly relating to the case (though the deposition by GWs expert witness regarding English law does indicate that many of the claims which GW makes aren't nearly as solid as they would like people to believe).
czakk wrote: Now on to GW's motion. Most important thing, GW is planning another suit against Chapterhouse:
"Additionally, during the course of this litigation, Chapterhouse has designed, developed, and released additional products which are not at issue in this case and for which no discovery has taken place and which are the subject of a second planned lawsuit. While Games Workshop believes that many of these new products continue to infringe Games Workshop’s copyrights and trademarks, they are not at issue here and are being addressed in a separate complaint."
I love it when the bully gets surprised by the kid he's picking on and ends up bloodied.
The only thing I like more is when he thinks it was s fluke, comes back for more, and gets hit twice as hard the next time.
czakk wrote: Now on to GW's motion. Most important thing, GW is planning another suit against Chapterhouse:
"Additionally, during the course of this litigation, Chapterhouse has designed, developed, and released additional products which are not at issue in this case and for which no discovery has taken place and which are the subject of a second planned lawsuit. While Games Workshop believes that many of these new products continue to infringe Games Workshop’s copyrights and trademarks, they are not at issue here and are being addressed in a separate complaint."
I love it when the bully gets surprised by the kid he's picking on and ends up bloodied.
The only thing I like more is when he thinks it was s fluke, comes back for more, and gets hit twice as hard the next time.
Eric
The announcement of a second suit says a few possible things about GW:
1. They think they've already lost this one and were dumb enough to inform CHS of the second round, allowing their lawyers to saddle up early for it.
2. They think that if they win CHS would still be around to sue. I'm like 99% sure that if GW wins CHS would just shut down and move on, not that it will happen as things stand.
3. They think that CHS might not get pro bono representation the second time around by the same lawyers, and thus would shut down.
"Well sir, they're beating us pretty bad in our law suit, we're probably going to lose this one."
"Really? Screw it, we'll sue them again for different items and I'm sure that will work. Also, let them know now that we're going to sue them again, I'm sure that will scare them down."
"They have free lawyers sir, I don't think they'll back down if we lose."
"Yeah yeah yeah, and advertising is a good marketing strategy and people over 18 spend more money than children on our products. You and your wacky theories."
Aerethan wrote: "Yeah yeah yeah, and advertising is a good marketing strategy and people over 18 spend more money than children on our products. You and your wacky theories."
CHS may not receive pro bono representation the second go around.
GW may not be intending on filing suit in the US.
Over the past few months GW has been doing a bunch of stuff in order to strengthen various trademark claims (advertising and marketing expenditures in the way of GenCon presence...bits rereleased to satisfy the Trade aspect of trademarks...).
I wouldn't be surprised if they file suit in a Eurozone backwater (or Germany...I understand they can be very vicious relating to IP cases). A win in a far flung location which is still part of the EU would allow them to leverage a ban on CHS products in the zone and possibly work into the US market depending on how cooperative the courts want to be at the time.
Seems like real and substantial connection / forum non conveniens and the civil law equivalent (which I think uses the residence of the defendant) would be in favour of CHS if it did show up outside of the US. Although I could be wrong about that civil stuff, it's been a while.
After reading that, it seems that GW's lawyers are actually now trying to earn their pay for a change. Of course it could also indicate a bit of desperation and that grasping at straws is the new tactic in this case.
Now as a layman that reads as though GW are asking the judge to not allow CHS to defend itself. So I guessing most of that will be thrown out pretrial? Though will the judge not view even asking for that in a very dim light? Also are CHS lawyers allowed to make reference to GWs attempt to stymie CHS defense to the jury? I'm sure not a lot of people would be impressed with seeing what GW asked for.
I doubt the judge will view this motion in a dim light. Stuff like this seems fairly typical. The judge will likely only have a problem if GW persists after being ruled against (should that happen).
On the issue of concurrent litigation, I'm not sure how the courts handle that.
On the issue of concurrent litigation, I'm not sure how the courts handle that.
In very very general terms concurrent litigation or subsequent litigation raises a couple of issues in the common law world - joinder, and res judicata. How they actually apply will vary from jurisdiction to jurisdiction but I can give general definitions.
Joinder are the rules that cover the what claims and parties can be joined together into a single lawsuit. The policy view behind the rules of joinder is that the interests of society and litigants are best served by one lawsuit instead of multiple lawsuits. It's cheaper for the litigants and uses up way less court time and resources. If a plaintiff has a number of claims that are factually or legally similar or related to each other it also prevents contradictory or inconsistent findings by different courts. If you hit three people with your car at an intersection, it makes sense to have one trial instead of three trials.
In this case you have GW mentioning a future suit that involves the same parties and very similar issues. If the case was just starting it would make sense from a cost and time perspective to join the causes of action and have one trial. Why do discovery twice, all the pretrial motions twice and so on and so on. On the other hand this case is almost at trial. Adding a bunch of new claims at the last minute might mean redoing discovery etc.. I don't know US fed court civil procedure but there is likely a rule or limitation that prevents it. (and strategically since CHS is making a big deal about evidence coming in after the close of discovery, allowing discovery to open up again would be a mistake). If they brought a new suit, the sensible thing to do would be to delay / stay it until the current case was concluded.
Res judicata is a doctrine that prevents the relitigation of matters already decided - it is supposed to relieve parties of the annoyance and cost of multiple lawsuits, conserve judicial resources and encourage reliance on adjudication. It has two limbs, cause of action estoppel and issue estoppel. Cause of action estoppel is pretty simple, it prevents a cause of action from being re-argued (bringing another suit for copyright infringement on any of the CHS kits in GWs complaint for example). Issue estoppel stops parties from relitigating a particular issue (facts, or points of law). Res judicata concerns frequently trigger joinder of claims or parties.
I believe that you folks in the US have non-mutual issue estoppel, which means that issues decided in this case will carry over not just to future gw v chs cases but any other case brought in the US by GW that covers the same issues.
That little bit in GWs filing where they say we don't want any new chapterhouse products mentioned and we don't want any of our copyrights or products that we've dropped mentioned is in part about the jury and in part is an attempt to prevent res judicata applying to any future suit. Some stuff will still get caught. If the court makes a factual finding that certain artists were independent contractors, that will carry forward to a later suit between the parties that involves that same issue. I'm not sure how something a finding that GW failed to prove commercial use of a trademark would be handled. If GW gets an unfavourable decision in this current case they can try to argue around it's application in another jurisdiction or try to mold the facts to avoid its application (try to dodge stare decisis) but res judicata is far stricter than stare decisis. A later (maybe foreign) court that might ignore, change or overturn the fed court's judgement will still be unlikely to touch anything covered by res judicata.
Especially a UK court, they take that gak seriously. If for example the US Fed Court rules that Lucasfilm applies and GW doesn't have copyright and GW brings a suit against CHS in the UK, the UK court might ignore the fed court decision (say they got the law wrong) for other products or other plaintiffs but they won't allow GW to relitigate (against CHS) the products and copyrights covered by the federal court lawsuit. That gak is settled as far as they are concerned even though in this hypothetical the UK court is of the opinion that the Fed Court got the law wrong.
I guess another important point is that res judicata doesn't apply to the appeals process. An appeal is the proper forum to challenge a judgement.
CHS may not receive pro bono representation the second go around.
GW may not be intending on filing suit in the US.
Over the past few months GW has been doing a bunch of stuff in order to strengthen various trademark claims (advertising and marketing expenditures in the way of GenCon presence...bits rereleased to satisfy the Trade aspect of trademarks...).
I wouldn't be surprised if they file suit in a Eurozone backwater (or Germany...I understand they can be very vicious relating to IP cases). A win in a far flung location which is still part of the EU would allow them to leverage a ban on CHS products in the zone and possibly work into the US market depending on how cooperative the courts want to be at the time.
I do not believe that GW will pursue another suit against CHS because I believe that the corporation can not afford another long term suit.
This reasoning is bolstered by the continual cost cutting efforts (such as the reduction of store hours in the UK which people should take notice as that is the crown jewel of the corporation) being implemented. As far as filing other suits in other countries? That is possible however this corporation does everything as cheaply as possible and I don't see anything different or any change from this mindset.
Like many, such as myself who have said over the years. The key to growth for GW to have a broad base licensing program for third party companies. Over the years I've been involved in licensing product. This is not hard to do.
Let's hope reason prevails and both parties settle amicably so that financial resources can be made creating quality content.
Adam LongWalker wrote: I do not believe that GW will pursue another suit against CHS because I believe that the corporation can not afford
If they win the lawsuit, the money that is spent is considered an asset to be amoritized not as an expense, so it won't look bad on the financial statements (Which is really the only thing that is important). GW has the cash in the bank to absorb the costs.
I do not believe that GW will pursue another suit against CHS because I believe that the corporation can not afford another long term suit.
This reasoning is bolstered by the continual cost cutting efforts (such as the reduction of store hours in the UK which people should take notice as that is the crown jewel of the corporation) being implemented. As far as filing other suits in other countries? That is possible however this corporation does everything as cheaply as possible and I don't see anything different or any change from this mindset.
Like many, such as myself who have said over the years. The key to growth for GW to have a broad base licensing program for third party companies. Over the years I've been involved in licensing product. This is not hard to do.
Let's hope reason prevails and both parties settle amicably so that financial resources can be made creating quality content.
Actually - at this point, the future suit must go forward. There are laws in the US that says you can not say you will sue someone...and then not (roughly speaking). They have said they are planning a future suit in official court filings - so either they have to go forward with the suit or they stand exposed to being held liable for not suing. Specific laws involved will largely depend on how CHS would like to go forward. They can look into declaratory judgements or possibly look at filing under other local, State or Federal laws which govern "legal threats" - some of which go all the way up to tie ins on the extortion and black mail statutes.
The reason they will likely not seek to sue in the US again are covered fairly well by Czakk - they are unlikely to attempt to sue in the UK, even though there is a certain home court advantage because of the ruling in the LucasFilm case. It is probably that they will use a smaller Eurozone country (who they could probably demonstrate jurisdiction with because of sales information they got through discovery in this case...which is unethical and in many cases illegal).
Czakk well and good covered issues relating to concurrent litigation (or in this case probably sequential) for the US. The only thing I would add is that if they choose not to appeal the ruling within this case they can in theory proceed with a suit in the US under a different district. Although there are not specific hard and fast laws which define it, in the US we have vertical and lateral (not sure if that is the correct "academic" term) res judicata. In the case of vertical res judicata - a case which has been heard by a higher court will likely be used to influence a lower court case directly as settled law. If the case is dealt with only by a court of similar standing (District 7 versus District 8 for example) it has a lesser impact on the court. A judge can take it under consideration, or he can choose to ignore it completely.
The big problem though is that courts tend not to like companies which bring multiple lawsuits against the same defendant for effectively the same case. Sort of an if mommy says no, ask daddy type situation. Unless they can demonstrate substantial differences between the two cases. Which is hard to imagine substantial differences...it will mostly be "They copied our X" instead of "They copied our Z". Considering that a plurality of CHS items have been on the complaints list, the court will likely find that they should have been part of this case as opposed to the attempt to overwhelm CHS with legal fees. That opens GW up for abuse of process or malicious prosecution claims which could have HUGE impacts on how GW is allowed to do business in the US (the court can actually revoke the right of GW to defend their IP in the worst case scenario).
Is that as grey of an area as it appears to a non-lawyer? Specifically, the res judicata--is it entirely judicial discretion that they feel res judicata applies in a future suit (and where it does not). As an example;
GW sues CH for the sale of its "Not Eldar" GW loses CH produces another model called "Not Dark Eldar" GW brings suit again due to the new violation (which while in spirit is like the first case--the new model warrants a new case)
If that's the case, wouldn't the most successful strategy for a company as large as GW be to simply be done with the current case, bring suit after suit waiting until CH cannot get free (or afford) proper representation?
AgeOfEgos wrote: Is that as grey of an area as it appears to a non-lawyer? Specifically, the res judicata--is it entirely judicial discretion that they feel res judicata applies in a future suit (and where it does not). As an example;
GW sues CH for the sale of its "Not Eldar"
GW loses
CH produces another model called "Not Dark Eldar"
GW brings suit again due to the new violation (which while in spirit is like the first case--the new model warrants a new case)
If that's the case, wouldn't the most successful strategy for a company as large as GW be to simply be done with the current case, bring suit after suit waiting until CH cannot get free (or afford) proper representation?
Which is were abuse of process and malicious prosecution come into play. Judicial discretion regarding lateral cases will only go so far. If they get on the wrong side of the court, very bad things happen.
frozenwastes wrote: If I were to be summoned for jury duty, I would go, but I would inform the court that I intend to exercise my right to practice jury nullification if I deem it necessary. And that I would explain to my fellow jurors what their rights are related to jury nullification as well.
I can't imagine a prosecutor who would ever let me sit as part of the jury after hearing that.
I definitely don't support juries for civil cases. The people deciding those need to be experts on the applicable law, not just whomever can be swayed by either side's narrative the most.
Which defacto means you are trying to get an excuse to get tossed from actually serving on a jury. Jury nullification is a good thing, but sometimes the sucker is just guilty and if you actually want to have a chance to use it effectively, then you have to actually be sitting on a jury when a case that needs it comes up. You won't be, so your knowledge and will to use jury nullification is worthless.
clively wrote: Also, does anyone have any idea what Exhibit E is supposed to mean?
There are things in there like The Alamo, Alexander the Great, Route 666, American Meat? A lot of those have nothing to do with GW.
8. Attached hereto as Exhibit E is a true and correct copy of a printout of sales data
produced by GW at GW0011031, which it seeks to introduce as proposed GW Trial Exhibit 371,
“Black Library Sales Data – 2007-08.”
It is entered in as evidence for CHS en limine motions, and apparently you are not the only one confused:
Because they were all produced for the first time after the close of fact discovery and
depositions, CHS had no opportunity to depose GW about any of those sales summaries,
including the discredited Tr. Ex. 216. This late production is particularly prejudicial because it
involves spreadsheets that are incomprehensible to anyone outside GW. See, e.g., Tr. Ex. 371,
“Black Library Sales Data – 2007-08 (Golinveaux Decl., Ex. E). Moreover, “[t]here is no way
for this Court to know that this alleged sales sheet bears any relation to reality . . . [as it is]
simply something Plaintiff[] generated on a [] computer for the purposes of this litigation.”
Although I don't necessarily think it is quite that confusing, I do have some background dealing with reports like those - so they are somewhat easier to decipher. However, in terms of this case - their point is valid... What the Hell? Prove it.
One other thing that popped into my head as well when thinking back on reports like that is that while they might be truthful...they are not necessarily accurate in the grand scheme of things. As the listing states, it is Black Library Sales Data (or at least claimed to be). The problem though is that it only covers a short period of time. This is exceptionally problematic because of the manner in which the book trade does its business. If I am a distributor for Black Library, I might order up a hundred copies of their latest book. I then sell those off to the various retail book stores and they sit on shelves for a bit (not to mention the ones sitting in my warehouse). After a given time - which may in fact be longer than the period reported on in the report, the book stores come back to me and say "We ordered 70 books and only sold 20 - we want credit for the unsold books". I credit their account and they destroy the books which they have in their possession (some companies have them ship back the front covers to get credit...though that varies from store to store and by distributor). I then go back to GW and say, we bought 100 books and I had to credit my retail network for 50 books and I have 30 left in my warehouse. I'll keep 5 of those for special orders, but I want credit for 75 books which I couldn't sell.
That is why a lot of the entries in the list show a negative entry under the units and revenue columns.
Also...there was a branch of GW's publishing arm, Black Library which was called Black Flame for a period of time (not sure if they are still in existence or if they have been sold off or shut down - would need to dig more). Books produced under that branch are listed as "NOVEL BF REGULAR" in the list and include titles like "American Meat"
Part of the "Dark Future" series by Stuart Moore for that particular one. There are others by other authors which are set in that particular universe...Route 666 was written by Kim Newman for example in the same setting.
I like how the CH lawyers are pushing to have all of Nick's online comments barred from being admissable. Probably due to his numerous references of developing several products as parts for eldar or marines etc. Those posts would be damaging to CH with any jury as it's a lot of open mouth insert foot style postings, plus rudeness and hostility aren't going to color things any better. I'm curious to see how the judge will rule as the forums posts are publically acessable infomation. It also explains why his legal team is so focused on contesting ownership of the designs (GW vs individual artist) as he's openly admitted to making derivative parts which damages a lot of potential defenses they could otherwise raise.
Both sides of course are pushing for things to make them look the most favorable, interesting to see what the judge will allow or disallow.
In general the paperwork i's some boring stuff although the strategy and posistioning dance is interesting enough I may go watch the trial.
Certain language used might not be flattering, however most of it doesn't seem exceptionally damaging to me at least. The issue which I would have with admitting that in as evidence is more as it regards to relevance. GW had their opportunity to depose Nick for several hours - if he gave statements that could be refuted by forum posts, then those posts are relevant to the case. If not, the deposition should be sufficient evidence as well as any questioning which they may or may not be able to do in court. Although there are some wiggly things, which are done with a wink and a nod - I don't think anything in particular was done which would impeach his credibility in terms of the court.
At that point though, you would need to be able to demonstrate a chain of custody on the "evidence". Again, while it isn't necessarily likely - was his account hacked, was he the one who made the posts, were the posts altered by anyone who might have been a moderator on the website it was found on? The SCA places that determination with the judge in each case - both whether or not the information is relevant and then whether or not the information is reliable. I would assume it is reliable, as there is little reason for someone to hack an account and make the posts - the relevance, as I said would only be in order to impeach Nick's credibility if the posts contradict his deposition or testimony.
I don't really think this will come down to a question of whether or not parts are made for Eldar or Space Marines. I know a lot of people like to make that argument, but the law is fairly clear in numerous instances that you can make stuff for other peoples stuff.
The question doesn't even relate to using GW products in order to ensure proper fitment. For example, it would be difficult to design an iPhone case without having an iPhone in hand to make sure it fits properly.
The bigger question (assuming Design Rights are discounted) is are things like the GW shoulder pad design unique enough to be protected, and further if the combination of common symbols and other design elements on a shoulder pad protectable.
The use of the Trademarks goes back to whether or not the court (or jury if it makes it past the summary judgement phase) believes that their is confusion created by the manner in which they are used and whether or not the item can be identified without using the Trademark of another company.
Again, the example of an iPhone case. Try to imagine a way which you could market an iPhone case without calling it an "iPhone Case". That uses a trademark which is owned by Apple - but it doesn't attempt to make a claim on the mark. In a similar way, we can find all sorts of shoulder pads made by dozens of companies which are not sold as "Space Marine Shoulder Pads" - though it is merely through familiarity that people know what they are for. To the untrained eye, a nominative use of the trademarked term "Space Marine" and the generic term "Shoulder Pads" may well be deemed as fair use of the Trademark.
The question which the jury will need to answer than comes to confusion. Do people think that CHS is producing "official" GW products like you might get through Forgeworld or is it understood that they sell third party products?
Contesting ownership is the base level of any legal case. Before the case moves forward, the plaintiff has to prove that they have grounds to sue someone. I can't sue my neighbor because his dog pooped on a different neighbor yard. I don't have any standing. If GW can't demonstrate that they own a design or have used a Trademark - then they have no standing and no case.
It is interesting though that it seems like amateur night in many ways at GW in that they are having a difficult time in meeting that base level of proof though. From not having employee records to not having contracts for freelance artists and not even being able to pull up a sales receipt for a given item or set of items which prove that they were sold in the US. All of these are basic elements of doing business.
The iPhone or other aftermarket items are a differant legal area then what GW is trying to prove, GW is going largely after things as derivative works and deceptive trademark use.
GW needs to sell the jury that their items are "artwork" and thus protected by that set of laws, which normally don't apply to things like aftermarket car parts or iPhone cases.
The webforum stuff becomes important when establishing a pattern that he intended to make deriviative works, especially if there are internal emails with his artists expressing simular wordage. It'd be a very weak arguement by itself but when combined with other more verifiable communications it lends extra weight that it's not a single instance but part of a larger pattern of opperation. It helps paint a picture of how the company targets their market and overall mindset.
If discovery turned up internal information which show deliberate deriviative efforts then the strategy would be to defeat the root ownership as they would be unable to claim they were unintentionally creating a deriviative work.
As Nick openly commuincated as such on public forum it doesn't take much imagination to assume that he communicated in the same manner internally within the company. Assuming that information is found during discovery (which is sealed at this point) then it's very damaging.
If the public posts are also allowed he basically sunk part of his defence before the suit even started. Thus their focus is going to be on weakening the chain of ownership and hoping to invalidate it.
Much like how defence lawyers opperate in criminal cases, if you have a client that's guilty by their own admission you attack the chain of custody for police evidence and look for technical loopholes that you can get the case dismissed for.
Sean_OBrien wrote:...
Contesting ownership is the base level of any legal case. Before the case moves forward, the plaintiff has to prove that they have grounds to sue someone. I can't sue my neighbor because his dog pooped on a different neighbor yard. I don't have any standing. If GW can't demonstrate that they own a design or have used a Trademark - then they have no standing and no case.
It is interesting though that it seems like amateur night in many ways at GW in that they are having a difficult time in meeting that base level of proof though. From not having employee records to not having contracts for freelance artists and not even being able to pull up a sales receipt for a given item or set of items which prove that they were sold in the US. All of these are basic elements of doing business.
paulson games wrote:The iPhone or other aftermarket items are a differant legal area then what GW is trying to prove, GW is going largely after things as derivative works and deceptive trademark use.
GW needs to sell the jury that their items are "artwork" and thus protected by that set of laws, which normally don't apply to things like aftermarket car parts or iPhone cases.
The webforum stuff becomes important when establishing a pattern that he intended to make deriviative works, especially if there are internal emails with his artists expressing simular wordage. It'd be a very weak arguement by itself but when combined with other more verifiable communications it lends extra weight that it's not a single instance but part of a larger pattern of opperation. It helps paint a picture of how the company targets their market and overall mindset.
Sean quite elegantly points out the great flaw with both GW and a number of their boosters understanding of the proceedings: it's not in the least clear that GW ever had standing to enforce a large number of the claims they have made over the years.
By way of analogue, consider the following fact pattern:
-I take a sledgehammer outside and smash the ever-loving heck out of a nearby sedan.
-Everyone sees it, and I post a video of myself on youtube to brag.
-George White (call him GW) sues me for smashing up his car.
-We arrive at the courthouse, GW slaps down a pile of papers fit to kill goats with, laying out, blow by blow how I reduced a fine automobile to a heap of twisted metal.
-I reply "Your honor, even if everything GW says is true, it doesn't matter, because it wasn't GW's car."
-The judge turns to them and says "can you prove the car is yours?"
-"Uhhhhhhhh..."
When one considers that GW has bragged (referring to it as their "moat") about the unassailable quality of their IP protection, it's nothing short of shocking that they have been so utterly lax, so totally negligent, in actually making certain that what they claim is their is actually theirs.
Beyond that, it will be quite interesting to see GW claim that their products are artwork of a sculptural nature, when they are sold looking like...
Let's not forget, GW doesn't actually sell models... they sell model kits. Kits that don't just require assembly, but necessarily require alteration.
I am not rooting for GW by any means, just examining how each legal team is approaching this suit.
Personally I don't think that GW should be allowed to claim they are producing sculptural artworks, but that's what they are claiming and it'll be interesting to see if the court upholds the artwork angle or if they'll treated as a consumer goods like iphones or car parts.
The artwork vs consumer goods is the major interest I have in the outcome of this case as it has a huge impact on the gaming industry.
The second area I'm interested in; seeing how the ownership issue hammers out as it can damage GW's line severely. It can likewise have a huge impact on other miniatures companies as most companies use freelance artists.
I've got no dog in the fight for either side but I have keen interest in the strategies being applied and how it'll impact the larger industry.
Much like how defence lawyers opperate in criminal cases, if you have a client that's guilty by their own admission you attack the chain of custody for police evidence and look for technical loopholes that you can get the case dismissed for.
First, I would point out this is an, as of now, entirely unwarranted in its negative implications of CHS' conduct.
Second, it's not at all necessary that the statements are incriminating: it's entirely possible they are exculpating.
That is, assuming, arguendo, that the judge rules that GW has a protect-able interest in various pure geometric shapes, the public statements go towards a secondary element: good faith belief that one's conduct was appropriate. In terms of damages, showing that you honestly thought that you were acting in the right is a mitigating factor.
That is, unless there is something wildly inappropriate, of course. As I recal, most statements were of the mode "our legal council has said this is all kosher". Reliance on expert testimony in a matter of law isn't an excuse, but it does serve to mitigate possible damages.
Finally, to speak of " technical loopholes" in this manner is to mistake the significance of what is being argued before the court. It is entirely possible that the court will rule that even if all formalities had been followed (which they clearly have not been), the material so claimed is not appropriate for protection.
Saying "guilty by their own admission" is putting the legal cart before the horse. The first step, the sine qua non, is that GW must prove they actually own this stuff. Unless and until GW does so, no actions on the part of CHS have any bearing on anything.
Automatically Appended Next Post:
paulson games wrote: I am not rooting for GW by any means, just examining how each legal team is approaching this suit.
...
I've got no dog in the fight for either side but I have keen interest in the strategies being applied and how it'll impact the larger industry.
My pardon, I did not mean to imply you were necessarily supporting them, I was merely reacting to what I construed as an inappropriate understanding of the legal strategy.
As someone who has, on a professional level, been involved in trying to trim back abuses of the IP system in this country, I am perhaps too sensitive to the idea that violating what one party claims is their IP is the same as actually violating their IP>
The first step, the sine qua non, is that GW must prove they actually own this stuff. Unless and until GW does so, no actions on the part of CHS have any bearing on anything.
And this is the part that kills me. Can the judge not demand such proof before even allowing a suit to get this far? In the smashed car analogy, the VERY first thing any authority, be it police or a judge, would do is require the plaintiff to show that it was in fact their car. To a further degree, if you claim someone STOLE you car(which in a way GW is doing here) the police would require some proof that you own any such car, either by a DMV search or with a title or registration.
How is proof of ownership not the very first thing on the checklist for a suit over copyright and trademarks? Why on earth did this get this far without such proof?
Is this normal court procedure, or is the judge just wanting to see how incompetent someone can be at suing over IP?
Is this normal court procedure, or is the judge just wanting to see how incompetent someone can be at suing over IP?
There is always the possibility that it meets the court requirements to be filed?
Just because you make a mess of things doesn't mean it doesn't still meet the minimum criteria for making a case.
Having met the judge at the beginning of the case he is a hard-ass and has no tollerance of people wasting his time, if it didn't meet the standards he would have tossed everything already. While there's a lot of heckling back and forth on both sides there are a number of valid points which has kept it floating and headed to trial.
Additionally as a judge he is to remain impartial. If a side burns themself because they are underprepared it's not his place to stop them. Like a referee he only rules over what is legal and what isn't, regardless of how bad a team may be doing.
How is proof of ownership not the very first thing on the checklist for a suit over copyright and trademarks? Why on earth did this get this far without such proof?
Pretty sure this question should get resolved for each IP claim when the court rules on the MSJs in two weeks (?) or so.
If GW has not shown that they own the IP for each piece that they claim to own, then those items may get tossed from the suit. If enough of them get tossed, the judge could toss the whole suit.
Additionally as a judge he is to remain impartial. If a side burns themself because they are underprepared it's not his place to stop them. Like a referee he only rules over what is legal and what isn't, regardless of how bad a team may be doing.
That answered my question right there. I forget that judges in these instances are not there to explain how to file a suit with a proper platform or case, just to make sure that the rules are followed, most of which are not rules on how to play, but rather rules on what ISN'T allowed.
That would make full contact sports way more interesting. I suppose MMA is about that level of rules, though my knowledge of that is quite limited.
I forgot that GW dragged you into this nightmare and that you have first hand experience with at least a few of the key people involved here such as the judge. Good to know that he's a hard ass, which I imagine one would have to be when dealing with such bold claims and large companies that think their weight is worth a damn.
I still think he laughs about GW's offense team with the other judges at the golf course.
paulson games wrote: The iPhone or other aftermarket items are a differant legal area then what GW is trying to prove, GW is going largely after things as derivative works and deceptive trademark use.
GW needs to sell the jury that their items are "artwork" and thus protected by that set of laws, which normally don't apply to things like aftermarket car parts or iPhone cases.
I tend to agree - however, when presented with the claim which GW makes...the counter point is that it is a descriptive use of the trademark and that there is no confusion caused (as confusion is the key to GWs claim).
Is this normal court procedure, or is the judge just wanting to see how incompetent someone can be at suing over IP?
There is always the possibility that it meets the court requirements to be filed?
Based on the previous motion hearings and the judge's response to it - he still hasn't made up his mind on that one (well, he may have and is simply allowing the process to take due course). If you go back through the ReCap site, their are a few pages of transcripts from in front of the judge - in particular starting from page 39 of this document:
Also on that page, the judge interjects with a throw away line that may give some hint of where he stands on the matter of originality of the GW products. However, because of the process - he is allowing things to go forward, not necessarily because he believes one side or the other is correct...rather because that is the process. He makes similar comments as well at other points which seem to be in somewhat of disbelief to claims of originality by GW.
Automatically Appended Next Post:
Herzlos wrote: Even though they haven't been able to prove any confusion.
Correct.
Comparable cases regarding confusion and trademarks can be seen within various counterfeit cases dealing with designer fashion (the infamous Red Shoe case for example). One thing which distinguishes those cases from this is that the products are clearly marked in an identifiable manner which is unique to their products. It may be a textile pattern which is used (for example, many of my wife's Coach bags have a "C" pattern on them). On its own, the "C" isn't a trademark - but it is an identifying feature which adds to the fame of the Trademark. If GW used something which was unique to their company which CHS copied (a particular motif which is tied to their company or perhaps a specific color of plastic) than the case for confusion would be stronger.
The best case would probably be best met by the Aquila - though it is not nearly as unique as the other above cases as you do find similar designs in historic cases and other fictional universes.
I really like this judge (quoting sections are allowed, right?), page 9/10 of your 2nd link:
The second thing is we're going to figure -- you guys
need to figure out and propose to me a way of getting us to a
resolution in this case sometime in my lifetime, okay, and I'm
planning to live for a while. I'm only 54, and I would like
to get this done, you know, before I go on to the great
beyond. It's not looking real promising right now, and I know
I'm being a little snide here, but, you know, you're kind of
asking for it.
He seems like a no nonsense kinda judge, and he seems to have a good grasp as to what is going on in the case, even if it is about toy soldiers:
"THECOURT: So in the words of one of my colleagues, you're really going for the capillary here. That would be as opposed to the jugular, okay. Really, I think that is such a small thing that you don't really need to do it. So I'm not persuaded by the argument of the plaintiff on that one."
17 I mean, I'm having a hard time seeing what's wrong
18 with the request that says, okay, you've got this thing here
19 that you claim is copyrighted. We dispute it's copyrightable.
20 We dispute that it's a particularly strong copyright. We
21 dispute, you know, how much scope of protection you're
22 entitled to for this, and so we want to see how you came up
23 with this. Did you come up with this by basically seeing a
24 picture in another book or, you know, reading, you know, some
25 Tolkien novel or whatever?
I know this is OT, but I want to ask anyway. GW has stated that they are bringing a second case for further CHS products, as I understand it the female 'not-a-seer' and 'not-a-scorpion'. But, wasn't both these items subject to discovery in this case? Isn't it forbidden to use discovery as a fishing trip to see what else you can pin on them?
AndrewC wrote: I know this is OT, but I want to ask anyway. GW has stated that they are bringing a second case for further CHS products, as I understand it the female 'not-a-seer' and 'not-a-scorpion'. But, wasn't both these items subject to discovery in this case? Isn't it forbidden to use discovery as a fishing trip to see what else you can pin on them?
Shouldn't they have been folded into this case?
Cheers
Andrew
Largely - which is something which I see will become potentially problematic for them in the future. Things which were addressed during various points during discovery for this case (the not-a-seer and not-a-scorpion were both parts of the depositions) are generally off limits in a future case. Discovery from this case can also not normally be used as the basis for a future case as well.
I would need to sit down though and look at the most recent complaint (not to sound like a CHS lawyer) as GW has a fairly active moving target on that. A lot of stuff has been added to, removed and generally shuffled about in terms of what they are claiming. Off the top of my head, I think there are a couple of vehicle kits which haven't been addressed - though to be honest, those would likely be an even weaker case due to the presumed functional nature of mechanical models.
Assuming CH win this case they will be in a good position to contest the next one, and while that is going on they will continue to issue products. Will GW start a third case while the second is progressing?
Could it be that GW's new strategy is the following:
"Okay, we have no chance to win this case (a.o. because we were unable to provide the necessary documents to even file the case) Now lets bury CHS with follow-up lawsuits until we catch them without pro bono lawyers."
Kroothawk wrote: Could it be that GW's new strategy is the following:
"Okay, we have no chance to win this case (a.o. because we were unable to provide the necessary documents to even file the case) Now lets bury CHS with follow-up lawsuits until we catch them without pro bono lawyers."
Sean said a few posts ago that it would be considered "vicious litigation" and GW could be sued for that and would likely lose. It's an abuse of the system, and the court knows it and will react to those who do it.
Now C&D's aren't suits, so they can toss those out as they like as long as they don't straight up say that they are going to sue you, at which point apparently they MUST sue you.
C&D's are the legal equivalents of creepy stalker notes, they are warning signs that a greater problem may be coming and that to continue on will likely have some kind of consequence to it. GW hedges it's bets that most people will just think the risk not worthwhile and abort their actions. Clearly GW doesn't know how to handle what happens when they don't back down.
It is getting a bit outside my area of personal experience - so the particulars of which statute might apply to the practice are not specifically known to me, but they largely fall under the broader "abuse of process" category. Some of these are criminal, some a civil and some are simply procedural slaps on the wrist. However, should a judge issue a procedural slap on the wrist that says something along the lines of "leave CHS alone" and GW were to decide not to - they can be held in contempt of court (which can have numerous penalties up to and including jail terms).
C&D orders are not the same as C&D letters. A C&D letter can be issued by anyone to anyone for anything (more or less). They have no particular enforcement power. A C&D order can only be issued by a judge, either as a result of a successful case or in the form of a temporary injunction.
Just want to make it clear on that particular issue as my level of confidence in my understanding of that portion of the law isn't as high as it is for other aspects relating to this case.
Kroothawk wrote: Could it be that GW's new strategy is the following:
"Okay, we have no chance to win this case (a.o. because we were unable to provide the necessary documents to even file the case) Now lets bury CHS with follow-up lawsuits until we catch them without pro bono lawyers."
One thing to note abotu Pro Bono service is that it's not entirely free. The legal cousil doesn't charge but it's still the client responsibility to cover basic costs like filing fees, paying for phone calls or airfare for witnesses, depositions etc. Pro bono lifts a huge burden off a defendant but it's still possible to use the the cost of legal proceedings to wear down a small company depending on how much they actually make.
For example if a company only makes 15k a year, and they run 7-8k in expenses for court costs it can really damage that company finanically. Its much better than sinking 120k into a standard legal defence, but if the company is small it can still be very taxing experience and ruin them.
If they are planning a round two it's likely a dual approach of continuing to choke off the companies profits and also to cover new items that have come out since the original suit was filed.
It's one of the problems that face any small business, larger businesses with massive pockets can drown a lot of their competition simply through threat or legal action, or dragging heels when in actual trial hoping to drain their funding to the point it leathally damages the company. If you've been watching "The Men That Built America" most of the monopoly builders employed such tactics to stomp out anyone they couldn't buy. Edison/Chase used threat of legal costs to sink Tesla/Westinghouse and outright steal their patents.
Countersuing for Malicious Litigation is supposed to help defend against that, but in order for that to be sucessful you have to first weather the inital trial and be found free and clear on all counts. So if even one item sticks then you can't counter sue.
If CHS were to prove an abuse of process by GW beside being able to seek relief and compensation from the malicious prosecution the court could go further and rule against GW with prejudice, which would for a time prohibit GW from bringing further suit against CH.
I am wondering if GW lose the case are they opening themselves up to potential lawsuits from all the after-market parts makers they have forced to shut down in the past?
Breotan wrote: No. They never "forced" anything. C&D letters are not illegal and receiving one doesn't give you standing to sue the people who sent it.
Sending the letter may not be illegal, but i assume ( no legal expert ) the letter boil down to you are infringing on our copyrighted stuff. Stop or we will take you to court.
Now if GW loses and it it found that many of the things they are claiming to be copyrighted are not would some of these small companies that closed due to the threat of legal action have a case to sue GW for lose of earnings or damages?
They might have a case if they can prove that GW acted really, really maliciously. Operative word: might. There'd have to be more than just a nasty letter to show; it would be a bad, bad idea to make threatening a lawsuit, even one on rather thin ice, a potential tort so just a threat of suing would almost never be actionable (I'll admit this might be a rather euro-colored outlook but I can't really imagine it'll be different in the US - all of litigation would instantly degrade into one big recursive circular-sue-fest (or at leat threat thereof ) ).
pitboy2710 wrote: Sending the letter may not be illegal, but i assume ( no legal expert ) the letter boil down to you are infringing on our copyrighted stuff. Stop or we will take you to court.
Now if GW loses and it it found that many of the things they are claiming to be copyrighted are not would some of these small companies that closed due to the threat of legal action have a case to sue GW for lose of earnings or damages?
Receiving a C&D (in the US) may provide grounds to file a lawsuit, but only of the declaratory judgment sort - essentially, the recipient can file the copyright infringement suit alleged by the C&D letter, and ask a court to apply its judgment to the scenario without waiting for the copyright owner to file suit.
But if you chose to shut down your business, rather than pursue such an option, I can't see a path forward for any other claims.
Janthkin wrote: Receiving a C&D (in the US) may provide grounds to file a lawsuit, but only of the declaratory judgment sort - essentially, the recipient can file the copyright infringement suit alleged by the C&D letter, and ask a court to apply its judgment to the scenario without waiting for the copyright owner to file suit.
I think declaratory judgement is too under utilized by companies that are getting C&D's and being bossed around. For those who don't understand the declaratory judgement its a preemptive means by which some one that's been threatend with legal action can go to a court and have the court outline for them how to avoid infringement or breaches. Then as long as a company follows that opinion, when a company, like GW sues it's no longer them against you, its them against the judgement of a court... a local court or court you selected, not one they chose. It also forces them to frame the arguement they have to make differently. Even before they can try and prove infringements or the alike... they first have to argue and prove that a judge's interpretation of the law was incorrect. Its an immunization from that grey part of the law that maybe ambiguous.
Janthkin wrote: Receiving a C&D (in the US) may provide grounds to file a lawsuit, but only of the declaratory judgment sort - essentially, the recipient can file the copyright infringement suit alleged by the C&D letter, and ask a court to apply its judgment to the scenario without waiting for the copyright owner to file suit.
I think declaratory judgement is too under utilized by companies that are getting C&D's and being bossed around. For those who don't understand the declaratory judgement its a preemptive means by which some one that's been threatend with legal action can go to a court and have the court outline for them how to avoid infringement or breaches. Then as long as a company follows that opinion, when a company, like GW sues it's no longer them against you, its them against the judgement of a court... a local court or court you selected, not one they chose. It also forces them to frame the arguement they have to make differently. Even before they can try and prove infringements or the alike... they first have to argue and prove that a judge's interpretation of the law was incorrect. Its an immunization from that grey part of the law that maybe ambiguous.
There are some fairly well-understood procedural hurdles to filing a valid declaratory judgment suit, especially in the IP space - good lawyers won't provide enough in the initial not-quite-a-C&D-letter they send you to put you on notice to provide standing for a declaratory judgment. And it's still really expensive to engage in such litigation, particularly in the IP space.
But it's almost always better to play in the court of your choice, rather than wherever the other party is going to drag you.
Janthkin wrote: Receiving a C&D (in the US) may provide grounds to file a lawsuit, but only of the declaratory judgment sort - essentially, the recipient can file the copyright infringement suit alleged by the C&D letter, and ask a court to apply its judgment to the scenario without waiting for the copyright owner to file suit.
I think declaratory judgement is too under utilized by companies that are getting C&D's and being bossed around. For those who don't understand the declaratory judgement its a preemptive means by which some one that's been threatend with legal action can go to a court and have the court outline for them how to avoid infringement or breaches. Then as long as a company follows that opinion, when a company, like GW sues it's no longer them against you, its them against the judgement of a court... a local court or court you selected, not one they chose. It also forces them to frame the arguement they have to make differently. Even before they can try and prove infringements or the alike... they first have to argue and prove that a judge's interpretation of the law was incorrect. Its an immunization from that grey part of the law that maybe ambiguous.
yes, but what does it cost to actually argue? I mean, those small businesses don't often have ~10K lying around to spend on attorney's fees and especially on a declaratory judgement you're on the hook for all of it, court costs, everything. Easier to just fold everything C&D'ed and just move on, I'm afraid.
Sure, you get to choose venue, but the other guy still gets to argue his side, meaning the 'big' guy can just literally bury the other side in costs. Depositions alone, all requiring your lawyer(s) to spend/waste time on, stenographer's costs etc, can rack up a bill such a small company could never possibly afford.
also, a lot of those small fries just bending over, so to say, are often not incorporated as an ltd or anything, making their owners personally liable if, say, GW were to win later on. Fighting is too expensive and business as usual to risky a strategy so folding really often is the only option.
Hell, I'm only a law student and a European one at that (so perhaps insufficiently familiar with the finer points of this in US law) but really, would you say it's a *realistic* option for someone just wanting to make a living?
Bolognesus wrote: Hell, I'm only a law student and a European one at that (so perhaps insufficiently familiar with the finer points of this in US law) but really, would you say it's a *realistic* option for someone just wanting to make a living?
Yes, and no.
Putting on a full on legal defense like you see in this particular case would be outside the scope of your average industrious hobbyist. However, if you take a look back through the history books you can see some examples of how one person can stand up against a larger organization. For example, Battle Foam v Outrider Hobbies.
Although that case actually went to trial and the one man show prevailed against the larger Battle Foam company - it demonstrates fairly well that the little guy doesn't just have to roll over. IIRC, most the documents were prepared by Outrider themselves...though I would have to reread the case to be 100% certain on that.
Quite often, just the hint that you will in fact stand up is enough to get another company to back down, even if it does go forward - there is a fair amount of room for a person to represent themselves, though they should seek guidance through legal groups like Chilling Effects and others who can connect you with attorneys in your area who have expertise and are of the mind that many parts of IP law have run a muck.
I know that one, but to be fair, although BF might be relatively big they didn't have the financial ability to just ROFLstomp all over outrider with endless costs the way GW could.
Still, I see your point. And again, kudos to outrider and any like them, standing up to crap like that. I couldn't in good conscience advise it on what I know, but it's good to see the bully get bitten in such cases - especially in IP related matters.
In the semi-related RPG hobby people have discouraged lawsuits by a) being ip lawyers themselves (the kenzerco guy) or b) by judgement proofing themselves, locating in a costs shifting jurisdiction, and paying for a firm to check their work out before signing on to work on any litigation on a contingency fee arrangement (the OSRIC publisher).
The OSRIC guy also pointed out to WOTC/HASBRO back in 2006 that the legal issues involved in a copyright case over rules vs artistic interpretation would attract serious pro bono and amicus curiae money and asked if WOTC really wanted to start a fight like that.
Pretty much the same as what happened with Winston & Strawn.
Automatically Appended Next Post: Hmmm did they just pull down the CHS A-H exhibits that should have been filed under seal?
czakk wrote: Hmmm did they just pull down the CHS A-H exhibits that should have been filed under seal?
I would assume that the way the Recap server works is that if a more recent version is detected the old one is dropped. The new one will likely have all the good stuff removed from it...
czakk wrote: Hmmm did they just pull down the CHS A-H exhibits that should have been filed under seal?
I would assume that the way the Recap server works is that if a more recent version is detected the old one is dropped. The new one will likely have all the good stuff removed from it...
Not to say I told you so, but...
I have the original saved should anyone want a copy.
You can't necessarily just ROFLstomp over the little guy just because you're rich. A little guy who knows the law can still win, if he happens to be right.
Ian Sturrock wrote: You can't necessarily just ROFLstomp over the little guy just because you're rich. A little guy who knows the law can still win, if he happens to be right.
that's true to a large degree. You can make it cost him dearly though. All they have to do is make it a little too dear for comfort.
czakk wrote: Hmmm did they just pull down the CHS A-H exhibits that should have been filed under seal?
I would assume that the way the Recap server works is that if a more recent version is detected the old one is dropped. The new one will likely have all the good stuff removed from it...
Not to say I told you so, but...
I have the original saved should anyone want a copy.
Just a reminder to those who are watching this case. The judge said the summary judgement would be released in 10-14 days...12 days ago. Should be popping sometime this week.
I will be out of town for the Thanksgiving Holiday though starting tomorrow night through Sunday, so if those from the Great White North, Down Under or the other side of the pond are interested - they will want to watch the Recap site.
Thirdeye over at Warseer wrote:I just checked for case up-dates on PACER and found that GW filed a second Complaint against CH. Not sure what it means. I compared the second complaint with the first one, they are very similar. The second one takes out the allegations against Jon Paulson, otherwise pretty-much the same. The second Complaint seems to be an Amended Complaint but it was filed as a new Complaint. It was filed on Nov 12th BTW, new case No. 12-cv-9086.
pitboy2710 wrote: Would that be a stall tactic? trying to drag out the case for as long as possible?
I suspect the complaint is a placeholder - they wanted to get a new case filed asap, so just grabbed a copy of the current complaint, with the plan of amending it later. No judge will allow them to proceed with a second case using the identical complaint, and I suspect the current judge may be annoyed with them for filing in this fashion.
Recap root for the new case.
___________________________________________
(MODs - I assume we don't want two threads?)
OK - so I gave everything in the new case a good read.
The jist of the second case is effectively like so:
We sued CHS on claims that they violated our trademarks and copyrights. As opposed to completely stopping any work and product development, they continued to release new products while they waited to find out if they won or lost the first case.
Subsequent to the commencement of the related case, Games Workshop Limited
v. Chapterhouse Studios LLC, 1:10-cv-08103 (MFK), Chapterhouse has also introduced
numerous new products copied from Games Workshop’s original WARHAMMER and
WARHAMMER 40,000 universe, including without limitation various “Tru-Scale” conversion
kits to change the size scale of genuine Space Marine figures to a new size that Chapterhouse
contends is more “true” to Games Workshop’s own original artwork than Games Workshop’s
actual Space Marine figures;Tau heads for Tau “Crisis Model” warriors; various “Heresy” era
shoulder pads for Terminator Space Marines and a “Pilum Imperial Attack Jetbike” equipped
with new weapons copied from Games Workshop’ Space Marine Bike and Games Workshop’s
weapon designs.
The vast majority of the case is a rehash of the claims of the first case. They are still making trademark claims to some generic terms like "Plasma" as well as some things which they no longer are doing business under like "Adeptus Mechanicus".
I wonder why the rush to file? Are they putting on a show for the sake of the LOTR/Hobbit licensor or the computer game folks?
Or are we going to see a joinder motion and a request to re-open discovery coming down the pipes or something?
"with annual sales in this country alone well in excess of $50 million, and Games Workshop invests considerable sums each year in marketing and promoting these brands and in developing new products under these brand names. Games Workshop has thereby built up substantial goodwill and reputation in the marks"
Ignore the testimony under oath of our exec who stated that GW spent no money on marketing or promotion in the US! *snicker*
czakk wrote: I wonder why the rush to file? Are they putting on a show for the sake of the LOTR/Hobbit licensor or the computer game folks?
Or are we going to see a joinder motion and a request to re-open discovery coming down the pipes or something?
"with annual sales in this country alone well in excess of $50 million, and Games Workshop invests considerable sums each year in marketing and promoting these brands and in developing new products under these brand names. Games Workshop has thereby built up substantial goodwill and reputation in the marks"
Ignore the testimony under oath of our exec who stated that GW spent no money on marketing or promotion in the US! *snicker*
It wouldn't be GW's problem if someone else made LOTR/hobbit minis and sold them as such. Much like other licencing deals, New Line would come down on the infringer, possibly with a lot more prowess than GW.
czakk wrote: I wonder why the rush to file? Are they putting on a show for the sake of the LOTR/Hobbit licensor or the computer game folks?
Or are we going to see a joinder motion and a request to re-open discovery coming down the pipes or something?
"with annual sales in this country alone well in excess of $50 million, and Games Workshop invests considerable sums each year in marketing and promoting these brands and in developing new products under these brand names. Games Workshop has thereby built up substantial goodwill and reputation in the marks"
Ignore the testimony under oath of our exec who stated that GW spent no money on marketing or promotion in the US! *snicker*
It wouldn't be GW's problem if someone else made LOTR/hobbit minis and sold them as such. Much like other licencing deals, New Line would come down on the infringer, possibly with a lot more prowess than GW.
GW paid a few grand for a booth at GenCon this year and they are also paying for a small advertising campaign on Facebook as well this year.
... well I guess a few grand might qualify as a considerable sum....
Do you folks down there keep track of who's been assigned as the clerking students for federal judges? I know the Supremes' clerks get announced... This would be a fun case to catch as a clerk.
czakk wrote: ... well I guess a few grand might qualify as a considerable sum....
Do you folks down there keep track of who's been assigned as the clerking students for federal judges? I know the Supremes' clerks get announced... This would be a fun case to catch as a clerk.
I wouldn't necessarily call that a considerable sum (we don't advertise at all - but probably spend more than they do all year on advertising on business cards). However, it at least prevents them from immediately blowing their claim by the prior deposition.
You can take a look at the Judges staff on the Northern District Court website.
It has two clerks listed, Avani Bhatt and Sarah Grady. Normally they will be full fledged lawyers to become clerks for District courts (at least all of them I have met are).
Article written by Justice Kennelly on conducting trials at the fed court in Illinois:
"a. Assume Discovery Cutoff is Written in Stone
Among the important deadlines that will be set is a deadline for completing discovery. The best way you can think about a discovery cutoff date is to assume it is written in stone."
Mcdonalds spent roughly 2.3 billion on marketing in 2010, during which year they did 29 billion in sales. Roughly 8% of their revenue was spent in order to make more revenue.
Seeing as Mcdonalds surely knows what they're doing, You'd think other companies would follow suit.
8% of their US sales would be a meager 4 million a year in marketing, which I think would do wonders.
How much does it cost to "run" a facebook for a company? That is like 3 people tops, so at a healthy wage that's still under 100k per year, and adding the GenCon fees let's guess a round $100k.
So that right there is .2% of their US revenue spent on marketing. Far from considerable.
GW puts forth very little effort in getting their name out there, which seems counter intuitive.
I'm sure the judge will scrutinize both cases more heavily now that it's obvious GW is being stubborn and will just keep pushing.
czakk wrote: ... well I guess a few grand might qualify as a considerable sum....
Do you folks down there keep track of who's been assigned as the clerking students for federal judges? I know the Supremes' clerks get announced... This would be a fun case to catch as a clerk.
I wouldn't necessarily call that a considerable sum (we don't advertise at all - but probably spend more than they do all year on advertising on business cards). However, it at least prevents them from immediately blowing their claim by the prior deposition.
You can take a look at the Judges staff on the Northern District Court website.
It has two clerks listed, Avani Bhatt and Sarah Grady. Normally they will be full fledged lawyers to become clerks for District courts (at least all of them I have met are).
Thanks. Judging by their CVs they look like civil liberties types, so maybe not as interesting to them, as say the NSA wiretapping case Kennelly had a few years back.
Mcdonalds spent roughly 2.3 billion on marketing in 2010, during which year they did 29 billion in sales. Roughly 8% of their revenue was spent in order to make more revenue.
Seeing as Mcdonalds surely knows what they're doing, You'd think other companies would follow suit.
8% of their US sales would be a meager 4 million a year in marketing, which I think would do wonders.
How much does it cost to "run" a facebook for a company? That is like 3 people tops, so at a healthy wage that's still under 100k per year, and adding the GenCon fees let's guess a round $100k.
So that right there is .2% of their US revenue spent on marketing. Far from considerable.
GW puts forth very little effort in getting their name out there, which seems counter intuitive.
I'm sure the judge will scrutinize both cases more heavily now that it's obvious GW is being stubborn and will just keep pushing.
The 'considerable sum' is likely just a style issue and it matches the other filings, he tosses in the word "myriad" at the beginning of the complaint for ex. Myriad is just a ten dollar way of saying "a lot". From a Canadian perspective the filings look a bit exagerated - we are taught to remove adjectives / adverbs and shoot any word that ends in -ly. If you use a lot of them they look like false intensifiers and are viewed as a sign of a weak position / not knowing the correct active verb. But we have a very different courtroom style, more restrained.
Honestly, the issue with their claim to [legal] fame is the product that they sell. No matter how popular it might be within those who are interested in it - it will remain niche.
The same can be seen in the somewhat recent (past 10 years if my addled mind is sharp on the issue) Thane International v. Trek Bicycle Corporation. Trek sponsored high profile bicycle races like olympic teams and the Tour de France and was widely recognized as being one of the top manufacturers of bicycles by a variety of independent magazines...however the court determined that they could not be considered famous because bicycles are too niche of a product category.
Wargames miniatures, RPGs and even a few video games would likely park GW in that same category even if they spent 10% or more per year on advertising.
And yes, our lawyers do like their superlative adjectives.
Aerethan wrote: How much does it cost to "run" a facebook for a company? That is like 3 people tops, so at a healthy wage that's still under 100k per year, and adding the GenCon fees let's guess a round $100k.
You forgot the big production team to make this epic short movie (I can feel the hands of Peter Jackson himself in this masterpiece)
czakk wrote: I wonder why the rush to file? Are they putting on a show for the sake of the LOTR/Hobbit licensor or the computer game folks?
Or are we going to see a joinder motion and a request to re-open discovery coming down the pipes or something?
"with annual sales in this country alone well in excess of $50 million, and Games Workshop invests considerable sums each year in marketing and promoting these brands and in developing new products under these brand names. Games Workshop has thereby built up substantial goodwill and reputation in the marks"
Ignore the testimony under oath of our exec who stated that GW spent no money on marketing or promotion in the US! *snicker*
It wouldn't be GW's problem if someone else made LOTR/hobbit minis and sold them as such. Much like other licencing deals, New Line would come down on the infringer, possibly with a lot more prowess than GW.
Right you are!
Actually, it would be the Saul Zaentz Company, as they hold the actual copyright/trademarks. See http://www.bbc.co.uk/news/uk-england-hampshire-17350103 where they assert they have "exclusive worldwide rights to motion picture, merchandising, stage and other rights in certain literary works of JRR Tolkien including The Lord of the Rings and The Hobbit". Not to say that New Line couldn't sue depending on what the models were (exact likenesses of movie characters perhaps), but if they were just using the names it would SZC who would come after them.
czakk wrote: I wonder why the rush to file? Are they putting on a show for the sake of the LOTR/Hobbit licensor or the computer game folks?
Or are we going to see a joinder motion and a request to re-open discovery coming down the pipes or something?
"with annual sales in this country alone well in excess of $50 million, and Games Workshop invests considerable sums each year in marketing and promoting these brands and in developing new products under these brand names. Games Workshop has thereby built up substantial goodwill and reputation in the marks"
Ignore the testimony under oath of our exec who stated that GW spent no money on marketing or promotion in the US! *snicker*
It wouldn't be GW's problem if someone else made LOTR/hobbit minis and sold them as such. Much like other licencing deals, New Line would come down on the infringer, possibly with a lot more prowess than GW.
Right you are!
Actually, it would be the Saul Zaentz Company, as they hold the actually copyright/trademarks.
Newline holds the rights too all of the art work, likenesses' etc. The LotR IP itself is licensed to them, but they own what they created for it. Clearly they don't own the names and such, but everything that New Line made for the movies that didn't already exist they own.
GW has license with the Tolkien estate, so that even if New Line backed out, a LotR game could be made. All it would mean is that 100% of the model line would be discontinued since Tolkien doesn't own that.
H.B.M.C. wrote: So is this second suit a good or bad thing for CHS?
On balance, probably neither for CHS. The judge has taken the new case and wrapped it into the first case - so it should not impact CHS and their relationship with their lawyers or the case they are attempting to present.
However, it may not be good for GW, which can of course be good for CHS. Although the final case will be in the hands of a jury, a judge and how he may or may not feel about a particular litigant can impact things throughout the case. Even to the extent of remaining impartial under the law, judges are able to exercise some measure of leeway in how they make their decisions.
Sounds to me that GW tried to
1.) charge CHS twice for the same "crime"
2.) circumvent that GW wasn't able to present all documents in time for the first lawsuit.
Both sound illegal to me as a layman.
But this is a civil trail, not a criminal one. Is there double jeopardy for civil charges?
Well, it's not called that for starters. Res Iudicata is the term you're looking for, as mentioned before on this topic. Why, despite my usual aversion to such, I'll even link you to the (in this case actually quite decent) WP article: https://en.wikipedia.org/wiki/Res_judicata
have fun now!
...And please everyone, can we stop mislabeling (alledged) torts as crimes? They're not the same thing, really.
In fairness, GW is, in principle, allowed to challenge CHS products released after this case started in a separate procedure, if they can make a case for it.
They could hardly be expected to add as of that moment unreleased products to the original complaint, could they?
Of course, under certain conditions, using such rights to bury an opponent in work and costs is considered to be vexatious litigation but really, assuming (and I'm being generous here, but let's) a good faith basis for every complaint yes, using a second procedure to challenge products released since the first suit was filed is proper procedure.
That they assert the same trademarks/copyrights/whatever does not run afoul of any res iudicata (what is it with you yanks inserting a J in a language which did not even have that letter? ) or equal provisions; that's just someone asserting their rights.
As soon as they challenge the same product on anything but a very distinctly novel, not before argued (and some would say up until then unbeknownst to them) basis, that would run afoul of res iudicata; also any trademarks which are deemed invalid or copyright assertions found to be overly broad will by and large carry over (though how exactly procedurally, that's not something I can answer).
There is a procedure for adding new infringing products to an on going case. Apple and Samsung have been adding newly released products to their on going patent dispute cases.
As far as the judge in the case being pleased / not pleased with the new case - he's probably asked for the case because he is already up to speed and it is an efficient use of judicial resources. Good case management.
What we really need is someone familiar with US Fed Court civil procedure to clue us in. - What does local rule 40.4 actually do - does it create a single proceeding or what?
There was also a case status conference call scheduled for the 15th, haven't seen that pop up on recap either.
Local rule 40.4 is nothing particulary significant all it means is that the judge thought it was related to a current case he is presiding and he requested it be transferred for that reason.
It doesn't really give us any insight into what is happening yet or how the judge will see the new action.
LR40.4. Related Cases, Reassignment of Cases as Related
(a) Definitions. Two or more civil cases may be related if one or more of the following conditions are met:
(1) the cases involve the same property;
(2) the cases involve some of the same issues of fact or law;
(3) the cases grow out of the same transaction or occurrence; or
(4) in class action suits, one or more of the classes involved in the cases is or are the same.
(b) Conditions for Reassignment. A case may be reassigned to the calendar of another judge if it is found to be related to an earlier-numbered case assigned to that judge and each of the following criteria is met:
(1) both cases are pending in this Court;
(2) the handling of both cases by the same judge is likely to result in a substantial saving of judicial time and effort;
(3) the earlier case has not progressed to the point where designating a later filed case as related would be likely to delay the proceedings in the earlier case substantially; and
(4) the cases are susceptible of disposition in a single proceeding.
It's 40.4(b)(4) and (3) that have me confused. It looks like the rule is intended to combine cases - given that discovery has closed and the first case is ready to go to trial, how could there not be substantial delay etc...
Unless he's kicking the whole thing to the curb in his summary judgement.
czakk wrote: It's 40.4(b)(4) and (3) that have me confused. It looks like the rule is intended to combine cases - given that discovery has closed and the first case is ready to go to trial, how could it there not be substantial delay etc...
Unless he's kicking the whole thing to the curb in his summary judgement.
That's my thought - he's expecting his SJ ruling to be dispositive on many of the issues raised in the new complaint, too.
It's 40.4(b)(4) and (3) that have me confused. It looks like the rule is intended to combine cases - given that discovery has closed and the first case is ready to go to trial, how could it there not be substantial delay etc...
You are probably correct which could be interesting as W&S are already disputing the fact that GW introduced evidence past the discovery date, maybe I mised exhibit A in the original case but to me it looks new and quite upto date.
It could be the case that GW mentioned the case at the conference call which should have been on the 15th which would explain the request on the 16th for reassignment, effectively adding new complaints.
czakk wrote: There is a procedure for adding new infringing products to an on going case. Apple and Samsung have been adding newly released products to their on going patent dispute cases.
...Which is a great timesaver if you assert cases are closely related, and a headache if you assert each point to be rather much different. Meh, I've heard arguments for both and while I feel it might be appropriate here it's not malicious per se to think/act otherwise
I'm with you on the reason for combining matters as an issue of efficiency (God knows any court system can use every shred it can scrape together of that )
GW has license with the Tolkien estate, so that even if New Line backed out, a LotR game could be made. All it would mean is that 100% of the model line would be discontinued since Tolkien doesn't own that.
Wildly off topic, I'll not continue on it sorry.
While it is off topic, I'd like to note that there is a significant portion of the line now that could stay(anything Khandish, anything Arnor related, the Shire stuff, and the Mahud camel riders, half-trolls, et al.) as, while it shares the aesthetics of the movies, it's purely drawn from things mentioned in the various books and thus not tied to the New Line agreement(hence why the 4 main hobbits, Grima, and Sharky models couldn't look like the actors in the Scouring of the Shire box set). They actually talked about that in the White Dwarf it was released in.
But, any further discussion on this should be taken to its own thread.
czakk wrote: It's 40.4(b)(4) and (3) that have me confused. It looks like the rule is intended to combine cases - given that discovery has closed and the first case is ready to go to trial, how could there not be substantial delay etc...
Unless he's kicking the whole thing to the curb in his summary judgement.
It is important to actually look at the new claims (or lack there of) and compare them to claims in the first case. After that - look to see whether or not anything in the new claims has not reasonably been covered on previous depositions.
I haven't had a chance to pick them all out - but the only thing which is really "new" is the Storm Raven conversion kit (again - don't shoot me if I missed something). Everything else is already on the existing GW claims chart for the first case. That means GW will have almost no new discovery to conduct on there side (especially since the claim on that item is a Trademark claim not a copyright claim...so the design process is irrelevant).
CHS would than have to argue that they want to do discovery on those new claims - which while it might be fun to drag a few GW designers out of the ivory tower again...I don't think they would have much practical interest in any further discovery (as far as I can tell - they have as much as they will probably need in order to present their case).
I was more thinking about the CHS pleadings about excluding GW evidence submitted after the close of discovery. Say for instance they prevail (or would have prevailed) on that point, but now we have new claims requiring new discovery / new evidence. Is filing the new suit that was bound to be moved a clever way of re opening discovery?
Are the court rules flexible enough to allow new GW evidence on the new claims without having any new GW evidence introduced apply to the old claims?
That is if the application of rule 40.4 creates a new merged proceeding. If all it does is shift the new case over to Justice Kennelly then all we have is res judicata stuff discussed pages back.
I see your train of thought. Not too sure about how much of a real impact it would have though.
Again, if you evaluate the new stuff (and late evidence) against the old claims - you should be able to draw some clear lines.
This evidence relates to that old stuff...so it is definitely out. This new claim relates to the same effective claim as the old claim - so it doesn't need new evidence (beyond just the statement of fact that it exists).
My guess is that the judge read the new claim and saw it in a way similar to what I had (same old claims...or at least the same law applied to new items) and figures that he can handle it all in one go. He would probably want to see it over and out of his court sooner rather than later (I know parts of the transcripts sure seem to indicate that).
Sean_OBrien wrote: Just a reminder to those who are watching this case. The judge said the summary judgement would be released in 10-14 days...12 days ago. Should be popping sometime this week.
I will be out of town for the Thanksgiving Holiday though starting tomorrow night through Sunday, so if those from the Great White North, Down Under or the other side of the pond are interested - they will want to watch the Recap site.
11/15/2012 257 Main 1 order on motion for leave to file
There was a status hearing on the 15th, a motion and an order on the 9th and 15th that aren't showing up on RECAP - they are showing up on a third party pay site.
Automatically Appended Next Post: The motion is just a request by CHS to refile the confidential GW stuff under seal. The order covers both that and the 40.4 move, looks like it was by agreement:
"Defendant’s motion to file under seal is granted (254). By agreement, the Court finds case number 12 C 9086 (Judge Tharp) to be related to this case pursuant to Rule 40.4 and will request transfer of that case."
Status hearing just sets a new status hearing for 30th of Nov and vacates the trial date.
"MINUTE entry before Honorable Matthew F. Kennelly: Telephone status hearing held with attorneys for both sides. The final pretrial conference date of 11/20/12 and the trial date of 12/3/2012 are both vacated. Telephone status hearing, is set for 11/30/2012 at 8:00 am., California time. Plaintiff's counsel has set up a call−in number. (or, )"
Interesting that it's California time - someone going on vacation?
Interesting that it's California time - someone going on vacation?
Tom Kearny from W&S is in CA.
Just for anyone who has not seen it re the trial date:
253.0 MINUTE entry before Honorable Matthew F. Kennelly: The Co...
MINUTE entry before Honorable Matthew F. Kennelly: The Court anticipates ruling on the pending motions for summary judgment within the next 10-14 days. However, a recent development in the Court's trial schedule will necessitate a continuance of the trial date in this case to a date sometime after the first of the year. The case is set for a telephone status hearing on 11/15/2012 at 9:00 a.m. for the purpose of resetting the trial date. Plaintiff's counsel is to get defendant's counsel on the telephone and call chambers [MOD EDIT - Let's not post phone numbers on the forum, please? Thanks!]. (mk) (Entered: 11/07/2012)
11/27/2012 258 MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 11/27/2012: The Court grants defendant's motions for judicial notice [211 & 235] and grants both sides' motions for summary judgment in part and denies each in part [208 & 213] as more fully described in this Memorandum Opinion and Order. (mk) (Entered: 11/27/2012)
"For the reasons stated above, the Court grants Chapterhouse’s motions for judicial notice [docket nos. 211 and 235] and grants both sides’ motions for summary judgment in part and denies each in part [docket nos. 208 & 213]. In particular, and as described more specifically in the body of this decision, the Court finds pursuant to Rule 56(g) that Games Workshop owns certain works listed in its Claim Chart; that certain items listed by Games Workshop on the Claim Chart are entitled to copyright protection. In addition, Chapterhouse is granted summary judgment on Games Workshop’s copyright infringement claims with regard to the Chapterhouse’s products found in entries 8, 15–16, 25–26, 28–30, 32–33, 38–42, 44, 70–72, 81, 84–86, 88–89, 91–93, 96, 105, 107, and 109 on the Claim Chart. Finally, Chapterhouse is granted summary judgment on Games Workshop’s federal and state dilution claims (Counts 4 and 5)."
Automatically Appended Next Post: 235 is giger's painting.
Still eating breakfast - haven't had time to read it in depth. We still have a case.
One thing I'll note on a quick skim is that the copyrightable ideas that are surviving involve a colour scheme or a paint job. Have to think about this more, but maybe the lawyers failed to clue the judge into the fact that everything is sold unpainted. Or maybe it doesn't matter.
211 was the kkk / neo nazi symbols.
And I've lost track of where the current claim chart is located. Curses.
MagickalMemories wrote: So, if I'm reading this right, the court decided that GW DOES own certain copyrights, but that CHS didn't infringe on them?
Is this the whole case, then, or is there more involved?
The Court decided that GW does own some copyrights, but that there wasn't sufficient evidence for The Court to find for summary judgement either way. It'll go to trial.
CHS did win on dilution and a few other claims though.
Think 211 would have been the nazi and anti semetic stuff which the judge referenced.
The judge didn't actually rule fully on the case, there is still enough left in play - in particular the core of the trademark claims - to allow the case to move forward to a jury trial.
Regarding the copyright claims long list of claims in the Summary of the Summary judgement (Chapterhouse is granted summary judgment on Games Workshop’s copyright infringement claims with regard to the Chapterhouse’s products found in entries 8, 15–16, 25–26, 28–30, 32–33, 38–42, 44, 70–72, 81, 84–86, 88–89, 91–93, 96, 105, 107, and 109 on the Claim Chart.) - that is a result of this:
In its Second Revised Copyright Claim Chart (“Claim Chart”), GW indicates that it is no longer pursuing copyright infringement claims regarding a number of products. Specifically, GW states that it does not claim copyright infringement for the products listed in entries 8, 15-16, 25-26, 28-30, 32, 38-42, 44, 70-72, 81, 84-86, 88-89, 91-93, 107, and 109 on the Claim Chart. Given the stage to which this litigation has advanced, GW cannot simply drop these claims without prejudice. Chapterhouse is entitled to summary judgment on Count 1 with regard to the products identified in these entries. - Page 6 of Document 258.
If you notice - a few of the ones which the Summary Judgement was granted on are ones which were not in the list of dropped claims. In those cases, CHS won the issue on their argued points (for example 33 and 105).
I still have to go through the list of claims and compare them to the findings to see which claims are still standing in full or part as well as tally up what has been cleared out of the way in favor of GW and which has gone to CHS.
When you are reading through the document it is important to keep track of everything as you go. For example, Claim 33 (Vehicle Icon for Flesh Tearers) - the summary judgement was denied on grounds that the object was utilitarian but granted on the grounds that the elements were common place.
I do believe that the judge made a faulty ruling in a few instances where he sites colors (for example the red color of the eyes on the Chaplain's helmet). Neither company sells painted figures and the red is not part of the products that they sell. I am trying to think of specific case law, but normally if the item is created and sold unpainted - the protected form is the unpainted not painted one.
Automatically Appended Next Post: Looking over the words and the dismissed claims (the ones which GW withdrew and then the court said...nope, too late for that, but since you did - we will rule in favor of CHS on that) it is interesting to note that many are built on the shoulder pad which GW was found to be able to claim protection of.
That puts those products in a sort of interesting position as a result of GW dorking around with their claims.
When someone has the chance, could you post a list of the entries (text, not entry number) that received summary judgement and which are going to trial?
Sean_OBrien wrote: Looking over the words and the dismissed claims (the ones which GW withdrew and then the court said...nope, too late for that, but since you did - we will rule in favor of CHS on that) it is interesting to note that many are built on the shoulder pad which GW was found to be able to claim protection of.
I saw that and thought it was interesting... The judge ruled that the shoulder pad (in general) was okay to claim protection, but later ruled that a specific shoulder pad wasn't - because it was just geometric designs on a shoulder pad.
So blank pads are copyrighted, but if they're decorated they're fair game?
Sean_OBrien wrote: Looking over the words and the dismissed claims (the ones which GW withdrew and then the court said...nope, too late for that, but since you did - we will rule in favor of CHS on that) it is interesting to note that many are built on the shoulder pad which GW was found to be able to claim protection of.
I saw that and thought it was interesting... The judge ruled that the shoulder pad (in general) was okay to claim protection, but later ruled that a specific shoulder pad wasn't - because it was just geometric designs on a shoulder pad.
So blank pads are copyrighted, but if they're decorated they're fair game?
I'd have to pull of the claim chart, but I think the judge is saying that the big shoulder pad is protectable and a common symbol + big shoulder pad is protectable but the symbol by itself isn't.
"Though the “flesh tearer” shoulder pad is copyrightable overall and thus could form the basis for an infringement claim regarding a similar shoulder pad design—as is the case for entries 12 and 13 on the Claim Chart—GW cannot claim copyrightability based solely on the circular saw and teardrop shapes alone. "
From the Summary:
"Chapterhouse is granted summary judgment on Games Workshop’s copyright infringement claims with regard to the Chapterhouse’s products found in entries 8, 15–16, 25–26, 28–30, 32–33, 38–42, 44, 70–72, 81, 84–86, 88–89, 91–93, 96, 105, 107, and 109 on the Claim Chart."
So 32 of the (110?) claims are gone, primarily because GW dropped its copyright claims on the items, so presumably these items are not copyrighted by GW any more?
Re giant shoulder pads, perhaps CHS lawyers need to look at WarZone figures that probably have the largest shoulder pads in existence. Don't remember GW suing them for copying GW's giant shoulder pads.
From the Summary:
"Chapterhouse is granted summary judgment on Games Workshop’s copyright infringement claims with regard to the Chapterhouse’s products found in entries 8, 15–16, 25–26, 28–30, 32–33, 38–42, 44, 70–72, 81, 84–86, 88–89, 91–93, 96, 105, 107, and 109 on the Claim Chart."
So 32 of the (110?) claims are gone, primarily because GW dropped its copyright claims on the items, so presumably these items are not copyrighted by GW any more?
Tim
The dropped claims can't be used against CHS again, but could be against someone else.
I'm wondering what the courts would require to prove that a product was established and available at a particular point.
Do items like the GW catalogs apply as they have the names, part numbers, photos of products along with pricing in UK and UK prices along with mial in order forms with seperate US and UK addresses for placing orders at. The court documents already include them along with other books & material as registered to the company. Was this something not mentioned by GW's legal team or is it something that the court wouldn't accept as evidence?
Based on what I could understand
Non-protected elements:
piles of skulls
elements of design that would allow pieces to be used or mounted on GW parts ie, design of empty space that allows a part to be mounted over a marine arm.
Protected elements:
Specidfic shape of the shoulder pad
Specific shape of Landraider, Rhino, Drop Pod doors. Not considered to be functional elements in toys.
Color patterns when associated with other protected elements, red eyes on a marine helment. Blue on marine armor like ultramarines. Further compounded with iconry which individually isn't protected but in specific combination with protected elements becomes protected.
paulson games wrote: I'm wondering what the courts would require to prove that a product was established and available at a particular point.
Do items like the GW catalogs apply as they have the names, part numbers, photos of products along with pricing in UK and UK prices along with mial in order forms with seperate US and UK addresses for placing orders at. The court documents already include them along with other books & material as registered to the company. Was this something not mentioned by GW's legal team or is it something that the court wouldn't accept as evidence?
Still getting caught up on real work after the holiday, but the casual reading I have been able to give it would seem to indicate that GW didn't provide that level of detail. The catalog, while it covers most in question isn't normally enough. For each count, GW would need to say something like "page 105 of the 2007 GW Product Catalog" rather than just entering the whole catalog into evidence and expecting CHS and the judge to find the appropriate item in it.
The issue of fame regarding dilution is different. Just being sold is not enough to claim fame with regards to dilution. It has to have a certain level of recognition and broad distribution. GW stated that they don't track the recognition and their distribution is limited (no big box or other chain stores like Toys R Us or Hobby Lobby). That would limit their potential to claim fame without having specific research that demonstrates a high level of name recognition in the general population.
Specific shape of Landraider, Rhino, Drop Pod doors. Not considered to be functional elements in toys.
Color patterns when associated with other protected elements, red eyes on a marine helment. Blue on marine armor like ultramarines. Further compounded with iconry which individually isn't protected but in specific combination with protected elements becomes protected.
The shape of the doors wasn't ruled as non-utilitarian, the evidence of the utilitarianism which was presented by CHS didn't pass the bar which would allow for a summary judgement.
The color is still something that bothers me. I don't buy either product painted and comparing two unpainted products with two painted display pieces seems a bit off to me. Researching the case law on that though will take a bit more time, but considering that that was the crux of the decision for some things (the chaplain helm for example) it is an important point to clarify.
See, law of unintended consequences, since it appears that GW has a copyright claim arguable in court as to who owns their army colour schemes, painting firms should be watching this one with interest.
With the copyrights, the important thing to remember is that what comes after is less important than what comes first (other than establishing that red lenses are a common feature in many sci-fi settings).
Specifically relating to the Chaplain Helmet though - Terminator which came first established a skull with red eyes prior to GW using it.
There are plenty of other examples though which came before GW began development on the 40K setting, and well before Chaplains were set as having skull shaped helmets.
The Shoulder Pad issue is a bit more complex. Because GW uses a stylized character design where various extremities are over sized compared to the trunk - a specific example of the same proportions on the shoulder pads will be difficult to find. I haven't seen a copy of Mutant (the RPG which was printed in the mid 1980s that preceded Mutant Chronicles and Warzone games), but it may have art work which is suitable to demonstrate an existing trope.
You also have a variety of toys and anime characters which did have large shoulder pads like you see on Space Marines (especially a line of transforming rocks...Rock Lords...and some balls, though I forget the name of the balls off the top of my head).
What would probably be most helpful though would be a deposition of Naismith, since he designed the Space Marine to start with. In particular a point by point analysis of the "Evolution of the Space Marines" article which includes a copy of the earliest artwork of the Space Marine character design which I know of. I know that I recognize certain parts from that picture as being from other works - and I also recall Bob mentioning that certain design choices (in particular shoulder pads) were made in order to accommodate the molding technology of the time.
From my understanding, the copyrighting of the Chaplain head and eyes only applies to the color? So no one could produce a prepainted skull head with red eyes? But an unpainted skull head with unpainted eyes sold would not violate the Chaplain Red Eye Copyright?
judgedoug wrote: From my understanding, the copyrighting of the Chaplain head and eyes only applies to the color? So no one could produce a prepainted skull head with red eyes? But an unpainted skull head with unpainted eyes sold would not violate the Chaplain Red Eye Copyright?
Depending on how things go that could be right,
or maybe you'd need to ensure it couldn't be painted like a chaplain
or something else
I think we'll need to wait till this whole mess is finished (and each side says what they think the results are) before we know
rigeld2 wrote: Can you object to The Court's ruling on summary judgement?
No, but it can be over turned on appeal. Remember that in the US legal system you can only appeal for technical reasons, and not just because you don't like the decision.
So can you appeal the summary judgement before the trial, or do you need to wait until after the trial is over and appeal the whole process?
I understand you can't appeal just because you don't like it - I'm not sure what technical reasons might exist (IANAL obviously) but something about his decisions "feels" wrong.
In this the court is simply allowing GW to argue that it has a right to these things, not that it actually does... The court is leaving open to them the possibility of proving their assertion. They can still lose that arguement.
So I've been reading over all of the judgements and i really cannot tell who came out better or worse at this point. It looks like neither side really got what they wanted. Sooo, off to the jury then?
aka_mythos wrote: In this the court is simply allowing GW to argue that it has a right to these things, not that it actually does... The court is leaving open to them the possibility of proving their assertion. They can still lose that arguement.
No - I know it's still up in the air and a Jury will be needed.
I was just asking procedural questions.
11/30/2012 259 MINUTE entry before Honorable Matthew F. Kennelly: The telephone status hearing set for this morning is vacated and reset to 12/3/2012 at 9:15 AM, also by telephone. One side's counsel should get the other side's counsel on the telephone and then call chambers. The Court apologizes for the last-minute cancellation of today's telephone conference. (mk) (Entered: 11/30/2012)
Kilkrazy wrote: Trademarks and copyrights are different things.
I must say I am at a loss as to the idea of copyrighting red eyes.
It is a very widely used depiction in films and games, for example in Terminator, and Killzone's Hellghast.
in all likelihood, it's probably going to be interpreted as "red eye lenses on a skull-faced helmet" or "Red eye lenses on blue helmet that rips off starwars' Darth Bucket".
So, GW's Space Marine shoulder pad is copyrightable. Designs made up of common geometric elements on those shoulderpads are copyrightable. Designs not on a shoulder pad are not copyrightable. Does a possible new market exist in making resin symbols with a curved underside that happens to fit GW shoulderpads?
I'm not surprised the Chapterhouse expert witness could not find any example of military armour that matches a Space Marine. What looks dynamic on a page or sculpted model does not necessarily work in real life. A movie example is two Judge Dredd design teams NOT giving the hero an eagle shoulderpad like his comic form.
alphaecho wrote: So, GW's Space Marine shoulder pad is copyrightable. Designs made up of common geometric elements on those shoulderpads are copyrightable. Designs not on a shoulder pad are not copyrightable. Does a possible new market exist in making resin symbols with a curved underside that happens to fit GW shoulderpads?
I'm not surprised the Chapterhouse expert witness could not find any example of military armour that matches a Space Marine. What looks dynamic on a page or sculpted model does not necessarily work in real life. A movie example is two Judge Dredd design teams NOT giving the hero an eagle shoulderpad like his comic form.
It's silly that they're getting the benefit of the copyright doubt based on an expert witness saying they don't have a historical point of reference.... You bring up a good point; is the company that owns Judge Dredd going to get a C&D letter?
Look! That model has abnormally large shoulder pads! Let's sue the company that made it!
Good thing we made it out of the 1980's or half the women in the world would be sued.
Big shoulderpads are not copyrightable. GW's Space Marine shoulderpads are, in the opinion of the judge (not Dredd), unique enough to be put before a jury for consideration.
My point about Dredd was that costume designers dumped the comic design because it does not work on a real person. Hence there is no design of real armour with pads like a Space Marine's. If there was the owner probably died horribly in battle because he couldn't raise a sword and it didn't catch on.
Anyway, you couldn't sue Dredd because he was around first!
alphaecho wrote: Big shoulderpads are not copyrightable. GW's Space Marine shoulderpads are, in the opinion of the judge (not Dredd), unique enough to be put before a jury for consideration.
My point about Dredd was that costume designers dumped the comic design because it does not work on a real person. Hence there is no design of real armour with pads like a Space Marine's. If there was the owner probably died horribly in battle because he couldn't raise a sword and it didn't catch on.
Anyway, you couldn't sue Dredd because he was around first!
I'm more poking fun at the Judge who obviously has never seen any Sci-Fi movies, comic books or any period Asian armor devices.
Court:
Upon independent examination, the Court finds that GW’s shoulder pads involve enough originality to afford them copyright protection. The unusually large proportional size of the shoulder pads as compared to the Space Marine’s head (depicted in GW’s product at entry 49) is a creative addition to the common shoulder pads sometimes worn by real-life soldiers in battle. The shoulder pads created to fit onto GW’s physical figurines, though more proportionally accurate, are nevertheless still larger and boxier than those typically found outside of the Warhammer 40,000 fantasy world. The Court thus concludes that GW is entitled to copyright protection as to the design of its shoulder pads.
I just threw up some examples of how this statement is incorrect either historically (poor Chapterhouse couldn't find a military historian that looked anywhere outside of Western culture I guess) or in popular fiction (Judge Dredd et al.)
If it's like UK law the judge has to base proceedings on the evidence and case law provided by the parties involved, he's not supposed to bring in material he knows about from outside the case to influence his decision, only use what he's provided in court.
Howard A Treesong wrote: If it's like UK law the judge has to base proceedings on the evidence and case law provided by the parties involved, he's not supposed to bring in material he knows about from outside the case to influence his decision, only use what he's provided in court.
It probably works that way in the US too which explains how Apple can copyright a rectangle with rounded edges....
GW isn't able to claim large shoudler pads exclusively, what they get to claim are large shoulder pads that look like their paricular shape (the half bell shape)
Even though they are both grossly oversized nobody could confused Dredd's pads with GW, marines have the bell shape while Dredd's are eagle's or segmented.
Imperial Arbites however Dredd could impose some judgement on.
There shouldn't be any worries over the Dredd crew getting C&Ds. If they tried that GW would lose that battle baddly, some of the early Rogue Trader era art was freelanced out from the artists who were actively illustrating Dredd which is why a lot of the book art looks like it was ripped from the pages of Dredd. (particuarly the sections showing the dredge world biker gangs)
If I understand correctly, the judge isn't saying that the design is 100% a win for GW, but rather that their claim is enough to be argued in court, where the other items that were denied were not.
It seems completely ridiculous to say you can copy an existing design, make some parts larger and thereby have done an act of original artistic creation.
What about if someone decides to make the SM pads a bit smaller, or larger still? What is the ratio of embiggenment that results in a new original design?
Kilkrazy wrote: It seems completely ridiculous to say you can copy an existing design, make some parts larger and thereby have done an act of original artistic creation.
Well, in US law you can successfully claim patent of the genes of living persons (or 10,000 year old cultivated plants). So such things happen
It seems completely ridiculous to say you can copy an existing design, make some parts larger and thereby have done an act of original artistic creation.
What about if someone decides to make the SM pads a bit smaller, or larger still? What is the ratio of embiggenment that results in a new original design?
Well earlier on in the thread when I pointed out that the jet bike designer admitted using the Collected Visions book I was told that that was fine because it was inspiration, nothing is ever truly original and creating a sculpture from a drawing is fair game.
This case is throwing a lot of curve balls around. The judge is allowing GW's shoulder pads to go before the jury based on their size, designs on those pads to be copyrightable yet the actual designs by themselves are not (common geometric designs). Some of the more knowledgable seem surprised by these decisions. Do GWs Finelawyers have a tighter case than was originally thought?
Kilkrazy wrote: It seems completely ridiculous to say you can copy an existing design, make some parts larger and thereby have done an act of original artistic creation.
Well, in US law you can successfully claim patent of the genes of living persons (or 10,000 year old cultivated plants). So such things happen
There are enough quirks in every legal system across the globe to equal these.
I think the US legal system bashing has become more than a little... tired.
Ian Sturrock wrote: I'm guessing the judge is one of those six or so people who've still not seen Star Wars.
If we could all stop picking out pictures of shoulder pads that look nothing like GW's Space Marine shoulder pads and presenting them in the thread as examples of previously designed shoulder pads that look like GW's shoulder pads, that would be helpful.
Stormtrooper shoulder pads share only the same basic shape. They lack the border, and instead have a single ridge down the middle, and are much, much smaller than Marine pads.
Kilkrazy wrote: It seems completely ridiculous to say you can copy an existing design, make some parts larger and thereby have done an act of original artistic creation.
Well, in US law you can successfully claim patent of the genes of living persons (or 10,000 year old cultivated plants). So such things happen
There are enough quirks in every legal system across the globe to equal these.
I think the US legal system bashing has become more than a little... tired.
Without prejudice, the US legal system as regards patents actually has seemed to become out of step with the rest of the developed world, hence the occasional anomalies of it patenting ideas, natural phenomena and discoveries, none of which would have been accepted formerly in the US, or anywhere else.
Though indeed there are quirks everywhere. The British cannot be proud of their Libel laws, for example.
If we could all stop picking out pictures of shoulder pads that look nothing like GW's Space Marine shoulder pads and presenting them in the thread as examples of previously designed shoulder pads that look like GW's shoulder pads, that would be helpful.
Stormtrooper shoulder pads share only the same basic shape. They lack the border, and instead have a single ridge down the middle, and are much, much smaller than Marine pads.
"Don't look anything like" is a bit strong.
The judge didn't mention the border at all. And I'm still not sure that size is unusual enough to be given IP protection. "We were the first restaurant in town to sell a 20-ounce steak... therefore nobody else can".
And remember that all he's ruled is that based on the law presented by the 2 parties and other precedent, there's no reason to throw out the potential copyright claim.
That doesn't mean the copyright is valid on its face - that's for a jury to decide.
Alpharius wrote: There are enough quirks in every legal system across the globe to equal these.
I think the US legal system bashing has become more than a little... tired.
Just browse this website to see some of the most funny weird laws: http://www.dumblaws.com/ .
Examples:
Spoiler:
Alabama: Putting salt on a railroad track may be punishable by death.
Florida: It is considered an offense to shower naked.
Idaho: Illegal for a man to give his sweetheart a box of candy weighing less than fifty pounds.
Illinois: You must contact the police before entering the city in an automobile.
Indiana: The value of Pi is 3.
Massachusetts: All men must carry a rifle to church on Sunday.
Michigan: A woman isn’t allowed to cut her own hair without her husband’s permission.
Montana: Seven or more indians are considered a raiding or war party and it is legal to shoot them.
New Jersey: All motorists must honk before passing another car, bicyclist, skater, and even a skateboarder.
New York: A fine of $25 can be levied for flirting.
North Carolina: If a man and a woman who aren’t married go to a hotel/motel and register themselves as married then, according to state law, they are legally married.
Oklahoma: Dogs must have a permit signed by the mayor in order to congregate in groups of three or more on private property.
Pennsylvania: Any motorist driving along a country road at night must stop every mile and send up a rocket signal, wait 10 minutes for the road to be cleared of livestock, and continue.
South Dakota: No horses are allowed into Fountain Inn unless they are wearing pants.
Tennessee: Interracial marriages are illegal.
Utah: It is illegal not to drink milk.
Vermont: It is illegal to deny the existence of God.
Virginia: It is illegal to tickle women.
And a precedent case based law system naturally has more of this nonsense than a written law system.
The above examples are funny, but the US patent laws are a major international nuisance dictated by US company lobbyists.
And all of those are exaggerations, or leaving part of the law put. The NC one, for example, is essentially the definition of common law marriage. There's more to it than that, but presenting themselves as man and wife is a requirement.
12/03/2012 260 MINUTE entry before Honorable Matthew F. Kennelly:
Status hearing held. Plaintiff is directed to file an amended complaint in this case by 12/10/2012 to add the claims that were the subject of the second lawsuit.
Response to amended complaint is due 12/24/2012.
Telephone status hearing, to be initiated by the attorneys, is set for 12/12/2012 at 9:30 AM.
Jury Trial set for 4/15/2013 at 09:45 AM.
Joint status report with a proposed discovery and pretrial schedule on the newly asserted claims is to be filed by 12/11/2012. (or, ) (Entered: 12/03/2012)
--------------------
So, the new lawsuit is being joined to the existing suit, CHS gets the delight and joy of drafting a response due on Christmas Eve, and the new trial date set. And more discovery and pretrial motions.
Looks like the judge isn't too keen on follow-up lawsuits; either that or it was all on the up and up where GW wanted to add the latter items but the judge told them it was a separate issue and to file another suit that could be added to the current one.
Aerethan wrote: Trial was supposed to be this month. So in 4 months time will GW add another batch of claims and put off trial another 4 months? That is ridiculous.
The new claims didn't push the trial back, it got bumped backed by the court.
H.B.M.C. wrote: So what's the verdict with the shoulder pads? That they can or can't sell them?
If the judge felt strongly enough, he could have issued an injunction in his Summary Judgement. That didn't happen - granted, GW also failed to request any specific relief...but still...
Like the rest of the case - with the exception of the few items which the judge issued a specific ruling on, it will head to the jury trial.
I realise that this is OT, but originally this case was about the specific infringements by CHS against GW. The summary judgement seems to have thrown the net completely open and is going to catch most if not all third party bits companies, for example, Scibor produces a nice line of shoulder pads they were completely in the clear and now...
I'm assuming that most if not all are watching this case with interest and perhaps following this thread, so this is a question for them. Are you more worried now about this case after reading/hearing about the summary judgement?
AndrewC wrote: I realise that this is OT, but originally this case was about the specific infringements by CHS against GW. The summary judgement seems to have thrown the net completely open and is going to catch most if not all third party bits companies, for example, Scibor produces a nice line of shoulder pads they were completely in the clear and now...
Except they weren't completely in the clear. This case has always had the possibility of setting a precedent.
I'm assuming that most if not all are watching this case with interest and perhaps following this thread, so this is a question for them. Are you more worried now about this case after reading/hearing about the summary judgement?
None of the 3rd party bits makers should be worried yet - GW has to win the case and then bring a suit against them individually. That's plenty of time for them to react in my opinion.
AndrewC wrote: I realise that this is OT, but originally this case was about the specific infringements by CHS against GW. The summary judgement seems to have thrown the net completely open and is going to catch most if not all third party bits companies, for example, Scibor produces a nice line of shoulder pads they were completely in the clear and now...
I'm assuming that most if not all are watching this case with interest and perhaps following this thread, so this is a question for them. Are you more worried now about this case after reading/hearing about the summary judgement?
Cheers
Andrew
Any final rulings only hold sway in the US. Other courts in the world may choose to accept any US court's findings but are most certainly not required to.
AndrewC wrote: I realise that this is OT, but originally this case was about the specific infringements by CHS against GW. The summary judgement seems to have thrown the net completely open and is going to catch most if not all third party bits companies, for example, Scibor produces a nice line of shoulder pads they were completely in the clear and now...
Except they weren't completely in the clear. This case has always had the possibility of setting a precedent.
I'm assuming that most if not all are watching this case with interest and perhaps following this thread, so this is a question for them. Are you more worried now about this case after reading/hearing about the summary judgement?
None of the 3rd party bits makers should be worried yet - GW has to win the case and then bring a suit against them individually. That's plenty of time for them to react in my opinion.
additionally, scibor never purported to advertise that it's products and parts were in any way shape or form intended to integrate with the warhammer 40'000 line, and even then, I imagine there are sublte differences, given that scibor's minis are actually bigger. There might be a degree of compatibility between scibor's paulrdons and GW terminator arms, but that would probably require an interfacing medium, like kneadadite, to make it work. I'm more concerned about the implication with respect to other companies, but I can't actually think of any other major manufacturer that provides alternative parts for GW's minis that's based in the united states. Bitspudlo, puppetswar, Kromlech, even Scibor... I'm not familiar with any other companies, but these have nothing to fear from any precedent set in the united states.
Any ruling either in favor or against CHS will have absolutely no impact on any other manufacturer outside of the US.
EDIT:
damit, beaten to the punch by agnosto... need to refresh my bloody screen more often.
I'm just to clarify my earlier question. Originally, I think that most 3rd party bits were feeling a bit safe in that the complaints were specifically levelled at CHS products and that they were too specific, ie there was a perceivable connection between known chapters and iconagraphy. However the court seems to have suggested that the shape is the copyrightable bit. So on that basis it would appear that anyone who markets oversized shoulder pads should/could now be worried that they may lose their line of products.
AndrewC wrote: I'm just to clarify my earlier question. Originally, I think that most 3rd party bits were feeling a bit safe in that the complaints were specifically levelled at CHS products and that they were too specific, ie there was a perceivable connection between known chapters and iconagraphy. However the court seems to have suggested that the shape is the copyrightable bit. So on that basis it would appear that anyone who markets oversized shoulder pads should/could now be worried that they may lose their line of products.
Anyone who felt like the bolded was true was fooling themselves.
I understand the concept of this thread is to debate the legality and update everyone on the proceedings of the case, but I'd like to step back and look at a larger idea for a moment. Is GW really losing money over third party manufacturers? There are basically two ways to look at this. Either most players will spend a given amount of money on your product over a given period of time or most players will buy a given number of models over a given period of time. If you take the first view, then any form of entertainment can be considered a threat to their bottom line, from books to movies to dining. However, I feel most people fall more into the second view. Your goal is to create a specific army list, and although there will be some deviation from it for a unit you just had to have, mostly you'll reach for that goal. So if you want to set apart your Sergeants with the Spiky Heads from Chapterhouse, you'll probably buy a pack or two of them, but you'll still need just as many bodies. I think it's also worth mentioning, I figure the ratio of bits sold to full minis sold would be staggering. First off, they are typically significantly more expensive, and second off, they rarely are close enough looking to fit in with the remainder of the army. Also, how many of us have seen a bit that we've wanted to use and justified using it, even if we didn't quite need it. I started a Guard army based off the great Max Mini torsos. The amazing thing about it is I bought three squads of Cadians and not a single one of those damned torsos. Games Workshop made out quite well off that decision. I mean, these bits do not hurt GW, and possibly help their sales. I would go so far as to say they draw attention from new players and generate enthusiasm among old players, which helps the biggest company the most. And who's bigger than GW? I guess these third party companies do this for the same reason we all do this. For the love of the game. It's worth mentioning, no one would try and produce parts for a game that sucks and no one plays.
Yours is a matter of opinion. I happen to agree with it, but it's still opinion.
That said, it's a topic we've derailed into several times over the last 107 pages, and the Mods do not want it here. You would probably be better off starting a new topic or checking to see if it would fit better in the "So, what if CHS wins?" thread
-In fairness, I'm not following that thread, so I don't know if it would be appropriate there, or not.
noneoftheabove0 wrote: I understand the concept of this thread is to debate the legality and update everyone on the proceedings of the case, but I'd like to step back and look at a larger idea for a moment. Is GW really losing money over third party manufacturers?
It depends on what they're selling. If you go buy the Seer Council conversion kits from Chapterhouse, GW aren't losing a penny. They don't sell Seer Council jetbikes or conversion kits for them. Some are debateable - like the Striking Scorpion exarch with chain sabres upgrade. GW don't sell a model with that upgrade, but the debateable point is people would have converted a Striking Scorpion exarch to make it. With the chapterhouse Farseer, yes, because it's in direct competition with GW's farseer models.
The ironic part is a lot of it makesGW money. If you buy a Seer Council conversion kit, you need to buy GW Eldar jetbikes to use them.
MagickalMemories wrote: Yours is a matter of opinion. I happen to agree with it, but it's still opinion.
That said, it's a topic we've derailed into several times over the last 107 pages, and the Mods do not want it here. You would probably be better off starting a new topic or checking to see if it would fit better in the "So, what if CHS wins?" thread
-In fairness, I'm not following that thread, so I don't know if it would be appropriate there, or not.
Eric
This. No deviations into other topics, please. We've survived 107 pages by sticking to the topic.
Looks like both parties are dug in for the long haul then. So is new counsel for the defence a replacement for winston and strawn or is it additional counsel?
"Chapterhouse identifies the anticipated general categories of discovery but reserves its right to supplement after it has discussed with and brought new co-counsel for the defense, Marshall, Gerstein & Borun LLP up to speed. Marshall Gerstein anticipates filing a notice of appearance this week and like Winston & Strawn will be representing Chapterhouse on a pro bono basis."
They look like additional local counsel brought in for the jury trial. One rising star partner and one junior associate. Both with an engineering background (fairly common in ip / patent type lawyers).
Just want to mention that GW lawyers tried successfully to stop the sale of an e-book with Space Marine in the name, claiming a trademark they obviously don't possess.
Kroothawk wrote: Just want to mention that GW lawyers tried successfully to stop the sale of an e-book with Space Marine in the name, claiming a trademark they obviously don't possess.
As noted in the thread, I think GW has a solid case for claiming Space Marine as a trademark.
They make lines of games, toys and books that are called 'Space Marines'.
As far as I can tell no one else uses the term for a line of products.
Searches for Space Marine return overwhelmingly GW results.
Just because a term has been used before elsewhere (Superman for superior humans, Batman for a cricket/baseball hitter) does not mean it cannot be trademarked.
It's not as strong as say, Tyranid (a coined word) but they're not totally off base.
Kroothawk wrote: Just want to mention that GW lawyers tried successfully to stop the sale of an e-book with Space Marine in the name, claiming a trademark they obviously don't possess.
As noted in the thread, I think GW has a solid case for claiming Space Marine as a trademark.
They make lines of games, toys and books that are called 'Space Marines'.
As far as I can tell no one else uses the term for a line of products.
Searches for Space Marine return overwhelmingly GW results.
Just because a term has been used before elsewhere (Superman for superior humans, Batman for a cricket/baseball hitter) does not mean it cannot be trademarked.
It's not as strong as say, Tyranid (a coined word) but they're not totally off base.
So off topic but I have to say I love EVRY signature you have ever had..... So win You should put the collection in your gallery haha
Kroothawk wrote: Just want to mention that GW lawyers tried successfully to stop the sale of an e-book with Space Marine in the name, claiming a trademark they obviously don't possess.
As noted in the thread, I think GW has a solid case for claiming Space Marine as a trademark.
They make lines of games, toys and books that are called 'Space Marines'.
As far as I can tell no one else uses the term for a line of products.
Searches for Space Marine return overwhelmingly GW results.
Just because a term has been used before elsewhere (Superman for superior humans, Batman for a cricket/baseball hitter) does not mean it cannot be trademarked.
It's not as strong as say, Tyranid (a coined word) but they're not totally off base.
I'm pretty certain "Space Marine" has been used numerous times before in pre GW Sci Fi. In fact I'm sure Harry Harrison had Space Marines running around in his Stainless Steel Rat books. He also mentions the use of Psychic abilities for communication. In fact he even mentions them having to drop out of warp to use the skill. So it would seem that GW do like to lay claim to ideas conceived by others. Perhaps the CHS lawyers need to be made aware of this as well?
Kroothawk wrote: Just want to mention that GW lawyers tried successfully to stop the sale of an e-book with Space Marine in the name, claiming a trademark they obviously don't possess.
As noted in the thread, I think GW has a solid case for claiming Space Marine as a trademark.
They make lines of games, toys and books that are called 'Space Marines'.
As far as I can tell no one else uses the term for a line of products.
Searches for Space Marine return overwhelmingly GW results.
Just because a term has been used before elsewhere (Superman for superior humans, Batman for a cricket/baseball hitter) does not mean it cannot be trademarked.
It's not as strong as say, Tyranid (a coined word) but they're not totally off base.
It should be noted in that thread that GW doesn't own Space Marine in terms of fiction, but that's not my point, I skimmed that thread.
You said searches bring back overwhelming results of GW when searching Space Marine, if you are signed into a google account, or don't clear your cookies, google is going to tailor searches to previous searches and internet history. If you were to visit StarCraft websites, Space Marines would bring back results relating to those types of Space marines. This tailored search algorithms that Google and other sites use is why facebook ads are for 40k sellers, and apparently "Good Christian Singles" from ChristianMingle.com (you make one joke about that site, and facebook thinks that's what you're looking for).
Why? If he gets to spout nonsense in this thread, I can be okay with missing something in a legal brief.
Anyways, these people are getting something out of this even working pro bono. They make their living working in the IP/Copyright/Patent fields. The two from Marshall IP(gasp!) are primarily experienced in jury trials as well. With what Czakk noted, that they are "local counsel" brought in for the jury trial it makes me wonder if Hartzell and Kalemeris might be moving firms within the not so distant future.
Why? If he gets to spout nonsense in this thread, I can be okay with missing something in a legal brief.
Anyways, these people are getting something out of this even working pro bono. They make their living working in the IP/Copyright/Patent fields. The two from Marshall IP(gasp!) are primarily experienced in jury trials as well. With what Czakk noted, that they are "local counsel" brought in for the jury trial it makes me wonder if Hartzell and Kalemeris might be moving firms within the not so distant future.
If no-one is allowed to volunteer for anything because it might do them some good we will be in a sad place.
Volunteer firefighters will have to resign because they might get fit, for example.
Why? If he gets to spout nonsense in this thread, I can be okay with missing something in a legal brief.
Anyways, these people are getting something out of this even working pro bono. They make their living working in the IP/Copyright/Patent fields. The two from Marshall IP(gasp!) are primarily experienced in jury trials as well. With what Czakk noted, that they are "local counsel" brought in for the jury trial it makes me wonder if Hartzell and Kalemeris might be moving firms within the not so distant future.
If no-one is allowed to volunteer for anything because it might do them some good we will be in a sad place.
Volunteer firefighters will have to resign because they might get fit, for example.
In my opinon KK, there is a rather large difference between those two ideas.
Volunteer firefighters do not have excessively high paying jobs which rely upon precedent setting behavior.
Lawyers do rely upon that. Taking a case pro bono in a situation like this means that at a later date, they can cite the precedent obtained from this case if it is favorable to them.
I wasn't aware I had to make a point to engage in a discussion?
If I had to make a point though:
In the field of practicing law, external and internal rewards blend together in a manner that can easily lead towards critics being cynical of even well-intentioned actions as I am of the lawyers working pro bono in this case.
Kanluwen wrote: Taking a case pro bono in a situation like this means that at a later date, they can cite the precedent obtained from this case if it is favorable to them.
That's a misleading statement. It doesn't matter who the lawyer was or whether they were working pro bono. Precedent is precedent. They can cite favorable precedent, regardless whether or not they worked the case.
I'm sure you'll say you meant something different, in which case you should probably clarify your point.
Kanluwen wrote: Taking a case pro bono in a situation like this means that at a later date, they can cite the precedent obtained from this case if it is favorable to them.
That's a misleading statement. It doesn't matter who the lawyer was or whether they were working pro bono. Precedent is precedent. They can cite favorable precedent, regardless whether or not they worked the case.
I'm sure you'll say you meant something different, in which case you should probably clarify your point.
Eric
I assume it's more for adding to your resume sorta thing, like collage students do.
There are a lot of reasons to take the case on pro bono.
Reputational:
Being involved in precedent setting litigation adds prestige to the firm. Doing pro bono work also adds to the reputation of the lawyer and the firm. It earns the respect of some of your peers. Doing a jury trial gives experience.
Personal:
Likely as a specialist in the field they are genuinely interested in the case. They might have a personal preference on how the law is developed and see this as an opportunity to push that theory / agenda. They may feel the defendant is a worthy cause.
Giving back:
Part of being a lawyer is an ethical obligation to do free work for the good of society. Some places recommend 50 hours or more a year. It can be hard to get pro bono work in certain areas and this could be an opportunity to make a difference. One of the lawyers is the head of the pro bono committee.
If I recall correctly, most of the Winston & Strawn folks are based out in California, so getting an experienced local litigator for the jury trial portion of the lawsuit was likely in the cards all along.
Why? If he gets to spout nonsense in this thread, I can be okay with missing something in a legal brief.
Anyways, these people are getting something out of this even working pro bono. They make their living working in the IP/Copyright/Patent fields. The two from Marshall IP(gasp!) are primarily experienced in jury trials as well. With what Czakk noted, that they are "local counsel" brought in for the jury trial it makes me wonder if Hartzell and Kalemeris might be moving firms within the not so distant future.
If no-one is allowed to volunteer for anything because it might do them some good we will be in a sad place.
Volunteer firefighters will have to resign because they might get fit, for example.
In my opinon KK, there is a rather large difference between those two ideas.
Volunteer firefighters do not have excessively high paying jobs which rely upon precedent setting behavior.
Lawyers do rely upon that. Taking a case pro bono in a situation like this means that at a later date, they can cite the precedent obtained from this case if it is favorable to them.
So can anyone else. You don't have to pay to cite precedents.
How does that benefit the individual lawyer who was involved in the case?
Kilkrazy wrote: How does that benefit the individual lawyer who was involved in the case?
Speaking, writing and general notoriety. The lawyer who defends a successful case is in better position to capitalize on that case than the lawyer who knows how to cite the case law. It may be to write an article for a publication or to give a lecture at a university regarding the particulars of the case. It may also just be so that the next person who comes along who may have deep pockets looks to see who won similar cases already and gets the name of a still practicing lawyer from the case itself.
There are also those who work on a more fundamental basis. A lot of IP attorneys believe that the system is fundamentally flawed, and the best way they feel they can fix that is to argue cases which they feel will move things back in the direction it was intended to function. In that regard, they may feel that they are the best suited to fight a battle...a different attorney may have well recommended that CHS attempt to settle in mediation or even before hand.
You can't cite the precedent of a case until the case actually happens. More often than not - these cases just never happen.
Speaking as a former volunteer firefighter (since that was brought up) we had a few large career fire departments send applicants our way. We were a volunteer department that worked with the "real" firemen and were able to keep up with them and had a very good reputation in the area for our skills and professionalism. So if the big departments were not hiring, or you needed to pad your résumé, you would consider joining us.
We were probably 70% guys from the community who were legitimately in this for the whole "I have a skill and I want to use it to help my fellow man" thing and we were willing to go through a year of training for that. The other 30% were guys who used us to build their skills, get the certifications, and eventually use the "pro-bono" firefighting they did to advance their career.
Both groups were great guys and excellent professionals, but both had their own reasons for volunteering.
Not sure if any if that was relevant to the "why pro-bono" discussion...
If they force aftermarket guys out of business it will create a vacuum in the market, then the average collector and gamer will start doing their own recasts for family and friends , especially as the kits are not cheap or will lead to more people buying from the recasters from russia
20kgs silicon = £250
10kgs resin = £100
you can do the maths as each mold will easily get 20 - 40 pulls before it disintegrates.
As far as I'm concerned GW should be paying Chapterhouse. Had it not been for the storm raven conversion kit that they put out I would never have bought the gw kit. Possibly the worst model ever, looked like a freaking pregnant guppy.
267.0 MOTION by Defendant Chapterhouse Studios LLC for reconsid...
Download
MOTION by Defendant Chapterhouse Studios LLC for reconsideration of Summary Judgment Order and Sanctions (Attachments: # 1 Declaration of Jennifer A. Golinveaux, # 2 Exhibit A-G to Declaration of Jennifer A. Golinveaux, # 3 Declaration of Bryce A. Cooper)(Cooper, Bryce) (Entered: 12/27/2012)
Second, CHS requests reconsideration of the Court’s finding that GW is “entitled to copyright protection as to the design of its shoulder pads.” Dkt. No. 258 at 20. Newly discovered documents—in the possession of GW’s lead trial counsel months before the summary judgment briefing but withheld from CHS and the Court—show that the United States Copyright Office rejected copyright registration for this very design on the grounds that it is “too minimal” to be afforded protection. Decisions of the Copyright Office are generally afforded “great deference” by the courts, and GW’s concealment of this evidence before the Court rendered its summary judgment Order is inexcusable. CHS respectfully requests that the Court reconsider its finding with regards to GW’s shoulder pads in light of these newly-discovered documents and sanction GW by awarding CHS costs for its independent investigation to uncover the evidence and directing GW to abide by its discovery obligations and produce all correspondence between GW and the Copyright Office regarding the works-in-suit.
And the judge says, GW, get me an answer by the 4th of January:
269.0 MINUTE entry before Honorable Matthew F. Kennelly: Plaint...
Buy from PACER
MINUTE entry before Honorable Matthew F. Kennelly: Plaintiff is directed to respond to defendant's motion for reconsideration by no later than 1/4/13. No reply brief. The motion hearing date of 1/3/13 is vacated and reset to 1/8/13 at 9:30 AM. (mk) (Entered: 12/28/2012)
So, some associates are going to be having a fun new years eve.
Automatically Appended Next Post: ------------------
There is an email chain from Moskin to the Copyright office. Basically, before the summary judgment the registrar says 'we can't register these shoulder pads'.
He doesn't disclose the emails to the court or CHS, despite emailing CHS to say he would disclose any correspondence with the copyright folks (as part of the discovery process).
Then, Moskin turns around and emails the copyright folks and says 'hey, there has been a ruling in a federal court that says we can copyright shoulder pads, please do it now'.
czakk wrote: There is an email chain from Moskin to the Copyright office. Basically, before the summary judgment the registrar says 'we can't register these shoulder pads'.
He doesn't disclose the emails to the court or CHS, despite emailing CHS to say he would disclose any correspondence with the copyright folks (as part of the discovery process).
Then, Moskin turns around and emails the copyright folks and says 'hey, there has been a ruling in a federal court that says we can copyright shoulder pads, please do it now'.
This is possibly the biggest development in this case this year, and it's a huge one. Snuck in at the last minute. This made my holiday weekend. Can't wait to hear what the judge says after the response.
For folks who aren't law types this is interesting for two reasons:
1) The judge may revisit his summary judgement, may or may not order sanctions etc...
2) There is a professional ethics / honour issue. This could be sharp practice or worse by Mr. Moskin. Calling opposing counsel a liar is a big deal. A trial lawyer with a reputation as someone who lies to the court is out of a job.
For folks who aren't law types this is interesting for two reasons:
1) The judge may revisit his summary judgement, may or may not order sanctions etc...
2) There is a professional ethics / honour issue. This could be sharp practice or worse by Mr. Moskin. Calling opposing counsel a liar is a big deal. A trial lawyer with a reputation as someone who lies to the court is out of a job.
Indeed, this is an almost unbelievable breach of professional ethics. It looks, prima facia, as if Moskin has attempted to mislead not only the court, but the Copyright office as well. The chain of correspondence evidence is simply blatant.
czakk wrote: There is an email chain from Moskin to the Copyright office. Basically, before the summary judgment the registrar says 'we can't register these shoulder pads'.
He doesn't disclose the emails to the court or CHS, despite emailing CHS to say he would disclose any correspondence with the copyright folks (as part of the discovery process).
Then, Moskin turns around and emails the copyright folks and says 'hey, there has been a ruling in a federal court that says we can copyright shoulder pads, please do it now'.
Generally speaking, and normally sanctionable - though the issues of what it means is somewhat more grey. There are specific laws which require disclosure of evidence during discovery for criminal cases - it is less firmly set out though for civil trials and generally ends up falling into the realm of contempt and similar local rules. If you take a look at Rule 26 of the Federal Rules of Civil Procedure it covers what must be disclosed by each side as well as some guidelines and related information on the timelines relating to discovery. Rules are squishy though, and if you break a rule...it isn't the same as breaking a law.
The bigger thing is that it makes GW seem even more like Lucille Ball, and it puts the judge in the position of Desi... Lucy, You got some 'splainin' to do. When the judge reconsiders if he should reconsider his summary judgement...unless GW can demonstrate some exceptional reason that they didn't pass on the information to CHS, it will be sitting in the back of the judge's head when he is contemplating the issues at hand.
How much of an impact it may have will really depend on how the judge is feeling. There is enough for the judge to hang his hat on for a complete reversal regarding the protectibility of the shoulder pads (and everything that is derived from the base shoulder pad design). He could stick with what he already ruled upon as well, since although the opinion of an expert agency should be given deference...it isn't mandatory that they agree with anything that the USCO says.
This could also affect any appeal CHS decides to do. It's another potential error of law ( the judge deciding not to reverse himself - if he goes that way) to bring up if they appeal the summary judgement.
I'll have to say--each time Moskin is mentioned within this thread, it's always in a very unappealing light. Combined with his rather distasteful deposition entries--it's painting a pretty poor picture of himself and his firm.
How did CHS find out about the emails (or did I blind eye it above)?
AgeOfEgos wrote: I'll have to say--each time Moskin is mentioned within this thread, it's always in a very unappealing light. Combined with his rather distasteful deposition entries--it's painting a pretty poor picture of himself and his firm.
How did CHS find out about the emails (or did I blind eye it above)?
They obtained the emails from the copyright office. It's a bit late but I believe they got concerned that they hadn't gotten anything about the copyright registrations via discovery and requested correspondences about shoulder pads and lucked out.
If I'm reading the bill correctly, CHS paid for the files before the summary judgement came down (paid nov 13, judgment nov 27). I wonder how long this has been lurking in the weeds.
Also interesting to note - the bill was sent Oct 29th, and the files sent overnight delivery. 30, 31s, 1st to read the hard copy. Notice the emails about not being registerable. Then phone call on the second of November to Moskin where he says there's nothing to disclose.
The date on certified copy of the emails is Dec 12 - which means they continued to request correspondence through November and December and caught him emailing about the summary judgement. Unless I've totally fethed up the timeline (possible at this time of night) they gave him enough rope to hang himself and he went and did it.
Wow every time I picture Moskin in my head i get this image of Saul from Breaking Bad. True sleazeball material.
We need photoshop treatment to replace a few words, shoulderpads and Moskin in place of Saul would be good.
Snippet from the docket:
Copyright Office records further reveal that Moskin called the Copyright Office on November 5, 2012—the same day he represented to CHS that GW would assemble and produce any correspondence with the Copyright Office—to follow-up on the Copyright Office’s refusal to register “Assault Squad Shoulder Pads,” making clear that he was fully aware of the correspondence. See Golinveaux Exs. E, G at 6; Golinveaux Decl.
Then, having withheld the Copyright Office’s correspondence from CHS and the Court, in an email dated December 7, 2012, GW’s counsel attempted to use this Court’s Order (rendered without knowledge of the Copyright Office’s decision rejecting GW’s application) to convince the Copyright Office to overturn its decision. (“I wanted to point out that in a recent decision, the US District Court for the Northern District of Illinois ruled that the basic shape of Case: 1:10-cv-08103 Document #: 267 Filed: 12/27/12 Page 10 of 15 PageID #:14976 11 the Games Workshop shoulder pad is copyrightable . . . I would be happy to get you a copy of the decision.”).
This just keeps getting better and better. When I can tell my non-wargaming fiance about GW's legal fiascoes and have her laugh out loud about it, you've got prime popcorn material right there.
I predict next we'll catch them breaking into CHS Watergate-style to plant resin recasts in the sculpting studios to photograph and claim as evidence...
Surely the judge has to ask himself if GW are hiding any more things. These cases require a bit of honesty in that you rely on others to reveal information they hold, not just claim they've lost the paperwork that doesn't cast them in a good light.
Clearly there was an agreement to reveal all correspondence with copyrighting agencies and they didn't do that, and they've been caught doing so in full knowledge attempting to use the current court case to get that previous decision reviewed. This seems a little reminiscent of GW writing to their previous artists trying to get them to retroactively sign away their rights to their work because they'd lost the paperwork saying GW had owned it all along. Start the legal case, get the technicalities like actually owning copyright later...
You've just got to question what they've submitted generally because unless I'm putting to much on this, the GW lawyers have knowingly misled the court.
czakk wrote:And the judge says, GW, get me an answer by the 4th of January:
(...)
So, some associates are going to be having a fun new years eve.
Revenge at last for spoiling CHS christmas 2 years ago (yes, we indeed just had the second anniversary of this lawsuit).
Still amazed how many crimes lawyers get away with unpunished. Hopefully this one is one too much for the judge.
And one day, the judge will find out, that GW DOESN'T own the copyright on skulls, fur, feathers, halberds, arrows etc. and that second market is not illegal per se
spaceelf wrote: And people wonder why GW has such a bad rep. It is ironic that a company who is in the business of making rules, so blatantly breaks them in court.
Well, if they wrote clearer rules perhaps their lawyers wouldn't try to house rule as much.
spaceelf wrote: And people wonder why GW has such a bad rep. It is ironic that a company who is in the business of making rules, so blatantly breaks them in court.
Well, if they wrote clearer rules perhaps their lawyers wouldn't try to house rule as much.
Gw obviously write 'the rules' ™ hence the RAW/RAI arguments in this court case.
Second, CHS requests reconsideration of the Court’s finding that GW is “entitled to copyright protection as to the design of its shoulder pads.” Dkt. No. 258 at 20. Newly discovered documents—in the possession of GW’s lead trial counsel months before the summary judgment briefing but withheld from CHS and the Court—show that the United States Copyright Office rejected copyright registration for this very design on the grounds that it is “too minimal” to be afforded protection. Decisions of the Copyright Office are generally afforded “great deference” by the courts, and GW’s concealment of this evidence before the Court rendered its summary judgment Order is inexcusable. CHS respectfully requests that the Court reconsider its finding with regards to GW’s shoulder pads in light of these newly-discovered documents and sanction GW by awarding CHS costs for its independent investigation to uncover the evidence and directing GW to abide by its discovery obligations and produce all correspondence between GW and the Copyright Office regarding the works-in-suit.
And the judge says, GW, get me an answer by the 4th of January
Wow . What a development. This is crazy! It's like something out of a movie... Tom Cruise calling the pilots up from Guantanamo Bay to testify against Jack Nicholson - level crazy
I think it's fair to say that some information is often left out of discovery either on purpose, or out of negligence. This was obviously done on purpose seeing as he tried to use the ruling to get the Copyright office to change it's decision. I hope the Judge will live up to his title and do the honorable thing, ie. reverse his decision seeing as "The Supreme Court has also broadly stated that “an agency’s interpretation may merit some deference whatever its form, given the ‘specialized experience and broader investigations and information’ available to the agency, and given the value of uniformity in its administrative and judicial understandings of what a national law requires."
Sadly, other then a reversal and paying the bill for CHS, nothing else will be done to the dirtbag.
nkelsch wrote: Isn't this discussing the assault squad pads which is the multi arrow or something? Not all shoulder pads?
Not exactly...
Also, we cannot register the sculpture portion as it is too minimal. The text on this package appears to be the same as Crimson fist shoulder pads and cannot be registered again. Please allow permission to remove sculpture and text from the application.
The sculptural aspect of the shoulder pads in general is deemed too minimal to be artwork on its own. A complete figure might be a sculpture, but a shoulder pad is just a portion of a figure and is insignificant on its own. The text on the package is the same as on other packages - which is already registered and isn't something which would apply to the CHS case since they are not copying the packages of GW. The agent of the Copyright Office says that they might be able to register the graphics portion of the package, provided that it is actual artwork (i.e. - painted) as opposed to just a photograph of an insignificant part of a larger figure.
Sadly, other then a reversal and paying the bill for CHS, nothing else will be done to the dirtbag.
Heh, if it does go all pear shaped like that, imagine going to a client and saying "remember that summary judgement we got that said your product was copyrightable....well the other side caught me hiding emails between myself and the copyright office, and that judgement got reversed. Oh, and you need to pay into court to cover the other sides expenses." and then imagine the senior partners dragging your ass onto the carpet. And then the phone call to your insurer because you fethed up and your rather litigious client wants its pound of flesh and good news, they've decided to sue your firm etc....
Well, court-wise, aside from the judgement, there is a little tidbit in the judicial code of conduct:
Canon 3(B)(5):
A judge should take appropriate action upon learning of reliable evidence indicating the likelihood that a judge’s conduct contravened this Code or a lawyer violated applicable rules of professional conduct.
The use of the word should in that canon makes it a requirement to report conduct not a choice on the part of the judge (should/shall/must vs using may or can).
Now in my jurisdiction, sharp practice, lying to your friend, and or breaching an undertaking wrt to discovery is a violation of the code of conduct and you will get reported to the law society. The court also has the power to lay down sanctions like contempt of court (jail time, though very rare), costs awards, or a new trial. Don't know about in Illinois / federal court.
And we don't know how seriously the judge will take all this. CHS's lawyers do a good job making it seem like a huge deal, but that is their job. Maybe there is another email (or emails) floating around that casts another light on the situation and CHS didn't include them. (not looking likely, but...)
Automatically Appended Next Post: ------------------------------------
The christmas eve answer by CHS is now available on recap to download - looks like it was signed by the new attorneys:
Heh, more little proofreading digs- "Chapterhouse notes that Trademark Registration Number 1,751,460 is for a Word Mark of “SAMWISH,” which is registered to Uli Siegenthaler, an individual in Switzerland."
"ANSWER OF DEFENDANT CHAPTERHOUSE STUDIOS LLC TO PLAINTIFF’S THIRD AMENDED COMPLAINT, ERRONEOUSLY TITLED SECOND AMENDED COMPLAINT"
The defences are pretty much the same as the last time, with the addition of the fraud allegation:
GW’s claims are barred to the extent its copyright or trademark registrations were obtained through fraud on the Copyright Office or the Patent and Trademark Office. Upon information and belief, after improperly withholding from production and from the Court in the pending litigation rejections issued by the copyright office denying the copyrightability of GW works, GW now seeks to rely on the summary judgment order entered without benefit of the Copyright Office's findings in an attempt to overcome the rejection.
Sadly, other then a reversal and paying the bill for CHS, nothing else will be done to the dirtbag.
Heh, if it does go all pear shaped like that, imagine going to a client and saying "remember that summary judgement we got that said your product was copyrightable....well the other side caught me hiding emails between myself and the copyright office, and that judgement got reversed. Oh, and you need to pay into court to cover the other sides expenses." and then imagine the senior partners dragging your ass onto the carpet. And then the phone call to your insurer because you fethed up and your rather litigious client wants its pound of flesh and good news, they've decided to sue your firm etc....
It is not just one employee that lied to the judge. It started from the beginning when GW accused a person completely and obviously unrelated to the case just to get the case to Chicago. And the complete case relies on false copyright and trademark claims that GW obviously has no idea on how to support. GW even made a futile attempt to get some copyrights transfered from artists AFTER the lawsuit began, but some artists informed court about that fraud attempt. So it is not a singular accident but a fundamental strategy to bury the judge in false claims and lies just to get most out of this lawsuit. With shoulder pads it almost worked.
Guys, while I agree the the general sentiment regarding this latest twist in the case.. it's probably best if people drop the memes, jokes, and flowery commentary and stick to a more factual discussion of the case before the red text starts appearing and suspensions start flying. There are probably almost as many mod warnings as there are pages in this thread so no one can resonably claim ignorance.
warboss wrote: Guys, while I agree the the general sentiment regarding this latest twist in the case.. it's probably best if people drop the memes, jokes, and flowery commentary and stick to a more factual discussion of the case before the red text starts appearing and suspensions start flying. There are probably almost as many mod warnings as there are pages in this thread so no one can resonably claim ignorance.
Perhaps I'm just too jaded to believe anything will be done. After witnessing a Public Defender overdose in the middle of court, and then seeing him in the defense role less than 6 months later, in the same court... you can see where I'm coming from. Things happen, blind eyes are turned and nothing' perfect. I would be very surprised if he was sanctioned by anyone other than those he works for... Hope he does, just doubt it will pan out like that. Hope that makes sense.
It all depends on how the judge handles it. If it made him mad, then GW is in for a world of hurt. If it just annoyed him, then probably not much. Hopefully it made the judge mad as hell.
Debbin wrote: It all depends on how the judge handles it. If it made him mad, then GW is in for a world of hurt. If it just annoyed him, then probably not much. Hopefully it made the judge mad as hell.
Hopefully this will mess up his Tee time at the local golf course, I am positive that would piss him right off.
I can't wait until the 'annual price adjustment' kicks in a little earlier this year and what bovine scat Mr Wells will try sell to the investors this year.
Do you think that someone needs to tell GW that a legal case that is so fundamental to its business isn't like a battle report where you pick the best out of three and change the rules and results to suit the best presentation of the new army?
I wonder if GW's next move is to sue its legal team?
So, someone noted that CHS had been sitting on this for a little while; is the judge likely to frown on this, or are maneuvers like this normal (or at least not uncommon)? Also, for the non-lawyers, what sort of sanctions could be handed out ?
Dheneb wrote: So, someone noted that CHS had been sitting on this for a little while; is the judge likely to frown on this, or are maneuvers like this normal (or at least not uncommon)? Also, for the non-lawyers, what sort of sanctions could be handed out ?
They may have sat on it to see if he'd eventually produce it, and since the email trail includes a bit about Moskin using the summary judgement to try and change the copyright decision, that part must have happened after the summary judgement was produced.
So whilst CHS may have sat on it for a while, the fault should still be with GW for lying about it.
Dheneb wrote: So, someone noted that CHS had been sitting on this for a little while; is the judge likely to frown on this, or are maneuvers like this normal (or at least not uncommon)? Also, for the non-lawyers, what sort of sanctions could be handed out ?
Not sitting on it for awhile. If you look at the date information on their billing - at most they would have been sitting on it for around a month...and that was during the period that they were waiting on the summary judgement (why go out of your way to possibly embarrass the opposition) as well as major holidays in the US. After that, you have all the "stuff" needed to file the brief as well as the responses to the summary judgement and the new case brought by GW during the same period.
Regarding sanctions - anything from a "Whatever" to disbarment. If the judge believes it was intentional - it would likely be a fine against the lawyer in question. Disbarment is very rare - and normally requires gross negligence and commission of some sort of crime.
So will we hear something by January 4th (when GW needed to reply by?) or will any official notice have to wait until the judge considers what GW has to say?
When GW files there response - we will be able to read it shortly after that. The actual response by the judge may or may not be a fair amount of time after that depending on his schedule.
Unless he issues something official like the Summary Judgement document though - we will only get a very short summary of what gets said by him. The transcripts of the hearings are not made available for a significant amount of time after the case.
01/04/2013 270 RESPONSE by Games Workshop Limitedin Opposition to MOTION by Defendant Chapterhouse Studios LLC for reconsideration of Summary Judgment Order and Sanctions 267[RECAP] (Attachments: # 1 Affidavit Moskin Declaration, # 2 Exhibit Ex. A)(Keener, Jason) (Entered: 01/04/2013)
It's up and I am reading it.
Automatically Appended Next Post: So far, it seems like, I forgot about it, I got busy, and this isn't a big deal, and really this is CHS's fault for not asking a third time...Similar tone to the one they took with regards to not disclosing the copyright assignments that certain artists refused to sign.
From Moskin's Affidavit:
5. Soon after the call and receipt of the prior discovery request, I began culling my records to gather such correspondence, none of which had existed at the time of the prior discovery. As I explained in my November 5 email to Ms. Golinveaux, I was also delayed in doing so as my office was closed for a week after Hurricane Sandy and I was then out of the office for part of the following week. In the process, I noticed that the Copyright Office had never responded to my June 26 email concerning the application for the Assault Squad Shoulder pad. I thus telephoned the Copyright Office to speak with the employee who had first contacted me on June 7 regarding the matter. I left a message with one of her colleagues inquiring generally about the status of the matter, following which I received the November 7 email included in Exhibit A.
6. Although we were preparing to produce all of the correspondence as part of trial preparation (and eager to spare Games Workshop the burden of obtaining certified copies of all the copyright registrations), on November 15, the Court vacated the trial date and shortly thereafter rendered its decision on the summary judgment motions. Moreover, in the interim in discussions with Chapterhouse concerning the new complaint, filed November 12, Chapterhouse made very plain that it recognized no duty to supplement its own discovery responses, leading Games Workshop to seek to bring the issue to the attention of the Court. Games Workshop, to the contrary, consistently acknowledged its duties under Rule 26(e) and never purported to renege on its agreement to produce all correspondence with the Copyright Office.
7. Regarding the suggestion that Games Workshop deliberately concealed evidence from the Court, the reality is that, given the lack of any response from the Copyright Office following my June 26 email, I assumed the matter was resolved. It has been my experience in filing copyright applications that the examiners are very prompt in responding. The failure of the examiner in this case to respond at all for over four months together with the passage of so much time since Chapterhouse served its discovery did not present this as a live issue warranting attention. As noted, I did not review the status of the applications until Chapterhouse raised the issue in November.
I'm not seeing an explanation as to why he never got back after Nov 7 (like, on nov 8th, etc..), other than, hey you ruled later that month judge.
Highlights from the Reply:
Chapterhouse’s motion is based on numerous false statements and a distortion of the factual and legal significance of an initial question raised by a low level Copyright Office employee (who is not even a lawyer) in connection with one application filed by Games Workshop for a shoulder pad design. The statement, which is simply inadmissible hearsay, is entitled to no deference whatsoever.
.....
Although, under certain circumstances not present here, some courts have shown some degree of deference to a final refusal by the Copyright Office to register works, at least where such a refusal is indeed final and sets forth adequate reasoning for the refusal, there has been no such final or even initial refusal here, only a question to which Games Workshop has been invited to respond, and no analysis whatsoever. Even should the examiner ultimately decide to deny registration to the work, Games Workshop would then be entitled to take advantage of the multi-step administrative and judicial review procedures, including: (1) a written objection to the refusal with a request that the Copyright Office reconsider its action; and (2) a written request for reconsideration to the head of the appropriate Examining Division section. Only if this second request were denied would the decision considered a final agency action (supra note 5). Judicial review under 17 U.S.C. § 411(a) could then also be sought.
The point informally raised here by a low level employee, supported by no analysis whatsoever, warrants no deference at all.
Other than that, lots of complaining about CHS, and what not, and a lot of jumping around the timeline, and how busy Moskin was, and how CHS never called him again to ask about it. I can't comment on the arguments + law being cited (the admin law stuff on deference owed to copyright registrar, or the civ pro stuff for what is required to get the judge to revist his opinion).
But, he's got a basic time table problem that he does a bad job hand waving away by talking a lot about June to November, and then ignoring the fact that CHS did in fact pick up the phone and ask him for this info in November, he did go out and get it pretty much right away, and then he sat on it.
Very clear these two sets of lawyers don't have a lot of respect for each other. Sad really.
Also, I'll have to go check some of the older filings - I think they re-used a 'sound and fury' line.
I don't speak legalese and have only read the last 5-10 pages of this (huge) thread but my understanding at this point is;
1) There was something about GW not having the paperwork saying they owned some artwork so they tried to strong arm the artists into signing it over (again?).
2) GW had already been unable to copywrite their assault marine shoulder pad design ages ago.
3) That fact could be highly relevant to the case and they new it but didn't come forward with it.
4) Chapterhouse caught them hiding it and now they are saying "Oh, uh, I was busy and forgot" in a way that totally doesn't sound like a middleschooler trying to explain why he didn't do his homework.
Have I missed anything or did I get anything wrong there?
They didn't try to strong arm artists into signing it over as it was more along the "trick them into doing it" method. They said that the artists had done it in the past but that the paperwork was lost so that they just needed to reconfirm it... but some notable artists said that they never did such a thing.
I do hope that GW and their lawyers' tactics and actions do have a discernable effect on the verdict in the end. I'll leave it to my more learned colleges who work in this field to comment on whether the type of behavior we've seen in the case so far is typical for this size corporate case or not.
So far though, this case is nothing like all those seasons of Law and Order and Matlock I've watched... it's barely even reminiscent of Ally McBeal!
2) GW had already been unable to copywrite their assault marine shoulder pad design ages ago.
3) That fact could be highly relevant to the case and they new it but didn't come forward with it.
4) Chapterhouse caught them hiding it and now they are saying "Oh, uh, I was busy and forgot" in a way that totally doesn't sound like a middleschooler trying to explain why he didn't do his homework.
Have I missed anything or did I get anything wrong there?
Between 3 and 4 the Judge made a decision in GW's favour regarding the shoulder pad, even though they forgot to tell him what the copywrite office had said. Strangely they didn't forget to tell the copywrite office immediately about what the Judge had said, and start insisting that the shoulder pad be reged immediately. If we are going to get into middleschooler analogies its a lot like...
"Hey Mom, can I have more Space Marines?"
"No!"
"Hey Dad, can I have more Space Marines?"
"Did you ask your mother?"
"She said to ask you"
"Hmm well okay then"
"Hey Mom, Dad said its okay!"
To my untrained mind something really sticks out. Moskin states he thought the matter with the copyright office was closed. Why then, as shown in the email chain, was he the one that then pursued the copyright office later in the year. I can only see this as the facts contradicting his affidavit.
UNCLEBADTOUCH wrote: To my untrained mind something really sticks out. Moskin states he thought the matter with the copyright office was closed. Why then, as shown in the email chain, was he the one that then pursued the copyright office later in the year. I can only see this as the facts contradicting his affidavit.
At which point in the year? He was asked by CHS for the emails that he had never sent over, so that probably reminded him.
The thing that looks sloppy as hell is the June 7 email from the registrar saying 'we can't register this' and then his 'reasoning' that "well they never got back to me after that, so, I assumed they changed their minds".
) or equal provisions; that's just someone asserting their rights.
. What a development. This is crazy! It's like something out of a movie... Tom Cruise calling the pilots up from Guantanamo Bay to testify against Jack Nicholson - level crazy 
