Kilkrazy wrote:
I think in Aliens the weapon was called an incinerator. GW's contention is that they own the trademark "flamer" for description of handheld flamethrower weapons in games, not the fundamental concept of the weapon.

I'm pretty sure flame throwers are called flamers (possibly even hand flamers) in Starship Troopers. Anyone got a copy of the book to hand? It's in the first chapter IIRC.

Yes, they are called flamers or hand flamers. Rico uses one in the raid on the Skinnies to cut his way into a building in the first scene. It operates more like a thermic lance than a flamethrower.

 Kilkrazy wrote:
Yes, they are called flamers or hand flamers. Rico uses one in the raid on the Skinnies to cut his way into a building in the first scene. It operates more like a thermic lance than a flamethrower.

My question is can someone actually trademark such a vague word like "flamer"? Next GW will trademark "skull" and "gun".

They will, but it will be a skull shaped gun that shoots skulls, so it will be ok.

A hat made of a throne of skull shaped guns that shoot flaming skulls with skulls coming out of their eyes on fire.

And that is just the cap badge.


Automatically Appended Next Post:
Getting a bit OT there I'm afraid.

Friday night and everything.

 Aerethan wrote:

 Kilkrazy wrote:
Yes, they are called flamers or hand flamers. Rico uses one in the raid on the Skinnies to cut his way into a building in the first scene. It operates more like a thermic lance than a flamethrower.

My question is can someone actually trademark such a vague word like "flamer"? Next GW will trademark "skull" and "gun".

You can trademark extremely vague terms, but the less unique the name...the less strength the mark has. The lowest levels of protection reaaly dont do much at all. In the case of flamer, it was already in use prior to GW and has been used since by other companies, so it is well on its way to being generic.

Honestly though, flamer isnt the weakest of their claims. I think there are somewhere around 150 marks claimed, most of which are generic or common place. From common terms in scifi (plasma) to common historical terms (imperial guard) to just common terms...most are able to be found in dozens of sources beforehand and just as many since.

Ok, I took a class in Public Relations that spent one period talking about how to keep your trademarked logos.

One of the prime points the professor made was that your logo needs to be presented unaltered in exactly the same way every time in order for it to be protected.

For example, you don't change the font, color or other design elements.

So, with GW trying to claim copyright on their army badges and such, would that rule apply? Is there a problem due to the fact that they don't present the Ultramarine's inverted omega the same way every time?

 odinsgrandson wrote:
Ok, I took a class in Public Relations that spent one period talking about how to keep your trademarked logos.

One of the prime points the professor made was that your logo needs to be presented unaltered in exactly the same way every time in order for it to be protected.

For example, you don't change the font, color or other design elements.

So, with GW trying to claim copyright on their army badges and such, would that rule apply? Is there a problem due to the fact that they don't present the Ultramarine's inverted omega the same way every time?

That makes sense. So the symbols would all need to be 100% the same in every instance of them being shown in order to maintain trademark protection? Or could every single variant be registered as well?

Virtually none of those symbols other than the eagle are ever presented the exact same way twice.

That is the common rule, the notion being a company can effectively dilute its recognizability on its own trademark by varying it too much in a short period of time.

GW though is going for more than just the variety of symbols they're also pointing at the use of their fictional names which simply doesn't vary in use as much. That is only to say issues aren't settled just on the generic nature of their iconography.

Well, the new Pepsi symbol varies on each kind of Pepsi. Did they register each version or just the "round ball Pepsi logo"?

 d-usa wrote:
Well, the new Pepsi symbol varies on each kind of Pepsi. Did they register each version or just the "round ball Pepsi logo"?

I wouldn't be surprised if they did. If anyone has their ducks in a row, it's Pepsi.

What is a trademark on the imperial eagle meant to protect?

 Kilkrazy wrote:
What is a trademark on the imperial eagle meant to protect?

GW have quite a lot of things sold with the Aquila logo... not just various miniatures; there are a lot of books, their carry cases, hobby products. It is definitely the most uniquely GW and widely used design in this lawsuit.

Aside from the fact that the two-headed eagle is a long-used symbol of Imperial might.

Trasvi wrote:

 Kilkrazy wrote:
What is a trademark on the imperial eagle meant to protect?

GW have quite a lot of things sold with the Aquila logo... not just various miniatures; there are a lot of books, their carry cases, hobby products. It is definitely the most uniquely GW and widely used design in this lawsuit.

I know this is off-topic and I apologize but I felt compelled to note that I always found it hilarious that they've gotten away with copyrighting something that's been in use since ancient Sumeria (i.e. the Double-headed Eagle) on military icons and heraldry... Not to mention the Russian Imperial emblem... Actually, it makes more sense to blame some illuminati plot since the GW version looks exactly like the Masonic version... Or the Byzantine Orthodox Church....or since people at GW love WWII so much it could be derived from the 21st Waffen Mountain Division.. Point being that I think they'd have a hard time holding the double-headed eagle up in court if the defense trots out countless military examples over the last 3000+ years of common use.

Edit: Anvildude beat me to it... Curses!

I think you can rightfully own a specific version of a generic shape. McDonalds don't own the letter 'M' but they do own their M-logo. While eagles are common place in history, the GW one is angular in a way most others aren't so they could own the rights to a variation using very specific dimensions and style. The way they depict their eagle is very consistent from miniatures to art, transfers, on books, all their packaging and on the front of their corporate building in Nottingham (yes, it's about 30 feet across IIRC).

I have read this entire thread, and I find that I am on CHS's side for most things, but if you type 2-headed eagle into Google Images, the results are very much in favour of supporting the idea that GW's angular eagle should be protectable. It is very clearly something different to the norm.

 Fifty wrote:
I have read this entire thread, and I find that I am on CHS's side for most things, but if you type 2-headed eagle into Google Images, the results are very much in favour of supporting the idea that GW's angular eagle should be protectable. It is very clearly something different to the norm.

Challenge Accepted:


191 results from page 1 of Google Images. 2 of them are from GW

yup, sure looks protectable to me

Trasvi wrote:

 Kilkrazy wrote:
What is a trademark on the imperial eagle meant to protect?

GW have quite a lot of things sold with the Aquila logo... not just various miniatures; there are a lot of books, their carry cases, hobby products. It is definitely the most uniquely GW and widely used design in this lawsuit.

Yes but does that mean?

If you see the Sony or PS trademarks you know you are looking at a Sony or PlayStation product.

You don't see the aquila on all GW or 40K products, so it isn't a company or brand logo. What does it represent? As far as I can see it merely represents a GW product with the aquila on it.

Isn't it on all the blister packets somewhere?

I don't know, however the blister packs aren't the products.

Isn't that like saying a hamburger that has the 'M' logo on the disposable box rather than branded on the top of the bap makes it not "part of the product"? I don't think that works, the model and packaging at a complete product when sold to you.

Charax wrote:

 Fifty wrote:
I have read this entire thread, and I find that I am on CHS's side for most things, but if you type 2-headed eagle into Google Images, the results are very much in favour of supporting the idea that GW's angular eagle should be protectable. It is very clearly something different to the norm.

Challenge Accepted:


191 results from page 1 of Google Images. 2 of them are from GW

yup, sure looks protectable to me

Not a lawyer, but I'm not at all sure that picture proves the point. In fact, since I could scan that image and readily spot the *specific" double-headed eagle which GW claims is their's out of all the others suggests that they actually do have a case. Just, as others have noted, like McDonalds does not "own" the letter "M", but they sure as heck do own trademark on a very specific, distinctive, and identifiable depiction of that letter.

Valete,

JohnS

Exactly, GW couldn't claim Copyright on "a 2 headed eagle design" but I do think they could claim Copyright on the specific design of the Imperial Aquilla.

Charax wrote:

 Fifty wrote:
I have read this entire thread, and I find that I am on CHS's side for most things, but if you type 2-headed eagle into Google Images, the results are very much in favour of supporting the idea that GW's angular eagle should be protectable. It is very clearly something different to the norm.

Challenge Accepted:


191 results from page 1 of Google Images. 2 of them are from GW

yup, sure looks protectable to me

Sorry, I should have highlighted the word "angular" more. Your image is actually very supportive of my case...

But would the average person, that being someone who is not into warhammer 40k or other table top battle games, be able to distinguish them? We can tell them apart because we are into the game and its back story, but would Joe Smchoe down the block know the difference?

Does GW do enough advertising for average people to know about their product? I think that a jury wouldn't be able to distinguish them apart.

 Debbin wrote:
But would the average person, that being someone who is not into warhammer 40k or other table top battle games, be able to distinguish them? We can tell them apart because we are into the game and its back story, but would Joe Smchoe down the block know the difference?

An interesting follow up to that would be does GW's targeted customer demographic (the parents of the kids playing 40K) recognize it? Isn't that part of the case GW is trying to prove: that someone who isn't fully versed in GW products and lore may "accidentally" buy CHS product thinking it is official GW product?

 Howard A Treesong wrote:
Isn't that like saying a hamburger that has the 'M' logo on the disposable box rather than branded on the top of the bap makes it not "part of the product"? I don't think that works, the model and packaging at a complete product when sold to you.

An important distinction however is that only McDonalds stores sells McDonalds products. You can't go to a mom and pop fast food joint and order a McRib.


GW sells through independent retailers, thus they are not the ONLY people selling Warhammer. So more important is the fact that the relevant trademarks are NOT identifiers of the company as a whole. The Citadel mark is used on every single model package, so that mark should be 100% protected. But the aquila, chaos star, UM symbol, none of those are used to denote "GW MADE THIS". They are decorative elements at best on their respective products.

Enough with the digression, folks. General rules of trademark (which is what the aquila would be) and copyright belong elsewhere.

One thing to keep in mind is that the issues of trademarks are dealt with, not by the average expert or enthusiast (which arguably anyone on an internet forum for a product would qualify as) or even the average customer, but the average person.

When the average person sees the GW aquila, they dont think GW...they think Nazi. You see this represented in common media articles about the game (few that therer are) which often make mention of toys with Nazi iconography.

This is furthern complicated by the Nazi party actually using a a double headed eagle to represent part of their propaganda apparatus. The left head represented the party, while the right head represented the country. Badges are rare, as it was primarily a secret civilian arm of the Nazi regime, but I have a book that has a picture of one of their pins in it that looks very close to an IG eagle.

Following the war, an art deco style double headed eagle was used in promotional media for a french play "The Eagle Has Two Heads". That modern design was later dropped in favor of a more traditional gothic styled eagle when the play was made into a film as the studio felt the modern one looked too much like the Nazi symbol.

In the 1970s, a documentary was made that outlined the workings of the Nazi party prior to WWII and used an icon from papers used by the above mentioned group in the media for the film.

http://static4.thcdn.com/productimg/0/600/600/34/9984234-1345638155-215233.png

 Howard A Treesong wrote:
Isn't that like saying a hamburger that has the 'M' logo on the disposable box rather than branded on the top of the bap makes it not "part of the product"? I don't think that works, the model and packaging at a complete product when sold to you.

I would argue...

MacDonald's burgers are a service rather than a product. You can't sell the burger separately from its wrapper due to health and safety. All of MacDonald's products and their shops have the same sign on them. It is clearly the trading mark of the company.

40K models are sold in blank boxes if you buy them through the online order system. GW shops are not marked with the aquila. The aquila is not clearly the trading mark of the company. It seems to be the product mark of Imperial Guard. Even then, IG boxed kits do not display it. As far as I can tell, it is a piece of decoration on the IG models.

Was Chapterhouse putting the aquila on their packaging?

Having just finished the entirety of Mr Grindley's testimony (and absolute mockery he made of the GW lawyer Mr Keener), I must say that the tactic that CHS is aiming for, which is to say that they are trying to get the jury on their side by calling into question the originality of the product which opens up the notion that they are attempting to reveal GW as a company that is trying to 'build up its IP moat' by taking ideals from the pool of Science-Fiction and ideotropes and claiming exclusiveness to these items when in fact, their own IP was built up on these same ideals as modestly humble.

This:

Is the one piece of paper they should come into the court room with, along with Mr Grindley's testimony.


Though, to be honest, the level headed amongst us can gleam this case is going to end with CHS winning this lawsuit due in part to GW over zealously protecting their IP to a degree thats damaging to the medium at large to which any sensible jury member will see.

 Xzerios wrote:

Though, to be honest, the level headed amongst us can gleam this case is going to end with CHS winning this lawsuit due in part to GW over zealously protecting their IP to a degree thats damaging to the medium at large to which any sensible jury member will see.

That, or they treat the jury the way they treat their customers, employees and pretty much anyone else not high up in the company and the jury vote against them out of spite.

 Kilkrazy wrote:

Trasvi wrote:

 Kilkrazy wrote:
What is a trademark on the imperial eagle meant to protect?

GW have quite a lot of things sold with the Aquila logo... not just various miniatures; there are a lot of books, their carry cases, hobby products. It is definitely the most uniquely GW and widely used design in this lawsuit.

Yes but does that mean?

If you see the Sony or PS trademarks you know you are looking at a Sony or PlayStation product.

You don't see the aquila on all GW or 40K products, so it isn't a company or brand logo. What does it represent? As far as I can see it merely represents a GW product with the aquila on it.

The term that you are looking for is "Trade Dress" - the product or the packaging of a product is covered. It is related, but not quite identical to, Trademark, and is covered in the US by the same Act.

That the Nazi two headed eagle bears a strong similarity may weaken it, but Chapterhouse isn't calling their emblems "Space Nazi (R)"

For me the two headed eagle brings to mind The Mouse That Roared"

The Auld Grump

There are many two headed eagles in history. The GW aquila is a kind of art deco version.

The Imperial Aquilla is actually not a generic Double Headed Eagle, you'll notice it only has one eye as one head is always depicted blind or hooded.

Whilst it is only a small detail I'm not aware of any historical or current usage that includes such an element.

As can be seen from the big one one their HQ http://goo.gl/maps/HiNir

I had never noticed, possibly because it is so tiny on the IG helmet and so on.

A minor detail is not necessarily decisive in terms of making a new design, and perhaps the court will have to rule on that too.

I believe a Court has already ruled on the GW aquila design in the past, in a different case, although I may just be remembering rumor.

In any case, if you look at GW's Second (Third) Amended Complaint, although GW identifies the Aquila as a registered US trademark (Registration Number 3,646,312), the single mention of the word "aquila" in GW's second revised claim chart is in regards to entry number 4:

"The Blood Raven's icon is a raven with outstretched wings (like the Aquila, double headed eagle) with a blood drop centred on its torso."

The blind eagle head is supposed to represent the Astropaths, each part of the eagle represents different parts of the Imperium.

So, that pointed out could harm GW a great deal, as they could claim ownership of the art deco 2 headed eagle with one eye missing, which would mean others can use the eagle with no eyes or both heads with eyes and, as Kilkrazy points out, it's not visible on a mini anyway, so others could have carte (john) blanche to begin using the eagle on their scifi models.

I think the link for the trademark is to an expired search, this link may work better http://tsdr.uspto.gov/#caseNumber=77575293&caseType=SERIAL_NO&searchType=statusSearch

Those government websites...Yea, that works better, thanks.

Please may one of the law-guys correct me if I am mistaken here, but I recall having read somewhere in connection with the Apple logo and with chinese product pirates that it is not enough to just alter one minor detail of a trademark logo in order to circumvent the trademark. Although the trademark itself it exactly defined, just using the same logo with two eyes would clearly imitate the registered trademark, possibly with the obvious intention of provoking mistaking. It is the same like using the signature "ADIDOS" instead of "ADIDAS" in connection with one stripe more, or producing real-life "Nuca Cola".

A lot of those issues end up going towards the country in question (most those Chinese knock-offs are sold in China itself...so they are only dealing with Chinese trademark laws) or are actually on the wrong side of things...should they ever be taken to court over the action in a Western system.

KFG (as opposed to KFC), IVIKE (as opposed to Nike), Tids (as opposed to Tide), Okay (as opposed to Olay) are a few I recall from my last trip over there. Those products tend not to make it to the west - or if they do, they are sold at flea markets or street vendors...so there is little chance of the owning company actually achieving anything by filing a suit (since they can only go after the vendor as opposed to the manufacturer).

In exceptional cases, they might be able to get an import injunction put in place - but those are hard to enforce with the hundreds of thousands of containers which come into most Western ports each year. Unless they are shipping a complete container from the factory - the manifest might only say something generic like "shoes" or "handbags".

Surely it also depends on how well established and recognisable the trademark might be.

The IG double headed eagle was only registered in 2008, it isn't much used except in a very small representation on individual models, and so it isn't a strong recognisable brand symbol.

Compare it with the MacDonalds' golden arches, the Nike swoop and the PlayStation family PS logos, for example.

I am still having difficulty in understanding what the aquila stands for except itself.

No one ever said GW was particularily adept at developing a brand identity.

It would be one thing if they used that particular symbol on ever product from say the 40K line - as you might see a company like John Deere does with their yellow deer logo, but they use the majority of their logos sporadiclly and without any specific pattern to them. As a result, they become much more difficult to establish and harder to defend.

 Kilkrazy wrote:
Surely it also depends on how well established and recognisable the trademark might be.

The IG double headed eagle was only registered in 2008, it isn't much used except in a very small representation on individual models, and so it isn't a strong recognisable brand symbol.

Was looking at an older box of plastic Ork Boyz (16 in box) and the inner sleeve has a good sized GW 40K eagle wrapped around it.

 Hruotland wrote:
or producing real-life "Nuca Cola".

They were done as an E3 promo for Fallout 3. The only problem Coca-Cola would have with it is if they copied the contour bottle, honestly.

The issue isn't so much when it was registered (registration is an important part of branding - but it isn't actually essential...there are a lot of unregistered trademarks that people know by sight what they are for).

Rather, it goes to the manner in which they are used. GW first used the double eagle back in the Rogue trader days and has used it sporadically since then. Most the time though, it isn't used as a method of actually identifying a product - instead it is a surface decoration of a product. There is a big difference between the manner that Nike uses their "Swoosh" logo on a pair of shoes and the manner in which GW plants an aquila on some figures...but not others with no specific reason that the second might not have the device.

For example, you might say that it is an Imperial symbol and should show up on all Imperial Figures and models - thus creating and enhancing their brand for the imperial guard. So, we take a look at the current Imperial Guard line up over on the GW website. Commissar Yarrick appears to be without the device. The same with Creed (though his belt buckle may be one...though I think it looks like a winged skull more so). A quick glance at the Vostoyans looks as though they all have winged skulls instead of aquilas. Many of the Catachans, Valhalan and Tallarn also lack the aquila.

Even in the current lead army for the IG, you see a lot more winged skulls on the Cadians than you do aquila devices. Even with the vehicles...something that should easily be able to accomodate a well formed and clear aquila in a prominent location it is either missing or in a rather inconspicuous location.

The reason you see the winged skull more than the Imperial Aquila on Imperial Guard is because the winged skull is actually the symbol of the Imperial Guard, at least it was in 2nd ed.

So while the Aquila may mark something as Imperial, the winged skull marks it as Imperial Guard.

So, in essence, there's an in fiction reasoning for it.

 Platuan4th wrote:
The reason you see the winged skull more than the Imperial Aquila on Imperial Guard is because the winged skull is actually the symbol of the Imperial Guard, at least it was in 2nd ed.

So while the Aquila may mark something as Imperial, the winged skull marks it as Imperial Guard.

This is the most true statement regarding the Imperial Guard. The Aquila as a marking for Imperial factions is more common on the Astartes than the Guard.

 Platuan4th wrote:
The reason you see the winged skull more than the Imperial Aquila on Imperial Guard is because the winged skull is actually the symbol of the Imperial Guard, at least it was in 2nd ed.

So while the Aquila may mark something as Imperial, the winged skull marks it as Imperial Guard.

So, in essence, there's an in fiction reasoning for it.

Which goes back to the question which Killkrazy asked...what exactly is it the brand identification for?

The laws behind trademarks depend on the actual use of the mark for identifying products used in trade. If it isn't used in a consistent manner to identify products, than it isn't a valid trademark (even if a registration is in place for it).

Though if they would like to use the winged skull to identify the IG line...they confuse their own customers by using winged skulls so readily within the Space Marine line (which suffers from similiar issues regarding consistent use of the aquila device as the IG do).

 Sean_OBrien wrote:

 Platuan4th wrote:
The reason you see the winged skull more than the Imperial Aquila on Imperial Guard is because the winged skull is actually the symbol of the Imperial Guard, at least it was in 2nd ed.

So while the Aquila may mark something as Imperial, the winged skull marks it as Imperial Guard.

So, in essence, there's an in fiction reasoning for it.

Which goes back to the question which Killkrazy asked...what exactly is it the brand identification for?

The laws behind trademarks depend on the actual use of the mark for identifying products used in trade. If it isn't used in a consistent manner to identify products, than it isn't a valid trademark (even if a registration is in place for it).

Though if they would like to use the winged skull to identify the IG line...they confuse their own customers by using winged skulls to readily within the Space Marine line (which suffers from similiar issues regarding consistent use of the aquila device as the IG do).

"Winged skulls" within the Space Marine line are generally done a bit different to the Guard iconography.

What's more they tend towards being used as "campaign badges" in addition to the Chapter/Company insignias.
The Aquila on Guard models tends to be present on vehicles and heroes, in addition to the "winged skull" and their Regiment/Company markers.

On the Scouts? Half the Guns? A majority of armor?

More to the point, being in line with the fiction is not a legal argument that they can take. If you choose a brand logo, for example the Apple apple - you stamp it on your product in a prominent location consistently. GW fails to do that, as a result they fail to actually establish the logo as being an identifying aspect of their product lines.

If it is simply a design which is used in some way within their fiction - that is not actually an identifying trademark and would not be handled as such (nor should it be registered as a trademark). Designs which are not used to identify products are handled under copyright laws - and then you would need to examine the use in a different light.

As opposed to confusion, you would need to consider how unique it is in relationship to other designs that exist before and after as well as the specific details on it. For example, if CHS were to use an art deco double headed eagle design with no eyes or two eyes visible...and perhaps a different count on the "feathers" on the wings - then they would likely be in the clear regardin the use of aquila devices on their figures and vehicles.

 Sean_OBrien wrote:

 Platuan4th wrote:
The reason you see the winged skull more than the Imperial Aquila on Imperial Guard is because the winged skull is actually the symbol of the Imperial Guard, at least it was in 2nd ed.

So while the Aquila may mark something as Imperial, the winged skull marks it as Imperial Guard.

So, in essence, there's an in fiction reasoning for it.

Which goes back to the question which Killkrazy asked...what exactly is it the brand identification for?

The laws behind trademarks depend on the actual use of the mark for identifying products used in trade. If it isn't used in a consistent manner to identify products, than it isn't a valid trademark (even if a registration is in place for it).

Though if they would like to use the winged skull to identify the IG line...they confuse their own customers by using winged skulls so readily within the Space Marine line (which suffers from similiar issues regarding consistent use of the aquila device as the IG do).

Oh, I wonder as well, I was simply addressing the reasoning for why so few appeared on IG.

However, for a while, the Aquila was simply used as the brand signifier for GW products as a whole. I have plenty of non-game specific GW products(cases, the case "luggage tag", some of their hobby products) that bear the Aquila instead of or in addition to(like the cases) the Games Workshop stylized name logo. In fact, if you look at the "legalese" side of the 40K and Daemon boxes, you'll see an Aquila with 40K above it above the Games Workshop logo.

Looking at a box of packaging, it seems like there are two versions of the Aquila that have been registered.

One is the stylized Aquila that represents the "brand" of Warhammer 40,000:



In that regard that particular Aquila doesn't stand for the Imperium, the IG, or any Space Marine. It is a pure brand logo to identify packaging (and content) to belong to that particular game system.

The Aquila that we are usually talking about seems to actually represent a trademark for either Games Workshop itself or a sub-company:

Looking over the same packaging there is this set of logos:



Which looks like 3 distinct companies are represented there, both in picture and stylized text form:

The first is Middle Earth Enterprises:



The Second is Citadel Miniatures:



And the second would be Games Workshop:

Both in stylized text:



And the picture version of the brand:



So it seems that Trademarking the Aquila has little to do with the in-game use of the symbol as the symbol of the Imperium of Man, but it was done because it appears that they Aquila is actually the symbol of Games Workshop itself.

It seems like almost all "big" brands have a very distinct text and a very distinct logo.

Of course IANAL, but that is just my impression.

Which is honestly additionally problematic...

What in particular is that box for? Games Workshop? Yes. Citadel Miniatures? Yes. But are they Lord of the Ring Figures (needing the Middle Earth Enterprises mark) or 40K figures (needing the aquilla mark)? I am so confused...

Also, the aquila in the background of the Warhammer 40,000 would not be a seperate mark - it would be part of the design of the 40K mark.

The location and size of that mark are troubling when establishing and maintaining a mark. Marks are used to identify and distinguish products in the market place. A small (guessing less than one inch - though I haven't looked closely at a box in years to know for sure how big that section is) logo on the back of a box doesn't go very far in identifying or distinguishing a product for a customer who is browsing the shelves of their local store. Considering it is on the back of the box - it would do absolutely nothing for the large portion of their customer base who shop online and only see the back of the box after they had purchased the product.

 Sean_OBrien wrote:
Which is honestly additionally problematic...

What in particular is that box for? Games Workshop? Yes. Citadel Miniatures? Yes. But are they Lord of the Ring Figures (needing the Middle Earth Enterprises mark) or 40K figures (needing the aquilla mark)? I am so confused...

Also, the aquila in the background of the Warhammer 40,000 would not be a seperate mark - it would be part of the design of the 40K mark.

The location and size of that mark are troubling when establishing and maintaining a mark. Marks are used to identify and distinguish products in the market place. A small (guessing less than one inch - though I haven't looked closely at a box in years to know for sure how big that section is) logo on the back of a box doesn't go very far in identifying or distinguishing a product for a customer who is browsing the shelves of their local store. Considering it is on the back of the box - it would do absolutely nothing for the large portion of their customer base who shop online and only see the back of the box after they had purchased the product.

It is a basic mail order box that is used for products manufactured by Games Workshop (hence the GW typeset and the Aquila as the GW logo, and the Citadel typeset and logo). They used the same box for products licensed by Middle Earth Enterprises (typeset and logo). The product contained could potentially be used as part of the following games (with trademarks used): WH40K, WFB, LotR.

Having all marks present on a box that can be used to ship direct order items for all 3 systems isn't really confusing and it wouldn't really make sense to use a different box for each system.

As for the size and/or location of the GW type and/or logo: it is not really any different than the MB or Hasbro logo on any other game you pick up at the store. The brand of the game is what drives people to the box, they put Warhammer 40,000 in big letters on the box to show that is what they are used for, just like Hasbro puts "Monopoly" in big letters on their games. That is the game, that is what gets top billing. The company that produces the game is secondary. So it gets a small logo in the corner.

The mail order items I have had from GW came in blank boxes.

The Warhammer 40K logo isn't an aquila as far as I can see.

I thought the aquila was found on all IG equipment an uniforms but actually when you look in detail some of them are the aquila and some are a winged skull.

I thought the skull was more of a Space Marine symbol.

I continue to be confused as to what the aquila represents. There is no consistency.

Seems like from the packaging and from looking at the website, the aquila = Games Workshop , just like the Swoosh = Nike.

 d-usa wrote:
It is a basic mail order box that is used for products manufactured by Games Workshop (hence the GW typeset and the Aquila as the GW logo, and the Citadel typeset and logo). They used the same box for products licensed by Middle Earth Enterprises (typeset and logo). The product contained could potentially be used as part of the following games (with trademarks used): WH40K, WFB, LotR.

Having all marks present on a box that can be used to ship direct order items for all 3 systems isn't really confusing and it wouldn't really make sense to use a different box for each system.

Just because it is convenient and economical doesn't actually make it good legal sense. Everytime a logo is used NOT to identify the product which is inside the box - it is dilluting that logo. GW might be saving a few pennies on each order - but in the long run it is damaging to the brand itself. That is sort of year one, semester one, day two of trademarks.

 d-usa wrote:
As for the size and/or location of the GW type and/or logo: it is not really any different than the MB or Hasbro logo on any other game you pick up at the store. The brand of the game is what drives people to the box, they put Warhammer 40,000 in big letters on the box to show that is what they are used for, just like Hasbro puts "Monopoly" in big letters on their games. That is the game, that is what gets top billing. The company that produces the game is secondary. So it gets a small logo in the corner.

Two things there...first - GW is far and away not Hasbro, nor do they sell a product with the name recognition of a game like "Monopoly". At a certain point, trademarks become famous - and you can play a little more loosely with their particular use in the marketplace.

The second thing would be the heirarchy of adjectives used to identify the products. For example, if we were to look at your Monopoly example - the noun would be "Game". The consumer wants to find a particular game, in this case a game called Monopoly. The key trademark that should be on the cover of each box would then be the "Monopoly" logo. That tells the customer that inside each of these boxes you will find a Monopoly game. Further though, most of them which I have seen have a second mark on the cover of each which is the next up on the heirarchy of adjectives - that being "Parker Brothers". This tells people that you are buying the "Parker Brothers" "Monopoly" game. If you like that game, you could look at other games made by "Parker Brothers" like "Clue", "Risk" or "Sorry!". I would not be surprised at all if the 3rd level of the heirarchy of adjectives was completely missing from the boxes to be honest, as Hasbro has not bothered to make itself readily known as the owner of the "Parker Brothers" branch or the underlying "Monopoly" game. Most people don't think Hasbro when they think Monopoly, as the brand has been around for decades before Hasbro even existed as a company and it would cause confusion within the market if they tried to change things now (people might think the "Hasbro" branded "Monopoly" was a different game from the "Parker Brothers" branded "Monopoly" which they used to play and Grandma's house when they were a kid).

Going back to what we are dealing with here - the noun which is the product would be miniatures. The adjective which is the mark that identifies the miniature might be Space Wolves or some other silliness. The adjective that specifies what kind of space wolf would be Warhammer 40,000. The adjective that describes what kind of Warhammer 40,000 Space Wolf miniature would be Citadel. The adjective which describes what kind of Citadel Warhammer 40,000 Space Wolf miniature would be Games Workshop. So the complete heirachy of trademarks (registered or otherwise) which would describe a hypothetical box of miniatures might be "Games Workshop Citadel Warhammer 40,000 Space Wolf" miniatures. That is a mouthful though, so most smart thinking companies truncate their brands down to something like "Warhammer 40,000 Space Wolf" miniatures. What do they generally do with the rest of that? They let it die. Adding more to the mess weakens the brand identification and makes it more difficult to defend the marks which you choose to attempt to develop a brand for.

There really is no reason for GW to keep the Citadel brand anymore. Although they still slap it about (with more regularity than some of their other logos and marks) it hasn't really been a core identifier for them for 20+ years. The aquila device really is just another thing which complicates things and weakens the development of a brand identification for something like the Warhammer 40,000 graphic logo.

 d-usa wrote:
Seems like from the packaging and from looking at the website, the aquila = Games Workshop , just like the Swoosh = Nike.

One of the Imperial Aquilae on GW corporate headquarters is actually larger than the eagle that Goebbels had placed in the Reichstag. I hear that in Nottingham if you ask local taxi drivers for the "Reichstag" they will know to drive you to GW HQ. It's a landmark used as directions to get to other parts of the industrial estate. I love the irony.

I just had an idea, and I promise this will be my only off-topic post about it...

Build a scale replica of GW HQ Nottingham for a W40K table...

http://www.games-workshop.com/gws/catalog/landing.jsp?catId=cat440130a&rootCatGameStyle=wh40k

Not a single Aquila on that page(barring the rotating product ads).

http://www.games-workshop.com/gws/catalog/armySubUnitCats.jsp?catId=cat920001a&rootCatGameStyle=wh40k
http://www.games-workshop.com/gws/catalog/landingArmy.jsp?catId=cat440173a&rootCatGameStyle=wh40k

In fact, the only place that readily shows the Aquila is the default page before choosing a country, and that aquila doesn't show the registered mark.

There is absolutely nothing about the aquila that denotes GW product. 40k has it's identifying mark, as does WFB and LotR.

From that, even if they put it on the back of a box, it's nowhere on the site. I'd say it falls as copyright if anything, and the copyright office probably wouldn't pass it.

 Orlanth wrote:

One of the Imperial Aquilae on GW corporate headquarters is actually larger than the eagle that Goebbels had placed in the Reichstag. I hear that in Nottingham if you ask local taxi drivers for the "Reichstag" they will know to drive you to GW HQ. It's a landmark used as directions to get to other parts of the industrial estate. I love the irony.

Assuming that the grid above the GW front doors is 3' x 3' and that the doors are around 6'-8" tall, those GW eagles are about 21' wide. If the grid and door width are based on a full meter, them they are about 23' wide. The Reichstag eagle looks wider than that to me. I'm guessing at least 25', but probably more like 30 - 35'.

So is GW in danger of losing the Aquila then?

I mean if they hadn't included it on the suit against CPH somebody would have to contest it but as they claimed it as a trademark now if the jury sides with CPH and strucks GW's claims as not valid the Aquila could end up as free game for 3rd party companies that want to sculpt stuff for IG and marines.

M.

doubtful, what is more likely in my brain is that the best that will happen is that these double headed eagles will be proved not to be aquilla and therefore exempt, as should all double headed eagles that are clearly not the aquilla.

for example it is clear from earlier discussion that one of the key symbolisms in the Aquilla is that one head is blinded and the other is able to see, likewise you could argue whether a double headed eagle with no feet could be included in the definition of an aquilla as the feet obviously symbolise something else... etc,

The Aquila is the Romanov doubleheaded eagle...just google it. It's not trademarkable as it belongs to history.

the only real difference other than stylistic is the blinded or blindfolded bird on one side, you can put stylised Romanov eagles on your figures all day and night just don't give them one eye, it's no eyes or two

For whats it worth, here is the Trademark entry for the aquila:

http://tess2.uspto.gov/bin/gate.exe?f=doc&state=4008:aedpy.5.7

Did CHS even use anything resembling an Aquilla?

 aka_mythos wrote:
Did CHS even use anything resembling an Aquilla?

That I honestly don't know.

I don't even know it GW actually included the Aquilla on stuff they are suing over or if this discussion got sidetracked over some "GW thinks they own all two-headed eagles" comment.

 Miguelsan wrote:
So is GW in danger of losing the Aquila then?

I mean if they hadn't included it on the suit against CPH somebody would have to contest it but as they claimed it as a trademark now if the jury sides with CPH and strucks GW's claims as not valid the Aquila could end up as free game for 3rd party companies that want to sculpt stuff for IG and marines.

M.

Not too sure if that will be the outcome of this case. CHS doesn't actually want GW to loose any of their trademarks. It is important for companies like CHS (and Summit Racing, iSkinz...) for companies to have trademarks which they can then use to identify the products that they sell with. Doing so does not harm nor run the risk of dilluting a trademark (in many ways it makes the mark more powerful as it increases its known usage). It merely allows a company which sells compatible items to identify what their products are compatible with.

If someone were to actually challenge the mark though, I do feel that a good case could be made for GW loosing it because of the manner in which they use it. You would be hard pressed to actually figure out what it identifies - as it isn't used in any regular manner througout a single product line (or across all product lines if you would like to assume that aquila device = GW).

mullet_steve wrote:
doubtful, what is more likely in my brain is that the best that will happen is that these double headed eagles will be proved not to be aquilla and therefore exempt, as should all double headed eagles that are clearly not the aquilla.

for example it is clear from earlier discussion that one of the key symbolisms in the Aquilla is that one head is blinded and the other is able to see, likewise you could argue whether a double headed eagle with no feet could be included in the definition of an aquilla as the feet obviously symbolise something else... etc,

Important point of order. All eagle icons are aquila. Some aquila are double headed. GW makes a claim to one specific style of a double headed aquila. They did not invent the term, the term goes back to Roman era, though the icon is even older than that:

http://en.wikipedia.org/wiki/Aquila_(Roman)

 d-usa wrote:

 aka_mythos wrote:
Did CHS even use anything resembling an Aquilla?

That I honestly don't know.

I don't even know it GW actually included the Aquilla on stuff they are suing over or if this discussion got sidetracked over some "GW thinks they own all two-headed eagles" comment.

Not sure if their products have one on it - though a fair amount of hay was made in one of the depositions by a GW legal team member that the CHS website at the time used an aquila in there header, which they said would cause confusion.

http://web.archive.org/web/20090607231914/http://chapterhousestudios.com/webshop/

It was half of an aquila though, and a different style entirely...but what the heck, the straws people grasp for.

As far as the suit goes...GW brought it up a few times, in addition to the basic complaint found here:

http://www.archive.org/download/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.261.0.pdf (about half way through they list the various registered trademarks that are at issue).

YakManDoo wrote:
The Aquila is the Romanov doubleheaded eagle...just google it. It's not trademarkable as it belongs to history.

Be fair please. GW doesnt use the Romanov eagle, or the French, or he Third Reich, or the one from the US Seal. They use their own, trademarking their aquilla is fine, they cant claim trademark on all aquilae, nor have they tried.

 Orlanth wrote:

YakManDoo wrote:
The Aquila is the Romanov doubleheaded eagle...just google it. It's not trademarkable as it belongs to history.

Be fair please. GW doesnt use the Romanov eagle, or the French, or he Third Reich, or the one from the US Seal. They use their own, trademarking their aquilla is fine, they cant claim trademark on all aquilae, nor have they tried.

As explained however, their claim to it as a trademark is insanely weak. As is their claim to most other symbols that are not the main 5: GamesWorkshop logo, Citadel Miniatures logo, WFB logo, 40k logo and the LotR logo.

Most symbols that GW claims trademark over are actually matters of copyright, and those claims would also be very weak.

The biggest thing here is that GW feels that anyone using these things somehow diminishes their value when really it does the opposite. For every CHS shoulder set sold, 99% of the time it's going on a GW space marine.

I could understand these concerns more if GW still offered bits like they did in the past, but the handed the bits business over to smaller companies with less overhead(which makes complete financial sense) but then they complained about people filling a market void that GW itself helped create.

 Sean_OBrien wrote:

 d-usa wrote:

 aka_mythos wrote:
Did CHS even use anything resembling an Aquilla?

That I honestly don't know.

I don't even know it GW actually included the Aquilla on stuff they are suing over or if this discussion got sidetracked over some "GW thinks they own all two-headed eagles" comment.

Not sure if their products have one on it - though a fair amount of hay was made in one of the depositions by a GW legal team member that the CHS website at the time used an aquila in there header, which they said would cause confusion.

http://web.archive.org/web/20090607231914/http://chapterhousestudios.com/webshop/

It was half of an aquila though, and a different style entirely...but what the heck, the straws people grasp for.

As far as the suit goes...GW brought it up a few times, in addition to the basic complaint found here:

http://www.archive.org/download/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.261.0.pdf (about half way through they list the various registered trademarks that are at issue).

Thanks for that info, I had not seen the previous one, only the current one.

 Orlanth wrote:

YakManDoo wrote:
The Aquila is the Romanov doubleheaded eagle...just google it. It's not trademarkable as it belongs to history.

Be fair please. GW doesnt use the Romanov eagle, or the French, or he Third Reich, or the one from the US Seal. They use their own, trademarking their aquilla is fine, they cant claim trademark on all aquilae, nor have they tried.

Be fair...they are attempting to claim all usage rights to the following:

Games Workshop also has a large number of well-known unregistered trade marks (including names of armies, Chapters, and other products) including without limitation:
Games Workshop also has a large number of well-known unregistered trade marks (including names of armies, Chapters, and other products) including without limitation: Adeptus Mechanicus, Space Marine Assault Squad, Alpha Legion, Black Templars, Blood Angels, Bolter, Tyranid Bonesword, Cadian, Carnifex, Chaos Space Marines, Chaplain, Chimera, Crimson Fists, Dark Angel, Dark Elf, Deathwatch, Demolisher, Space Marine Devastators, Dreadnought, Drop Pod, Eldar, Elder Farseer, Eldar Jetbike, Eldar Warlock, Seer Council, Empire, Exorcist, Flesh Tearers, Gaunts, Genestealer, Gunship, Haemonculus, Heavy bolter, Hellhound, High Elf, Hive Tyrant, Horus Heresy, Howling Banshee, Imperial Fists, Imperial Guard, Insignium Astartes, Iron Hands, Jetbike, Jump Pack, Kroxigor, Land Raider, Land Speeder, Tyranid Lash Whip, Legion of the Damned, Leman Russ, Librarian, Lightning Claw, Lizardmen, Melta, Plasma, Predator, Rhino, Salamander, Striking Scorpion, Soul Drinker, Space Wolves, Stormraven, Storm Shield, Stormtrooper, Space Marine Tactical Squad, Techmarine, Termagants, Terminator, Tervigon, Thousand Sons, Thunder Hammer, Tyrant, Tyranid, Tyranid Warrior, Urien Rakarth.

And lets not forget their registered mark...SPACE MARINE.

For simplicities sake, I went ahead and marked the ones which are so common as to rediculous without being specified. Now, you might say that GW would never go after someone producing a rhinocerous miniature...but, the fact remains that they have shown little in terms of restraint or common sense in terms of who or what they go after (provided the company is small enough that they think they can squash it without a fight that is).

I am sure with a little bit of sleep, I might even recall prior works which were identified with some of the other terms as well - many of them often enough to have become generic (like plasma...really, they want to lay claim to plasma).

 Sean_OBrien wrote:

 Orlanth wrote:

YakManDoo wrote:
The Aquila is the Romanov doubleheaded eagle...just google it. It's not trademarkable as it belongs to history.

Be fair please. GW doesnt use the Romanov eagle, or the French, or he Third Reich, or the one from the US Seal. They use their own, trademarking their aquilla is fine, they cant claim trademark on all aquilae, nor have they tried.

Be fair...they are attempting to claim all usage rights to the following:

Games Workshop also has a large number of well-known unregistered trade marks (including names of armies, Chapters, and other products) including without limitation:
Games Workshop also has a large number of well-known unregistered trade marks (including names of armies, Chapters, and other products) including without limitation: Adeptus Mechanicus, Space Marine Assault Squad, Alpha Legion, Black Templars, Blood Angels, Bolter, Tyranid Bonesword, Cadian, Carnifex, Chaos Space Marines, Chaplain, Chimera, Crimson Fists, Dark Angel, Dark Elf, Deathwatch, Demolisher, Space Marine Devastators, Dreadnought, Drop Pod, Eldar, Elder Farseer, Eldar Jetbike, Eldar Warlock, Seer Council, Empire, Exorcist, Flesh Tearers, Gaunts, Genestealer, Gunship, Haemonculus, Heavy bolter, Hellhound, High Elf, Hive Tyrant, Horus Heresy, Howling Banshee, Imperial Fists, Imperial Guard, Insignium Astartes, Iron Hands, Jetbike, Jump Pack, Kroxigor, Land Raider, Land Speeder, Tyranid Lash Whip, Legion of the Damned, Leman Russ, Librarian, Lightning Claw, Lizardmen, Melta, Plasma, Predator, Rhino, Salamander, Striking Scorpion, Soul Drinker, Space Wolves, Stormraven, Storm Shield, Stormtrooper, Space Marine Tactical Squad, Techmarine, Termagants, Terminator, Tervigon, Thousand Sons, Thunder Hammer, Tyrant, Tyranid, Tyranid Warrior, Urien Rakarth.

And lets not forget their registered mark...SPACE MARINE.

For simplicities sake, I went ahead and marked the ones which are so common as to rediculous without being specified. Now, you might say that GW would never go after someone producing a rhinocerous miniature...but, the fact remains that they have shown little in terms of restraint or common sense in terms of who or what they go after (provided the company is small enough that they think they can squash it without a fight that is).

I am sure with a little bit of sleep, I might even recall prior works which were identified with some of the other terms as well - many of them often enough to have become generic (like plasma...really, they want to lay claim to plasma).

A touch more obscure, but Carnifex and Termagant are quite open to use by other companies. The first being an executioner in ancient Rome, the second being either an idol named in various medieval plays and supposed to be part of Muslim worship, or later, a bully or shrewish, unpleasant woman.

Added: In a similar vein, Lictor is another obscure title from ancient Rome.

Sci fi wise, those obscure latin terms got used by Gene Wolfe (Carnifex, Lictor etc..) in the early 80s with his Book of the New Sun series. Hopefully the keen legal mind that went after Spots will take umbrage at The Sword of the Lictor.


But we are meandering a bit off topic now I think....

 Orlanth wrote:

YakManDoo wrote:
The Aquila is the Romanov doubleheaded eagle...just google it. It's not trademarkable as it belongs to history.

Be fair please. GW doesnt use the Romanov eagle, or the French, or he Third Reich, or the one from the US Seal. They use their own, trademarking their aquilla is fine, they cant claim trademark on all aquilae, nor have they tried.

So it is not like there is no prior art avaialable of this?

But you are right, it looks nothing like those , it looks similar to a Byzantine eagle

Why come back to those references to earlier two-headed eagles? Not even in a heraldic sense are they the same, things like open or closed wings, the crown in the middle, the keys at the bottom, the fangs holding cross and globus cruciger clearly distinguish them. To the Nazi Reichsadler it is not identical in a heraldic sense, either, for that bears only one head and holds the swastika emblem in its fangs. By the overall appearance GW clearly cited it, but they didn't copy that, nor the imperial austrian, nor any other heraldic eagle, not in a heraldic sense, not in a trademark sense, for even if you hold them confusable, none of those political entities to my knowledge ever delved into miniatures market.
Even if you consider the vast use of the Nazi emblems comparable to Merchandising (and indeed they followed a kind of marketing policy in order to establish solidarity among the populace by excessive displaying of exactly defined brands and logos) at least Germany does not seem to consider GWs Imperial Aquila too similar to the Reichsadler, otherwise it would not be allowed to be used around here, for by german law openly displaying of symbols of the Nazi era is forbidden.

Games Workshop also has a large number of well-known unregistered trade marks (including names of armies, Chapters, and other products) including without limitation: (...) Lizardmen

Difficult to argue for them that they were not aware of a.o. D&D using Lizardmen, when GW started as a distributor of D&D.

BTW the Citadel brand is still in use for items used for more than one game system, like paints, tools and some terrain.

 Hruotland wrote:
Why come back to those references to earlier two-headed eagles? Not even in a heraldic sense are they the same, things like open or closed wings, the crown in the middle, the keys at the bottom, the fangs holding cross and globus cruciger clearly distinguish them. To the Nazi Reichsadler it is not identical in a heraldic sense, either, for that bears only one head and holds the swastika emblem in its fangs. By the overall appearance GW clearly cited it, but they didn't copy that, nor the imperial austrian, nor any other heraldic eagle, not in a heraldic sense, not in a trademark sense, for even if you hold them confusable, none of those political entities to my knowledge ever delved into miniatures market.
Even if you consider the vast use of the Nazi emblems comparable to Merchandising (and indeed they followed a kind of marketing policy in order to establish solidarity among the populace by excessive displaying of exactly defined brands and logos) at least Germany does not seem to consider GWs Imperial Aquila too similar to the Reichsadler, otherwise it would not be allowed to be used around here, for by german law openly displaying of symbols of the Nazi era is forbidden.

I believe the line of discussion has been asking what trademark/logo GW uses, and some have looked to the Imperial Aquila. That has in turn gone from the Citadel Minatures logo, book logo, waterstamps etc and how the aquila is on lots of IG products but not readily id'ed on the boxes the models come in. Then it was brought up that GW can't really copyright the two headed bird icon as it was used throughout history. But it can try and use it as a consistent trademark and that lead into if another company can alter it slightly and still use a two headed bird. At least that's what I gathered from reading.

 d-usa wrote:
For whats it worth, here is the Trademark entry for the aquila:

http://tess2.uspto.gov/bin/gate.exe?f=doc&state=4008:aedpy.5.7

Yep, linking to the search url will not work once the session ends. However I believe this may work, from the previous page.

I think the link for the trademark is to an expired search, this link may work better http://tsdr.uspto.gov/#caseNumber=77575293&caseType=SERIAL_NO&searchType=statusSearch

Koppo wrote:

 d-usa wrote:
For whats it worth, here is the Trademark entry for the aquila:

http://tess2.uspto.gov/bin/gate.exe?f=doc&state=4008:aedpy.5.7

Yep, linking to the search url will not work once the session ends. However I believe this may work, from the previous page.

I think the link for the trademark is to an expired search, this link may work better http://tsdr.uspto.gov/#caseNumber=77575293&caseType=SERIAL_NO&searchType=statusSearch

Well, poop on me

 Orlanth wrote:


One of the Imperial Aquilae on GW corporate headquarters is actually larger than the eagle that Goebbels had placed in the Reichstag. I hear that in Nottingham if you ask local taxi drivers for the "Reichstag" they will know to drive you to GW HQ. It's a landmark used as directions to get to other parts of the industrial estate. I love the irony.

I've tried this several times on different occasions and it has yet to elicit more than bemusement/puzzlement.

GWs motion to oppose CHS motion to Reconsider is up. I've only downloaded the motion itself, none of the exhibits.


Starting at page 8 you can see what was used from Dr. Grindley's deposition with Mr. Keener. Also pops up in page 19 in a foot note.

Looks like Dr. Grindley din't give them anything useful to use, but then I'm not a lawyer.

IANAL but I should think there is a problem registering a copyright on a scale item. If the GW shoulder pad is copyrightable as an original design because it is very large on a 28mm figure, what is to stop a company manufacturing a piece of the same physical size but designed as a normal size shoulder pad for a 40mm figure?

 Kilkrazy wrote:
IANAL but I should think there is a problem registering a copyright on a scale item. If the GW shoulder pad is copyrightable as an original design because it is very large on a 28mm figure, what is to stop a company manufacturing a piece of the same physical size but designed as a normal size shoulder pad for a 40mm figure?

That is one of the reasons why copyrights generally are applicable only to complete works...not components. A SM shoulder pad is huge on a 28mm figure, slightly bulky on a 1/48 scale figure and about the same size as a Star Wars Stormtrooper shoulder pad on something like a 1/35 scale figure. The thickness of the pads remains a technical limitation of the manufacturing process as much as it is a design choice.

Also, looking at the excerpts from depositions, Bob's memory is faulty...even just going off from information publicly available. Specifically it states that he didn't work off from any real world examples when designing the armor, but clear as day, in the "Evolution of a Space Marine" article, it shows the design progression of the helmet from a moto-cross visor helmet.

I would be willing to bet that there are additional works which were used to develop the other components of the armor which GW had conveintiently lost.

Even if there isn't a prior art picture nearly identical to the current pauldron, it is still plainly obvious that GW combined a number of elements of historical and SF armour in terms of general design, size and features.

They changed the look of Space Marines as they went along. The original shoulder pads were smaller and less elaborated than the current generation.

I do not know what those factors would mean to copyright, but since the US Copyright Office refused the application I presume there isn't enough originality in the design.

Over the years GW has used several version of the double headed eagle. The ones on SM chest armor is different from the one used on IG vehicles. All of them are similar to historical items. So much so that to claim theirs is unique, is just silly, IMHO. If you do a Google search for Double headed eagle icon, you will go through 96 images of historical ones before you finally get to a GW one. A lot of them can be used easily on non GW produced models and still get the point across.

I love the blatent lies and distortions in GWs response. It is funny how they blame the copyright office for failing to notify them on time while in the same sentence tell the court that they "missed" the e-mail notifying that their stuff got rejected. Moskin seems really desperate.

Unfortunately, the employee simply neglected the matter until November 7, 2012, when,
in response to a telephone call by Games Workshop’s counsel to one of her colleagues, she sent a
further email that included her prior message from June.

Mohoc wrote:
Moskin seems really desperate.

It was a pretty big deal for CHS to call him a liar and say he deliberately deceived the court. On top of that, if this blows up in his face and the judge goes back on the shoulder pads, all the blame is squarely on him. He didn't follow up with the copyright office, he forgot to tell the judge about it, he gave CHS the opportunity to get it reconsidered.

The worst worst case scenario for him is ---> judge reverses his decision on the shoulder pad (says can't be copyrighted) ----> judge says, GW I agree with your argument that this shoulder pad is pretty much identical to the other shoulder pads you've mentioned, they can't be copyrighted either.

I think CHS is allowed a short reply, it should be interesting to see.



Also, GW used 'sound and fury' in a filing again. Someone needs to buy them the Oxford Book of English Verse so they can venture out a bit from Macbeth. It's a good line but not one someone adhering to rules on comity should use because it has an implied 'told by an idiot' in front of it, and also it is uttered by a paranoid tyrant who ascends to power through regicide, right after Seyton tells him his wife is dead, and right before he is defeated so it says a lot about the speaker too.

Oh, I am fully aware that CHS called him a liar in open court. There are some other gems in the filling. Including the fact that GW seems to think that they have a copyright on the "character" of Space Marines, as if each and every Space Marine is akin to world famous characters like Spiderman, Mickey Mouse, Superman and Batman.

Moreover, the entire
dispute over the independent copyrightability of the Space Marine shoulder pad also misses the
broader point that it is undisputed that the Space Marine character as a whole is copyrightable,
and Chapterhouse’s copying of the shoulder pad design is an infringement of part of that overall
design.

The exhibits and declaration that go with GW's filing are up on recap for free now (scroll down to the bottom):

http://archive.recapthelaw.org/ilnd/250791/


Exhibit H is Bob Naismith's deposition by Mr. Moskin, some good stuff in there. Expect to see bits of it, and stuff in in CHS's questions to him in future filings.

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.301.9.pdf

"I do remember reading EE Doc's 13:58:58
24 Linesmans series, as a kid, and I do remember reading 13:59:01
25 about Space Marines,"

They are going to put this and some of the statements about helmets and star wars together with Grindley's testimony for sure.


There is also a very awkward series of questions where Moskin is trying to lead Naismith on a bit:

Q Can you describe what design elements 13:00:41
17 are in the Space Marine helmet that are also found in 13:00:43
18 the Roman Legionary helmet? 13:00:47

19 A The Roman Legionary is again a 13:00:50
20 functional object. So its first function is to 13:00:52
21 protect the skull. So you have a helmet bowl, which 13:00:55
22 is common to all helmets, and a Space Marine has that 13:00:58
23 too. It has a neckguard to protect any attacks that 13:01:02
24 the soldier or Space Marine might receive. Our Space 13:01:09
25 Marine had such a thing. The cheek guards are the

.....................

3 Q You say there was a function to a 13:53:22
4 helmet. In the Space Marine, does the helmet have any 13:53:24
5 actual function? 13:53:29

6 MR. COOPER: Objection to form. 13:53:31

7 A Well, it has to protect the head. It 13:53:32
8 has to make sure that the individual inside can 13:53:34
9 survive in hazardous environments. So it has to be 13:53:38
10 sealed, it has to be all one, you know. I think that 13:53:41
11 is probably where that idea of the Space Marine helmet 13:53:49
12 is kind of unique, I suppose, because we borrowed from 13:53:53
13 the Roman soldier to make the bowled helmet and we 13:53:58
14 took the goggles and we took the mask but we made it 13:54:03
15 all into one piece, so it was a kind of consistent 13:54:06
16 whole. I don't recall a design which was like that. 13:54:11
17 There are other designs of all enclosing helmets, like 13:54:16
18 a Star Wars Storm Trooper helmet, but it is not a 13:54:20
19 Space Marine helmet. 13:54:24

20 Q My question was a little different. 13:54:25
21 Maybe it was not clear. There is nothing inside the 13:54:27
22 head of a Space Marine figure that actually needs to 13:54:31
23 be protected, is there? 13:54:33

24 A Yes, there will be a human man's head. 13:54:35

25 Q In the models that actually get made...
the figures, they are made out of plastic. People are 13:54:43
2 not firing projectiles, there are not actually brains 13:54:47
3 inside the figures, the model heads. They are toys, 13:54:50
4 effectively? 13:54:53

5 MR. COOPER: Objection to form. 13:54:54

6 A Yes, the model that sits on the table, 13:54:56
7 there is no model of a head inside, but the premise is 13:54:57
8 that. 13:55:02

9 Q So it is a fictional premise? 13:55:02
10 A Yes. 13:55:04

11 Q So in that sense does the Space Marine 13:55:04
12 helmet on a fictional character have any real 13:55:06
13 function?

And so on. There are some big page jumps in that exhibit, so it could have gone on for a while until he got an answer he liked.

czakk wrote:
The exhibits and declaration that go with GW's filing are up on recap for free now (scroll down to the bottom):

http://archive.recapthelaw.org/ilnd/250791/

Thanks.

I love this bit:

A. How dead does a horse need to be?
4 Q. Is that your answer?
5 A. Yes. Once a horse is dead, it is
6 needless to keep killing it.

On shoulder pads:

" Q So is the size and shape of the shoulder 12:57:10
4 pad related to that desire to add strength and 12:57:13
5 presence? 12:57:17

6 A The size certainly is. The shape is a 12:57:18
7 function of the area that they are covering was the 12:57:22
8 upper arm, so it is really an extension of the upper 12:57:28
9 arm. It is like taking the section of the arm and 12:57:31
10 just expanding it. "

That helmet nonsense is classic...so your trying to tell me that 40k is just a game?

Mohoc wrote:
Oh, I am fully aware that CHS called him a liar in open court. There are some other gems in the filling. Including the fact that GW seems to think that they have a copyright on the "character" of Space Marines, as if each and every Space Marine is akin to world famous characters like Spiderman, Mickey Mouse, Superman and Batman.

Moreover, the entire
dispute over the independent copyrightability of the Space Marine shoulder pad also misses the
broader point that it is undisputed that the Space Marine character as a whole is copyrightable,
and Chapterhouse’s copying of the shoulder pad design is an infringement of part of that overall
design.

That there is the core of the bollocks GW argument.

1. We assemble something from copied or redesigned parts and designs.
2. It becomes our unique creation.
3. Any of the parts it was assembled from are now our unique creation.

At any rater that argument looks like cobblers to me but perhaps it is perfectly good in legal terms.

I suspect the whole Space Marine "character" probably is contestable in terms of copyright if someone with enough money wanted to do it. No-one has because it isn't worth it.

Why don't GW go after Scibor and the other people making "Star Knights"?

 Kilkrazy wrote:

Mohoc wrote:
Oh, I am fully aware that CHS called him a liar in open court. There are some other gems in the filling. Including the fact that GW seems to think that they have a copyright on the "character" of Space Marines, as if each and every Space Marine is akin to world famous characters like Spiderman, Mickey Mouse, Superman and Batman.

Moreover, the entire
dispute over the independent copyrightability of the Space Marine shoulder pad also misses the
broader point that it is undisputed that the Space Marine character as a whole is copyrightable,
and Chapterhouse’s copying of the shoulder pad design is an infringement of part of that overall
design.

That there is the core of the bollocks GW argument.

1. We assemble something from copied or redesigned parts and designs.
2. It becomes our unique creation.
3. Any of the parts it was assembled from are now our unique creation.

At any rater that argument looks like cobblers to me but perhaps it is perfectly good in legal terms.

I suspect the whole Space Marine "character" probably is contestable in terms of copyright if someone with enough money wanted to do it. No-one has because it isn't worth it.

Why don't GW go after Scibor and the other people making "Star Knights"?

Because if they did, they would get laughed out of court. The standards for copyrighting a character are ridiculously hard for a very good reason and even then they are not all encompassing. You basically have to be able to show a picture or describe the character to a people all over the world and they must immediately know who you are talking about and be able to relate to that character. GW will never be able to argue that successfully in court unless the judge and/or jury are asleep.

GW are making that argument in court, I thought. Isn't that where the quotation comes from?

They are not in front of a jury yet, of course.

Re: Scibor -> based in Poland.

 Kilkrazy wrote:
GW are making that argument in court, I thought. Isn't that where the quotation comes from?

They are not in front of a jury yet, of course.

They are throwing it in there, hoping the judge and opposing council won't notice. That way they can make that argument in court. CHS will probably argue against it in their response. Then the judge can comment on the claim, either letting it go forward and be used at trial or be laughed at in his opinion. But then again, I am not a lawyer, I am just learning by osmosis.

Edit for grammar.

 Kilkrazy wrote:
GW are making that argument in court, I thought. Isn't that where the quotation comes from?

They are not in front of a jury yet, of course.

Yeah they are making that argument in front of a judge.


It sort of ties in to the questions they were asking Naismith - he was talking about utilitarian design choices (need room for a head, need a breather for harsh environments, bits of the body armour based on full plate, back pack based on Napoleonic soldier kit etc..) and they were trying to steer it away from that. The whole 'copyright the entire sculpture as artistic' is an attempt to stop the add ons from CHS from looking like aftermarket car add ons and more like knock off prada purses etc...

czakk wrote:
Re: Scibor -> based in Poland.

And more importantly (at least in as much as I understand the convoluted court systems of the greater Eurozone...) - Poland, as part of the European Union would actually defer to matters of settled case law to the home country of the company who is bringing suit against them...and can further site rulings made by courts like the British Supreme Court. Since LucasFilm v Ainsworth fairly well settled the matter of toy soldiers not being protected under copyright law and instead being protected under design rights, and further design rights being greatly limited in scope and duration (all of which would be expired for the Space Marines given that the first design was in 1985 and the maximum duration of a design right being 15 years) - it would be a major blow to the various things which GW claims as there own should they attempt to bring suit to any of the various companies in the Eurozone who are making "not-Space Marines" like Scribor, Anvil Industries, Hitech et al. Some are based in Eastern European countries - but at the very least one of them is based in GW's own backyard.


Automatically Appended Next Post:

czakk wrote:
It sort of ties in to the questions they were asking Naismith - he was talking about utilitarian design choices (need room for a head, need a breather for harsh environments, bits of the body armour based on full plate, back pack based on Napoleonic soldier kit etc..) and they were trying to steer it away from that. The whole 'copyright the entire sculpture as artistic' is an attempt to stop the add ons from CHS from looking like aftermarket car add ons and more like knock off prada purses etc...

Those lines of questioning were somewhat ammusing. When they were questioning the Professor, they tried to be very specific in terms of the actual use. He said he found a near exact copy of the Space Marine shoulder pad on a robot:

19 Q. All right, let's limit it to the size
20 and the shape and the banding, those three
21 elements.
22 Did you find any with all those three
23 elements?
24 A. Not the size, the shape and the banding
1 for anything other than the component part of the
2 robot.
3 Q. Okay, which you testified was not a
4 part of the powered suit of armor?
5 A. No, it's a robot, part of a robot.
6 Q. So a shoulder pad as a piece of armor
7 that a soldier would wear, you're not aware of any
8 shoulder pads that had those common elements of
9 the Games Workshop shoulder pad?
10 A. It also depends, I guess, if you define
11 the exterior skin of a robot as being --
12 exoskeletal as being part of the robot.
13 Q. Let me rephrase that again.
14 In searching for shoulder pads used on
15 future infantry warriors, a human wearing a suit
16 of power armor, you were not able to identify any
17 shoulder pads that had those three common design
18 elements of the Games Workshop, size, shape and
19 banding?
20 A. Correct.

But of course we all know - it isn't a real robot...only a fictional facsimile of what a robot might be. However, when they bring comparable questions to Bob and he says that there is a functional purpse to sizes and shapes (to cover a shoulder or head) they try to get him to back track and say that there is no purpose to the size/shape as there isn't really a person in the armor on the table.

 Acardia wrote:
I love this bit:

A. How dead does a horse need to be?
4 Q. Is that your answer?
5 A. Yes. Once a horse is dead, it is
6 needless to keep killing it.

Yeah, I loved that part. Best way to tell someone he's beating a dead horse without him actually getting it I've ever seen.

I just looked at the recap list.

Holy Cow that's a lot of billable hours for GW! Imagine if they lose and have to pay the other side's fees, as well as costs and their own lawyers fees.

Well, I guess we'll know why a squad of Space Marines shoots up to $80 US overnight. Lolz!

xraytango wrote:
I just looked at the recap list.

Holy Cow that's a lot of billable hours for GW! Imagine if they lose and have to pay the other side's fees, as well as costs and their own lawyers fees.

Well, I guess we'll know why a squad of Space Marines shoots up to $80 US overnight. Lolz!

In American civil litigation, each side pays their own legal cost. There is very few exemptions to this.

xraytango wrote:
I just looked at the recap list.

Holy Cow that's a lot of billable hours for GW! Imagine if they lose and have to pay the other side's fees, as well as costs and their own lawyers fees.

Well, I guess we'll know why a squad of Space Marines shoots up to $80 US overnight. Lolz!

The CH guys are all working pro bono right? Does that mean they don't get paid or do they still get paid if their side wins and GW are forced to pay CHs leagal fees?
Never mind, Mohoc cleared that up.

They are working for free. If they somehow get a costs award they are entitled to it though. For example, part of the motion to reconsider that's going on right now is a request for sanctions / costs involved in tracking down GWs communications with the copyright office.

302 - GW's MEMORANDUM IN OPPOSITION TO DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT is up. Again, have to wait for recap for all the attachments.

You can always make a request for relief, even if you are the defendant.

"Hey, these guys are picking on me, if I win I want them to pay my costs as well as a token punitive sum because they're jerks."

Doesn't mean you'll get it.
No holds are barred in this sort of thing IIRC
Remember, civil law isn't.

I.A.N.A.L.

xraytango wrote:
Remember, civil law isn't.

Ah, so civil law is the same as friendly fire in that regard?



I wonder if there's a list of Murphy's Laws of Court...

They describe the shape and banding on Marine shoulder pads as though its consistent on their own range. It isn't, they've changed quite a bit over the years, and some things like the Blood Angel and Deathwatch pads are entirely ornamental and not pad-shaped at all. The only remotely similar thing is the cup shape on the inside designed to fit on the arm, and if we're going to be picky, in the case of metal pads that I've had from GW in the past, that can be variable making it more of less snug a fit.

GW multipart kits are good for variation, but it means there's no one true space marine shape, there's many different variations on each part. All they can argue for is the most generic of underlying shapes.

 Sean_OBrien wrote:

And more importantly (at least in as much as I understand the convoluted court systems of the greater Eurozone...) - Poland, as part of the European Union would actually defer to matters of settled case law to the home country of the company who is bringing suit against them...and can further site rulings made by courts like the British Supreme Court. Since LucasFilm v Ainsworth fairly well settled the matter of toy soldiers not being protected under copyright law and instead being protected under design rights, and further design rights being greatly limited in scope and duration (all of which would be expired for the Space Marines given that the first design was in 1985 and the maximum duration of a design right being 15 years) - it would be a major blow to the various things which GW claims as there own should they attempt to bring suit to any of the various companies in the Eurozone who are making "not-Space Marines" like Scribor, Anvil Industries, Hitech et al. Some are based in Eastern European countries - but at the very least one of them is based in GW's own backyard.

Is this really the outcome of Lucasfilm vs Ainsworth? If it were the outcome, why aren't there half a dozen Star Wars miniatures manufacturers springing up in the UK?

Maybe no-one is interested. They couldn't be sold in the USA which is probably a larger market.

Trasvi wrote:

 Sean_OBrien wrote:

And more importantly (at least in as much as I understand the convoluted court systems of the greater Eurozone...) - Poland, as part of the European Union would actually defer to matters of settled case law to the home country of the company who is bringing suit against them...and can further site rulings made by courts like the British Supreme Court. Since LucasFilm v Ainsworth fairly well settled the matter of toy soldiers not being protected under copyright law and instead being protected under design rights, and further design rights being greatly limited in scope and duration (all of which would be expired for the Space Marines given that the first design was in 1985 and the maximum duration of a design right being 15 years) - it would be a major blow to the various things which GW claims as there own should they attempt to bring suit to any of the various companies in the Eurozone who are making "not-Space Marines" like Scribor, Anvil Industries, Hitech et al. Some are based in Eastern European countries - but at the very least one of them is based in GW's own backyard.

Is this really the outcome of Lucasfilm vs Ainsworth? If it were the outcome, why aren't there half a dozen Star Wars miniatures manufacturers springing up in the UK?

Truely creative people want to make their own work

Real crooks can make more cash knocking off designer handbags etc

and even if you did set one up it could never go into mass shop/online retailer distribution even within the EU as disney (and their licence partners) could and would, quite legally, refuse to supply any of their stuff to stores/websites that stocked your stuff (so you'd never get in places with high prices like Toys R Us or Argos, you'd be stuck with places like the local poundshop at best)

303 is up.

Lots of exhibits and stuff as well, but have to wait for recap for that.

Doc 302, page 15 wrote:Each such design decision has been copied so as to make the Chapterhouse product immediately recognizable to Games Workshop’s fans,

To make this point would require GW to show examples of their product VS CHS' product with "Games Workshop fans".
That boys and girls, would turn into a gakshow that I would fly to Chicago to see personally.

Here, many of the accused Chapterhouse products are alleged to have infringed based on the fact that they are designed to fit on or with Plaintiff’s products. ASUF 8 (Hartzell Decl. Ex. D, F). For example, Large Ammo Belts for Heavy Weapons (Product No. 162) and many of the accused Chapterhouse Shoulder Pads are “designed to fit” on Games Workshop figures. Rather than directly copying of a Games Workshop product, these Chapterhouse products simply provide additional complementary pieces that a consumer of Games Workshop products might use. Any portion of the Ammo Belts or the Shoulder Pads found to be a copy of any Games Workshop product is a transformative use because the Chapterhouse products that are so accused do not supersede the market for the original Games Workshop works. Instead, the Chapterhouse products enhance the market for the Games Workshop products by offering complementary products, much in the same way that hammers complement the market for nails.

heh


Automatically Appended Next Post:
--------------------------

Also, all the 303 exhibits (and there are a pile) are up on recap (http://archive.recapthelaw.org/ilnd/250791/).


(portion of deposition with GW designer about kroxigors and grey knights)
http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.303.19.pdf


And I believe the full report by Dr. Grindley is up there, broken into pieces.

And more importantly (at least in as much as I understand the convoluted court systems of the greater Eurozone...) - Poland, as part of the European Union would actually defer to matters of settled case law to the home country of the company who is bringing suit against them...and can further site rulings made by courts like the British Supreme Court. Since LucasFilm v Ainsworth fairly well settled the matter of toy soldiers not being protected under copyright law and instead being protected under design rights, and further design rights being greatly limited in scope and duration (all of which would be expired for the Space Marines given that the first design was in 1985 and the maximum duration of a design right being 15 years) - it would be a major blow to the various things which GW claims as there own should they attempt to bring suit to any of the various companies in the Eurozone who are making "not-Space Marines" like Scribor, Anvil Industries, Hitech et al. Some are based in Eastern European countries - but at the very least one of them is based in GW's own backyard.

So wait, didn't GW's lawyer call space marines 'toys'?

25 Q In the models that actually get made...
the figures, they are made out of plastic. People are 13:54:43
2 not firing projectiles, there are not actually brains 13:54:47
3 inside the figures, the model heads. They are toys, 13:54:50
4 effectively?

And doesn't this essentially screw their argument on copyright?

They are whatever they need to be at the time, apparently. Toys when it suits them, art/sculptures likewise...models when calling them toys will put people off.

czakk wrote:

Instead, the Chapterhouse products enhance the market for the Games Workshop products by offering complementary products, much in the same way that hammers complement the market for nails.

heh

Nice

It is a technical term from Economics.

Complementary goods are items whose sales curves are positively correlated -- linked -- even though they are from separate producers (usually).

The classic example is bacon and eggs, because people buy bacon and eggs for breakfast. If they have the money to buy more bacon they will also buy more eggs.

I am by no means a GW hater, and at the start of the case I figured GW should win, because of the obvious fact, that If I personally invented Space Marines, and the bloke next door started selling accessories for them out of his garage I would be pissed off about it.

But, I really loathe incompetence and stupidity more, so I'm now hoping they get crushed.

From what I've read in this thread, the dumb bastards don't deserve to win.

 mattyrm wrote:
I am by no means a GW hater, and at the start of the case I figured GW should win, because of the obvious fact, that If I personally invented Space Marines, and the bloke next door started selling accessories for them out of his garage I would be pissed off about it.

But, I really loathe incompetence and stupidity more, so I'm now hoping they get crushed.

From what I've read in this thread, the dumb bastards don't deserve to win.

I can see the logic to your original position Matty, but that would be equivalent to saying that their should be no after-parts market for cars, no fitting non-Canon parts to a Canon camera, etc...

 mattyrm wrote:
I am by no means a GW hater, and at the start of the case I figured GW should win, because of the obvious fact, that If I personally invented Space Marines, and the bloke next door started selling accessories for them out of his garage I would be pissed off about it.

But, I really loathe incompetence and stupidity more, so I'm now hoping they get crushed.

From what I've read in this thread, the dumb bastards don't deserve to win.

I know exactly what you mean. When I first heard about this I though 'well come on, CH aren't even bothering to call them space knights or blue marines with Us instead of space marines and ultramarines, this is one time GW should win'.

Then came the hiding evidence and trying to steal from artists.

I think maybe modern corporate-led GW are paying for the fact that they used to be amateur hobby-enthusiast-led GW and used to do things the same way many companies do things now.

 Fifty wrote:

I can see the logic to your original position Matty, but that would be equivalent to saying that their should be no after-parts market for cars, no fitting non-Canon parts to a Canon camera, etc...

Aye we've had that out numerous times, I disagree because I think parts for cameras and cars and such as far more generic than something creatively nailed on, like say the Ultramarines, or Spiderman's costume or something. But lets not bother dragging this OT with that now entirely ancient debate.

Suffice to say that I am a convert to team "I hope they get crushed and then everyone starts selling cheap combi-weapons"

 mattyrm wrote:
I am by no means a GW hater, and at the start of the case I figured GW should win, because of the obvious fact, that If I personally invented Space Marines, and the bloke next door started selling accessories for them out of his garage I would be pissed off about it.

But, I really loathe incompetence and stupidity more, so I'm now hoping they get crushed.

From what I've read in this thread, the dumb bastards don't deserve to win.

From loosely following this from the off I have to agree with Matty. GW are coming off as complete incompetents.

Anyway, as Mattyrm said let's keep the discussion on topic.

REPLY by Defendant Chapterhouse Studios LLC to motion for reconsideration 287 of summary judgment order (Attachments: # 1 Declaration of Bryce A. Cooper, # 2 Exhibit A-B)(Cooper, Bryce) (Entered: 03/18/2013)

http://www.archive.org/download/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.306.0.pdf


306.1 Declaration of Bryce A. Cooper
http://www.archive.org/download/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.306.1.pdf


306.2 Exhibit A-B
http://www.archive.org/download/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.306.2.pdf




Automatically Appended Next Post:
A lot of work being done in the footnotes here as well as the main body.


Automatically Appended Next Post:
-------------------------
There are some sealed exhibits that went up as well:


03/19/2013 307 SEALED EXHIBIT by Defendant Chapterhouse Studios LLC Exhibits A, B, L, M and Q to the Declaration of Julianne M. Hartzell regarding response in opposition to motion,,,,, 303[RECAP] (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit L, # 4 Exhibit M, # 5 Exhibit Q)(Kalemeris, Sarah) (Entered: 03/19/2013)

Just to give a point of reference on the size difference between GWs Space Marine Shoulder pads vs a modern military shoulder pad:

Mohoc wrote:
Just to give a point of reference on the size difference between GWs Space Marine Shoulder pads vs a modern military shoulder pad:

Spoiler:

[img]http://images.dakkadakka.com/gallery/2009/6/13/37863_md-Space%20Marines,%20Space%20marine.JPG[/img

]

I think you have to consider more than just those images. The broaden shoulders are at least in part a byproduct of the space marine being modeled in heroic scale. The other component to the shoulder pads shape and proportions is simply the fact the shoulder pad is a separate piece that must conform to an underlying "shoulder" and also be reproducible at such a small size with a particular degree of rigidity as established by constraints of the technology of the early 90s. Once you get that basic shape from practical constraints the only addition to get the the most basic pad is the addition of the trim.

The size of shoulder pad is irrelevant as a distinguishing characteristic feature since a larger scale model could feature a physically identical piece that covered a much smaller area of the body.

Not to make light of the "experts" but maybe they need to get outside of the dusty english history museums and realize that "oversized shoulder armor" was all the rage in Japan for several hundred years. The shoulder armor of the late Sengoku period often had a very simular shape to space marine armor and defiantely had the size as it'd cover from the neck to the elbow. Making the shoulder pieces much larger than the head. The armor is often segmented but much of it looks very solid at a glance and even has a raised lip along the edges to help deflect musket fire.





If you want a white culture friendly example here you go, no need to burn your precious eyes gazing upon a yellow man....




I'd say I was surprised that nobody has mentioned historical japanese armor, but cultural bias tends to help forget that stuff ever existed.

Hmm, not really seeing the similarities paulson games. Not as large, nor wrapped around the arm AND as you pointed out the samurai one is segmented. I think the only GW pad like that is a champion's but that's more like a 2 part layer and not the multiple 'centipede' look.

GW's claim rests mostly on the size being the identifying and distinctive feature.

The shape has been denied by the copyright office, so the only leg they have to fight on is the size of the pad vs the head and body, which most samurai armor shares.

Like marine armor it's as large, or larger than the head extending to the elbows.

(Even with jousting flares European plate armor is much much smaller in proportion to the head)

Pretty large shoulder-pad (pauldron) here:

http://farm6.static.flickr.com/5201/5239893811_c50fe646c4_m.jpg


There are other examples elsewhere as well I know that I have seen a similar design for horseback armor as well, mainly for joustong I think.

The issue with the size of course is "heroic" scale. It is like saying because one artist draws a big headed caricature than no other artist can draw a big headed caricature, because they have a copyright on big headedness. Caricatures are a style just like heroic scale is, and just like with caricatures and their bigheadedness - big shoulders are part of heroic scale.

You can see a clear example of this influence if you look at something like the movie Stormtroopers and the test miniatures which GW did.

http://realmofchaos80s.blogspot.com/2013/01/a-stormtrooper-solution-marcus-ansell.html

The heroically scaled Stormtrooper features shoulder pads which are huge compared to the real deal (granted they don't look nearly as big on that figure due to the enormous helmet...but that is a different issue). So, when you compare real world armor and examples from other movies and fictional sources...you need to use the Fun House mirror which distorts the image to match a comparable level of heroicness.

With that in mind - you don't have to look as far east as Japan...there is plenty which is right in GW's own backyard.

http://www.metmuseum.org/Collections/search-the-collections/40001158?rpp=60&pg=1&rndkey=20130319&ft=*&deptids=4&when=A.D.+1400-1600&what=Embossing&pos=20

The shoulder pieces on that particular setup go from top of the shoulder all the way down to the elbow (it is segmented - but that is an issue of actually needing to fit a person in there).

http://www.artnet.com/magazine_pre2000/features/stern/stern11-17-2.asp

That armor has a stylized shoulder pad that extends to the middle of the upper arm and then has the leather straps which you see in Heresy Era artwork from GW extending down to the elbow.

There are actually several other lion head pauldrons that are larger than those...though I can't seem to find them in context to show size (either a person holding them or as part of a suit). I recall seeing one set which I believe was done by one of the Negroli family where the lion head was bigger than my head.

Much of the 'parade' armor from the Renaissance was oversized and overly ornate in order to make the noble who happened to be wearing it look bigger than they actually were (much the same reasoning which Bob gave in his deposition).

Also the shoulder pads have changed over the years. When marines were first released they were no where as big as the current ones. So when do they think they distinctly created the large pads as a design choice rather than let them grown stylistically over a number of years and in accordance with casting limitations?

Howard A Treesong wrote:Also the shoulder pads have changed over the years. When marines were first released they were no where as big as the current ones. So when do they think they distinctly created the large pads as a design choice rather than let them grown stylistically over a number of years and in accordance with casting limitations?

I don't know what they think, but I said this in my previous post, we really only get the larger "oversized" shoulder pads when GW started making the shoulder pad a separate piece in the early 90's. Prior to that the shoulder pad was either integral to the whole model or integral to an arm piece. The size is really a direct consequence making it a separate piece and the limitations of plastic technology at that time; any less bulky and the piece would not cast consistently when being injection molded. Domed shells have a tendency to cast with voids in the center if not given an adequet amount of thickness to the part.

Large Shoulderpads? Totally new

 Kroothawk wrote:
Large Shoulderpads? Totally new

Is it sad that I don't find those shoulderpads to be all that large simply because it doesn't look as disproportional to the rest of the armor and the body in it ala power armor:

If you do a search for the Excalibur movie you will find that there are large impractical armour shoulder pads. All GW did is build on the concept of Knights armour.

308 is up, nothing new, just CHS's motion to file stuff under seal being approved, which we already knew.

DOCKET ENTRY TEXT
Hearing on motion for leave to file under unseal held (304). Motion is granted.

I remember hearing about the Big 3 in Detroit going after K&N air filters. IIRC they were saying that using said filter would void your factory warranty due to the fact that 'they' said it would allow more contaminants and debris in than a factory paper filter. Come to find out that a filthy K&N air filter would let more air through than a brand new OEM filter and it had better filtration than the paper ones.

The judge ruled that unless the makers wanted to give the consumer free air filters when they wished that it was unlawful to void warranties in such a way.

To me this directly ties into 3rd party, or aftermarket parts, being usable by the consumer.

I am not an attorney by any stretch of the imagination, but to me this reeks of GW money grabbing. This along with other trade practices that GW has been implementing over the last few years .... I honestly hope that they get their ass's handed to them.

Some new replies filed.


If I recall correctly, we are due a judgment on April 1st?

CHS's other filings that went with 309 main.

I love how the CHS makes extensive use of case law to illustrate their points but I didn't see GWs team use it at all in my quick skim of the documents.

Well the old saying is, if the facts are on your side, pound on the facts, if the law is on your side pound on the law, if neither are on your side, pound on the table.

czakk wrote:
Well the old saying is, if the facts are on your side, pound on the facts, if the law is on your side pound on the law, if neither are on your side, pound on the table.

Then I feel real sorry for the table GW's team are using...

[Off Topic Posts deleted - please endeavor to stay On Topic - thanks!]

With regards to the shoulder pad. 2000AD have used the large shoulder armour style for years. You can see it in Judge Dredd comics long before Space Marines were around.

And check out this amour for similarity:


I'm not saying this image predates Space Marines, but it probably isn't based on Space Marines either. It's quite a natural progression from the Judge Armour.

The wikipedia page for Judge Dredd shows the cover of 2000AD number 2, which was printed in 1977. It depicts the judge with enormous shoulderpads. It should also be noted that GW did a line of Judge Dredd figures, so they were well aware of the style. GW also stole the SM bikes from Dredd.

All the extra goodies from GW's filing (310) are now up on recap:

http://archive.recapthelaw.org/ilnd/250791/ (scroll down)

Exhibit A is a bit of an interesting read

Tracking down another long lost employment contract? I'm pretty sure I was an employee at the relevant time


You could have some fun with the words 'belongs to' in those email. What legal rights is he talking about?

I just noticed this and thought that it was a weird coincidence.

This year Adepticon is being held on the same week that the Games Workshop v Chapterhouse Studios trial begins.

The Games Workshop v Chapterhouse Studios trial is scheduled to begin on Monday, April 15th. The Courthouse is on 219 South Dearborn Street in downtown Chicago. Judge Matthew F. Kennelly is presiding and his courtroom is 2103.

Adepticon 2013 is scheduled from Thursday, April 18th to Sunday, April 21st at the Westin Yorktown Lombard Center, about 30 minutes from the courthouse.

MINUTE entry before Honorable Matthew F. Kennelly: Telephone status hearing held on 12/12/12. Written discovery requests regarding new claims / products are to be served by 12/12/12. Responses to written discovery requests are to be served 25 days from the date of service as agreed. Documents responsive to written discovery requests are to be produced by no later then 1/11/13. Third party subpoenas to persons or entities now known in connection with new claims / products are to be served by 12/12/12. Plaintiff's amended claim chart is to be served by 1/11/13. Deadline for supplementation of prior discovery responses is 1/31/13. Rule 26(a)(2) disclosures regarding new claims / products are due by 2/1/13, and rebuttal Rule 26(a)(2) disclosures are due by 2/18/13. Expert discovery is to be completed by 2/25/13. Summary judgment motions regarding new claims / products are due by 3/4/13, responses are due 3/11/13, and replies are due 3/25/13. Final pretrial order, encompassing both previous and new claims / products, is due 3/29/13. Final pretrial conference is set for 4/10/13 at 3:30 PM. Motions in limine and responses are due per Judge Kennelly's pretrial procedures as posted on his web page. Trial on all claims / products remains set for 4/15/13 at 9:45 a.m. Telephone status hearing, to be initiated by counsel, is set for 2/5/13 at 8:45 AM. (mk) (Entered: 12/12/2012)

That's almost worth changing my plane ticket for; I'd love to watch some of this. But given how often last-minute changes come up in schedules, maybe not.

Is it actually likely for the trial to start on April 15th? That's much sooner than I'd expected! I'm surprised people aren't talking about it here more...

 RiTides wrote:
Is it actually likely for the trial to start on April 15th? That's much sooner than I'd expected! I'm surprised people aren't talking about it here more...

It is scheduled for Monday, April 15th 9:45 a.m. Judge Kennelly has already bumped the trial date twice, and it would be very unlikely for him to do it again. It depends on the Judge, honestly, but Kennelly is not likely to bump the date a third time.

Yep, I think he would like to see this case over and done with. If it were bumped again, it would probably throw the trial date back to midsummer based on federal scheduling that I am familiar with.

If I could, I might want to go to the first day to find out what the schedule was and then to see certain testimonies go forward. If anyone is in the area, and they end up going...be sure to take notes for updating the thread. Day to day activities in the courtroom dont get updated and it wouldnt be until after the decision is returned by the jury that we would hear anything else.

Luckily though, the case should be over by the end of April (barring any appeals that might happen).

I think it's safe to say that GW, if they lose any aspect of the case, will appeal this for as long as it is financially possible.

In the US system can someone appeal "just because" or do they need reasonable grounds for an appeal?

They needs reasonable grounds - they have to claim something like the judge made the wrong call, there was a procedure that wasn't followed correctly, things like that.

IANAL but that's how I understand it for civil cases.

Isn't there something bout the judge granting leave for the case to be appeal able? Might be mixing my jurisdictions up......

You are supposed to have some reason for an appeal...though it is broadly defined. I think the specific classes for an appeal are errors in law, fact or process.

If you loose a case, it is generally pretty easy to find a peg to hang your appeal on. I would need to double check the specific process for appeals in the Illinois District Court system, but often a judge (or panel of judges) will read the petition for an appeal and decide if he feels they have grounds for the appeal.

Depending on the grounds for the appeal, normally only certain aspects of a case are elligible to be adressed. For example, if GW were to win and be awarded something like a million dollars in damages, CHS could appeal and say they should only pay $10,000. The appeal would not address if GW or CHS were right or wrong, just whether or not the award was correct.

Larger issues (new facts for example) can cause a case to be fully reheard, and depending on the way the appeals court is feeling...they can try the case or they can kick it back to the previous court (and sometimes the same judge) to deal with it again.


Automatically Appended Next Post:

 poda_t wrote:
Isn't there something bout the judge granting leave for the case to be appeal able? Might be mixing my jurisdictions up......

Yah, that is two of the other broad types. Certain cases you can appeal by right (capital murder IIRC always has the right to appeal) while others you have to be granted the an appeal by leave (if I am remembering the term correctly). When the judge issues the final disposition, it is common for that clause to be put in place for civili cases, but then you still need some grounds rather than just because.

If GW lost and appealed the desicion, would the defence get a chance to file a reply as to why it shouldn't be granted? Similar to the motion to reconsider summary judgement made in pre-trial?

Generally, yes...they would also be generally allowed to file a counter too...again, going back to a hypothetical GW win...

If CHS were to appeal a large award to GW in damages, GW could counter and say that the award is actually too small and it should be 5 million instead.

Of course one also has to consider in whose hands the appeal would wind up. Additionally, filing an appeal would be an expensive prospect for either party, though in Chapterhouse's case counsel is working pro bono, although that does not necessarily mean counsel would be interested in pursuing an appeal pro bono.

I do not think GW would appeal a verdict unless it were both overwhelmingly in Chapterhouse's favor and destructive to GW. For example, let's say that the jury finds that all GW copyrights and trademarks are valid and owned by GW, but that CHS is not liable for any infringement, either because there was no infringement or because any infringement fell within the boundaries of fair use.

That would be an extremely solid win for CHS, but would GW appeal such a verdict? I would say probably not. Likelihood of success on appeal is low, notwithstanding the high cost to seek an appeal, and GW would have already walked away with its alleged IP intact. Plus, I would assume that in such a case defense counsel would be very much motivated to continue representing the defendant pro bono.

Now, if a jury finds that huge swaths of GW's alleged copyrights and trademarks are invalid or not owned by GW, GW might have more interest in seeking an appeal. But the plain fact is that the case is only so large and complicated because GW has made so many claims.

Would GW really be interested in appealing a jury verdict that said GW does not own a trademark in the word mark "Stormtrooper?" Would GW really be interested in appealing a verdict that it does not own a trademark on "High Elf," "Imperial Guard," or "Plasma?"

Would GW be interested in laying out several hundreds of thousands of dollars, perhaps facing another 2-3 years of costly litigation and the potential for a new jury trial to fight any verdict in this case?

That would assume a rational thought process...though I do not think you will see appeals barring something that would fully wipe out their IP claims.

Does anyone have a straightforward recap of what specific items GW were claiming infringed, which were redacted by GW, which were denied by the court, copyright office etc as well as the original works that GW claimed they infringed?

I'm sure at one point the exhibits were listed, but 126 pages is a lot to sift through.

No.

Really, no. One of the issues is that GW really didnt provide anything like that from the start and everything else would need to be built on that.

They provide a list of trademarks that they mention, but dont connect that list specifically to any infringing works. They have their claims charts, that pretty much list the entire CHS catalog...but the references that GW provides dont clarify copyright or trademark claims. They generally dont even list the actual first use for anything.

The previous summary judgement gives a run down on some of it (should have a summary in the front or back of the judgement). That misses 30 or so new claims though. If the judge reconsiders, it may well change that as well too though.

rigeld2 wrote:
there was a procedure that wasn't followed correctly, things like that.

IANAL but that's how I understand it for civil cases.

Only GW are the ones who have not followed procedure. I would say any appeal made by them should they lose would be thrown out based in their incompetence

Actually though, that in and of itself is grounds for an appeal. Our lawyer screwed up, give us a do over.

 Sean_OBrien wrote:
No.

Really, no. One of the issues is that GW really didnt provide anything like that from the start and everything else would need to be built on that.

They provide a list of trademarks that they mention, but dont connect that list specifically to any infringing works. They have their claims charts, that pretty much list the entire CHS catalog...but the references that GW provides dont clarify copyright or trademark claims. They generally dont even list the actual first use for anything.

The previous summary judgement gives a run down on some of it (should have a summary in the front or back of the judgement). That misses 30 or so new claims though. If the judge reconsiders, it may well change that as well too though.

So GW claims infringement on both copyright and trademark, and they say which items they feel are offending, but they still have not said what items of their own they feel have been infringed upon? And the judge understands this?

And I imagine that fact will be presented to the jury...

How can GW honestly think they are in any sort of good position here?

2 years in and they still haven't even filed a proper complaint.

 Aerethan wrote:
Does anyone have a straightforward recap of what specific items GW were claiming infringed, which were redacted by GW, which were denied by the court, copyright office etc as well as the original works that GW claimed they infringed?

I'm sure at one point the exhibits were listed, but 126 pages is a lot to sift through.

I don't think even GW has a clear idea.

Their approach was not a scatter gun or even a flamethrower, so much as eating 60 years worth of SF books and spewing up rich streams of brown vomit on the court record, and saying it was all theirs.

 Aerethan wrote:

 Sean_OBrien wrote:
No.

Really, no. One of the issues is that GW really didnt provide anything like that from the start and everything else would need to be built on that.

They provide a list of trademarks that they mention, but dont connect that list specifically to any infringing works. They have their claims charts, that pretty much list the entire CHS catalog...but the references that GW provides dont clarify copyright or trademark claims. They generally dont even list the actual first use for anything.

The previous summary judgement gives a run down on some of it (should have a summary in the front or back of the judgement). That misses 30 or so new claims though. If the judge reconsiders, it may well change that as well too though.

So GW claims infringement on both copyright and trademark, and they say which items they feel are offending, but they still have not said what items of their own they feel have been infringed upon? And the judge understands this?

And I imagine that fact will be presented to the jury...

How can GW honestly think they are in any sort of good position here?

2 years in and they still haven't even filed a proper complaint.

Not exactly nothing...but they dont provide what the law generally asks. For example if they have a claim for Space Marine as a trademark, they should provide evidence of the first use in commerce for that term...something back in 1987 or so for them. Instead, the have a catalog page or image from their website for a Space Marine in 2004. The same goes to the copyright claims, they might site the flamer design, but they dont actually show the first which used that design.

This ended up being an issue in the rebutal for the last expert witness by GW. He cited sources from the 1990s based on a claim in the claim chart that was from 2003 or 2004. GWs rebutal was that...oh, our bad - did we say 2003, we actually meant this one from 1994...

Motograter wrote:

rigeld2 wrote:
there was a procedure that wasn't followed correctly, things like that.

IANAL but that's how I understand it for civil cases.

Only GW are the ones who have not followed procedure. I would say any appeal made by them should they lose would be thrown out based in their incompetence

As Sean said, GW can appeal saying that their lawyer screwed up. It happens a lot actually, especially in criminal cases.

Also remamber that in most cases an appeal done NOT have to be granted. if the prosecuting judge deems it a waste of time for the court the appeal can be denied.

Weeble wuld be able to expain it better in legalize. . .

 Lysenis wrote:
Also remamber that in most cases an appeal done NOT have to be granted. if the prosecuting judge deems it a waste of time for the court the appeal can be denied.

Weeble wuld be able to expain it better in legalize. . .

Not necessarily. I am not a lawyer, nor trained in the law in any formal way. Sean, CZAK, and Janthkin are actually better sources for the type of nuanced and/or detailed elaboration you are looking for. I am very familiar with trials (especially from a social, psychological, rhetorical perspective), and I have had to learn a deal about various areas of the law in order to do my job, principally US intellectual property law.

I can say from personal experience, for example, what the general sorts of risks are in seeking an appeal, what pitfalls there may be, I am familiar with some of the statistics, and so forth. However, I am not so familiar with the particular legal bases on which the Court may grant or deny an appeal, beyond high level generalizations that have already been discussed.

rigeld2 wrote:
As Sean said, GW can appeal saying that their lawyer screwed up. It happens a lot actually, especially in criminal cases.

GW: "Sorry, took us three years to find out, it was the 12 year old son of the lawyer representing us."

I am still amazed, that in USA a company can drag someone to court for 3 years with absolute no evidence to back their ridiculous claims (or 2 years in the case of Paulson, where even a child could prove from the start that he was innocent).

They have got evidence but it needs to be tested in court.

Paulson I believe settled out of court -- forgive me if I am wrong on that -- which makes a difference to the legal outcome.

I can only say extremely general things about the appeals process, I'm not an american, and civil procedure varies. So I don't know the specific grounds for an appeal.

'My lawyer screwed up' wouldn't get very far up here on a civil matter - you would instead sue the lawyer - which is why lawyers are super super anal about putting client instructions / advice down in writing.


One thing I can say is that both Posner and Easterbrook sit in the court of appeal that this would go to and it would be very interesting to see those two get this case.

------------------

Edit - just read a bit more about the 7th circuit. They do their panel assignments randomly, so unlikely to get both Easterbrook and Posner on this case.

 Kilkrazy wrote:
They have got evidence but it needs to be tested in court.

Paulson I believe settled out of court -- forgive me if I am wrong on that -- which makes a difference to the legal outcome.

I believe that Paulson was accused of having made that Tauesque tripod model that Chapterhouse had on their website but had actually nothing to do with it.

Trademarks fall under the Federal Court of Appeals' jurisdiction; this probably wouldn't go to the 7th Circuit.

Not trying to be argumentative. But don't they get jurisdiction over appeals from the administrative side of trademarks and not the trial side?


http://www.law.cornell.edu/uscode/text/28/1295

(4) of an appeal from a decision of—

(B) the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office or the Trademark Trial and Appeal Board with respect to applications for registration of marks and other proceedings as provided in section 21 of the Trademark Act of 1946 (15 U.S.C. 1071);

So if GW had pursued their administrative appeal options (instead of waiving them) they could eventually apply to the Fed Court Appeals for judicial review of the decision?


I could be completely wrong / misreading the statute / missing another part that gives them jurisdiction.

 agnosto wrote:

 Kilkrazy wrote:
They have got evidence but it needs to be tested in court.

Paulson I believe settled out of court -- forgive me if I am wrong on that -- which makes a difference to the legal outcome.

I believe that Paulson was accused of having made that Tauesque tripod model that Chapterhouse had on their website but had actually nothing to do with it.

How could he be a valid target anyway? Chapterhouse are the ones that are selling it and presumably commissioned it to be sculpted. I don't see that Paulson is liable even if he did sculpt it.

 Howard A Treesong wrote:

 agnosto wrote:

 Kilkrazy wrote:
They have got evidence but it needs to be tested in court.

Paulson I believe settled out of court -- forgive me if I am wrong on that -- which makes a difference to the legal outcome.

I believe that Paulson was accused of having made that Tauesque tripod model that Chapterhouse had on their website but had actually nothing to do with it.

How could he be a valid target anyway? Chapterhouse are the ones that are selling it and presumably commissioned it to be sculpted. I don't see that Paulson is liable even if he did sculpt it.

Beats me that was over 100 pages ago.

My memory is hazy - is Paulson in Illinois and did they sue him with Chapterhouse to avoid being dragged to Texas? Or was that just conspiracy theorizing?

czakk wrote:
My memory is hazy - is Paulson in Illinois and did they sue him with Chapterhouse to avoid being dragged to Texas? Or was that just conspiracy theorizing?

If memory serves, that was the case because the perception is that Illinois would be a friendlier court.

They chose IL because it's where Gamesday and Adepticon are at and the Chicago area accounts for a huge portion of their US sales base. They referenced both in their opening claims and likely see IL as not only being a favorable court but in theory gives extra weight to their claims as the "damages" to their line are higher in this area. (Of course it's all more of their BS).

Because online business theoretically offers services in every state, a company can file suit in any state they want. It's a way that they can further use the prohibitive cost of the legal system to step on smaller busiensses. Making a company defend themself out of state adds to the defense cost and time. They always portray lady justice as being blind and impartial, but the truth is in most cases she hears just how many coins are jingling in your pockets.

Plus IIRC, the original claim actually cited several Illinois state laws that they were seeking claims with. Pretty sure those got bumped out of it - but those particular state laws had a substantial built in "fear factor" for a small business owner who would be facing down a large corporation (relatively speaking).


Automatically Appended Next Post:
4. This is an action for copyright infringement under 17 U.S.C. § 101 et seq.;
trademark infringement under 15 U.S.C. § 1114(1) and Illinois common law; for use of false
designations of origin under 15 U.S.C. § 1125(a); for dilution under 15 U.S.C. § 1125(c) and 765
ILCS 1036/65; for violation of the Illinois Deceptive Trade Practices Act under 815 ILCS 510/1
et seq.; for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act under
815 ILCS 505/2 et seq.; and for unfair competition under Illinois common law.

The Illinois Consumer Fraud and Deceptive Business Practices Act in particular is a looong statute containing clauses up to 2OOO (that is through the alphabet twice and almost a third time) and deals with the Attorney General of the state getting involved and issuing subpoenas...damages by the state...potential criminal charges relating to the claimed fraud...

While most states have some manner of their own local trademark laws, Illinois is a special kind of crazy when it comes to those sorts of things.

There's also local brach of Foley and Lardner in Chicago (GW's legal firm) so they don't have to step up their costs by flying lawyers in for case hearings. I think they were also hoping to get a favorable judge, but in that regard they got the short straw. From the get go the judge was clearly annoyed by the case and while he didn't put it into words you could see it written a cross his brow, wtf I could be presiding over important things but I'm here over toy soldiers?? In the inital meeting I attended he was clearly not impressed with Moskin (who was on phone conference) and the judge even hung up on him rather than listen to his ego driven babble.

Despite the seriousness of the situation it was quite hillarious, both myself and CH's legal team were trying very hard not to crack a smile.

From the few transcripts that have been included of courtroom actions (motion hearings and the like) - his annoyance seemed to come through.

Granted the mediator they had seemed to be even more annoyed...

That is saying a lot too as, transcripts do tend to be about the driest reading you will ever find.

 paulson games wrote:
wtf I could be presiding over important things but I'm here I'm here over toy soldiers?

I think this may also be the attitude of the jury, who GW will have to convince that their toy soldiers are really serious business. Because most people are likely to think that all these toy men look the same, stuff like tyranids are just generic alien bugs, and none of it is something they can take seriously.

 Howard A Treesong wrote:
I think this may also be the attitude of the jury, who GW will have to convince that their toy soldiers are really serious business. Because most people are likely to think that all these toy men look the same, stuff like tyranids are just generic alien bugs, and none of it is something they can take seriously.

I imagine that will come into play, I don't think most non-gamers have any clue about how large aspects of the miniatures industry are. I'm sure during the course of the trial that they will be dropping some sales figures to try and bridge that gap. Toy and model companies can have sales running into hundreds of millions of dollars and it is a serious business when you disconnect the use of the product vs the business aspect, but that's not something the average person considers at first thought.

My attourney was very interested in the case on a personal level as he'd had no prior exposure to gaming outside of video games and they did a lot of research into it and he was floored by the money involved with the industry as a whole. (particuarly with conventions) For a somewhat niche subculture that most people aren't even aware of it generates huge revenue chains. He also thought the artistic aspects behind the painting and sculpting were incredible.


.

Chapterhouse Lawyers wrote:Certain Forum Postings Constitute Irrelevant and Improper Lay Opinion

You're teling me. It's interesting how both sets of In limine motions reveal the biggest concerns of each sets of lawyers. I've got no axe to grind in either direction, so I'm looking forwards to some judgements next week.

 Kilkrazy wrote:
They have got evidence but it needs to be tested in court.

If you claim copyright infringement in court, you first have to prove that you actually own that copyright. GW didn't do that or even try. They made wild claims, couldn't prove any, retracted a few too ridiculous claims, tried to trick some copyright holders to transfer copyright to them a year after the lawsuit started, and tried to trick judge and government agency into letting the shoulder pad form copyright be admitted to jury decision.

That is far from what is usually required from a copyright infringement lawsuit.

Copyright infringement can only be proved in court. GW can claim a copyright, like the shoulder pads, then in court the claim can be proved or disproved..

You can only ever enforce the law in court, ultimately.

First requirement for a copyright infringment lawsuit is, you must prove that you actually own the copyright in question. GW hasn't met that requirement and didn't even try seriously.

 Kroothawk wrote:
First requirement for a copyright infringment lawsuit is, you must prove that you actually own the copyright in question. GW hasn't met that requirement and didn't even try seriously.

How can a case go on so long with so little substance? If Chapterhouse wasn't pro-bono, they'd have been bled dry ages ago. I guess this is how cases are often settled, drag out a spurious claim and wear them down before it comes to court, so much for any sort of 'justice'. Is there much sign of this being settled before christmas, as it'll be three years, and GW still haven't shown they own the things they claim and appear to have a string of behaviour that amounts to poor practice. Writing to people claiming to have 'lost' the paper work so as to hoodwink them into signing away their copyrights. That's going to be admissible in court, right? Because it's disgusting.

 Kroothawk wrote:
First requirement for a copyright infringment lawsuit is, you must prove that you actually own the copyright in question. GW hasn't met that requirement and didn't even try seriously.

The way of proving effectively in law that you own a copyright is to sue the person you have accused of violating it.

To put it differently, how would GW impose their notional copyright claim on Chapter House without suing them?

Chapter House clearly do not accept that GW hold a valid copyright in the shoulder pads, and will not arbitrate on the matter, so GW have no option but to sue. This will test the claim of the copyright.

What I am trying to say is that if one company writes to another and says, "Hey, you've broken our copyright! Look at our registration (ect.)" , the second company can go, "Oh yeah. Sorry, we'll compensate you." or, "feth off, you don't have a copyright." In the second case, the complaining company will need to go to court to enforce their copyright. If they have an easily provable claim it will be an open and shut case. However, it is also possible that Company A thinks it has an enforceable copyright and when it gets to court finds that its claim is weaker than supposed. This is the situation that GW now find themselves in.

I think the issue is a little more basic than that...at least in terms of what Kroothawk is refering.

Normally, you have to prove you own a copyright as the basic level of having grounds to file suit. For an artist, this is pretty basic, as artists own the copyright by default for anything they produce.

For a company though, it is more complicated. While they might produce a product based on art created by an artist...they do not automatically own the copyright and thus the right to bring the suit. The artist has to assign the rights to the company in a contract. GW failed to present those contracts, subsequent to that failure, they attempted to secure a contract after the fact by sending letters to various freelancers and former employees asking them to assign the rights after the suit had already been going on for 2 years. This is the importance of the Chalk letter which CHS secured last fall.

In a way, it would be like me suing my neighbor because I think their son might hit my mailbox. After the suit has been ongoing for a few months...he finally does hit my mailbox. That he did eventually hit my mailbox does not make my preemptive lawsuit legitamate. GW should have had all their ducks in a row before hand, and the nature that they got assignments after the fact makes the assignments somewhat questionable as well in several instances.

Heck, it wasnt until the last few months that GW got Bob Naismith to assign the rights for the space marine figures...and those are really the core of the case (all other GW marines since being derived from those).


Automatically Appended Next Post:
Having the copyright though is only the start, as you then have to move on to examine the work, determine what aspects are unique enough to be protected and figure out what is just basic stuff.

For example, if I were a modern artist who painted a canvas red...I would have a copyright on that painting. It would prevent a museum from creating lithographs that showed the brush strokes and what not of my painting...but it would not prevent another artist from painting their own canvas red. A red canvas is too basic an item to have broad protections. If the combination was more unique...maybe a circular canvas of a specific odd diameter, it would have more protections.

 Howard A Treesong wrote:

 Kroothawk wrote:
First requirement for a copyright infringment lawsuit is, you must prove that you actually own the copyright in question. GW hasn't met that requirement and didn't even try seriously.

Writing to people claiming to have 'lost' the paper work so as to hoodwink them into signing away their copyrights. That's going to be admissible in court, right? Because it's disgusting.

Personally, aside from everything else that has been going on, that bit really saddened me. For me, it was the final proof of what the company has become these days. and I agree, 'disgusting' is the term I would use also.

 Sean_OBrien wrote:
Heck, it wasnt until the last few months that GW got Bob Naismith to assign the rights for the space marine figures...and those are really the core of the case (all other GW marines since being derived from those).

Wait, Bob signed? That's a shame.

Not sure if he signed, but the deposition made it clear that he assumed he was doing works for hire...though there are aspects of the laws which can make that irrelevant without a signature.

I would need to dig back through the documents to see if they got an actual written assignment of rights.

Edited by AgeOfEgos

There have been a bunch of new filings on recap (http://archive.recapthelaw.org/ilnd/250791/)

We have motions in limine (motions to exclude testimony / evidence / expert reports from the trial).

Proposed pretrial orders.

Here is what CHS and GW propose: http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.331.0.pdf - note some arguments in the footnotes.

Proposed jury instructions.


Here is what CHS proposes the jury hears about the case at the beginning of trial: http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.332.0.pdf


It's basically a proposed blueprint of the trial.

That document is an excellent summary of most key points in copyright and trademark law.

It seems like every objection from Chapterhouse mentions 'Hey, you are ignoring what the judge ruled previously'.

I'd like to know what GW understands as "product design" for this case as it sounds like a nice catch-all for all the trademark claims the have been unable to prove until now.

M.

Judgment on shoulder pads - judge sticks by his earlier opinion, but sanctions GW for not turning over the letters.

In his more recent affidavit dated March 13, 2013, which GW’s attorney submitted with GW’s response to Chapterhouse’s second motion for reconsideration, he again states that as of January 4, he “still had received no substantive communication from the Copyright Office (only a promise to respond to my June 26, 2012 email) . . . .” Id. at 1. This statement does not appear to be accurate. Prior to Carol Frenkel’s January 4 letter denying GW’s application, GW’s attorney received several e-mails from various Copyright Office personnel, most of which commented on the copyrightability of the sculptured shoulder pad. Considering the circumstances, there is a strong indication that GW’s failure to disclose its correspondence with the Copyright Office was deliberate or at least reckless.

So, not a big win for CHS.

So, CH can't sell their shoulder pads anymore?

Sorry I can't download the doc on my phone.

Not quite - GW can copyright their shoulder pads. The jury trial still goes on to determine if CHS infringed that copyright / if they have a defence.


There is more to the judgment as well, but it is early and no coffee yet.

czakk wrote:
Not quite - GW can copyright their shoulder pads. The jury trial still goes on to determine if CHS infringed that copyright / if they have a defence.


There is more to the judgment as well, but it is early and no coffee yet.

Wait, so a random judge from Illinois can overturn a decision from a federal establishment who deals ONLY with copyright?

I thought his ruling was only that the pad claim was able to make it to trial, not that he was granting copyright to it.

The hell is the point of anything in this country if random judges can over turn any decision made by the government(or in other cases decisions made by a public vote)?

 Aerethan wrote:

Wait, so a random judge from Illinois can overturn a decision from a federal establishment who deals ONLY with copyright?

I thought his ruling was only that the pad claim was able to make it to trial, not that he was granting copyright to it.

The hell is the point of anything in this country if random judges can over turn any decision made by the government(or in other cases decisions made by a public vote)?

As far as I've understood that document, the previous ruling stood because the appeals process for the Copyright Office wasn't over yet, so their decision wasn't final yet.

Feel free to correct me, but that was my interpretation of it.

PhantomViper wrote:

 Aerethan wrote:

Wait, so a random judge from Illinois can overturn a decision from a federal establishment who deals ONLY with copyright?

I thought his ruling was only that the pad claim was able to make it to trial, not that he was granting copyright to it.

The hell is the point of anything in this country if random judges can over turn any decision made by the government(or in other cases decisions made by a public vote)?

As far as I've understood that document, the previous ruling stood because the appeals process for the Copyright Office wasn't over yet, so their decision wasn't final yet.

Feel free to correct me, but that was my interpretation of it.

GW forfeit their appeal in favor of the court decisions on IF it COULD be copyrighted, or at least that was my understanding of it.

I am unaware of courts being able to just grant copyright on something, which again, if that is the case then why have a copyright office instead of just a copyright court.

Laaaaaame.


Seriously, will Chapterhouse get a chance at all to go to the copyright office and get them to tell the judge he's wrong, or bring in copyright experts at any point in the trial to explain to the jury that it was a bad call?

Presumably Chapter House would be allow to appeal.

I am thinking that as the next step GW will sue the Soviet Union for stealing the shoulder pad design for use on the T-34 tank.

 jonolikespie wrote:
Laaaaaame.


Seriously, will Chapterhouse get a chance at all to go to the copyright office and get them to tell the judge he's wrong, or bring in copyright experts at any point in the trial to explain to the jury that it was a bad call?

GW gave notice to the copyright office that they were continuing their lawsuit despite the CO's decision that the shoulder pads weren't registerable in this letter here: http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.275.1.pdf

http://www.law.cornell.edu/uscode/text/17/411

The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue.

The CO has the option of showing up at the trial, if they so choose. I don't think 60 days has passed, so they could still file an appearance. The issue is, do they care.


CHS can also try to appeal the judge's decision.

[Entering the wild I know nothing about us civil procedure speculation zone]
Even though this motion to reconsider didn't work, it did give CHS a chance to get Grindley's report on the record for this issue - it may form part of the record that will show up on an appeal. Compare this report to the ones they had back in the original summary judgment. Much better.

[Leaving the wild I know nothing about us civil procedure speculation zone]




Aside from all that, CHS did get the judge to basically say 'Moskin lied to the court' (inaccurate, deliberate, reckless). Whether that amounts to anything down the line *shrug*.

It looks like the court allowed GW to strike almost all of CH's affirmative defenses as well.

czakk wrote:

 jonolikespie wrote:
Laaaaaame.


Seriously, will Chapterhouse get a chance at all to go to the copyright office and get them to tell the judge he's wrong, or bring in copyright experts at any point in the trial to explain to the jury that it was a bad call?

GW gave notice to the copyright office that they were continuing their lawsuit despite the CO's decision that the shoulder pads weren't registerable in this letter here: http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.275.1.pdf

http://www.law.cornell.edu/uscode/text/17/411

The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue.

The CO has the option of showing up at the trial, if they so choose. I don't think 60 days has passed, so they could still file an appearance. The issue is, do they care.


CHS can also try to appeal the judge's decision.

[Entering the wild I know nothing about us civil procedure speculation zone]
Even though this motion to reconsider didn't work, it did give CHS a chance to get Grindley's report on the record for this issue - it may form part of the record that will show up on an appeal. Compare this report to the ones they had back in the original summary judgment. Much better.
[Leaving the wild I know nothing about us civil procedure speculation zone]

The point I want to know is can a judge grant copyright, even after the CO said no? Does the CO have any obligation to accept his decision? Even if GW is granted the right to keep it in this case, could they sue for it again now that the CO officially declined it?

The balls alone for a judge to completely disregard the decision of a federal entity is pretty big. One would think the CO's opinion would be worth a pretty penny in a copyright case.

Does the failure to disclose give them a strong appeal process? Is sanction simply an informal damage to Moskin's reputation--or is there more to that?

I just simply cannot understand how a geometrical shape can be copyrighted.

I mean, the toecaps on heavy duty boots are the same shape. Once GW have the copyright, they can sue every working boot manufacturer in the world. It's insane.

Some of those affirmative defences were 'struck' because they aren't really affirmative defences.

And some of them CH pulled.

 Aerethan wrote:

czakk wrote:

 jonolikespie wrote:
Laaaaaame.


Seriously, will Chapterhouse get a chance at all to go to the copyright office and get them to tell the judge he's wrong, or bring in copyright experts at any point in the trial to explain to the jury that it was a bad call?

GW gave notice to the copyright office that they were continuing their lawsuit despite the CO's decision that the shoulder pads weren't registerable in this letter here: http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.275.1.pdf

http://www.law.cornell.edu/uscode/text/17/411

The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue.

The CO has the option of showing up at the trial, if they so choose. I don't think 60 days has passed, so they could still file an appearance. The issue is, do they care.


CHS can also try to appeal the judge's decision.

[Entering the wild I know nothing about us civil procedure speculation zone]
Even though this motion to reconsider didn't work, it did give CHS a chance to get Grindley's report on the record for this issue - it may form part of the record that will show up on an appeal. Compare this report to the ones they had back in the original summary judgment. Much better.
[Leaving the wild I know nothing about us civil procedure speculation zone]

The point I want to know is can a judge grant copyright, even after the CO said no? Does the CO have any obligation to accept his decision? Even if GW is granted the right to keep it in this case, could they sue for it again now that the CO officially declined it?

The balls alone for a judge to completely disregard the decision of a federal entity is pretty big. One would think the CO's opinion would be worth a pretty penny in a copyright case.

The copyright office doesn't grant copyright - it's a library / database of copyrighted material. Registering gives copyright holders certain advantages but isn't mandatory. They are there to catch obvious errors and keep complete nonsense out of the registry.

The ability to sue someone even if the registration is refused was deliberately built into the copyright scheme - that's why 17 USC 411 exists. How much deference a Judge gives a decision of the copyright office is apparently unclear*, but copyright is pretty squarely in the judge's jurisdiction. He's the person the law says gets to make decisions in copyright infringement cases.


* The law on reviewing / overturning administrative bodies like this is pretty complex and annoying - at least up here in Canada. But if you step back and consider the situation more broadly, the judge is probably in a better place to make a decision (Moskin was right about that).

1) He's had an opportunity to hear both sides.
2) He's had a lot more evidence / testimony.
3) He's impartial.
4) He's an expert in the law.

czakk wrote:

 Aerethan wrote:

czakk wrote:

 jonolikespie wrote:
Laaaaaame.


Seriously, will Chapterhouse get a chance at all to go to the copyright office and get them to tell the judge he's wrong, or bring in copyright experts at any point in the trial to explain to the jury that it was a bad call?

GW gave notice to the copyright office that they were continuing their lawsuit despite the CO's decision that the shoulder pads weren't registerable in this letter here: http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.275.1.pdf

http://www.law.cornell.edu/uscode/text/17/411

The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue.

The CO has the option of showing up at the trial, if they so choose. I don't think 60 days has passed, so they could still file an appearance. The issue is, do they care.


CHS can also try to appeal the judge's decision.

[Entering the wild I know nothing about us civil procedure speculation zone]
Even though this motion to reconsider didn't work, it did give CHS a chance to get Grindley's report on the record for this issue - it may form part of the record that will show up on an appeal. Compare this report to the ones they had back in the original summary judgment. Much better.
[Leaving the wild I know nothing about us civil procedure speculation zone]

The point I want to know is can a judge grant copyright, even after the CO said no? Does the CO have any obligation to accept his decision? Even if GW is granted the right to keep it in this case, could they sue for it again now that the CO officially declined it?

The balls alone for a judge to completely disregard the decision of a federal entity is pretty big. One would think the CO's opinion would be worth a pretty penny in a copyright case.

The copyright office doesn't grant copyright - it's a library / database of copyrighted material. Registering gives copyright holders certain advantages but isn't mandatory.

The ability to sue someone even if the registration is refused was deliberately built into the copyright scheme - that's why 17 USC 411 exists. How much deference a Judge gives a decision of the copyright office is apparently unclear*, but copyright is pretty squarely in the judge's jurisdiction.


* The law on reviewing / overturning administrative bodies like this is pretty complex and annoying - at least up here in Canada. But if you step back and consider the situation more broadly, the judge is probably in a better place to make a decision (Moskin was right about that).

1) He's had an opportunity to hear both sides.
2) He's had a lot more evidence / testimony.
3) He's impartial.
4) He's an expert in the law.

So a single little local judge can just declare basic geometric shapes as protectable by copyright? A VERY dangerous precedent to set IMO. BRB while I register a few things, namely squares and circles.

czakk wrote:

 Aerethan wrote:

czakk wrote:

 jonolikespie wrote:
Laaaaaame.


Seriously, will Chapterhouse get a chance at all to go to the copyright office and get them to tell the judge he's wrong, or bring in copyright experts at any point in the trial to explain to the jury that it was a bad call?

GW gave notice to the copyright office that they were continuing their lawsuit despite the CO's decision that the shoulder pads weren't registerable in this letter here: http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.275.1.pdf

http://www.law.cornell.edu/uscode/text/17/411

The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue.

The CO has the option of showing up at the trial, if they so choose. I don't think 60 days has passed, so they could still file an appearance. The issue is, do they care.


CHS can also try to appeal the judge's decision.

[Entering the wild I know nothing about us civil procedure speculation zone]
Even though this motion to reconsider didn't work, it did give CHS a chance to get Grindley's report on the record for this issue - it may form part of the record that will show up on an appeal. Compare this report to the ones they had back in the original summary judgment. Much better.
[Leaving the wild I know nothing about us civil procedure speculation zone]

The point I want to know is can a judge grant copyright, even after the CO said no? Does the CO have any obligation to accept his decision? Even if GW is granted the right to keep it in this case, could they sue for it again now that the CO officially declined it?

The balls alone for a judge to completely disregard the decision of a federal entity is pretty big. One would think the CO's opinion would be worth a pretty penny in a copyright case.

The copyright office doesn't grant copyright - it's a library / database of copyrighted material. Registering gives copyright holders certain advantages but isn't mandatory.

The ability to sue someone even if the registration is refused was deliberately built into the copyright scheme - that's why 17 USC 411 exists. How much deference a Judge gives a decision of the copyright office is apparently unclear, but copyright is pretty squarely in the judge's jurisdiction.

Of course it does, we can't have a system where a body of experts decide whether or not an item is copyrightable based on rational examination of the facts, that would interfere with a corporation's ability to choose a State and court friendly to corporations to help them game the system. Afterall, corporations are people too.

*sigh* I wonder if I can get another degree in an applied science in time for the Mars missions.

Exactly Czakk. Copyright is inherent. The US Copyright Office merely registers copyrights, which entitles the registrant to a presumption of validity, as well as statutory damages. GW is no longer pursuing statutory damages in this case, by the way.

Decisions by a US Copyright Office are typically given a strong degree of deference, but the only such decision that matters for the Copyright Office is a refusal to register. Registration already confers a presumption of validity. You could say that a refusal to register confers a presumption of invalidity, but the weight given to such refusals is entirely within the hands of a Judge.

Various districts in the US handle copyrights differently. In the 7th circuit, copyrightability is a mixed issue of law and fact. That makes it very wonky, sort of like the meaning of claim language in a patent. In other districts it is purely a factual issue. Being a fact issue the Court will only deal with it on Summary Judgment, which requires that if, when all facts are viewed in the light most favorable to the non-moving party, a reasonable jury could only interpret the facts in one way, the Court renders such a verdict.

It basically means that any decision by a jury to the contrary would be an unsupportable mistake, so there is "no genuine issue of material fact" for the jury to decide. Courts are often reluctant to dispose of claims on summary judgment. Copyrights are especially tough to dispose of on summary judgement because (A) copyright is inherent, and (B) copyright only requires a "minimal degree of creativity" under US law.

Now, one can only infringe a copyright if one unfairly appropriates original artistic expression, i.e. if your work of art is not terribly original, copyright protection is very narrow. Scope of copyright is a question of fact that is part of an infringement analysis.

1: Does the Plaintiff own a copyright? Does a copyright exist to own, if so, does the Plaintiff own that particular copyright?

2: What is the "protected expression" that constitutes such copyright, if any?

3: Comparing the two works side by side, fully aware of the scope of the copyright, does the accused work unfairly appropriate that which is protected expression such that the two works are "substantially similar?"

Copyrightability is part of an ownership determination, that's all. It is merely a precursor to a substantial similarity analysis. Finding that a work is not subject to copyright protection is tantamount to saying that it is not original in any meaningful way. Because that determination is so subjective, it is hard to get a Court to make it.

When you have a patent, validity is a much more explicit determination. Is the technology new, useful, and not obvious in light of the prior art? It can get weird when you are down to tiny, tiny advancements to existing technology, but it is almost always a much more objective analysis than determining the existence of a copyright, especially since you have to do something to get a patent.

As I said, copyright is inherent it exists as soon as you fix a work in a tangible medium of expression. This post is now potentially copyrighted, and I am the owner of said copyright. (Ignore the fact that this is a public forum, with various rules, etc. etc. etc. this is just an example) You don't give a copyright, so there is nothing to take away. You can only assert that it never existed in the first place. There is a very subtle, but very important difference between the two, which makes getting a Court to find that a work is not subject to copyright protection very, very difficult.

 Aerethan wrote:


So a single little local judge can just declare basic geometric shapes as protectable by copyright? A VERY dangerous precedent to set IMO. BRB while I register a few things, namely squares and circles.

Well, the flip side of that is can a federal clerk working at the copyright version of the local DMV do the same thing? They did let other shoulder pads through no problem.



Even though I don't like the decision, I can't really fault the process. On one hand you've got some highly regarded IP lawyers duking it out in front of a well respected judge vs mailing some photocopies to a clerk and saying 'hey, register this for me please', the clerk flipping to their desk manual, reading a section and saying, 'naaah, not today buddy, denied.'

If the judge really screwed up on the law, you will see an appeal from CHS.


You go through the same process with a tax audit, you send your forms and receipts in, they review them and say nope, you owe us a million dollars. Are you going to sit there and say 'oh, well, they are the tax people, I guess they are the experts, I'll pay up,'? No, you'll go to the relevant court and fight it out.

No one would say, 'how dare this puny tax judge overturn the mighty revenue agency'.

IIRC someone mentioned that in the UK space marine models are only covered by Design rights not artistic rights, and as such a company in the UK could do what CHS is doing without fear of recourse.

If that is the case, can we form a kickstarter to convince CHS to move it's base of operations there where there is no copyright issue? If Stormtrooper toys can be made willy nilly over there, I don't see why shoulder pads would be any different. The design for them was well over 15 years ago.

Love this part:

In his more recent affidavit dated March 13,
2013, which GW’s attorney submitted with GW’s response to Chapterhouse’s second
motion for reconsideration, he again states that as of January 4, he “still had received
no substantive communication from the Copyright Office (only a promise to respond to
my June 26, 2012 email) . . . .” Id. at 1. This statement does not appear to be accurate.
Prior to Carol Frenkel’s January 4 letter denying GW’s application, GW’s attorney
received several e-mails from various Copyright Office personnel, most of which
commented on the copyrightability of the sculptured shoulder pad. Considering the
circumstances, there is a strong indication that GW’s failure to disclose its
correspondence with the Copyright Office was deliberate or at least reckless.

To summarize what Weeble said:


When you make the first of something copyrightable, you automatically own that copyright. BAM. The second the product is finished, you own it, and any iterations of it.

Copyright Office keeps track of those, so in case two people invent the same thing without knowing about the other, we can determine which of them made it first. Or at least who registered it first. It supports copyright claims pretty heftily, but isn't an end-all-be-all.

This only works if what you're making is Copyrightable- and that's what this case is about. If the geometries and sizes are copyrightable, GW wins. If not, CH wins.

That's not even true - the basic shape of a shoulderpad might be copyrightable, but that'd be a very narrow copyright (because shapes aren't very creative). GW might "own" the basic shape, but that doesn't mean that CH is infringing with their other shoulderpads.

Gah. This is not good.

I'm gonna be honest, looking at where GW is going at the moment, I now actually hope they lose, not because I hate GW and I think "Yeah, stick it to the man, CH! Show that evil GW!" but because it would actually improve GW a tonne. Maybe they might learn their lesson, hopefully get rid of Kirby, tell the shareholders where they can put it, and return to the friendly neighborhood hobby company we all used to know and love.

Of course that could just be me being naive.

Anvildude wrote:
To summarize what Weeble said:


When you make the first of something copyrightable, you automatically own that copyright. BAM. The second the product is finished, you own it, and any iterations of it.

Copyright Office keeps track of those, so in case two people invent the same thing without knowing about the other, we can determine which of them made it first. Or at least who registered it first. It supports copyright claims pretty heftily, but isn't an end-all-be-all.

This only works if what you're making is Copyrightable- and that's what this case is about. If the geometries and sizes are copyrightable, GW wins. If not, CH wins.

Registration also puts the public on notice that your work exists.

I wonder if there have been other cases of someone sending a thing into the Copyright Registration office and the CRO refusing to register it because it lacks sufficient originality, and the sender going to a court to get the judge to allow it to be registered.

IIRC, the judge just ruled "Let the jury decide" and not "this is definitely copyrightable". So the decision is post-poned.
Let's just hope that US law doesn't give any local jury the right to grant copyright on anything to anyone.