A barrister once told me the first principle of commercial law is never to threaten to sue unless you are fully prepared to do so.

GW have acted like a gang of disorganised clowns in this case. It's as if they have been making it up as they go along.

I feel sorry for their lawyers.

I anticipate that, at the close of the plaintiff's case, defendants will move for summary judgment (which is the normal course of events).

What's abnormal is that I think they have an excellent chance of getting it at that point; most of the time, judges like to let the jury go through the whole case, reach a verdict, and then rule - gives them something to fall back on if the appeal overturns their directed verdict ruling.

 Sean_OBrien wrote:
I do my best to answer what I can - but the judge put it best in his summary judgment opinion:

The Court notes that GW has not identified with specificity what marks it contends Chapterhouse has infringed...Despite GW’s failure to identify in particular what it is claiming...

In a normal case, I could give you are really easy break down of what the plaintiffs are claiming and what the defendants response is. In this case, as the judge notes - GW hasn't really said specifically what they are claiming. Mostly they have just pulled every item from the CHS catalog and said that we don't like these. They don't say why, they don't say what part they don't like - just that they do not like them. So, as of right now - it is pretty much the CHS website...minus the items I listed above for possible copyright and/or trademark claims.

I still don't understand, how a judge can call a jury, before the plaintiff even said what the lawsuit is about. Doesn't the defendant have a right to know what he is accused of, before he is dragged to a 3+ year long lawsuit? I thought "it annoys me, make it stop" isn't enough anymore, but seems I am wrong.

 Kroothawk wrote:

 Sean_OBrien wrote:
I do my best to answer what I can - but the judge put it best in his summary judgment opinion:

The Court notes that GW has not identified with specificity what marks it contends Chapterhouse has infringed...Despite GW’s failure to identify in particular what it is claiming...

In a normal case, I could give you are really easy break down of what the plaintiffs are claiming and what the defendants response is. In this case, as the judge notes - GW hasn't really said specifically what they are claiming. Mostly they have just pulled every item from the CHS catalog and said that we don't like these. They don't say why, they don't say what part they don't like - just that they do not like them. So, as of right now - it is pretty much the CHS website...minus the items I listed above for possible copyright and/or trademark claims.

I still don't understand, how a judge can call a jury, before the plaintiff even said what the lawsuit is about. Doesn't the defendant have a right to know what he is accused of, before he is dragged to a 3+ year long lawsuit? I thought "it annoys me, make it stop" isn't enough anymore, but seems I am wrong.

I am also quite confused about this. How can the judge allow this to reach trial when after close to 3 whole years GW hasn't even stated what pieces CHS is infringing on?

Is this common in a type of lawsuit like this?

It's not supposed to be common.


Your mileage may vary, but this is what I have in my notes from law school from back in the day about pleadings in civil litigation:

Drafting Pleadings:

The Function of Pleadings:

To clearly and precisely define the issues or questions which are in dispute between the parties to the action and which are required to be determined by the court. Effective pleadings are ones which narrow the issues and reduce the time required to try the action.

To require each party to give fair notice to the other of the case it has to meet so that it may prepare its evidence for trial.

To inform the court of the events giving rise to the litigation and the issues between the parties. The pleadings set the limits of the action which may not be extended without amendment.

To provide a permanent record of the issues raised in the action which is readily available for reference for future litigents.

The Contents of Pleadings:

The plaintiff must plead all material facts which are required to establish a legally complete cause of action.

The defendant must plead all facts necessary to establish its defence.

You may plead law. You must not plead evidence by which facts are to be proven.

Distinguishing between material fact, law and evidence is tricky.

Fact: A thing done; an action performed; an incident transpiring, an event or circumstance; an actual occurrence.
Evidence: Any species of proof, legally presented at trial - through witnesses, records, documents, objects - for the purposes of inducing belief in the mind of the court as to their contention

What goes in Pleadings: This is your first shot at the judge. You want to tell a convincing and clear story.

identify the parties

their status

facts to demonstrate the jurisdiction of the court over the parties.

what, where, when and how things happened

why they happened

relief sought.

Additional Stuff in a Defence

traverse (a denial of the plaintiffs claim)

confession and avoidance (well what the plaintiff says is true, but its not the whole story m'lord)

demurrer (even assuming what the plaintiff says is true, the claim is bad in law - no real cause of action)

Plead any matters that may take the plaintiff by surprise - this may include law

admit the obvious and non controversial

Additional stuff: Plead the legal consequences to the material facts. Not strictly necessary but it is good practice, and some things need to be specificaly pleaded, this ensures you always catch them. Plead any statute or regulation and the material facts that trigger the activation of that statute.

Remember your audience: Overworked judge who probably got your filing at the last minute. Don't piss them off with a long or confusing document. Also true if you get a jury of lay people.
Clarity: You are selling ideas - you want to be sure you are understood.

Sometime you'll have to file a vague or boilerplate claim if you are up against a limitation period (how long you have to sue someone after they do something bad), but you are supposed to amend it after you file the crappy emergency version.

Vagueness in claims and in pleadings is a sign of a) bad lawyering, b) a bad case (legal thuggery), c) an attempt to litigate by ambush (conceal your case until the last minute and spring it as a surprise).

IMHO we have a lot of vagueness in this case because of a, b, and c. It was originally filed with the expectation that CHS would go bankrupt and it would never get to trial (b - thuggery). This lead to a (bad lawyering) coming to light on the GW in house side - no contracts for sculpters, no trademark registrations, etc... and c (litigation by ambush to gain an advantage in the face of a determined foe for ex, hiding the copyright office rejection) on the part of Foley Lardner.

PhantomViper wrote:

 Kroothawk wrote:

 Sean_OBrien wrote:
I do my best to answer what I can - but the judge put it best in his summary judgment opinion:

The Court notes that GW has not identified with specificity what marks it contends Chapterhouse has infringed...Despite GW’s failure to identify in particular what it is claiming...

In a normal case, I could give you are really easy break down of what the plaintiffs are claiming and what the defendants response is. In this case, as the judge notes - GW hasn't really said specifically what they are claiming. Mostly they have just pulled every item from the CHS catalog and said that we don't like these. They don't say why, they don't say what part they don't like - just that they do not like them. So, as of right now - it is pretty much the CHS website...minus the items I listed above for possible copyright and/or trademark claims.

I still don't understand, how a judge can call a jury, before the plaintiff even said what the lawsuit is about. Doesn't the defendant have a right to know what he is accused of, before he is dragged to a 3+ year long lawsuit? I thought "it annoys me, make it stop" isn't enough anymore, but seems I am wrong.

I am also quite confused about this. How can the judge allow this to reach trial when after close to 3 whole years GW hasn't even stated what pieces CHS is infringing on?

Is this common in a type of lawsuit like this?

I think the judge, as stated earlier, is covering his ass for appeals. If he says X is dismissed, and GW appeals it and wins, then it reflects poorly on his judgement.

Now if a jury decides X is not valid, and GW appeals, the blame is not on the judge.

At the same time, the judge apparently can throw stuff out once GW has plead their case in trial. Basically once they have finished their offense, the judge can take that information to make a decision before passing the baton to the jury?

If I'm reading things correctly. That all makes sense to me, even if it's kind of crappy to make CHS or anyone else sit through the process.

Another fun tidbit from my local GW manager who claims to have all manner of legal training(and yet works at a GW store):

"You can't sue someone and not say why you are suing them"

He also seems to think that GW MUST have submitted what items they feel have been infringed, and that "demure" or w/e means that those details are sealed until trial.

I'm inclined to disagree, since we have quotes from the court stating that GW have not claimed any articles being infringed upon yet.

How can GW possible expect their own exhibits to be sealed but not the defendants?

And yet when I quote the legal minds here as well as court documents somehow I'm a "wikipedia lawyer". I've since decided not to discuss the case with him until trial is over.

GW managers are known for not knowing anything about the goings on of the company. Hell, they don't even get told about future releases let alone the goings on of their legal department. Many 'managers' are now people running one man stores and only there to push space marines, not know about the hobby.

Double post somehow...

Sealed means they are kept out of the public record of the case - the judge still gets to see them. It just keeps looky-looos like us from seeing them.

czakk wrote:
Sealed means they are kept out of the public record of the case - the judge still gets to see them. It just keeps looky-looos like us from seeing them.

I understand the term, but he insists that GW has it's own products that it feels were infringed upon sealed.

Now if the court knew what they were, they wouldn't say things like" despite GW not stating what the problem really is here..(paraphrased)".

I'm fairly certain that the fact of GW having such information sealed would have been made public, but I don't see why a judge would allow it.

 Aerethan wrote:

czakk wrote:
Sealed means they are kept out of the public record of the case - the judge still gets to see them. It just keeps looky-looos like us from seeing them.

I understand the term, but he insists that GW has it's own products that it feels were infringed upon sealed.

Now if the court knew what they were, they wouldn't say things like" despite GW not stating what the problem really is here..(paraphrased)".

I'm fairly certain that the fact of GW having such information sealed would have been made public, but I don't see why a judge would allow it.

Any sealed documents are on the docket with the "sealed" notation. None of the complaints are sealed. The claim charts are not sealed. Only 'highly confidential' information is sealed. If it was highly confidential, the Defendant could not have had access to have copied it. If the Defendant had access to it, ipso facto, it cannot be highly confidential unles the Plaintiff is arguing that the Defendant somehow accessed highly confidential information, and no one has said that in any pleadings in this case.

A highly confidential designation requires that the party has made an effort to keep the information confidential, which is why, if the Defendant had access to a work of art, well, it isn't highly confidential. Similarly, a trademark cannot, by definition, be confidential, and so most facts related to such claims would be very much completely public. Highly confidential information would be things like trade secrets. In fact, if you want to know what the parties have sought to designate as highly confidential, the parties have had to make arguments to the court to request such designations. The Court decides what is and is not kept out of the record, with the preference being for it being IN the public record.

If you want to file a lawsuit, you have to do it in front of the public. That's the way it is in America.

weeble1000 wrote:

 Aerethan wrote:

czakk wrote:
Sealed means they are kept out of the public record of the case - the judge still gets to see them. It just keeps looky-looos like us from seeing them.

I understand the term, but he insists that GW has it's own products that it feels were infringed upon sealed.

Now if the court knew what they were, they wouldn't say things like" despite GW not stating what the problem really is here..(paraphrased)".

I'm fairly certain that the fact of GW having such information sealed would have been made public, but I don't see why a judge would allow it.

Any sealed documents are on the docket with the "sealed" notation. None of the complaints are sealed. The claim charts are not sealed. Only 'highly confidential' information is sealed. If it was highly confidential, the Defendant could not have had access to have copied it. If the Defendant had access to it, ipso facto, it cannot be highly confidential unles the Plaintiff is arguing that the Defendant somehow accessed highly confidential information, and no one has said that in any pleadings in this case.

A highly confidential designation requires that the party has made an effort to keep the information confidential, which is why, if the Defendant had access to a work of art, well, it isn't highly confidential. Similarly, a trademark cannot, by definition, be confidential, and so most facts related to such claims would be very much completely public. Highly confidential information would be things like trade secrets. In fact, if you want to know what the parties have sought to designate as highly confidential, the parties have had to make arguments to the court to request such designations. The Court decides what is and is not kept out of the record, with the preference being for it being IN the public record.

If you want to file a lawsuit, you have to do it in front of the public. That's the way it is in America.

So what we have here is the judge allowing GW to make fools of themselves in court with a case that isn't even properly filed.

I'm ok with that.

So question: can GW introduce their examples in the trial without first having outlined them in all of this pretrial process? I'd imagine not.

And if not, then the opening argument for CHS seems pretty clear: GW hasn't said what items we are infringing on, therefore we(the public) cannot assume wrong doing based solely on what is currently a baseless accusation.

How can GW honestly move forward with the case being in this state? Surely they understand what is at risk here.

Keep in mind that the Judge would not actually be doing anyone (CHS or other future 3rd party manufacturers) any favors if he dismissed the case now or 6 months ago (or even a couple of years ago when the case was first filed).

Unless he dismissed with prejudice, GW could turn back around and refile against CHS. While they have pro bono representation this time through - a second (or third or fourth) lawsuit might not have that benefit. So, the judge saying - you guys don't have your act together, try again later could spell the death of CHS.

The second issue is that without having a ruling on the general principles (nominative use of GW's trademarks for product identification and fair use of GW's copyrighted materials to design parts that fit existing products), they could file another suit for the next product that CHS releases even if all the counts of this case a dismissed with prejudice.

As the list I posted shows, there are a lot of products which were taken off the board - but the reason they were taken off the board was a procedural one, not a legal one. While CHS can make "Shoulder pads for Deathwatch or Dark Angels - Tactical" - it does not protect them to make a different product of comparable design that GW might stake a claim to (as roughly half of the remaining claims are shoulder pads as well).

The larger thing of it all is that I would not be half surprised if GW were to withdraw all their claims the day before the trial. That would prevent a case from being decided on the core issues of the case and would limit their general exposure to this only to CHS. The judge would likely dismiss the claims with prejudice (on the same basis that he did the claims in his original Summary Judgment) and CHS would go back to what they had been doing. Without much effort - CHS attorneys would probably even be able to convince the judge to have GW pay legal fees and issue an injunction against future lawsuits against CHS. Again, minimal costs and exposure to GW.

That would still allow GW to continue doing what they have been doing and making the claims they have been making. It prevents the chance that an opinion might come down that strips them of the particular claims they made in this case in general since it would be limited specifically to this case, these claims and CHS. Even having to pay out a few hundred thousand (or million) in penalties that the judge might issue against GW would be a pittance compared to the damage that could be done by a wholesale loss.

Should that happen, it should be mildly entertaining hearing all the GW staff try and spin it as some manner of victory for GW anyway.

 Aerethan wrote:
Should that happen, it should be mildly entertaining hearing all the GW staff try and spin it as some manner of victory for GW anyway.

We've lost the case, and this is a good thing!

The Auld Grump

*EDIT* Just me, or is that good thing! comedy gold?

Both parties have submitted full exhibit lists as part of the proposed pretrial order. That's it as far as exhibits are concerned. If they aren't on that list, they are not in front of the jury, and if they are on that list, the Judge may still rule against allowing them in the trial.

This is how trials work. Also, the Court has decided that the Plaintiff has made a prima facie case, and denied several motions for summary judgment on various claims by the Defendant.

Our legal system favors a jury verdict, especially in subjective, fact intensive inquiries. Now, also keep in mind that the Court still has broad latitude to reign in the case. Like I said, in many cases things do not get properly tightened up until right before you pick a jury.

Yep, quite often a judge will take a look at a case and choose a half dozen or so claims that will determine the outcome of the rest of them.

For example, he might distill it down to the question of nominative use of trademarks (as opposed to dealing with each trademark claim one at a time), the issue of the basic shoulder pad (as opposed to each and every variation of them) and the issue of building matching components (like doors for vehicles and things like the Tervigon kit).

It makes the issues at hand bite sized for a jury who might otherwise get bogged down in the minutia of the case (and looking at the combined exhibit lists from GW and CHS - there is an overwhelming amount of material for someone who is unfamiliar with the products). Those 3 core issues would be able to determine the whole of the case fairly well with a couple of exceptions (mycetic spores and in part the Tervigon as well for example).

 Aerethan wrote:
Should that happen, it should be mildly entertaining hearing all the GW staff try and spin it as some manner of victory for GW anyway.

They will say: "Okay, all flyers now 100$."
Amusing enough?

 Kroothawk wrote:

 Aerethan wrote:
Should that happen, it should be mildly entertaining hearing all the GW staff try and spin it as some manner of victory for GW anyway.

They will say: "Okay, all flyers now 100$."
Amusing enough?

woohoo, price drop!

 Dheneb wrote:

 Kroothawk wrote:

 Aerethan wrote:
Should that happen, it should be mildly entertaining hearing all the GW staff try and spin it as some manner of victory for GW anyway.

They will say: "Okay, all flyers now 100$."
Amusing enough?

woohoo, price drop!

I lol'd.

Then I died a little inside

 Janthkin wrote:
I anticipate that, at the close of the plaintiff's case, defendants will move for summary judgment (which is the normal course of events).

What's abnormal is that I think they have an excellent chance of getting it at that point; most of the time, judges like to let the jury go through the whole case, reach a verdict, and then rule - gives them something to fall back on if the appeal overturns their directed verdict ruling.

To be super nit-picky (and to help the non-lawyers keep the terms straight) the defendants can move for "Judgment as a Matter of Law" (JMOL) after the plaintiffs have presented their case at trial. The defendants can argue that even after the plaintiffs have presented their entire case and settled any questions of material fact that they had, the plaintiffs did not fulfill their duty to satisfy each and every element of the cause of action. If the judge grants the JMOL, then it's case over for the plaintiff.

"Summary Judgment" is a very similar motion, however it is made after discovery, but before trial.

 TheAuldGrump wrote:

 Aerethan wrote:
Should that happen, it should be mildly entertaining hearing all the GW staff try and spin it as some manner of victory for GW anyway.

We've lost the case, and this is a good thing!

The Auld Grump

*EDIT* Just me, or is that good thing! comedy gold?

It definitely has potential to become an internet meme in the GW gaming community.

Imagine a picture of a freeze frame from an MMA fight where someone is being choked out, and the caption explains how this is a "good thing" for the loser.

It is definitely a good thing for the people who bet on the loser.

 Dheneb wrote:

 Kroothawk wrote:
"Okay, all flyers now 100$."
Amusing enough?

woohoo, price drop!

LOL! Nice...

"Good Thing":
http://www.youtube.com/watch?v=HkgFSWtUnNk

Can anyone tell me if the link to the pdf of GW's sales figures still exists in this thread? And what page/post?

Redacted...gone.

Lots ofmpeople should have their private copies (I told them to do as much whenit was posted...) but it is no longer on Pacer or the Recap site.

 Sean_OBrien wrote:
Redacted...gone.

Lots ofmpeople should have their private copies (I told them to do as much whenit was posted...) but it is no longer on Pacer or the Recap site.

I thought I had downloaded it and saved it somewhere, but apparently not... :-\

Would it be illegal for someone to post a link to a copy?

As requested

I have a copy on my home machine, will drop-box it once i get back later today..... and thank you Aerethan, beating me to the punch.

Illegal...no, not under any particular law I can think of.

GW would no doubt release their hounds...and as with other leaked information (pictures and rules) various sites will have their own level of BS that they are willing to deal with before they remove the links and or documents...

For a third party (not tied to the case) to post it, would be protected in the US under various free speech, journalism and academic research clauses. However, just because those laws exist...doesnt mean that you dont have to fight to exhert them (see the Colorado shooting journalist who is being hauled into court to reveal her sources).

Hrm... not what I remember... Also no information on starter boxes...

 Aerethan wrote:
As requested

That isnt the leaked one...at least not the leak in question. That came from a former employee of GW Memphis factory.

Ah. I do not have the document in question then.

Should be gov.uscourts.ilnd.250791.251.2.pdf - though I am having trouble connecting to my cloud drive right now for some reason, and can't double check to make sure that is the right document.

Might be able to find a cached version of that...though, it is hard to say.

Actually humorously enough, Aerethan does have that document... as I have an email from him with that document in it

Aerethan, if you can't find the email, I'll send it back to you... might be able to upload it here... Do we have the okay for it?

Edit: Holy feth that was almost a year ago... As Sean's post with that link ending in it was way back in July...

That's the right one.
If you're looking for the one with information like this:

Space Marine tactical Squad box
US Sales Value GW year (in dollars)

2004: 118,841
2005: 191,862
2006: 257,396
2007: 276,615
2008: 248,633
2009: 192,011
2010: 106,278
2011: 84,834
2012: 60,699

This is a compilation of 2 products as they phased out one box and brought a new one in during '05

hmm, I'll check my outbox for it. For some reason the PDF is misplaced on my computer

Here it is. Had it in a different folder from the excel sheet.

Also, I fail to see how posting information that was made public would be illegal. Not really our fault if the court messed up and leaked documents. Once they are public, it's pretty impossible to delete them.

 Aerethan wrote:
Here it is. Had it in a different folder from the excel sheet.

Also, I fail to see how posting information that was made public would be illegal. Not really our fault if the court messed up and leaked documents. Once they are public, it's pretty impossible to delete them.

I am not saying that is illegal - but what I am saying is that I would guess in a matter of time...someone at DakkaDakka will get an email asking (telling) them to remove the offending document. They could say STFU well enough... They then might be asked (told) more forcefully to remove it. They could say STFU again. The legal peon might then go to DakkaDakka's host and tell them that Dakka is hosting a private communication or some such and the host will ask (tell) Dakka to remove it under threat of having their server shut down... They might go to court and file for some form of an injunction - which Dakka would then need to spend time and money to go in front of a judge and say their peace...

The general idea of not being able to shut it down is vastly different than the actual reality that corporations (not just GW) and governments will go to extremely great lengths to keep that sort of information out of the public eye.

In that case, should Dakka be requested to remove it, anyone can feel free to email me directly for it at hotmail.com with my username.

 Aerethan wrote:
In that case, should Dakka be requested to remove it, anyone can feel free to email me directly for it at hotmail.com with my username.

BTW - you already see the same thing happen with a lot of sites and the leaked pictures...nothing that you can really fault a site like Dakka for - it is more hassle than it is worth for them generally speaking.

Ashitaka wrote:
That's the right one.
If you're looking for the one with information like this:

Space Marine tactical Squad box
US Sales Value GW year (in dollars)

2004: 118,841
2005: 191,862
2006: 257,396
2007: 276,615
2008: 248,633
2009: 192,011
2010: 106,278
2011: 84,834
2012: 60,699

This is a compilation of 2 products as they phased out one box and brought a new one in during '05

So, sales doubled in 4 years... then QUARTERED in an equal amount of time.
Interesting.
I wonder what GW REALLY thinks about the downward spiral their sales are in. I'm not talking about their rhetoric or internet presumptions... I'm talking about behind closed doors.

It's like everything is going downhill for them, but they insist on putting forward a strong (if thin) veneer to the outside world, while categorically denying anything that paints them in a negative light. They rattle their sabres, cajole and threaten anyone they think they might be able to bulldoze with bluff and bluster, only to fall apart when their target mounts a strong defense.
Hmm...

Games Workshop; The North Korea of wargaming.

Eric

 MagickalMemories wrote:

Ashitaka wrote:
That's the right one.
If you're looking for the one with information like this:

Space Marine tactical Squad box
US Sales Value GW year (in dollars)

2004: 118,841
2005: 191,862
2006: 257,396
2007: 276,615
2008: 248,633
2009: 192,011
2010: 106,278
2011: 84,834
2012: 60,699

This is a compilation of 2 products as they phased out one box and brought a new one in during '05

So, sales doubled in 4 years... then QUARTERED in an equal amount of time.
Interesting.
I wonder what GW REALLY thinks about the downward spiral their sales are in. I'm not talking about their rhetoric or internet presumptions... I'm talking about behind closed doors.

It's like everything is going downhill for them, but they insist on putting forward a strong (if thin) veneer to the outside world, while categorically denying anything that paints them in a negative light. They rattle their sabres, cajole and threaten anyone they think they might be able to bulldoze with bluff and bluster, only to fall apart when their target mounts a strong defense.
Hmm...

Games Workshop; The North Korea of wargaming.

Eric

When I read the Chairman's Preamble to FY reports - I always picture Baghdad Bob...

To be fair, the rise in specialist Space Marine squad boxes has allowed people to buy the box for their Chapter instead of the vanilla box, so I'm sure that's had some impact.

 judgedoug wrote:
To be fair, the rise in specialist Space Marine squad boxes has allowed people to buy the box for their Chapter instead of the vanilla box, so I'm sure that's had some impact.

Nearly 188,000 boxes worth?
Even half that much, do you think?

I'm wondering if the document shows the sales #'s of non SM Power Armored boxes. Anyone?


Eric

I'll check, got a kit in mind?

After perusing the doc, I can't seem to find the tactical marine numbers.

However it appears that GW hasn't sold a Tau Battleforce in 3 years unless that data is incomplete.

2012 sales for the Tau Battlesuit Commander was $3482, down from $41,541 in 2011, and down from the peak of 2007 at $89,620.

Aerethan, check page 100 of that document. It has the listing "Tactical" which has the Tactical Squad box and the DA Tac Squad box:

Space Marine Tactical Squad box - GW US Catalogue 2006/2007 - $64,131; $255,117; $273,814; $247,810; $192,011; $106,278; $84,834; $60,698

Sales figures from2005/06 to 2012

thank you

Whoops, actually my earlier year numbers might be off as they apparently had metal and plastic available at the same time... I posted just plastic numbers.

The good stuff is pages 95 - 101. Two things of note:
1.These are only from items up to the 2008 Catalog. So newer kits don't appear to be factored in.
2. Most these items peak in 2008-2009 which coincide with the release of 5th edition. Some drop in 2008 which can easily prove rules do affect sales.

I don't think those numbers are telling us the whole story.

It is inconceivable that one of the most popular units in the game could suffer a decline of 75% in sales and the company not show something on the bottom line. I assume the health of Space Marines is roughly indicative of the overall product line.

I know the US is only one market, but even so.

Something happened that we can't see. For example, perhaps ANZ sales were done from the US and got moved to the UK.

 Kilkrazy wrote:
I don't think those numbers are telling us the whole story.

It is inconceivable that one of the most popular units in the game could suffer a decline of 75% in sales and the company not show something on the bottom line. I assume the health of Space Marines is roughly indicative of the overall product line.

I know the US is only one market, but even so.

Something happened that we can't see. For example, perhaps ANZ sales were done from the US and got moved to the UK.

Even if the leap from 192k to 106k was due to a shift in region, the steadier decline from 106-84-60 is indicative of a drop off in sales.

Even still, ignoring the single ~50% drop from 2009-2010, the other drops are rather steady: 14% '07-'08, 22% '08-'09, 44.7$ '09-'10, 20.7% '10-'11, 28.5% '11-'12.

Ignoring the single major drop in sales from '09-'10, we still see steady drops of 14-20%, with an average of 21.3% per year since the peak amount of $273k

@KK: Keep in mind that over the same time, the per-unit-cost for that item has gone up by almost 50% and the company as a whole has been engaged in sweeping cost cutting policies.

Yes. These numbers are only half the story, as price changes mean that not only does a lower $$$ on that report mean fewer sales in volume, but price increases drop that volume even more.

What was the price per box in 2007 when the unit peaked in sales? $35?

That would give us a volume for that year. These numbers also don't likely take into consideration wholesale revenue where the $ per box is even lower.

So in 2012 assuming no wholesale is reported on this file, we see a sales of roughly 1629 units in 2012(even if it was 100% wholesale, we'd only see 2500 units sold).

in 2007 at $35 per box they would have sold 7823 units assuming no wholesale, 12035 units if they were 100% wholesale at 35% off from retail value.

Pretty massive drops.


Also, are you suggesting that ANZ is responsible for nearly as much as the US in sales? I doubt that ANZ was 44.7% of the sales for North American tactical squads.

 Kilkrazy wrote:
I don't think those numbers are telling us the whole story.

It is inconceivable that one of the most popular units in the game could suffer a decline of 75% in sales and the company not show something on the bottom line. I assume the health of Space Marines is roughly indicative of the overall product line.

I know the US is only one market, but even so.

Something happened that we can't see. For example, perhaps ANZ sales were done from the US and got moved to the UK.

Under penalty of perjury that should just be the US market. Remember - that is evidence that GW is using to demonstrate the value of their trademarks in the US market only...not saying that they wouldn't have goofed, but it is reasonable to assume that it is fairly accurate.

Codex and rulebook sales show interesting information (though keep in mind - they are not exactly accurate in terms of which Edition they are actually referring to...see Eldar IIRC). You can plot them out with regards to new editions of the books versus the old and see what sort of carry over or growth might be going on. You can also do the math to calculate roughly how many people purchased any given Codex (and thereby see the theoretical popularity of the army).

However, if the numbers were off by some calculation like that...you would expect to see a comparable tumble across the board. Even if you just focus on the one faction of vanilla marines, you don't see a dramatic drop like that for Assault, Devastator or Terminator boxes. The drop happens when GW pokes the rules and makes other things more valuable compared to the regular Tactical marines.

Saldiven wrote:
@KK: Keep in mind that over the same time, the per-unit-cost for that item has gone up by almost 50% and the company as a whole has been engaged in sweeping cost cutting policies.

The sales figures are dollars, not units (boxes). Thus the cost per unit is irrelevant to the question of overall revenue.

I know the company was engaged in cost-cutting, but that is irrelevant to the question of overall revenue which was very roughly steady during the period of the rapid decline in SM Tactical sales.

What I mean is that if a company had total income of 150 million $ in 2006 and in 2010 it had total income of 150 million £, yet during that time the income from one of its most representative products dropped 75% we clearly are not seeing the whole story.

 Kilkrazy wrote:

Saldiven wrote:
@KK: Keep in mind that over the same time, the per-unit-cost for that item has gone up by almost 50% and the company as a whole has been engaged in sweeping cost cutting policies.

The sales figures are dollars, not units (boxes). Thus the cost per unit is irrelevant to the question of overall revenue.

I know the company was engaged in cost-cutting, but that is irrelevant to the question of overall revenue which was very roughly steady during the period of the rapid decline in SM Tactical sales.

What I mean is that if a company had total income of 150 million $ in 2006 and in 2010 it had total income of 150 million £, yet during that time the income from one of its most representative products dropped 75% we clearly are not seeing the whole story.

Fair enough point. Does anyone have the revenues from 2007-2012?

On another point, looks like the 2007 price was $35, so there wouldn't be much difference in the profit per box there(under 10%).

So in 2007 we saw as many as 12000 boxes of tactical marines sold, and in 2012 we saw 2500 at the most, roughly 20% of the volume they were doing.

Probably want to break off into a different thread...this is well outside the scope of the CHS case...though, yes - I have all the pertinent numbers going back well past the information in this particular file.

I agree. With my Mod hat on.

 Kilkrazy wrote:

Saldiven wrote:
@KK: Keep in mind that over the same time, the per-unit-cost for that item has gone up by almost 50% and the company as a whole has been engaged in sweeping cost cutting policies.

The sales figures are dollars, not units (boxes). Thus the cost per unit is irrelevant to the question of overall revenue.

I'm sorry if I was unclear. I just meant that the combination of cost cutting and price increases, while not totally alleviating the issues of reduced revenue, can combine to make the bottome line still appear profitable. This overall profitability would lead someone just looking at the shareholder reports to assume the company is doing just fine, even though their revenue stream might be less solid that it could be.

The bottom line in the balance sheet is not profit, it is income balanced against outgoings, (also assets, etc).

GW's income varied up and down during 2006-2012, but it did not plummet 75%. (Their profit varied also.)

 Sean_OBrien wrote:


Under penalty of perjury that should just be the US market. Remember - that is evidence that GW is using to demonstrate the value of their trademarks in the US market only...not saying that they wouldn't have goofed, but it is reasonable to assume that it is fairly accurate.

Considering other things that GW has been caught doing in this trial, I wouldn't put a 'mistake' past them...Or even a massage of the data.

 skyth wrote:

 Sean_OBrien wrote:


Under penalty of perjury that should just be the US market. Remember - that is evidence that GW is using to demonstrate the value of their trademarks in the US market only...not saying that they wouldn't have goofed, but it is reasonable to assume that it is fairly accurate.

Considering other things that GW has been caught doing in this trial, I wouldn't put a 'mistake' past them...Or even a massage of the data.

massaging data is commonplace. If you were ever involved in some way (or know someone who was involved) in a legitimate lawsuit that involved an independent medical legal report, both sides will have their evaluator check you out, one report is completed honestly to the best of the doctor's ability and says you have a serious injury, the other says you're whinging and need a slap across the face, and then a tylenol for the slap, and continues to get paid irrespective of how cursory his inspection is, because he knows, that the insurance companies will keep paying them if they keep saying "no, you're fine, no insurance money for you". We can expect the same things here, and I haven't been following this thread closely, so I don't actually know whether GW hired its own experts to refute the report produced for CHS, but given that it hasn't popped up, I'm assuming--and more importantly shocked and surprised at--a lack of an expert on GW's side.

Yes - but it is simple sales data...produced by GW. The worst case scenario would be that they included Canada into it, because someone at GW Memphis wasn't able to figure out how to run a report for only US sales.

SELECT * FROM CorporateFinanceMonkey WHERE clue > 0
0 zero rows were returned

back to topic, I don't forsee how GW can use these numbers effectively to show that CHS is doing them any great harm. If anything this shows that the harm was done way before CHS ever got into the mix.

IIRC These figures were mostly about proving that GW had sold products with the relevant trademark names in the US before CHS started selling those products. No sales, no trademark.

I had considered going to watch the opening of trial but then I realized that I'd need to rent a rowboat in order to transverse the vast lake of slime that Moskin leaves behind as he enters the court.

Looking at that data it seems obvious why GW seems keen to do relatively minor updates to box sets.

Also the trial starts been pushed to June 3rd.

 Warboss Gubbinz wrote:
SELECT * FROM CorporateFinanceMonkey WHERE clue > 0
0 zero rows were returned

back to topic, I don't forsee how GW can use these numbers effectively to show that CHS is doing them any great harm. If anything this shows that the harm was done way before CHS ever got into the mix.

GW is not claiming lost profits as damages. GW is claiming Defendant's profits. It is sort of like unjust enrichment. You sold those, they belong to me, I get your profits. As opposed to, you sold those, my profits were harmed by this amount, you must make me whole by repaying that harm.

Ref drop in SM tactical boxes, dont forget the new starter set at the time would also have had some degree of an impact. I bought all my tactical marines of eBay from then on and picked up a few bits here and there.

The move to June 3. Judge seems a bit fed up.

lol:
"The parties are advised that the trial date will not be continued again, and that
they are expected to make appropriate arrangements to try the case starting on that date
irrespective of what contingencies may occur between now and then."

 judgedoug wrote:
lol:
"The parties are advised that the trial date will not be continued again, and that
they are expected to make appropriate arrangements to try the case starting on that date
irrespective of what contingencies may occur between now and then."

Translation: "You're crapping up my docket with your toy-soldier argument and I want to spend more time on cases that matter."

To be fair, it is GW's fault it has taken so long to get the case to a state that it can be tried.

There are a lot of documents filed that haven't made it up to recap (354 is what we are up to now and only 333 on recap). Whoever was recapping in addition to the files I was downloading has stopped it seems.

This most recent delay was because one of GW's studio staff had "family reasons" that made them incapable of appearing. Someone that was asserted as being critical to GWs position.

It's a bit disappointing to hear it's been shifted again. I was very interested and eager to see what happens in trial. Especially after how long it's taken to get this far. Oh well, two more months isn't that much longer I guess. Ce la vie.

Hmmm. Maybe they didn't want folks from AdeptiCon stopping by

Ah well. Sounds like that will be the LAST move. And I'll be in Alaska that week, so won't be able to stress out about it. Probably for the best!

czakk wrote:
There are a lot of documents filed that haven't made it up to recap (354 is what we are up to now and only 333 on recap). Whoever was recapping in addition to the files I was downloading has stopped it seems.

I think you can access them here

 RiTides wrote:
Hmmm. Maybe they didn't want folks from AdeptiCon stopping by

Think we can do a Dakka get-together in the courtroom of this trial?

Alan Merrett's mother had terminal complications. It is detailed...very explicitly in Plaintif'f's letter to the court, which was filed publicly.

While I do not doubt the situation, and certainly do not make light of Mr. Merrett's situation, which is saddening; such a request was likely the only reason the Judge would have moved the date, and I have seen several dying mother extension requests on the eve of trial.

Condolences to Mr. Merrett, but the timing of the notification and extension request (this past Monday, 7 days before jury selection) could have been strategic. As noted in Plaintiff's letter, 7 days out from trial is about where out of pocket expenses begin to pile up. Folks make flights, make hotel reservations, reserve space for war rooms, etc. etc. Plaintiff counsel even offered to pay for such expenses incurred by the Defendant, in the letter itself.

In any case, this is not the first time something like this has happened a week out from a trial date, and it will not be the last time. According to the Court, it will be the last time in this case.

Reading 353...It's basically calling GW a liar.

'GW: You didn't say why this was privelleged conversation

CH: Yes we did at this time with this reason. '

It seems a lot of CH's responses do that.

There is also a lot of:

CHS: GW has listed the following as exhibits / evidence for the trial, we object to it for x,y,z.

GW: Judge! Judge! We already told CHS we weren't really going to use those exhibits, those meanies are wasting your time by filing this letter. God, we try so hard to be reasonable and they just throw it back in our face. I can't believe they don't take us at our word.




A whole bunch of this penny ante bs could have been handled the same way Mr. Merrett's unfortunate situation was - with professionalism and courtesy from both sides. Sort of the non-monetary consequence of getting caught misleading / lying to opposing counsel. Instead of being able to resolve stuff like this between lawyers, no one takes you at your word and everything has to go in front of the judge. All of which runs up your client's costs and annoys the judge.

Man I wish I could be there for the trial. Would love to see this guy go judge Judy all over GW.

...if you read any of the transcripts you would see that he doesn't do that.

 wowsmash wrote:
Man I wish I could be there for the trial. Would love to see this guy go judge Judy all over GW.

... If you have ever been to a real trial then you would know that Judge Judy is a horrific abomination of the judicial process.

 G. Whitenbeard wrote:

 wowsmash wrote:
Man I wish I could be there for the trial. Would love to see this guy go judge Judy all over GW.

... If you have ever been to a real trial then you would know that Judge Judy is a horrific abomination of the judicial process.

I agree. Real court is boring as hell. Court is a lot like sports: there are a few bits worth watching throughout, but most of it is boring with little ground gained, and the only good action is the last 5 minutes(unless it's American football, in which 5 minutes lasts an hour with 13 commercial breaks).

Alas, I don't suspect we'll see much movement on this case until next month as court draws closer. I really hope that the judge meant it when he said there would not be another delay in trial.

so with all the "if GW uses something enough its theirs",

what happens with this then?

https://www.teefury.com/

 jimbolina25 wrote:
so with all the "if GW uses something enough its theirs",

what happens with this then?

https://www.teefury.com/

They are clearly the Colonial Marines from Aliens, maybe they used the Aliens imagery, and the Space Marines name so that it doesn't piss off either GW or Ridley Scott?

Spartans and ODSTs and Marines from Halo, Starship Troopers, Astartes, Colonial Marines, any Marines on the Starship Yamamoto, heck, probably even certain real-life Astronouts are Space Marines- because any Marine that is in Space is a Space Marine.

Really, GW ought to instead brand their products as Adeptus Astartes.

space marine is a term that has been around longer than GW. the book that starship troopers was based on made the term popular as did many other sci fi books of the early 80's.... I support this product and will buy one if GW try they're normal cease and desist bullcrap

mullet_steve wrote:
space marine is a term that has been around longer than GW. the book that starship troopers was based on made the term popular as did many other sci fi books of the early 80's.... I support this product and will buy one if GW try they're normal cease and desist bullcrap

Starship Troops never called the characters in the book "Space Marines". They were "Mobile Infantry". Heinlen reportedly used the term in another book through.

The rule of "First" doesn't apply to who invented a Trademark, just who filed it first. GW filed because it was important to their business model and at the time they were the only ones really using it. It's become a lot more common now, which could be argued has started to enter common use and become less related to GW and more related to all sci-fi. Now if that happens and GW loses the rights to "Space Marine" we'll likely see Space Marines be re-branded as "Adeptus Astartes" on the packaging and their common name in universe stay "Space Marine".

Just my $.02.

EDIT: From Wikipedia regarding Heinlen's use of the term "Space Marine":

The phrase "space marines" appears in Robert A. Heinlein's "Misfit"[d] (1939) and is again used in "The Long Watch"[e] (1941) which is referenced in his later novel Space Cadet (1948), in all cases before Smith had used the phrase. Heinlein's Starship Troopers (1959) is considered the defining work for the concept, although it does not use the term "space marine".

Also, I'd like to note that if GW had been beaten to the filing of it for the things they've registered it for (games, books, ect), it'd had likely expired through disuse due to the limitations on how long a trademark can be maintained (EDIT: Namely that is has to be actively defended and in use and if a period of disuse elapses it expires automatically). The terms for disuse are actually what makes GW so sue-happy because to prevent loss of the Trademark they have to defend it pretty much all the time.

I'm not saying that's a good thing, or that GW isn't being a over zealous there, but that they're driven to do so through the legal system. Blame trademark laws -and- GW, not just GW on that.

It may have been covered already in this long thread but GW dont seem to have an exclusive claim on 'Space Marine' as a miniature anyway .
Asgard Space Marines have been around since 1974 apparently

Yep, and those same figures are still available under that name from Alternative Armies. Over the years the production rights have gone through 3 or 4 different companies, but they never ceased production.

The point is that if a word or phrase is in common usage within an industrial sector, you cannot make it into a trademark and prevent other people from using it.

Imagine the chaos if Starbucks decided to trademark the phrase "carrot cake".

The question therefore is whether "space marine" is a widely used phrase in SF and SF games, and it is.

 Kilkrazy wrote:
The point is that if a word or phrase is in common usage within an industrial sector, you cannot make it into a trademark and prevent other people from using it.

Imagine the chaos if Starbucks decided to trademark the phrase "carrot cake".

The question therefore is whether "space marine" is a widely used phrase in SF and SF games, and it is.

I concur. A marine is basically an embarked soldier, If we ever send soldiers into space, surely by definition of the term they will all be marines?

Think about that.. If in 100 years Nato send a ship to mars with a security detail of marines, will GW bankrupt the human races endeavours with a hefty law suit?

 Kilkrazy wrote:
Imagine the chaos if Starbucks decided to trademark the phrase "carrot cake".

I draw the line at anyone trying to copyright my carrot cake!

I have learned a lot in this thread, thanks for keeping it on track and informative!

In the US, filing first only matters Patent law, not copyright law.

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

There are several instances where a local company has been using a trademark to do business under for years (even decades) before another company comes along using that trademark. The priority of rights is based on first use of trademarks (and theoretically copyrights - though copyrights get a bit more murky when it comes to those issues). The small local company who gets bullied by the larger company then can file a counter suit to strip the larger company of their trademark because they had priority to the trademark.

This even applies when dealing with registered trademarks versus non-registered marks. Most of the time, a small company will not bother to register their trademarks - it isn't something that is a priority for most small business owners. Several years later you can have a large national chain register a trademark and invest [hundreds of] thousands of dollars in developing a brand for that mark. A trigger happy corporate attorney fires off a C&D against the small company when they see they are using the mark the big company wants to use...hoping the small company just rolls over and dies...they counter sue...injunction...stripped of registered trademark...legal fees...fired attorney...

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

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

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

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

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

 Sean_OBrien wrote:
Not sure what that is in relation to...

Registering.

 Breotan wrote:

 Sean_OBrien wrote:
Not sure what that is in relation to...

Registering.

Righty-Oh. In that case then, it is important to note that the patent doesn't actually matter either (regarding the counter purpose of an unpatented invention). If you follow the various "patent busting" projects, you see them come up with loads of examples of prior art which demonstrates that an idea that someone registered was actually common place prior to it being registered as a patent. The ones who play the late patent game are generally patent trolls (or one step up from them) and are trying to cash in on "licensing" things like toasted bread.

I believe that in the UK, a registered trademark will generally take precedence over an unregistered one, even if the unregistered one has been around for a few years before that point. That's assuming that no-one objects to the registration in time (I think you get 6 months to do so). So, it's possible that GW's IP department assumes US law works the same way. It wouldn't be their first error.

 Dysartes wrote:

 Kilkrazy wrote:
Imagine the chaos if Starbucks decided to trademark the phrase "carrot cake".

I draw the line at anyone trying to copyright my carrot cake!

Monsanto is trying to copyright tomatoes, dont count?

Monsanto sees all life forms on Earth as its personal invention. In some cases Monsanto got through with this. They must be the inspiration for GW lawyers

 Breotan wrote:
In the US, filing first only matters Patent law, not copyright law.

Actually, from what I've been reading (mind you I'm not a lawyer, or a trademark expert, just someone who has been trying to understand this case) the rule of "FIRST!" applies to trademarks too. Copyright is a separate mess from that.

 Breotan wrote:
In the US, filing first only matters Patent law, not copyright law.

Filing first no longer matters in patent law either. I forget the case law specifically, but it is no longer a "race to the patent office." The priority date can go back as much as a year prior to filing the patent application, I believe.

Sean's point is that a patent is only valid if it is new, useful, and not obvious in light of the prior art, i.e. relevant publicly available information.

My point is slightly different in that even when you are talking about competing patent applications, filing an application first is not good enough, as the priority date of a patent can go back before the date on which the application was filed. In other words, if I invent something, and keep it private because I am planning on seeking patent protection, and you invent roughly the same thing a short while later and actually file your patent application before mine, that you filed first is not important. It is the date on which the invention was "reduced to practice" that matters.

The Dwarf Wolf wrote:
Monsanto is trying to copyright tomatoes, dont count?

To be more specific, they patent the specific genetic strain that they develop, typically to promote some 'useful' feature, like resistance to weather/drought or pests.

This lets them retain control over their seed supply, and it's basically an annual 'subscription' if a farmer wants to keep growing their advantaged crops.

Monsanto's 'ownership' of their genetically engineered tomato is both verifiable (genetic fingerprint) and useful (GM crops generally have much, much higher yields/profits/margins/sustainability than non-modified).

GW is having a problem showing that they actually own any of this stuff that they're claiming ownership to. Monsanto would not/does not have nearly that amount of difficulty with their strains.

AFAIK, Monsanto now has the patent on all corn with a certain minimum protein level, including traditional 10,000 year old breeds from India. AFAIK Monsanto has a patent on a breast cancer gene, so all parents of children having that gene could be asked to pay dues. A famer complained about GMO-contamination of his crop by a neighboring field, and got successfully sued by Monsanto for patent infringement. But all this is off topic here.

Monsanto doesn't have the Breast Cancer gene patent, but it's in a similar vein of troubling precedent of copyrighting genes. Hopefully the Supreme Court ruling in a few months on that case will set a precedent not allowing them to copyright any interesting bit they suck out of you like they can and do now.

Guys - if you KNOW you're about to post Off Topic stuff, don't.

OK?

Back on topic:

Based on recent filings it looks like a few of the junior associates at Winston and Strawn have been let go, or lateraled to other firms - CHS put in requests to have them taken off the case. Messrs. Raffensperger, and Morehous.

czakk wrote:
Back on topic:

Based on recent filings it looks like a few of the junior associates at Winston and Strawn have been let go, or lateraled to other firms - CHS put in requests to have them taken off the case. Messrs. Raffensperger, and Morehous.

Do you think that means anything, or just an artefact of the case having dragged out over a couple years mixed with the usual career progression for junior associates?

They have been bringing people in and out of the case throughout the course of the trial. Some is no doubt because they recieved the OJT they needed, but also the case is moving from one stage to the next and the final stage wont benefit as much from worker bee lawyers as the first couple years of research and writing.

 Dawnbringer wrote:

czakk wrote:
Back on topic:

Based on recent filings it looks like a few of the junior associates at Winston and Strawn have been let go, or lateraled to other firms - CHS put in requests to have them taken off the case. Messrs. Raffensperger, and Morehous.

Do you think that means anything, or just an artefact of the case having dragged out over a couple years mixed with the usual career progression for junior associates?

Just the normal career progression and a long case. There's a pretty significant burn out / firing / moving on rate for young lawyers at large firms. Something like 60-75% are gone from their original firm by year five.

czakk wrote:

 Dawnbringer wrote:

czakk wrote:
Back on topic:

Based on recent filings it looks like a few of the junior associates at Winston and Strawn have been let go, or lateraled to other firms - CHS put in requests to have them taken off the case. Messrs. Raffensperger, and Morehous.

Do you think that means anything, or just an artefact of the case having dragged out over a couple years mixed with the usual career progression for junior associates?

Just the normal career progression and a long case. There's a pretty significant burn out / firing / moving on rate for young lawyers at large firms. Something like 60-75% are gone from their original firm by year five.

I agree.

Firm shifts are very common for young associate lawyers. They have enough experience to meaningfully shop their skills around and, most importantly, it is much easier for a younger lawyer to avoid imputing conflicts of interest when they change firms than older lawyers. Simply put, they have worked on fewer cases and owe fiduciary duties of confidentiality to fewer clients. Conflicts of interest and transient lawyers are a big, big pain to deal with. New firms may have to set up physical and electronic screening procedures, clients may have to be notified, and cases may have to be referred to other firms. It can amount to a lot of costly work for a firm.

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.357.0.pdf

Joint status report.

CHS still going for the hail mary

"When the Plaintiff cannot even identify any symbol consistently used as a source identifier, CHS cannot be expected to defend against these unidentified marks. For that reason as well, the icon marks should be excluded. "

czakk wrote:
http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.357.0.pdf

Joint status report.

CHS still going for the hail mary

"When the Plaintiff cannot even identify any symbol consistently used as a source identifier, CHS cannot be expected to defend against these unidentified marks. For that reason as well, the icon marks should be excluded. "

I do not know if I would call that a "Hail Mary." I would think that not being able to trademark a word used in a book is, like, black letter trademark law. And, well, if you can't tell me what your trademark is, how in the Hell can a customer know what it is?

I would be dismayed to see the Court to rule against Defendant's MIL on that point.

"Tell me what trademark I am infringing, tell me when you have used it, tell me how you have used it, and tell me how I have infringed it."

"Space Wolves. You do Space Wolves."

"Okay, is 'Space Wolves' the trademark?"

"Maybe."

"When did you use the 'Space Wolves' mark, remember how I asked that?"

"Oh yea, ummm...we used it in, like, 2004 or something. That was before you sold anything, right? Yea, we used it in '04."

"Fine, so how have I infringed it?

"You do Space Wolves, like that thing there, and you say 'Space Wolf."

"Okay, well, that's a start."

"OH YEA! You like infringe these trademarked drawings too. These are 'Space Wolves' drawings!"

"Seriously? the trial was supposed to be, like, a week ago. I thought those were copyright claims."

"YEA. They're 'Space Wolf' trademark claims too. Gotcha!"

"So when I asked you about your trademarks...you didn't mention those drawings."

"So, we gave the drawings to you...at some point. That totes counts."

"You said we infringed your copyright on those."

"Naa, we just said 'Space Wolves'. That could have meant, like, anything bra."

"That is WHY we asked you to be specific. That is WHY the law REQUIRES you to be specific. Because the trial was SUPPOSED to be like a week ago, and we're just learning about this BS now. That's not cool."

"Naa, we're good. You do 'Space Wolves' we totes owns everything 'Space Wolves', totes do...everything."

1.) Can you briefly explain what the deal is with the ebay postings they want? Is this in regards to revenue from the kits they wish to claim as damages, or something else?

2.) Boy, they really have a lot of Dakka Dakka forum postings in there, huh? Apparently posting on Dakka Dakka in the CHS discussion thread makes you a "customer".

3.) I wonder if the quantity of Dakka forum postings that have appeared in this motion will prevent developers from discussing their products in fora from now on. I know that if I were making things that I knew were primarily going to be proxies in 40k, I'd certainly be very Brother Vinni in how I release stuff - dump a thread saying "we have this" and then nothing else, if even that.

weeble1000 wrote:

czakk wrote:
http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.357.0.pdf

Joint status report.

CHS still going for the hail mary

"When the Plaintiff cannot even identify any symbol consistently used as a source identifier, CHS cannot be expected to defend against these unidentified marks. For that reason as well, the icon marks should be excluded. "

I do not know if I would call that a "Hail Mary." I would think that not being able to trademark a word used in a book is, like, black letter trademark law. And, well, if you can't tell me what your trademark is, how in the Hell can a customer know what it is?

I would be dismayed to see the Court to rule against Defendant's MIL on that point.

"Tell me what trademark I am infringing, tell me when you have used it, tell me how you have used it, and tell me how I have infringed it."

"Space Wolves. You do Space Wolves."

"Okay, is 'Space Wolves' the trademark?"

"Maybe."

"When did you use the 'Space Wolves' mark, remember how I asked that?"

"Oh yea, ummm...we used it in, like, 2004 or something. That was before you sold anything, right? Yea, we used it in '04."

"Fine, so how have I infringed it?

"You do Space Wolves, like that thing there, and you say 'Space Wolf."

"Okay, well, that's a start."

"OH YEA! You like infringe these trademarked drawings too. These are 'Space Wolves' drawings!"

"Seriously? the trial was supposed to be, like, a week ago. I thought those were copyright claims."

"YEA. They're 'Space Wolf' trademark claims too. Gotcha!"

"So when I asked you about your trademarks...you didn't mention those drawings."

"So, we gave the drawings to you...at some point. That totes counts."

"You said we infringed your copyright on those."

"Naa, we just said 'Space Wolves'. That could have meant, like, anything bra."

"That is WHY we asked you to be specific. That is WHY the law REQUIRES you to be specific. Because the trial was SUPPOSED to be like a week ago, and we're just learning about this BS now. That's not cool."

"Naa, we're good. You do 'Space Wolves' we totes owns everything 'Space Wolves', totes do...everything."

This made my day.

 Ouze wrote:
1.) Can you briefly explain what the deal is with the ebay postings they want? Is this in regards to revenue from the kits they wish to claim as damages, or something else?

It's to show that CHS is "pretending" to be GW.

2.) Boy, they really have a lot of Dakka Dakka forum postings in there, huh? Apparently posting on Dakka Dakka in the CHS discussion thread makes you a "customer".

Yeah - I think that most of those should be thrown out as they're comments on a picture with no way to trace them to a customer.

3.) I wonder if the quantity of Dakka forum postings that have appeared in this motion will prevent developers from discussing their products in fora from now on. I know that if I were making things that I knew were primarily going to be proxies in 40k, I'd certainly be very Brother Vinni in how I release stuff - dump a thread saying "we have this" and then nothing else, if even that.

Honestly it'll probably depend on how the CHS case shakes out.

rigeld2 wrote:

 Ouze wrote:
1.) Can you briefly explain what the deal is with the ebay postings they want? Is this in regards to revenue from the kits they wish to claim as damages, or something else?

It's to show that CHS is "pretending" to be GW.

2.) Boy, they really have a lot of Dakka Dakka forum postings in there, huh? Apparently posting on Dakka Dakka in the CHS discussion thread makes you a "customer".

Yeah - I think that most of those should be thrown out as they're comments on a picture with no way to trace them to a customer.

3.) I wonder if the quantity of Dakka forum postings that have appeared in this motion will prevent developers from discussing their products in fora from now on. I know that if I were making things that I knew were primarily going to be proxies in 40k, I'd certainly be very Brother Vinni in how I release stuff - dump a thread saying "we have this" and then nothing else, if even that.

Honestly it'll probably depend on how the CHS case shakes out.

And why would GW sell on ebay? GW have never sold on ebay. They have a web store, and local stores. Every GW "customer" in the history of ever knows this.

So you say. And I agree.

That doesn't give anyone the right to "pretend" to be GW on ebay. And I'm not saying that CHS is - I'm saying that it seems like that's what GW is trying to get at.

But Chapter House has a web store and AFAIK has never sold stuff on eBay. Have they sold stuff on eBay?

Well apparently they sold a lot on ebay in 2009, and then a couple of things in 2011.

Part of it is likely tit for tat on the sanctions issue.


Re: Hail Mary.

I meant more in the last second game winning throw sense, than in the desperation move sense.

 Ouze wrote:

3.) I wonder if the quantity of Dakka forum postings that have appeared in this motion will prevent developers from discussing their products in fora from now on. I know that if I were making things that I knew were primarily going to be proxies in 40k, I'd certainly be very Brother Vinni in how I release stuff - dump a thread saying "we have this" and then nothing else, if even that.

It feels like a severe majority of companies already DO that when posting on forms, or have threads posted by proxy posters or fans so there is zero official company posting.

Many companies are very clear in never discussing or saying what their models MAY be used for even though we all know they are "Not-model-X" or something.

Regardless of this case, it has shown that customers don't need you to connect the dots, so why bother with the burden or risk?

Hail Marys are, by definition, last minute desperation attempts to win a football game!

On topic - yeargh!

 Alpharius wrote:
Hail Marys are, by definition, last minute desperation attempts to win a football game!

On topic - yeargh!

Forgive him... He is Canadian.

 Alpharius wrote:
Hail Marys are, by definition, last minute desperation attempts to win a football game!

I knew the church stole it from somewhere

I'd be surprised if bringing up Dakka posts is doing GW any favours in the trial. From what I recall, the CHS thread is full of people saying they finally had a reason to buy the GW Stormraven, because CHS made an aftermarket part that made it look half-decent. There's absolutely no evidence of confusion between the two companies in that thread. If anything, there's evidence that CHS drives further GW sales, and possibly evidence that CHS's products are after-market add-ons like in auto parts... none of that sounds like it's what GW wants!

But the only things being admitted are the posts that were mentioned.. and I don't think there were any of those.
I might have missed them though.

 Kilkrazy wrote:
But Chapter House has a web store and AFAIK has never sold stuff on eBay. Have they sold stuff on eBay?

As noted - they did, but not so much anymore. eBay is still a fast and effective way for new companies to get their product in front of the eyes of a large audience. A lot of people who don't go through the various internet forums still look at eBay from time to time for deals on the army of their choice.

GW is grasping at their trademark claims in trying to demonstrate that CHS misrepresented their product as "official" GW products as opposed to "compatible with" GW products. The silly thing is that the courts generally understand that your average lay person is not well versed in the intricacies of the proper use of trademarks - so when these do actually have a ruling come down, it is normally simply an instruction to the offending individual on how to properly label their products and an admonition to not do it again.


Automatically Appended Next Post:
The forum posts actually also go to confusion - which is odd, because confusion isn't an issue for copyright and they are not addressing trademark issues in the posts.

If you read most the GW responses as to why they think they should be included it is because they want to demonstrate that when people see CHS items, they think of GW. Of course, that is actually the intention of CHS and it is perfectly legal. The selling of goods compatible with products from a company would require your customers to think of that company when they see your goods.

...Granted they are in fact attempting to backdoor hearsay testimony from lay people who can not be cross examined that goes towards copyright issues as almost every one of them involve a poster saying something along the lines of "exact copy" in their posting...but, the judge should be able to see through that easily enough.

I thought the Chapterhouse case was initiated after some people from another site wrote to GW reporting CHS. But in doing so rather dubiously claimed to be 'confused' when anyone who knows anything about this hobby knows what is and isn't GW.

 Howard A Treesong wrote:
I thought the Chapterhouse case was initiated after some people from another site wrote to GW reporting CHS. But in doing so rather dubiously claimed to be 'confused' when anyone who knows anything about this hobby knows what is and isn't GW.

If you read the emails, they very much are aware that CHS was not GW. They say "CHS's stuff looks like your stuff". There was zero brand confusion.

I'm getting a massive headache trying to follow all the back and forth at this point. I cannot imagine how much time of Judge Kennelly this is taking up.

I know! Who would be a judge?

He must have the patience of Job not to have blown up at one side or the other in all of this case.

 Kilkrazy wrote:
I know! Who would be a judge?

He must have the patience of Job not to have blown up at one side or the other in all of this case.

That's who courts are often in big old buildings.
If the judge is safely tucked away in his chambers, no-one can hear the frustrated ranting between hearings.

This docket entry was made by the Clerk on Thursday, April 25, 2013:

MINUTE entry before Honorable Matthew F. Kennelly:

Continued final pretrial conference held on 4/25/2013.

Rulings made, as stated in open court, on remainder of plaintiff's motion to enforce discovery orders; defendant's motions in limine 1 and 4, and plaintiff's motion in limine 11.

Plaintiff's disclosures identifying defendant's products alleged to have infringed the "icon marks" are to be made to defendant by no later than 5/2/2013.

Joint status report on prior use in commerce issue regarding trademark claims as to certain products is to be submitted by 5/6/2013.

Argument heard regarding privilege claw−back issue as identified in letter dated 4/8/2013; the Court concluded that the privilege claims, at this point, have not been sufficiently supported and described what would be necessary to support the claims.

Telephone status conference regarding prior use issue, to be initiated by counsel, is set for 5/9/2013 at 8:45 AM. (mk)


359, the latest ruling on the motions is attached as well.

10. Pro bono status of defendant’s attorneys. Evidence or argument
regarding this topic is excluded. See Tr. 89.

Rightfully so. I hardly see the relevance of what is essentially a private contract with no bearing on the case directly.

What are these "TR"s? (e.g. See Tr. 89)? I assume attached paperwork of some kind, motions or whatever?

Pages / line numbers of a transcript perhaps?

czakk wrote:
This docket entry was made by the Clerk on Thursday, April 25, 2013:

MINUTE entry before Honorable Matthew F. Kennelly:

Continued final pretrial conference held on 4/25/2013.

Rulings made, as stated in open court, on remainder of plaintiff's motion to enforce discovery orders; defendant's motions in limine 1 and 4, and plaintiff's motion in limine 11.

Plaintiff's disclosures identifying defendant's products alleged to have infringed the "icon marks" are to be made to defendant by no later than 5/2/2013.

Joint status report on prior use in commerce issue regarding trademark claims as to certain products is to be submitted by 5/6/2013.

Argument heard regarding privilege claw−back issue as identified in letter dated 4/8/2013; the Court concluded that the privilege claims, at this point, have not been sufficiently supported and described what would be necessary to support the claims.

Telephone status conference regarding prior use issue, to be initiated by counsel, is set for 5/9/2013 at 8:45 AM. (mk)


359, the latest ruling on the motions is attached as well.

So the court is telling GW to properly identify what items they claim are infringing on what GW items?

Can we get a layman recap of what this entry means?

 Ouze wrote:

10. Pro bono status of defendant’s attorneys. Evidence or argument
regarding this topic is excluded. See Tr. 89.

Rightfully so. I hardly see the relevance of what is essentially a private contract with no bearing on the case directly.

It does have bearing on the case. I believe the idea was for CH to put in the jury's mind that GW is a big bully that is throwing around it's weight and picking on poor defenceless companies that can't afford to defend themselves. GW can now point out all these attorneys that CH is using and make it look like CH can pay damages and aren't so poor...

Not in so many words, likely, but this can likely be implied through testimony, etc...

I still think that the only real relevant issue is whether or not the works are infringing. The other stuff is all secondary.

It shouldn't have a bearing on the case, which should be all about whether or not something is is infringing upon someone else's copyright, but sadly the way the legal system works it will have an impact to some degree. Knowing that GW are the big company bullying the little guys will affect the jury's opinion them as would them being given the impression that CH are a rival company of equal size trying to beat their competitors.

What GW are doing by stopping that being brought up is stopping CH try to get the jury on their side since they are the little guys being picked on.

 jonolikespie wrote:
It shouldn't have a bearing on the case, which should be all about whether or not something is is infringing upon someone else's copyright, but sadly the way the legal system works it will have an impact to some degree. Knowing that GW are the big company bullying the little guys will affect the jury's opinion them as would them being given the impression that CH are a rival company of equal size trying to beat their competitors.

What GW are doing by stopping that being brought up is stopping CH try to get the jury on their side since they are the little guys being picked on.

Except that the lawyers COULD point out that CHS is a single man operation and show his company income then show GW's annual revenue. Ignoring the pro bono, there are plenty of other ways to show that CHS is not some major player in the 28mm market, but rather a specialty shop selling mostly addons to existing products.

Is it legal to extend discovery time for plaintiff like that? GW had 2 years time to identify items but decided not to.

 Aerethan wrote:

 jonolikespie wrote:
It shouldn't have a bearing on the case, which should be all about whether or not something is is infringing upon someone else's copyright, but sadly the way the legal system works it will have an impact to some degree. Knowing that GW are the big company bullying the little guys will affect the jury's opinion them as would them being given the impression that CH are a rival company of equal size trying to beat their competitors.

What GW are doing by stopping that being brought up is stopping CH try to get the jury on their side since they are the little guys being picked on.

Except that the lawyers COULD point out that CHS is a single man operation and show his company income then show GW's annual revenue. Ignoring the pro bono, there are plenty of other ways to show that CHS is not some major player in the 28mm market, but rather a specialty shop selling mostly addons to existing products.

The relative size of plaintiff and defendant does not formally alter the defendants or the plaintiffs lawful rights. The same lawful rights could occur if the the case was in reverse.

 Orlanth wrote:

 Aerethan wrote:

 jonolikespie wrote:
It shouldn't have a bearing on the case, which should be all about whether or not something is is infringing upon someone else's copyright, but sadly the way the legal system works it will have an impact to some degree. Knowing that GW are the big company bullying the little guys will affect the jury's opinion them as would them being given the impression that CH are a rival company of equal size trying to beat their competitors.

What GW are doing by stopping that being brought up is stopping CH try to get the jury on their side since they are the little guys being picked on.

Except that the lawyers COULD point out that CHS is a single man operation and show his company income then show GW's annual revenue. Ignoring the pro bono, there are plenty of other ways to show that CHS is not some major player in the 28mm market, but rather a specialty shop selling mostly addons to existing products.

The relative size of plaintiff and defendant does not formally alter the defendants or the plaintiffs lawful rights. The same lawful rights could occur if the the case was in reverse.

Yes, but in front of a jury of 12 laypeople, this means nothing. It is many people's nature to root for the underdog, and once in the courtroom, the jurors are more likely to go with their gut instinct of what is 'right' rather than what is technically legal, matters of clear law or definition aside.

I can vouch for that. I just got done with jury duty and I was surprised how difficult it was for some of my fellow jurors to let something go that we were told to exclude or not be biased despite the hours and hours of questions when they were selecting the jury. Just becuase something makes since legally doesn't help you much if you get so jurors that vote for what they feel is right rather than what is legal.

 jonolikespie wrote:
It shouldn't have a bearing on the case, which should be all about whether or not something is is infringing upon someone else's copyright, but sadly the way the legal system works it will have an impact to some degree. Knowing that GW are the big company bullying the little guys will affect the jury's opinion them as would them being given the impression that CH are a rival company of equal size trying to beat their competitors.

What GW are doing by stopping that being brought up is stopping CH try to get the jury on their side since they are the little guys being picked on.

No jury in the world will believe that the CHS lawyers are working under any terms other than pro-bono. GW's only damages evidence is Defendant's profits. CHS is being represented by two law firms, and there very well may be at least half a dozen lawyers at the trial. People can do math. Trust me. They will not believe that a guy running a business out of his living room is somehow on an even playing field with a multinational corporation with revenues in the hundreds of millions of dollars per year.

The inference is also helped by, well, all experts testifying that they have worked pro-bono, which they will. They have, according to the reports, and compensation is material to credibility.

Put yourself into the shoes of a juror. You have a guy under 40 who started a business in 2008 working out of his living room and spin casting in his garage. You know his unit sales. You know his profits. You know that three people who never met him and who all live 1,000 miles away from his place of business volunteered their time to stand up in his defense. Do you look at his high powered lawyers and think he must somehow be a secretly super-wealthy business tycoon?


Automatically Appended Next Post:

 wowsmash wrote:
I can vouch for that. I just got done with jury duty and I was surprised how difficult it was for some of my fellow jurors to let something go that we were told to exclude or not be biased despite the hours and hours of questions when they were selecting the jury. Just becuase something makes since legally doesn't help you much if you get so jurors that vote for what they feel is right rather than what is legal.

Behavior follows motivation.

A juror has to want to find in your favor in order to make the effort required to do it. It is just the way people are, all people. I could go deeper into theories of memory, information processing, retention, ethics, decision-making, and so forth, but that sums it up rather succinctly.

Give jurors a reason to find in your favor and then give them the tools with which to do it. Now, that said, jurors by and large want to be fair, they want to bring justice to a dispute, and they want to do the right thing. Jurors also generally take their tasks very seriously. But trials are long, boring, stressful, and complicated. All of that cuts against the work it takes to process information and make a decision. The less motivated to work that a juror is, the more likely the juror will fall back on pre-formed modes of thought, i.e. biases. Doing that is easy.

it is easy to assume that the big company is the bad guy. It is easy to assume that the plaintiff must have a point. It is hard to change the way that you think, such as excluding facts from your consideration.

All of this, of course, is why I have a job. The rules of the game change when a case goes in front of a fact finder, be it a jury, a judge, or even an entity like the ITC. Once human beings are in a position to weigh facts and required to make a final decision, the game changes.

 Aerethan wrote:


So the court is telling GW to properly identify what items they claim are infringing on what GW items?

Can we get a layman recap of what this entry means?

Unfortunately, I'm neck deep in exams to mark right now, and then I have to get back to writing.

czakk wrote:

 Aerethan wrote:


So the court is telling GW to properly identify what items they claim are infringing on what GW items?

Can we get a layman recap of what this entry means?

Unfortunately, I'm neck deep in exams to mark right now, and then I have to get back to writing.

Quite understandable. We all greatly appreciate the input from you, Weeble and Sean on this case and making the facts more understandable by those who aren't trained in the relevant fields.

 Aerethan wrote:
Quite understandable. We all greatly appreciate the input from you, Weeble and Sean on this case and making the facts more understandable by those who aren't trained in the relevant fields.

This so much.

Seriously, thank you guys.

Yes, seconded and thirded.

Fourthed.

n+1thed.

This case is fascinating in it's implications, so it's a massive help for someone to decipher the legalese and what are serious motions or points and what are lawyers basically blowing smoke

add my name to the list of people praising those who are smart enough to dumb stuff down enough for me to understand!

 Aerethan wrote:

czakk wrote:
This docket entry was made by the Clerk on Thursday, April 25, 2013:

MINUTE entry before Honorable Matthew F. Kennelly:

Continued final pretrial conference held on 4/25/2013.

Rulings made, as stated in open court, on remainder of plaintiff's motion to enforce discovery orders; defendant's motions in limine 1 and 4, and plaintiff's motion in limine 11.

Plaintiff's disclosures identifying defendant's products alleged to have infringed the "icon marks" are to be made to defendant by no later than 5/2/2013.

Joint status report on prior use in commerce issue regarding trademark claims as to certain products is to be submitted by 5/6/2013.

Argument heard regarding privilege claw−back issue as identified in letter dated 4/8/2013; the Court concluded that the privilege claims, at this point, have not been sufficiently supported and described what would be necessary to support the claims.

Telephone status conference regarding prior use issue, to be initiated by counsel, is set for 5/9/2013 at 8:45 AM. (mk)


359, the latest ruling on the motions is attached as well.

So the court is telling GW to properly identify what items they claim are infringing on what GW items?

Can we get a layman recap of what this entry means?

It's late I'm tired but I believe the short version is that GW are being asked to pick specific CHS items to make there claims against rather than CHS's entire product line and the tell CHS which items these are which is something GW have refused to do so far, also GW are being asked to show that they have produced and sold certain items they are claiming against and that they actually hold relevant trade marks for these or have actually produced them.

Anything further than that would need me to pick back through the paperwork and it's 3 in the morning so I will give that a miss for now.

Again, is it legal this late in the lawsuit and after discovery time to ask the plaintiff to actually tell the court what exactly they are accusing Chapterhouse of? It doesn't make sense to me that the defendent is still left in the dark of what he is accused of and on what grounds. GW had time enough, discovery time is over, so why call a jury if there is no case?

 Kroothawk wrote:
Again, is it legal this late in the lawsuit and after discovery time to ask the plaintiff to actually tell the court what exactly they are accusing Chapterhouse of? It doesn't make sense to me that the defendent is still left in the dark of what he is accused of and on what grounds. GW had time enough, discovery time is over, so why call a jury if there is no case?

The relevant question is one of prejudice. How has the lack of clarification harmed the defendant's ability to defend against the claims? Would the defendant have conducted different discovery? Has the defendant missed an opportunity to depose a witness on a certain point?

It is sort of a no-harm-no-foul thing. It is like if you forgot to move one of your units in your turn, and in my turn you want to move it. Well, if the position of that unit and where you want to move it really doesn't matter to what I am doing now, then why not go ahead and move it, no worries. It would be different if I was getting ready to roll an assault and you were like, "Well I forgot to move that unit last turn."

Now, I will say that if you had moved your unit, maybe I would have made different decisions. And maybe you are benefiting from having seen what I am doing in my turn before committing to moving that unit. It might ultimately have a big impact on the game, or you may just be gaming the system and taking advantage of me. In either case, it is not appropriate.

That is the line I would take on the bull Foley & Lardner has been pulling for two solid years. At this point, it is against the rules, you had your chance, you are taking unfair advantage, so no, you can't move your unit. That, however, is not how the Court seems to be looking at it.

It is times like that in a case when you just sigh, take out your appellate points whiteboard, make a note, and deal with it. If the CHS case does not settle out, Judge Kennelly could very well be facing some serious appeal action, from either party.

Given that this case arose in late 2010, I do think GW might by now have told the defendant what they are accused of.

 Kilkrazy wrote:
Given that this case arose in late 2010, I do think GW might by now have told the defendant what they are accused of.

You expect a great deal. :-)

I'm actually surprised at the latitude that the judge has given GW's legal counsel in this case. In my time as paralegal, I was taken to task for calling the court one time for the attorney I worked for; something that small could have resulted in a bar complaint against me but apparently things are different in this judge's court and counsel may flagrantly traipse all over established procedure. Maybe he honestly expected it to settle out and just kept giving them rope...

Weeble has a great point in that if the case goes against CH, they've already got good grounds for an appeal.

 agnosto wrote:

 Kilkrazy wrote:
Given that this case arose in late 2010, I do think GW might by now have told the defendant what they are accused of.

You expect a great deal. :-)

I'm actually surprised at the latitude that the judge has given GW's legal counsel in this case. In my time as paralegal, I was taken to task for calling the court one time for the attorney I worked for; something that small could have resulted in a bar complaint against me but apparently things are different in this judge's court and counsel may flagrantly traipse all over established procedure. Maybe he honestly expected it to settle out and just kept giving them rope...

Weeble has a great point in that if the case goes against CH, they've already got good grounds for an appeal.

Latitude (and attitude) can vary EXTREMELY between judges, even judges in the same court house.

 G. Whitenbeard wrote:


Latitude (and attitude) can vary EXTREMELY between judges, even judges in the same court house.

Right, though normally they try to run a tighter ship than taking several years to even get around to what the defendant is actually getting accused of. Most judges I've been around work that out long before 2 months before trial....

weeble1000 wrote:
It is sort of a no-harm-no-foul thing.

So in USA it is legal to drag anyone to a 3 year lawsuit without saying what you accuse him of? Chapterhouse was lucky to get pro bono lawyers, but not everyone is so lucky. And what do you tell the jury, why you summoned them, if there is no case? And what do you tell the tax payer, why you occupied a judge for so many days? Wouldn't it make more sense to ask the plaintiff: "Come back when you have a case!"

BTW harm was done: Chapterhouse had almost no new products for 3 years, while their competitors had more than a hundred new products.

Not... quite.

GW was trying for a broad ruling, one that is applicable in a wider range of releases.

Sometimes broad is allowed.

This time... if the judge begins pulling out individual items then the rulings will only apply to those items.

So, if GW wanted a ruling of 'No make shoulder pads! Shoulder pads GW!' they may just get 'No make Space Wolf shoulder Pads! Space Wolf shoulder pads GW!'

Not as useful when someone makes shoulder pads for new companies that are not an official part of the GW setting.

Also, because it is being narrowed down it is possible that the ruling might be even more strict. 'These no Space Wolves! Unpainted! Space Wolves painted! Yellow! Grey! Black! These no paint!'

GW would really not want the rulings to be narrow, in the event that they win. If they lose...?

Do not ask me why I am doing cavemen.... Me have no answer....

The Auld Grump

 TheAuldGrump wrote:
Not... quite.

GW was trying for a broad ruling, one that is applicable in a wider range of releases.

Sometimes broad is allowed.

This time... if the judge begins pulling out individual items then the rulings will only apply to those items.

So, if GW wanted a ruling of 'No make shoulder pads! Shoulder pads GW!' they may just get 'No make Space Wolf shoulder Pads! Space Wolf shoulder pads GW!'

Not as useful when someone makes shoulder pads for new companies that are not an official part of the GW setting.

Also, because it is being narrowed down it is possible that the ruling might be even more strict. 'These no Space Wolves! Unpainted! Space Wolves painted! Yellow! Grey! Black! These no paint!'

GW would really not want the rulings to be narrow, in the event that they win. If they lose...?

Do not ask me why I am doing cavemen.... Me have no answer....

The Auld Grump

Caveman Judge is now my favorite character, and any legal statements from the judge in this thread I'll now hear in that voice in my head. Excellent.

 TheAuldGrump wrote:
Not... quite.

GW was trying for a broad ruling, one that is applicable in a wider range of releases.

Sometimes broad is allowed.

This time... if the judge begins pulling out individual items then the rulings will only apply to those items.

So, if GW wanted a ruling of 'No make shoulder pads! Shoulder pads GW!' they may just get 'No make Space Wolf shoulder Pads! Space Wolf shoulder pads GW!'

Not as useful when someone makes shoulder pads for new companies that are not an official part of the GW setting.

Also, because it is being narrowed down it is possible that the ruling might be even more strict. 'These no Space Wolves! Unpainted! Space Wolves painted! Yellow! Grey! Black! These no paint!'

GW would really not want the rulings to be narrow, in the event that they win. If they lose...?

If I go to a German court and tell them, I invented skulls, Roman numbers, and protection for shoulders and want anyone sued who uses skulls, Roman numbers and protection for shoulders, the court would say: "Give us proof that you own copyright/trademark for all skulls, Roman numbers and protection of shoulders, then we have a case." Just saying "Lackey, he annoys us, make him stop" is not enough anymore.

 Kroothawk wrote:

 TheAuldGrump wrote:
Not... quite.

GW was trying for a broad ruling, one that is applicable in a wider range of releases.

Sometimes broad is allowed.

This time... if the judge begins pulling out individual items then the rulings will only apply to those items.

So, if GW wanted a ruling of 'No make shoulder pads! Shoulder pads GW!' they may just get 'No make Space Wolf shoulder Pads! Space Wolf shoulder pads GW!'

Not as useful when someone makes shoulder pads for new companies that are not an official part of the GW setting.

Also, because it is being narrowed down it is possible that the ruling might be even more strict. 'These no Space Wolves! Unpainted! Space Wolves painted! Yellow! Grey! Black! These no paint!'

GW would really not want the rulings to be narrow, in the event that they win. If they lose...?

If I go to a German court and tell them, I invented skulls, Roman numbers, and protection for shoulders and want anyone sued who uses skulls, Roman numbers and protection for shoulders, the court would say: "Give us proof that you own copyright/trademark for all skulls, Roman numbers and protection of shoulders, then we have a case." Just saying "Lackey, he annoys us, make him stop" is not enough anymore.

However that is not the case here, now is it?

Your strawman does not look much like the target.

Trust me, German courts get a great deal of silliness flowing through in regards to IP as well. This particular U.S. case is being noticed in this particular forum because it matters to us. If a German automobile company sues another company over the shape of their rearview mirror closure... it is unlikely to be discussed on Dakka Dakka, and the German automobile manufacturer might well start with as broad a claim as possible, only to have it narrowed down by the courts. (Our rearview mirror has a plastic enclosure! These have a plastic enclosure! They copied us! may come down to 'What shape is the plastic enclosure for your rearview mirror? M'kay, denied. Next case!')

The fact that GW is being called on to show which particulars they are claiming shows that it really does not fly in other courts, either.

Saying 'shoulder pads of these particular shapes' have a chance, while your 'protection for shoulders' does not.

The question is going to be whether, in fact, the 'Shoulder pads of these particular shapes' is something that they can claim. Or even if 'Shoulder pads of these particular shapes with a stylized wolf's head' are protected.

Personally, I think that GW is going to be lucky if they even get 'Space Wolf shoulder pads' out of this. Odds are highly against 'shoulder pads of these particular shapes'.

And by the claims being narrowed... other changes will allow the shoulder pads to fly - flanged, unflanged, articulated, single piece.... Narrowing the descriptions really does not work in GW's favor. :lol: The Judge Dredd shoulder will hurt them.

We do not need to make their arguments look any weaker than they already are... GW has done a nice job of diluting their own claims with a pile of inconsequentials. Trying to bury the court in a mountain of inconsequential papers does not make for a happy judge.

GW lost a great deal of ground when CH decided to fight the claims at all - GW was likely hoping that CH would back down as so many have before. Now, if nothing else, GW has laid the possibility that their claimed IP will be proven indefensible.

Win or lose, GW is not going to come out as the clear victor - this has likely already cost them far more money than they are happy with, and there is a very real possibility that they will either lose or be left with a surviving description that has been so narrowed that other companies will be able to produce aftermarket parts for 40K even if GW technically 'wins'.

The Auld Grump

 TheAuldGrump wrote:
Saying 'shoulder pads of these particular shapes' have a chance, while your 'protection for shoulders' does not.

The question is going to be whether, in fact, the 'Shoulder pads of these particular shapes' is something that they can claim. Or even if 'Shoulder pads of these particular shapes with a stylized wolf's head' are protected.

Actually, when asked in court, GW acknowledged that their IP claims on skulls, fur, Halberds and Roman numbers have no basis, took them a while. They also said more or less that they own the copyright on the concept art, but the dog ate the documents.

And the appropriate government agency confirmed, what commen sense already knew, that the simple shoulder pad form is too generic for any chance of a copyright. That's why GW tried to hide that information. So they have no claim and there is actually no case to talk about.

"Dear jury, we can't really say, what the defendent is accused of. Can you just trust us and find them guilty? Please!"

 Kroothawk wrote:

 TheAuldGrump wrote:
Saying 'shoulder pads of these particular shapes' have a chance, while your 'protection for shoulders' does not.

The question is going to be whether, in fact, the 'Shoulder pads of these particular shapes' is something that they can claim. Or even if 'Shoulder pads of these particular shapes with a stylized wolf's head' are protected.

Actually, when asked in court, GW acknowledged that their IP claims on skulls, fur, Halberds and Roman numbers have no basis, took them a while. They also said more or less that they own the copyright on the concept art, but the dog ate the documents.

And the appropriate government agency confirmed, what common sense already knew, that the simple shoulder pad form is too generic for any chance of a copyright. That's why GW tried to hide that information. So they have no claim and there is actually no case to talk about.

"Dear jury, we can't really say, what the defendant is accused of. Can you just trust us and find them guilty? Please!"

Hey! It worked for certain certain politicians that are no longer in office....

The good news (Great news!?) is that if they fumble the ball here then that will make it harder for them to try similar shenanigans in the future.

Be nice if this was labeled 'With Prejudice', but I will keep my hopes on that low....

The Auld Grump, no similarities to TSR there...?

 Kroothawk wrote:

weeble1000 wrote:
It is sort of a no-harm-no-foul thing.

So in USA it is legal to drag anyone to a 3 year lawsuit without saying what you accuse him of? Chapterhouse was lucky to get pro bono lawyers, but not everyone is so lucky. And what do you tell the jury, why you summoned them, if there is no case? And what do you tell the tax payer, why you occupied a judge for so many days? Wouldn't it make more sense to ask the plaintiff: "Come back when you have a case!"

I'm shocked, shocked to see international corporations flouting the spirit of a justice system...

 Agamemnon2 wrote:

 Kroothawk wrote:

weeble1000 wrote:
It is sort of a no-harm-no-foul thing.

So in USA it is legal to drag anyone to a 3 year lawsuit without saying what you accuse him of? Chapterhouse was lucky to get pro bono lawyers, but not everyone is so lucky. And what do you tell the jury, why you summoned them, if there is no case? And what do you tell the tax payer, why you occupied a judge for so many days? Wouldn't it make more sense to ask the plaintiff: "Come back when you have a case!"

I'm shocked, shocked to see international corporations flouting the spirit of a justice system...

Not really, but I am shocked to see a Judge allowing them to do it.

It's a judge from Chicago.

 sourclams wrote:
It's a judge from Chicago.

Hey now. Funny joke though it may be, insinuations of corruption are, I think, unfair here. If you want to talk about corruption, head down to Marshall, Texas.

While I do not entirely agree with all of Judge Kennelly's rulings in the case, his rulings, even those that may indeed be reversible, have been based on a desire to be a fair and impartial arbiter of the dispute. The justice system tends to be plaintiff favorable, and taken as a whole, Judge Kennelly appears to be taking a conservative approach in his rulings that tends to favor putting more facts and evidence in front of the jury, rather than less.

It is difficult and time consuming for a Judge to rule on an issue that comes down to he said she said, and many of the present issues can be traced all the way back to disputes in 2011. For example, regarding ownership of works, Alan Merrett testified that all works were created by GW employees within the scope of their employment. We know now that this was absolutely not the case. But to uncover any solid evidence of that required a significant amount of hard work on the part of defense counsel.

Now, if you look at requests for production and requests for admission, GW was asked for specific information such as the author of the asserted works, the date of creation, assignments or transfers of rights, employment agreements, and so forth. GW provided very little, but GW's 30(b)(6) witness, Alan Merrett, testified that the works were created by GW employees during the scope of their employment. For the Judge, that is witness testimony. Alan Merrett is the living representative of the corporation and he said under penalty of perjury that such was the case. It is very difficult for a Judge to step in and start weighing the veracity of a witness. That is the duty of a fact finder, which in this case is the jury.

So unless the Judge has a firm, factual basis on which to find otherwise, the jury should be making its own collective decision about Mr. Merrett. Certainly, Judge Kennelly could have found otherwise. He could have granted certain of the defendant's motions to compel discovery. He could have dismissed such claims as he saw fit to dismiss. However, those decisions would be subject to appeal. And if he went through a whole trial, and then the appellate court reversed him and remanded the case, it would have to be tried again at significant expense to the parties and the taxpayer.

It is important to understand the factors that go into such decisions. It is hard to say that a jury verdict is wrong when the jury had all of the facts in front of it. Judges like it when juries make the decision; and it is easier, safer, and in many cases quite appropriate to fall back on the idea that a reasonable person could find either way on an issue.

The case is huge, complex, and confusing. In many ways this has worked in GW's favor pre-trial, but also remember that lots of weird, spurious looking claims are still around for the jury, and for witnesses to be cross-examined about.

However, if you ever hear Judge Kennelly complain about the size of the case, there are only two places to lay blame, GW and Judge Kennelly.

I'm sorry but while I deeply appreciate all the work you've had so far in translating this mess for those like me that are less legally inclined, you have to see the case under our layman eyes to try and understand how we feel about it.

To me at least, this is as simple a case as it can be, GW accused CHS of copyright infringement, all they have to do is show which pieces of GW's catalogue are infringed by which pieces of CHS's catalogue... Its as simple as it gets, I can't possibly fathom any reason why the judge as allowed the case to reach this far without even those simple accusations having been filed by GW.

If CHS hadn't gotten pro bono representation, there is no way that a small company could have sustained a legal battle for this long! It just seems like a legal system that is being unfairly skewed to favour the rich and powerful and this judge seems to be actively supporting it by dragging this along for close to 3 years without even a formal accusation having been made!

PhantomViper wrote:

If CHS hadn't gotten pro bono representation, there is no way that a small company could have sustained a legal battle for this long! It just seems like a legal system that is being unfairly skewed to favour the rich and powerful and this judge seems to be actively supporting it by dragging this along for close to 3 years without even a formal accusation having been made!

I don't see that at all. Imagine the scenario...judge dismisses the case and tells GW to come back when they actually have a case. GW re-files the claim later, but CHS no longer has pro-bono representation. CHS has to fold because it cannot afford to defend itself.

PhantomViper wrote:
I'm sorry but while I deeply appreciate all the work you've had so far in translating this mess for those like me that are less legally inclined, you have to see the case under our layman eyes to try and understand how we feel about it.

To me at least, this is as simple a case as it can be, GW accused CHS of copyright infringement, all they have to do is show which pieces of GW's catalogue are infringed by which pieces of CHS's catalogue... Its as simple as it gets, I can't possibly fathom any reason why the judge as allowed the case to reach this far without even those simple accusations having been filed by GW.

If CHS hadn't gotten pro bono representation, there is no way that a small company could have sustained a legal battle for this long! It just seems like a legal system that is being unfairly skewed to favour the rich and powerful and this judge seems to be actively supporting it by dragging this along for close to 3 years without even a formal accusation having been made!

But there are two sides to the dispute. GW says that it has stated which products infringe which rights. GW points to its oft-amended claim chart. The problem is that GW's claim chart is woefully ambiguous. But GW says that it isn't. The defense has sought for years to get GW to define and refine its claims. The defense has sought for years to get the Court to force GW to define and refine its claims, or else toss out those claims. GW has worked vociferously to avoid it, and the Court has been reluctant to step in.

Honestly, this is largely how litigation proceeds. Courts expect parties to work together professionally, and many Judges are reluctant to get their hands dirty. Judge Kennelly has, in very colorful language, afore described why he was reluctant to get his hands dirty deciding who was or was not acting professionally. However, you will note that the behavior of GW lead counsel in this case is remarkably similar to the case in which he and his firm were sanctioned in 2007, E&J Gallo Winery v Cantine Rallo. Is Judge Kennelly aware of that case, probably not. He has however sanctioned Mr. Moskin for very similar behavior in this case.

What is the point I am driving at here? GW's counsel has taken advantage of the trust that the system places in attorneys behaving in an honest, professional, and ethical manner. This has placed a ton of weight on the shoulders of defense counsel, who has been getting reprimanded by the Court for repeatedly bringing disputes before the Judge. It seems like the Judge is to blame, because he is taking a somewhat hands off approach, right? But there are reasonable motivations for the Court to take such an approach. There is no reasonable reason for plaintiff counsel to deliberately withhold relevant discovery and spoliate evidence. And yet, what have we seen in this case? But it has taken years of hard work to gather sufficient proof of such wrongdoing to convince the Court to make a determination that counsel behaved in that manner.

On the one hand, the Court cannot act without good cause. On the other hand, the Court assumes that reputable attorneys at reputable firms behave ethically. This is because most of them do, and a Judge with 100+ cases on his desk does not have the time to settle complicated arguments wherein making a decision requires a significantly nuanced understanding of the facts. In other words, I admonish those following the case to at least understand the context in which the Judge is making his decisions. Does part of the burden fall on the shoulders of the Court? Sure, but a ton of it also falls on the plaintiff and especially plaintiff counsel, Jonathan E. Moskin. And rather than suggesting that the Court is corrupt, one can look to proven instances of wrongdoing on the part of plaintiff's lead counsel.

When a defendant goes to a Judge and says, "Judge, these guys are not giving us what we asked for," the Judge has to turn to the other party and get a response. When that response is, "We totally gave them everything, they are trying to waste your time with this," the situation is now he said, she said. The burden for the accuser to overcome is high, institutional bias is in favor of the accused, the potential harm an incorrect decision may cause is significant, and the effort required to make an informed decision is significant. An unscrupulous individual can use that to play havoc with the system. Mr. Moskin has twice now been sanctioned. Is he going to stop? I have no idea, but if you are looking for someone to be upset with, may I suggest that you look to the cause rather than the symptom.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kroot - we get it.

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

Glass houses and all that, yes?

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

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

 odinsgrandson wrote:

Chapterhouse Studios submitted a motion to dismiss the lawsuit that Games Workshop filed against them on the basis of lack of specificity.

Basically they're saying that Games Workshop needs to cite specific instances of trademark or copyright violations. This makes sense to me, since there isn't really any way to defend yourself against vague claims.

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

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

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

 Platuan4th wrote:


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

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

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

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

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

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


This bit in particular will be fun:

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

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

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

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

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

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


This bit in particular will be fun:

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

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

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

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

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

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

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

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


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

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

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

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

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

With a one week time limit as well.



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

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


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

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

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

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

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

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

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

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

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

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

Jack_Death wrote:

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

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

T

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

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

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

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



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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 paulson games wrote:

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

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

Shhhhh,,,,,,,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

GW isn't seeking statutory damages for copyright infringement, just CHS's profits.

For ex: Page 35, proposed jury instructions on damages: http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.349.0.pdf


It's been a while since I looked at their claims, but you need to have actually registered your copyrights in order to get the crazy statutory damages.

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

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

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

It's an either/or scenario. You can go for actual damages & infringer's profits or ask for statutory damages; you won't get both. But as czakk noted, it's inapplicable here - seeking statutory damages requires federal copyright registration, which isn't involved here.

czakk wrote:
GW isn't seeking statutory damages for copyright infringement, just CHS's profits.

For ex: Page 35, proposed jury instructions on damages: http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.349.0.pdf


It's been a while since I looked at their claims, but you need to have actually registered your copyrights in order to get the crazy statutory damages.

All correct. We were off on a tangent, which is bad of us.

Best wishes chapter house

 Janthkin wrote:
We were off on a tangent, which is bad of us.

Not much of a tangent. GW has been all over the map and statutory damages can lurk in the weeds right up until the final judgement:

http://www.law.cornell.edu/uscode/text/17/504

(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action

But (as already mentioned) to get access you need to be registered:

http://www.law.cornell.edu/uscode/text/17/412

....no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for.....any infringement of copyright commenced after first publication of the work and before the effective date of its registration...

Which sort of begs the question, why didn't GW register? I might be asking that if I was a shareholder. I'd also be scratching my head about the risk / reward calculation on this lawsuit. CHS is a small business. A focused lawsuit on a few clearly identifiable bits of infringement would have shut the business down (and likely not attracted pro-bono representation because it wasn't a sexy case).

Maybe there is some sort of issue estoppel or limitation period problem I'm not thinking about that made them want to lump everything into a super case. Some reason other than intimidation by amount of products.

Even if GW had registered their stuff, the questions here are what is copywrightable. Can GW even claim copyright on the things they're claiming infringement on in the first place?

And Copyright does expire in the US- it's just that it doesn't expire for, like, centuries after the death of the original holder.

czakk wrote:
Which sort of begs the question, why didn't GW register? I might be asking that if I was a shareholder. I'd also be scratching my head about the risk / reward calculation on this lawsuit. CHS is a small business. A focused lawsuit on a few clearly identifiable bits of infringement would have shut the business down (and likely not attracted pro-bono representation because it wasn't a sexy case).

Wild speculation? They began with the assumption that a small company could not defend their entire range simultaneously, and would quickly fold. (It's not a bad assumption, really; you see the same approach taken by litigation-savvy companies in patent disputes at times, too.)

By the time it became clear that this wouldn't happen, it had also become clear that they couldn't properly formalize copyright registration for a fair number of the asserted works; they were, of course, trying for some of them (e.g., the Copyright Office on the shoulder pad design).

Maybe there is some sort of issue estoppel or limitation period problem I'm not thinking about that made them want to lump everything into a super case. Some reason other than intimidation by amount of products.

Honestly, I think that's all there is to it: one giant case had the best chance to put an end to CH quickly, without incurring much extra cost. They did file that second case later, but the judge rolled it back in.

Anvildude wrote:
Even if GW had registered their stuff, the questions here are what is copywrightable. Can GW even claim copyright on the things they're claiming infringement on in the first place?

And Copyright does expire in the US- it's just that it doesn't expire for, like, centuries after the death of the original holder.

Well, therein lays a tale:

GW's copyright was taken out originally in England (IIRC). Under US and international law, they can't extend their copyright past the time frame set in the original copyright. GW's copyright runs out in the US the moment it runs out in England. Which is, IIRC, 25 years from the date of first publication for a corporation. (English copyright law treats 'real' people and corporations separately, real people it's their life + 70 years).

Hrm... Maybe that's why GW's being so balls out here? They're trying to shut down people who will possibly be legitimate competition for the American market? After all, GW does have something of a home-turf advantage in Britain, being better known, selling most of their product from company stores- while North American gamers tend to gather in non-GW stores that have other games and products on display.

 BaronIveagh wrote:

Anvildude wrote:
Even if GW had registered their stuff, the questions here are what is copywrightable. Can GW even claim copyright on the things they're claiming infringement on in the first place?

And Copyright does expire in the US- it's just that it doesn't expire for, like, centuries after the death of the original holder.

Well, therein lays a tale:

GW's copyright was taken out originally in England (IIRC). Under US and international law, they can't extend their copyright past the time frame set in the original copyright. GW's copyright runs out in the US the moment it runs out in England. Which is, IIRC, 25 years from the date of first publication for a corporation. (English copyright law treats 'real' people and corporations separately, real people it's their life + 70 years).

Do you happen to have a citation for the 25 year term? My very brief reading of the Copyright, Designs and Patents Act 1988 has the term of many works tied to life of the employee who created the work + 70 years.

Relevant sections: 4 (definition of artistic work), s. 9 (author is person who creates the work) s. 11 (employer owns work if author is employee) and s. 12 (duration of copyright for artistic works, death + 70 years).




Now, whether or not mass produced toy soldiers are copyrightable or are instead covered by design right / registered design in the UK is another issue, but I don't think it is a live one in the case any more.

czakk wrote:

Do you happen to have a citation for the 25 year term? My very brief reading of the Copyright, Designs and Patents Act 1988 has the term of many works tied to life of the employee who created the work + 70 years.

I misinterpreted the section on publication rights, which grants a 25 year copyright to the publisher of a work. Did not see anything re the lifetime of the employee.

Personally I think it's crazy how copyright seems to constantly get longer and longer. It's reaching the point it's doing the inverse of what copyright is supposed to do (protect the rights of writers from being exploited).

Near as I can tell, it is a confusion of the design right and the copyright. I can't recall any copyright on the books right now that would put it as low as 25 years. However, the full term of the design right (registered design plus extensions) can get to about 25 years IIRC. Even then, as you noted, the US court has chosen to apply copyrights, as that is the only law of the land to adjudicate the case under. And in that case, even if the copyright were to have expired overseas - the way US courts have interpreted US law...they would receive the benefit of US copyright durations for cases tried here.

The only other thing which might apply would be "works of applied art" which is 25 years from the date of creation. Normally that deals with things like photography and useful objects (other countries refer to it as industrial design), but I could understand how it might be applied to miniatures as well.

 BaronIveagh wrote:

czakk wrote:

Do you happen to have a citation for the 25 year term? My very brief reading of the Copyright, Designs and Patents Act 1988 has the term of many works tied to life of the employee who created the work + 70 years.

I misinterpreted the section on publication rights, which grants a 25 year copyright to the publisher of a work. Did not see anything re the lifetime of the employee.

Personally I think it's crazy how copyright seems to constantly get longer and longer. It's reaching the point it's doing the inverse of what copyright is supposed to do (protect the rights of writers from being exploited).

Long passed that point - like, Mickey Mouse singing Happy Birthday past that point.

Disney has had a huge involvement in why those copyright durations keep getting extended. They spend a *lot* of money lobbying on behalf of copyright law and entertain a lot of lawmakers in order to keep things rosey. Had those laws not been extended their rights on their characters would have expired many times over by now. (I think ti was something as short as 8 years back in the 30's) As it stands now it's 70 years past the life of the creator so Mickey's clock runs down in 23 years provide their constant lobbying to extend the copyright length doesn't push it out further.

Since Uncle George is still kicking it will give them a mighty long run with the Star Wars franchise as well.


Commerical works can extend from 95-120 years depending on the origin and subjetc type so brands like Coke or Pepsi have a very long run indeed.


However this isn't the case with international copyright, international copyright is only extended to a company/person based on the laws and duration of their native country where the work was first published. Which is why there's a large push from CH's side to examine the root ownership of who designed the models or logos etc and particuarly when those designs were created. Many areas of British copyright are only good for 15-25 years which means that the rights for some of the earliest works could be up for grabs as GW is over 25 years old now.

Interestingly we're coming up on (or past) the 15 year bubble on many of the specialist games and suddenly they are being stripped from GW's website, odd timing of that right?




.

Yeah, because IIRC the original creator of the Star Wars storm trooper helmets can legally sell them without Lucas permission due to the way UK copyright works.

I don't think it's a specifically British thing about copyright. It is due to a different decision by the English court rather than the US court.

 Janthkin wrote:

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

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

Edit: already discussed. There are some nuances involved in the damages that I believe arise from local rules or case law, but ultimately it does not matter as the plaintiff has submitted no evidence to make a claim of lost profits, and is only seeking defendant's profits.

 BaronIveagh wrote:
Yeah, because IIRC the original creator of the Star Wars storm trooper helmets can legally sell them without Lucas permission due to the way UK copyright works.

This not not at all what happened in regards to Stormtroopers. In the UK, the Stormtrooper aesthetic was only granted design rights, which expire rather quickyl(something like 15-30 years). After that right expires, anyone can recreate the design commercially.

Now if something as globally recognizable as a Stormtrooper only qualifies for such limited protection in the UK, you damn well know that Space Marines™ fall in that same category of design rights. So anything older than X(I can't remember the exact ages for rights expiration dates) that GW has made, any company in the UK could make and sell.

The issue here with CHS is that GW is using US jurisdiction to get things in their favor since the US grants copyrights forever minus a day(sarcasm there).

The Storm Trooper armour case is a not a design right, it is a copyright.

The case was lost in the US because the guy who designed the Storm Trooper armour was not rich enough to contest it, so Lucasfilm won by default.

However he did win the case in the UK because he got pro bono representation from UK barristers. The armour is protected everywhere except the US.

http://www.originalstormtrooper.com/copyright-battle.html

 Kilkrazy wrote:
The Storm Trooper armour case is a not a design right, it is a copyright.

The case was lost in the US because the guy who designed the Storm Trooper armour was not rich enough to contest it, so Lucasfilm won by default.

However he did win the case in the UK because he got pro bono representation from UK barristers. The armour is protected everywhere except the US.

http://www.originalstormtrooper.com/copyright-battle.html

Not strictly true as in the us it was a copyright issue however in the uk it was deemed to fall under design rights not copy right, as such it was deemed that mass produced toy soldiers also fell under design rights during the case.

Design rights last 10 years but can be renewed upto a maximum of 25 years.

Imho this is why alot of GW's rhetoric now refers to collectors and not gamers and no longer mentions being a toy soldier company. It is also why they went after a us based company rather than a European company who could refer to the uk ruling.

This would be because given the state of there copyrights I would bet my left testicle no design rights were extended and even if they were what celebrated its 25th birthday recently.

IMH

According to this solicitor's report on the case it was copyright.

http://www.originalstormtrooper.com/images/stories/sds/editorial/references/SimmonsCooperAndrew%20Press%20Release%2031%2007%2008.pdf

 Kilkrazy wrote:
According to this solicitor's report on the case it was copyright.

http://www.originalstormtrooper.com/images/stories/sds/editorial/references/SimmonsCooperAndrew%20Press%20Release%2031%2007%2008.pdf

Lucasarts attempted to sue under copyright laws, just like they tried to sue under trademark laws, and indeed any other laws they could think of that suited their purposes. The important part is that those arguments were thrown out by the High Court, and it was judged instead that designs made for the purpose of or which serve as the template for mass-market toy production fall under Design Rights laws.

Why does it not say that in the solicitor's report?

Why, since design right lasts only 25 years, is the UK producer still in control after 37 years?

 Kilkrazy wrote:
Why does it not say that in the solicitor's report?

Why, since design right lasts only 25 years, is the UK producer still in control after 37 years?

He's not "in control", he's able to continue making the suits in the manner he has because Lucasfilm aren't(in control). And it is covered in the letter you linked, on page two by the references to Sections 51-52 of the Copyright, Designs and Patents Act 1988. It is the fact that the judge ruled those Sections apply in this case, and that artistic or US-law copyright do not, which provide him with the "statutory defences" mentioned in the last paragraph of page 1. The judge actually accepted that if the items were artistically copyrightable, those rights would have belonged to Lucasfilm, since Ainsworth understood at the time of his commission that he was making them for the express purpose of use in the film.

Lucasarts sued Ainsworth for infringement of its copyright. The judge ruled that, providing the items are artistically copyrightable, the copyright would belong to Lucasarts. However, he ruled that regardless of artistic merit, the moulds and the products of them did not have artistic purpose, and so are not artistically copyrightable but rather are to be considered designs, and since any design rights that Lucasarts might have been able to enforce have long since run out, Mr. Ainsworth can continue to produce the suits and sell them as long as he never implies he is officially licensed by Lucasfilm. By the same token, so could anyone else. I could make my own sets of Stormtrooper Armour, cast them, and sell them, and I would have the same legal defence at my disposal as Ainsworth.

You mean that Lucasfilm doesn't own the copyright because there isn't any -- the armour is a design not a work of art -- so the UK guy can produce them without permission as the design right has expired.

Actually this is sort of on topic. This is something that COULD pop up in the actual trial IF CHS's attourneys can convey the fact that this applies to a reasonable amount to the judge. We covered this in paralegal class.

But it has been said at least once already in here.

 Kilkrazy wrote:
You mean that Lucasfilm doesn't own the copyright because there isn't any -- the armour is a design not a work of art -- so the UK guy can produce them without permission as the design right has expired.

If he obtained legal advice prior to producing them that told him about the limits on design right, it could be why he started selling them in 2004ish which would have been over the maximum(?) 25 year limit on design right from the first film.

Joint status report on prior use and other trademark issues. Not the claims chart report, I think that is due tomorrow.

Thanks Czakk.

A question for us non-lawyers. Is it usual in the US to ask for reconsideration of summary judgements? It didn't seem that Judge Kennelly was delighted about it last time round, but Chapterhouse are going for the same play again with the Trademarks.

Wow is this normal for lawyers? Seems like their going out of their way to piss the judge off.

So is GW's counsel asking to be able to sue over copyrights/trademarks that they don't have to prove they own? That doesn't seem right to me.

 Holdenstein wrote:
Thanks Czakk.

A question for us non-lawyers. Is it usual in the US to ask for reconsideration of summary judgements? It didn't seem that Judge Kennelly was delighted about it last time round, but Chapterhouse are going for the same play again with the Trademarks.

It happens, but it is not terribly common. Judges do not like to reconsider their rulings, and you have to have a solid basis to make such a motion, which is spelled out pretty clearly in the federal rules of civil procedure. If you read the Court's memorandum and opinion concerning the motion to reconsider, it goes through the basis on which such a motion is proper.

However, opposing counsel failing to produce relevant evidence that the Court therefore could not consider when making its original ruling is an ironclad basis for a motion to reconsider.


Automatically Appended Next Post:

UNCLEBADTOUCH wrote:
So is GW's counsel asking to be able to sue over copyrights/trademarks that they don't have to prove they own? That doesn't seem right to me.

Okay, reading through the status report, here is a summary of what the parties are arguing:

Defendant is seeking a clarification from the Court regarding the affirmative finding in its SJ ruling that Plaintiff has proven priority of use. That is, the Court said that the Plaintiff has been selling products longer than the Defendant, and the Defendant is in fact using at least several of the Plaintiff's asserted marks, so it is somewhat pointless to be arguing that the Plaintiff did not use the marks before the Defendant did (leave aside for the moment the Tervigon issue).

Defendant is asking the Court to clarify that its ruling does not include a finding that the Plaintiff has proven the actual use of a trademark as the law defines it, but rather that if a trademark has been used, that such use is prior to Defendant's use. Defendant is essentially asking the Court to clarify that the Plaintiff is still required to prove the existence of all asserted trademarks in court.

Plaintiff says that this is improper for 4 reasons:

1 - Defendant is inappropriately raising an affirmative defense. Here the Plaintiff cites no case law. The Defense is not bringing up an affirmative defense, but rather elements of the Plaintiff's burden, requesting the Court to clarify the scope of its ruling vis a vis the Plaintiff's burden to prove the use of a trademark.

2 - The jury instructions do not include the type of nuance that Defendant is arguing Plaintiff is required to prove. Again, the Plainitff here cites no case law. The 7th circuit form jury instructions describe the elements that a Plaintiff must prove, and again, the Defendant is asking the Court to clarify what it has ruled the Plaintiff has actually proven by its submission of the 2004 sales data.

3 - Defendant has raised no facts to support its arguments. Again, Plaintiff cites no case law on this point. Also, as one can probably glean by now, the Defendant is pointing to elements of the Plaintiff's burden of proof, not the Defendant's. So what the Defendant is saying is that the Plaintiff has not shown the facts to support a finding of trademark use, and arguing that it remains as a fact issue for the jury, i.e. the Plainitff needs to prove use of its trademarks in court.

4 - Case law cited by Defendant does not support its argument. Here the Plaintiff does point to case law. Plaintiff is saying that it can use a word, phrase, image, etc. buried in a book or something as long as it has a recognized association with the Plaintiff. "In Micro Strategy, the plaintiff used the phrase "intelligence everywhere" in a random way, buried deep in text, and not to identify any particular product or service." Again, Defendant is arguing that this is a factual determination that the jury should make and is seeking clarification from the Court whether or not its ruling on prior use in commerce encompasses an affirmative finding that Plaintiff has proven actual use of a trademark in every circumstance.

In support, the Defense basically says that we already know that the Plainitff has in fact admitted that is does not use certain of its asserted trademarks as, well, trademarks. The implication being that one cannot merely believe it when the Plainitff says 'we super serious use this as a trademark, bra'.

The Plaintiff is essentially attempting to burden shift, putting the onus on the Defendant whereas the Defendant is seeking to determine what the Court's ruling means in terms of the Plaintiff's burden.

If I am remembering correctly they had a similar argument over some of the copyright claims, GW trying to shut the door on what it called unplead affirmative defences and CHS say, hey those aren't defences those are elements that the plaintiff has to prove.

I believe it went CHS's way last time.


If they are repeating what looks like the same argument just over trademarks instead of copyright, this bodes poorly for the cooperatively put together claims chart.


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

On a related note - pushing the burden around vs time in trial and evidence produced.

Given the 20 hour limit for each side, can you imagine GW going through each of its alleged marks and explaining to the jury how sticking a chapter logo in page 86 of a rulebook makes it a trademark? Giant time suck.

Well, and Judge Kennelly appears to have a let-the-jury-decide sort of attitude. He denied Plaintiff's MIL with regard to Dr. Grindley (subject to another depo I believe) but all of that is coming in, which means scope of copyright is still on the table, regardless of what the Court ruled on the copyrightability of the shoulder pads.

I would not be surprised if the Court clarifies its ruling concerning priority of use, which would suck majorly for the Plainitff. This sort of stuff always happens before a trial date. I usually caution clients to not get either too excited or too bent out of shape about what a ruling COULD mean. The Judge will always clarify later, and it probably is not the extreme interpretation.

What is GW going to say about trademark use other than...erm...its totes in this book?

Is that a trademark, or just a word in a book?

"Expecto patronum!" Harry Potter trademark, or just a phrase in a book?

"Prisoner of Azkaban" Harry Potter trademark, or just the title of a single book?



Ford trademark, or just the drivetrain of the 2005 Escape? Does the average consumer look at that picture and immediately think, 'FORD', or is it just a picture of some thing inside the car? Important for sure, critical even, perhaps even the REASON one buys the product, but an identifier of the source of the product, no.

czakk wrote:
If I am remembering correctly they had a similar argument over some of the copyright claims, GW trying to shut the door on what it called unplead affirmative defences and CHS say, hey those aren't defences those are elements that the plaintiff has to prove.

I believe it went CHS's way last time.


If they are repeating what looks like the same argument just over trademarks instead of copyright, this bodes poorly for the cooperatively put together claims chart.


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

On a related note - pushing the burden around vs time in trial and evidence produced.

Given the 20 hour limit for each side, can you imagine GW going through each of its alleged marks and explaining to the jury how sticking a chapter logo in page 86 of a rulebook makes it a trademark? Giant time suck.

Out of interest, in the event that the trial did result in GW no longer being able to claim that a substantial number of their asserted trademarks are actually trademarks, would GW still be able to use those terms themselves, or would they be leaving themselves open to the same kind of bullying tactics they've been using on smaller companies for years?

 Yodhrin wrote:

Out of interest, in the event that the trial did result in GW no longer being able to claim that a substantial number of their asserted trademarks are actually trademarks, would GW still be able to use those terms themselves, or would they be leaving themselves open to the same kind of bullying tactics they've been using on smaller companies for years?

You can use a word all you want. Having a trademark allows you to prevent a competitor from using that word. So if GW lost on various asserted marks, it would be very difficult for GW to assert those marks in the future. It would not be a 100% preclusion, but it would make it incredibly impractical and potentially actionable. It is hard to say that you have a good faith basis to believe someone is infringing a piece of property that a jury of your peers found to be nonexistent.

The bigger problem for GW would be the loss of face to the public, including investors. When you describe your "defendable intellectual property" as a "fortress wall" and then spend hundreds of thousands of dollars to find out that you asserted rights that did not exist, that does not look very good. I mean, one might think that the Director of Intellectual Property did not know what he was doing, or that in house counsel is incompetent, or perhaps even that the Chairman of the Board has his head up his $%# and will say anything in an annual report to make the company seem like it is doing well. That is, I can imagine that someone might think such things were that to happen.