Forum adverts like this one are shown to any user who is not logged in. Join us by filling out a tiny 3 field form and you will get your own, free, dakka user account which gives a good range of benefits to you: No adverts like this in the forums anymore. Times and dates in your local timezone. Full tracking of what you have read so you can skip to your first unread post, easily see what has changed since you last logged in, and easily see what is new at a glance. Email notifications for threads you want to watch closely. Being a part of the oldest wargaming community on the net. If you are already a member then feel free to login now.

ranger1977 wrote:

For the record, the majority of people who buy CH parts *do* show support to GW. We do it by buying their models to put ChapterHouse bits *on*. I think that supporting them with my wallet does count as support, regardless which side I'm on in the "Great GW vs. CH war of 2010/2011."

Also, your automobile manufacturer called. He wants you to return all the parts for your car that you didn't buy from a dealership, as they are replacements which would not be usable, if the manufacturer did not create your car first.

Eric

RandomX wrote:

Crimson Devil wrote:It doesn't really matter either way. GW has the money to force CHS into bankruptcy defending themselves in court. Even if CHS was legally correct, any victory they could achieve would be Pyrrhic.

This is exactly what I expect to have happen.

-Eric

Assuming CH has enough money and enough legal ground on its side to keep its Lawyer interested and the prevail in court they can counter-sue for legal fees which can be granted in part or in full based on how prevailing their case was. Though there generally needs to be some sliver showing that the intent of GW wasn't conducive to the law.

aka_mythos wrote:

ranger1977 wrote:
Hi Eric
i was not saying people who buy CH part don’t support GW, chapterhouse don’t support them and just make money off of them. as to your point about the car dealership generally most second or aftermarket parts are licensed or endorsed by the company, and they pay the manufacture for this privilege.
I find it difficult to see how any one can condone IP theft such as chapterhouse has done.
they use the specific names of black Templers, dark angels, death watch, some pictures use games workshop miniatures in them.
there are other company’s out there that make extra/upgrade parts but advertise them in a different way with less emphasis on the GW aspect. i use third party extra's but would not use CH purely for there attitude towards Other people's IP.

The people at CH are really big fans of GW, many of them own multiple armies. I personally have purchased multiple items from CH and only built two of my armies because of those bits I purchased from CH. That is support. CH promotes the use of GW parts in every way possible without formally saying so.

People aren't condoning IP theft, because it isn't IP theft. As a specific example where has IP been stolen? The standards for showing the theft of IP is higher than the standard you're using to judge CH, if you truly believe your libel.

Just because other companies choose to do something in a different way doesn't mean what CH is doing is illegal. Time and time again its been pointed out that there is a legal basis that specifically allows the use of Trademarked names when its necessary to the character of a product, and that doing so has no implication to the derivation of artistic works. CH's attitude towards IP is the correct one and is based on precedents. The only issue is whether CH has done in enough to keep the less informed that CH has no formal relationship with GW.

The licensing and endorsement by an original manufacturer is something that can occur outside the bounds of IP law. With automobiles, the licensing when it happens usually occurs because Dealers want options, but are locked into agreements with their Manufacturer to follow certain rules when buying parts. By licensing a manufacturer of aftermarket part they are allowing, within the bounds of the existing contracts the Dealers, the Dealer to purchase parts from those other manufacturers. Licensing can also be a matter of venue... "pay this fee and we let you sell through our website," without any basis in IP or even how its manufactured.

Gw should setup an approved status. Where third party casters can have parts accessed and if quality is good enough, used in gw tournements, advertised and sold through the GW outlets. for a small fee of course , with no transfer of IP

Basically, I think that right now the system is just fine. Many people make bits and peices that fit onto or work with GW but only the initaited would know that is what they for, not the general public. We get our bits but there is absolutely no confusion on what is what and no one is at all mislead.

If little Johnny's Nana wants to buy him a Dark Angel model because she vaguely knows that is the name of his army while knowing nothing else about the game besides it uses models. This person could easily be confused through how CH is represented on their website.

There is already enough confusion just within GW' actual model range without throwing 3rd party stuff that shares the same names essentially. I ran into this problem with my special lady friend, she actually bought a Chaos Dread :( as a gift for me, and thats actually a GW model (arguably the worst in the range, especially when you look at the $$). The vast majority of people just can't distinguish between what's a good useful model and whats complete rubbish, not to mention what is an actual GW model and whats not if it actually has the same name.

Really everyone may agree that other similar companies do create pieces that are clearly based off of or for use in the 40k universe, but only the highly initiated would recognize that.

So my point is that I don't think your neighbor who might know you play a game called warhammer 40,ooo would say "oh those are thunder wolf calvary mounts for the game warhammer 40,ooo" even though they are they are called "wolf running cyborg mounts for space heros" on the tag. With CH it literally says: "Dragon or Salamander Style Kit (fits on Space Marine® Rhino)" Your Neighbor or wife (or husband) or little Johnny's Nana could genuinely be confused by that IMHO.

Adding to this fact is the opinion that I and others have that CH does appear to be using press molded greens in the creation of their models, which are just taken directly from other models makes their necks look awfully long on the chopping block. I don't wish harm onto people who were just trying make their hobbies and jobs merge I am all for professional hobbyists like Dave Taylor and many others, but CH couldn't not have seen this coming while engaging in the buissness practices they were/maybe involved in.

Cheers

Before anything else, I have to thank Polonius; his contributions to this thread have been nothing short of amazing, as has his conduct. Moving on to the snark,

ranger1977 wrote:

For the record, the majority of people who buy CH parts *do* show support to GW. We do it by buying their models to put ChapterHouse bits *on*. I think that supporting them with my wallet does count as support, regardless which side I'm on in the "Great GW vs. CH war of 2010/2011."

Also, your automobile manufacturer called. He wants you to return all the parts for your car that you didn't buy from a dealership, as they are replacements which would not be usable, if the manufacturer did not create your car first.

Eric

Hi Eric
i was not saying people who buy CH part don’t support GW, chapterhouse don’t support them and just make money off of them. as to your point about the car dealership generally most second or aftermarket parts are licensed or endorsed by the company, and they pay the manufacture for this privilege.

Care to provide, I dunno, some evidence to back up the claim that "generally most second or aftermarket parts are licensed or endorsed by the company, and they pay the manufacture for this privilege"?

ranger1977 wrote:I find it difficult to see how any one can condone IP theft such as chapterhouse has done.
they use the specific names of black Templers, dark angels, death watch, some pictures use games workshop miniatures in them.
there are other company’s out there that make extra/upgrade parts but advertise them in a different way with less emphasis on the GW aspect. i use third party extra's but would not use CH purely for there attitude towards Other people's IP.

Tell you what, why don't you read this, then this, then this, then this, then this, and finally this. At that point you'll have a good idea of what people actually "condone" (which is distinct from what you appear to think they condone). Let us know what you don't understand in there.

ranger1977 wrote:those supposed sculpted skulls in the doors are dead ringers for the old skelli head's.

Whoa, whoa... hold on there chief, are you saying that the GW skulls, and the skulls produced by CH... look like SKULLS?!

On a more serious point, the arguments over the skull-in-the-door are really rather interesting, but suffer from the same problem most of the posts in this thread are: they reflect the poster's view of what they think the law is, rather then what it actually is*. First, the allegation is that CH has produced a derivative work; that is, some posters are alleging that CH used the GW skull to produce their skull door (as a factual determination they don't seem the same to me, but meh). Unfortunately for those that would use this as evidence of CH's nefarious intent, even if they did use GW's skull (and, again, I don't believe that they did), it doesn't necessarily follow that the action was a violation of Copyright law. The most obvious way that CH would be in the clear is that, allegations to the contrary, their door is not a derivative work. That is, in addition to the defense that they didn't copy GW's skull (a factual matter), they could also make the argument that even if they did copy the skull, the door isn't a derivative work, because the skull isn't a copyrightable matter (a legal matter). For an case on point, see Ets-Hokin v. Skyy Spirits, where a picture of a bottle was not held to be a derivative work, as the bottle was not a copyrightable work.

Now, in Ets-Hokin, the underlying work was disqualified because it was a utilitarian object; the underlying work here is not, it is a sculptural representation of a skull. And that's the problem: it's a skull, not an adorned skull, not a fanciful skull, just a skull, and there are a number of cases addressing the issue of whether a pure representation of a natural object can be protected (see, for example, Vickery-Design v. Aspen Bay). A second point is the issue of "unity of idea and expression", where two objects will look identical, because they must; in Herbert Rosenthal Jewelry Corp. v. Kalpakian, for example, the courts held that when the claimed infringement was of an ornamental bee pin, copyright law will not provide protection from others making bee pins. For a more detailed description of the issues of idea and expression, I will quote Sid & Marty Krofft Television v. McDonald's Corp. (internal citation omitted);

The idea and the expression will coincide when the expression provides nothing new or additional over the idea. Thus, the expression of a jeweled bee pin contains nothing new over the idea of a jeweled bee pin. Returning to our own example, the idea of a plaster statute of a nude will probably coincide with the expression of that idea when an inexpensive manufacturing process is used. There will be no separately distinguishable features in the statute's expression over the idea of a plaster nude statute.

The complexity and artistry of the expression of an idea will separate it from even the most banal idea. Michaelangelo's David is, as an idea, no more than a statute of a nude male. But no one would question the proposition that if a copyrighted work it would deserve protection even against the poorest of imitations. This is because so much more was added in the expression over the idea.

When idea and expression coincide, there will be protection against nothing other than identical copying of the work.

As I read the case law, there are few examples more perfect of "unity of idea and expression" then a completely unadorned skull; thus, whatever right might be asserted would require the two works to be identical, and they clearly are not. Before we get into any issues of "oh, but superimpose this and that and the other", stop. Remember, the works have to be identical. The skull several posters have shown is not the work; the sprue is.

Does the sprue look like the door? Does the door look like a sprue?

Now, of course, there is the argument that CH physically copied one of GW's skulls initially (the fundamental "copy" in the copyright), but that's a pure evidentiary nightmare.

*Standard disclaimer: I am a lawyer, not your lawyer, yadda yadda yadda. This opinion is presented only for academic and comedic purposes.

Boom, roasted!

Good post Buzzsaw, well thought out and pretty thoroughly backed up!

On a related topic

I see the 'circle of life' CH thread is back in it's 'don't give your opinion as fact, here are several points backed up by lawyers' solstice. This should inevitably be followed by 'CH is the a satan parasite sucking the lifeblood of GW and I hope to watch them burn in hades'... followed by moderate responses somewhere in-between, then followed by 1 or 2 posters starting the whole my opinion is law thing again and the circle of life continues lol!

I am very nearly serious when I say someone should make a graph of this, it's like clockwork! I'm pretty sure it is actually on a regular 2 page cycle at this point!

@Buzzsaw I enjoyed reading your post and browsing over some of the other links you offered. I am obviously not a lawyer (nor a CSI agent ) so thank you. We will have to see what ends up happening with this case.

I guess all the back and forth arm chair lawyering is interesting (Hence the 36 pages).. but as others have said it'll basically come down to money

Just like in business.. The more cash you have the more you can undercut the competition into bankruptcy. Justice is no different

GW seems to have a pretty legit case in *Questioning* the legality of CHS products. Will the win? Doesnt really matter as long as they have more money and a reasonable complaint

mabey chapterhouse will close it's doors due to the issue of the suit, but will GW be really vendictive and say chapterhouse parts are not welcome in there stores or there tournaments.
at the end of the day it's us who lose out in the end no matter witch way this goes GW willl keep slapping law suits on companys who infrine on there IP and putting there prices up to pay for it.

as to the person who thinks my opinions (and they are just that my opinions) are libal, my bad i thought forums were were for open honest discusion not just GW bashing or one sided conversations.

Ranger

A question for one of the bonafide lawyers out there; I've heard many references of a larger company using a lawsuit to bankrupt a smaller company via legal fees. Is there any recourse available to the small guy in this case? It seems a bit dodgy that you can just throw lawyers at the competition and laugh as they bankrupt themselves funding a legal defense. (Right or wrong wouldn't matter nearly as much as how long you can pay a lawyer for).


Automatically Appended Next Post:

Kirasu wrote:I guess all the back and forth arm chair lawyering is interesting (Hence the 36 pages).. but as others have said it'll basically come down to money

Just like in business.. The more cash you have the more you can undercut the competition into bankruptcy. Justice is no different

GW seems to have a pretty legit case in *Questioning* the legality of CHS products. Will the win? Doesnt really matter as long as they have more money and a reasonable complaint

Lowering prices to undercut the competition at least offers a short term benefit to the consumer. Paying lawyers and then increasing the prices to pay for said lawyers only screws the gamers as well as the targeted competition.

Okay, having read all 36 pages, I would like to ask a question on the (un)intended consequences of this action.

IF GW shows that they and they only have the rights to all IP and derivative creations, what happens to all the painting services out there?

I think GW released paint schemes for the well known (all?) chapters, as a published work, and therefore covered under their IP. Wouldn't that mean if a painter charges to paint an army, say as ultramarines, they are profiting off of GW IP?

Answers/comments?

Cheers

Andrew

@ AndrewC: GW can't show that hey have the rights to all derivative creations. You're question is somewhat like asking if I step on one cockroach, will all other cockroaches leave my basement.

This is a single case. Even if CHS loses on all counts, they can re-scuplt new models and pop right back up. GW would have to re-sue and win again on the merits.

Painting services would be interesting, as the only real IP found in the paint schemes would be certain iconography. On the other hand, GW encourages people to utilize their iconography on the models. it would be tough for GW to include decals in every kit, and then try to sue a painting service for freehanding something similar. Actually using the decals would never be a problem, as they are sold to be used that way. Same with sculpted shoulderpads.

So if you pretty much completely fail to make, say, an anatomically-accurate looking skull (like GW/CH failed on the skull on the large rhino door in question) and end up with a...let's generously call it "Stylized" approximation of a skull, is it still protected in the same way? People keep saying "Well it's a skull so it's all bound to look the same" etc. but really that's a fairly distinctive skull, myself and others in the thread immediately thought of the old skeleton kits when we saw them. Compare it to the new Grave Guard/Skeleton warrior kits and you see a distinctive shift to a more accurate representation of a skull on the new model kits.

So the question is, are they all protected because they are trying to be a skull? Or do the ones that actually look like a real skull get a pass?

Polonius wrote:@ AndrewC: GW can't show that hey have the rights to all derivative creations. You're question is somewhat like asking if I step on one cockroach, will all other cockroaches leave my basement.

Tbh, I'm not sure what I'm asking It's more like if I have the legal authority to step on one cockroach do I have the right to step on all the others using it as precedent.

Painting services would be interesting, as the only real IP found in the paint schemes would be certain iconography. On the other hand, GW encourages people to utilize their iconography on the models. it would be tough for GW to include decals in every kit, and then try to sue a painting service for freehanding something similar. Actually using the decals would never be a problem, as they are sold to be used that way. Same with sculpted shoulderpads.

Are the decals under an 'end user' agreement though. What I'm trying to get at is, Are GW trying to use this case as a carte blanche to completly protect their products from third party profiteering? Some of the clauses are a bit wide ranging in their scope.

Does their production of a colour scheme, iconagraphy etc not protect them from someone else producing the same and charging to do so? There was an earlier post in which a bodykit very similar to a ferrari's was stopped because it was to close to the original. An Ultramarine is their IP, so would not someone painting an (almost) identical figure to their IP, and charging for it not be 'illegal'?

Cheers

Andrew

ranger1977 wrote:mabey chapterhouse will close it's doors due to the issue of the suit, but will GW be really vendictive and say chapterhouse parts are not welcome in there stores or there tournaments.
at the end of the day it's us who lose out in the end no matter witch way this goes GW willl keep slapping law suits on companys who infrine on there IP and putting there prices up to pay for it.

as to the person who thinks my opinions (and they are just that my opinions) are libal, my bad i thought forums were were for open honest discusion not just GW bashing or one sided conversations.

Ranger

The use of proper spelling and punctuation are always helpful to your argument.

Hashshashin wrote:So my point is that I don't think your neighbor who might know you play a game called warhammer 40,ooo would say "oh those are thunder wolf calvary mounts for the game warhammer 40,ooo" even though they are they are called "wolf running cyborg mounts for space heros" on the tag. With CH it literally says: "Dragon or Salamander Style Kit (fits on Space Marine® Rhino)" Your Neighbor or wife (or husband) or little Johnny's Nana could genuinely be confused by that IMHO.

I take it you didnt see their site before the changes

It wasnt "space Bugs" it was "Tyranids"

Not "Space Heros" (i think thats the one whey have now) but "Space Marines"

None of the names were generic before, now they are

Except its legal to say "Shoulder pads for Space Marines"... "Products for Tyranids." The fact that they changed their site is only a matter of showing that alternative actions can be taken by the court without shutting them down. It mitigates the damage in the event they are found to be bluring the lines of what's GW's and what is theirs.

Yeah, I am juxtaposing CH's naming conventions ('fits a space marine rhino) with other guys who do obfuscate their names (wolf cyborg mounts for space knights) to not attract attention from anyone outside of a very niche group (avid converters) of a niche group (gamers).

aka_mythos wrote:Except its legal to say "Shoulder pads for Space Marines"... "Products for Tyranids." The fact that they changed their site is only a matter of showing that alternative actions can be taken by the court without shutting them down. It mitigates the damage in the event they are found to be bluring the lines of what's GW's and what is theirs.

Which is one of the reasons GW is sueing them, for using GW trademarks to identify products which GW beleives gives a false impression that they are official models.

Did you see the original site? "Shoulder pads for Space Marines" "Products for Tyranids." I thought it was "Space Marine Shoulder Pads" "Tyranid ..." which does not imply they are unofficial.

Its the difference betweed saying "[Game] Add on" and "Add on for [Game]" the first one sounds official and leads to confusion.


Automatically Appended Next Post:

Hashshashin wrote:CH's naming conventions ('fits a space marine rhino)

Eh i could see that getting by, the problem is they were doing "Space marine Rhino ..." which again sounds like its an official product


Also, havent i made this distinction before....

ranger1977 wrote:as to the person who thinks my opinions (and they are just that my opinions) are libal, my bad i thought forums were were for open honest discusion not just GW bashing or one sided conversations.

You can bash a company all you want and call them hacks for all I care, your entitled to your opinion. At one instant you declaratively stated that they have broken the law, not that you agree they have encroached on GW's IP as GW alleges, but that they have in fact

ranger1977 wrote:"I find it difficult to see how any one can condone IP theft such as chapterhouse has done."

It is a lie and part of your attempt to defame CH based solely on your opinion, it is in writing, it is libel. You have no legal ground to make these statements as factual.

MikeMcSomething wrote:So if you pretty much completely fail to make, say, an anatomically-accurate looking skull (like GW/CH failed on the skull on the large rhino door in question) and end up with a...let's generously call it "Stylized" approximation of a skull, is it still protected in the same way? People keep saying "Well it's a skull so it's all bound to look the same" etc. but really that's a fairly distinctive skull, myself and others in the thread immediately thought of the old skeleton kits when we saw them. Compare it to the new Grave Guard/Skeleton warrior kits and you see a distinctive shift to a more accurate representation of a skull on the new model kits.

So the question is, are they all protected because they are trying to be a skull? Or do the ones that actually look like a real skull get a pass?

Everything GW or anyone else makes is protected, but the degree of originality severly hampers or helps someone make a case and collect damages. A skull that is just poorly made is protected but the lack of originality will prevent it from garnering any significant repercussions, the court might demand some action on the part of the offender without necessarily awarding any money.

I think a better example of a stylized skull that GW could sue for is the Adeptus Mechanicus symbol, which is highly stylized. It isn't majorly identifiable as GW but it is significantly original. If "Bob the Bits Builder" makes bits with that icon on it and GW sued, they would very likely win unless "BBB" could show some similar use predating GW's. GW would win and could probably show their icon is a relatively original design and get most of the damages they're suing for.

Random question.

Would GW have been protected better if they had registered copyrights on drawings of all the shoulder pad symbols? I.e. a drawing of just a shoulderpad and the symbol, nothing else.

For example an iron gauntlet hand on a shoulder pad.

Or is the point that they couldn't do this because they are all too generic. Meaning that they could be used fairly by any other company.

Gibbsey wrote:Which is one of the reasons GW is sueing them, for using GW trademarks to identify products which GW beleives gives a false impression that they are official models.

When it comes to marketing and the naming of products the court tends to be very liberal acknowledging the looseness of words and hyperbole needed to sell any product. There is a basis for CH legal use, the court will attempt to discern CH intent, whether it was to confuse and while this might not alter a ruling, its significantly alters the damages. If CH was attempting to use the names in a fair way, but just failed to, they may have to make some restitution, but they aren't likely to get shut down.

Gibbsey wrote:
Its the difference betweed saying "[Game] Add on" and "Add on for [Game]" the first one sounds official and leads to confusion.

CH is allowed to sound official in its own right. I bought from CH and I knew what I was buying. The court will not necessarily look at in that way. The examples being used are not by any means true examples of the application of law; they just give a sense of how hairs can be split. The court may find both are exceptable or neither are exceptable, based on the rest of the atmosphere of the CH presentation of its product offering. Phrasing by itself is not a violation, nor is the inclusion of a TM'ed name.

The point you really should be trying to make is that the phrasing and naming is contibutory to brand confusion.

The thing people fail to consider is the CH made active attempts to avoid confusion, they double checked with their lawyer not just for the actual pieces they made, but for the iconography, and naming of those pieces in an attempt to do what was in their rights as third party makers without violating GW's rights.


Automatically Appended Next Post:

Grimstonefire wrote:Random question.

Would GW have been protected better if they had registered copyrights on drawings of all the shoulder pad symbols? I.e. a drawing of just a shoulderpad and the symbol, nothing else.

For example an iron gauntlet hand on a shoulder pad.

Or is the point that they couldn't do this because they are all too generic. Meaning that they could be used fairly by any other company.

Registering all such designs would only entitle GW to a higher amount of statutory damages in the event they were awarded any.

I would say most of GW's symbols are greatly too generic to really be actionable. There are only so many ways given the scale to draw the the profiles of different animals, to draw greek letters, and present judeo-christian symbols. GW would need to show that a particular symbol as presented by a third party is so uniquely synonymous with them that there is no way to avoid confusion. A wolf wouldn't win it for them, a grim reaper wouldn't win it for them... but something like the adeptus mechanicus skull, the chaos star with eye at the center, and the double headed aquila if presented in identical pose and proportions might. I think it says something about what GW percieves as properlly and uniquely theres that they have registered the aquilla design and the look of the space marine, but not a lot of other things.

AndrewC wrote:

Polonius wrote:@ AndrewC: GW can't show that hey have the rights to all derivative creations. You're question is somewhat like asking if I step on one cockroach, will all other cockroaches leave my basement.

Tbh, I'm not sure what I'm asking It's more like if I have the legal authority to step on one cockroach do I have the right to step on all the others using it as precedent.

Painting services would be interesting, as the only real IP found in the paint schemes would be certain iconography. On the other hand, GW encourages people to utilize their iconography on the models. it would be tough for GW to include decals in every kit, and then try to sue a painting service for freehanding something similar. Actually using the decals would never be a problem, as they are sold to be used that way. Same with sculpted shoulderpads.

Are the decals under an 'end user' agreement though. What I'm trying to get at is, Are GW trying to use this case as a carte blanche to completly protect their products from third party profiteering? Some of the clauses are a bit wide ranging in their scope.

Does their production of a colour scheme, iconagraphy etc not protect them from someone else producing the same and charging to do so? There was an earlier post in which a bodykit very similar to a ferrari's was stopped because it was to close to the original. An Ultramarine is their IP, so would not someone painting an (almost) identical figure to their IP, and charging for it not be 'illegal'?

Cheers

Andrew

GW sells models [sculptures as the cultured know them apparently]. GW sells paints. Their written products encourage the painting of their models using their paints and suggest various color schemes to be used. I think GW would have a hard time making a case for why no one should paint their miniatures when it is part of their business model. It would be tantamount to them saying I'm not allowed to sell their miniatures once I've bought them if I happened to paint them.

But hey, you can sue anyone for just about anything in America.


Automatically Appended Next Post:

Thaylen wrote:A question for one of the bonafide lawyers out there; I've heard many references of a larger company using a lawsuit to bankrupt a smaller company via legal fees. Is there any recourse available to the small guy in this case? It seems a bit dodgy that you can just throw lawyers at the competition and laugh as they bankrupt themselves funding a legal defense. (Right or wrong wouldn't matter nearly as much as how long you can pay a lawyer for).

Polonious, could you or one of your colleagues take a poke at this question? It might have gotten missed in the shuffle.

aka_mythos wrote:

MikeMcSomething wrote:So if you pretty much completely fail to make, say, an anatomically-accurate looking skull (like GW/CH failed on the skull on the large rhino door in question) and end up with a...let's generously call it "Stylized" approximation of a skull, is it still protected in the same way? People keep saying "Well it's a skull so it's all bound to look the same" etc. but really that's a fairly distinctive skull, myself and others in the thread immediately thought of the old skeleton kits when we saw them. Compare it to the new Grave Guard/Skeleton warrior kits and you see a distinctive shift to a more accurate representation of a skull on the new model kits.

So the question is, are they all protected because they are trying to be a skull? Or do the ones that actually look like a real skull get a pass?

Everything GW or anyone else makes is protected, but the degree of originality severly hampers or helps someone make a case and collect damages. A skull that is just poorly made is protected but the lack of originality will prevent it from garnering any significant repercussions, the court might demand some action on the part of the offender without necessarily awarding any money.

I think a better example of a stylized skull that GW could sue for is the Adeptus Mechanicus symbol, which is highly stylized. It isn't majorly identifiable as GW but it is significantly original. If "Bob the Bits Builder" makes bits with that icon on it and GW sued, they would very likely win unless "BBB" could show some similar use predating GW's. GW would win and could probably show their icon is a relatively original design and get most of the damages they're suing for.

Interestingly, my reading of Kroft v. McDonald's (cited above) would indicate that a "poorly made" skull sculpture would be easier to assert coverage of then an accurate one, since the poor fidelity can be represented as "fanciful" or "artistic" alteration; contrast Kroft with Wildlife Express v. Carol Wright. In Wildlife Express the images of animals were distorted (they were plush animal elements appended to duffle bags), and the differentiated from Kroft because "[a]s a work embodies more in the way of particularized expression, it moves away from the bee pin in Kalpakian, and receives broader copyright protection".

The problem with the skull discussion in this thread is it has used pictures like this;


Without reference to images like this;

The image above is taken from The Bone Room, a site that sells casts of skulls, but, as is the case with the above image, also sells real human skulls for... whatever it is that people do with human skulls. In the matter of a purely natural object, where the only difference is a matter of scale from the actual object in nature, I think a far stronger case must be mustered then has been to convince that the governing law is not Kroft and Kalpakian; see also and especially Vickery (cited above) on issues of scale. Or, put another way, the fact that two sculpted skulls look alike is, it would seem, less important then asking if they are also identical to an actual skull.
---

Gibbsey wrote:Which is one of the reasons GW is sueing them, for using GW trademarks to identify products which GW beleives gives a false impression that they are official models.

Did you see the original site? "Shoulder pads for Space Marines" "Products for Tyranids." I thought it was "Space Marine Shoulder Pads" "Tyranid ..." which does not imply they are unofficial.

Its the difference betweed saying "[Game] Add on" and "Add on for [Game]" the first one sounds official and leads to confusion.

You seem to be falling into the trap I mentioned (confusing "the poster's view of what they think the law is, rather then what it actually is"); I urge you to review Polonius' excellent posts above, with special attention to his post on PEI v. Welles. I will also quote Justice Holmes' decision in Prestonettes v. Coty (as did the court in PEI);

When the mark is used in a way that does not deceive the public, we see no such sanctity in the word as to prevent its being used to tell the truth. It is not taboo.

Now, this is not to say that there is not a line that can be crossed, nor that I am stating that in my professional opinion CH did not cross it (my point here is to discuss the general principle, not the specifics of that case*), but that I do not believe, based on my reading of the apparently applicable case law, that the applicable test is so simple (or so critically dependant on word order) as is being implied; the actual test involves a great deal more subtlety. Further, it is very clear that under the principle of Nominative use, a maker of add-on parts like CH has some right to use GW's trademarks. The question of how much use is proper use is not so easily disposed of as several posters seem to imagine.

*I'm not your lawyer, nor Chapterhouse' lawyer, I'm just shooting the academic points of the law-breeze.

For some reason I always feel better when authentic attorneys show up to explain the real letter of the law and case at hand..

Thaylen wrote:

Thaylen wrote:A question for one of the bonafide lawyers out there; I've heard many references of a larger company using a lawsuit to bankrupt a smaller company via legal fees. Is there any recourse available to the small guy in this case? It seems a bit dodgy that you can just throw lawyers at the competition and laugh as they bankrupt themselves funding a legal defense. (Right or wrong wouldn't matter nearly as much as how long you can pay a lawyer for).

Polonious, could you or one of your colleagues take a poke at this question? It might have gotten missed in the shuffle.

For a purely finanical lawsuit like this one, there is not a lot of recourse, unless the little guy can find someone willing to work very cheaply or pro bono. The little guys can always ask for legal expenses (if they win), much as GW did in its Petition, but the court is not obligated to award them, and probably wouldn't unless some sort of malfeasance came out on the part of the larger corporation during the trial; and it could take years to get the money.

That is part of what is so pernicious and disturbing about our legal system. There is a very real problem of people or entities with money having "greater access" to the legal system. In other types of cases (criminal, environmental, social welfare, etc.), there typically are some modest resources that are available, either through court appointed representation (sometimes good and sometimes not so good), actual government intervention (where a government agency files suit on behalf of someone), or charitable organizations or entities created to litigate certain types of actions (ACLU, Southern Poverty Defense Fund, etc.). But it is still hit or miss and spotty at best.

if chaperhouse felt it was in the right why have they changed the wording on the website ?

but they still use
Black Templar Player Components
Blood Raven Player Components
Storm or Combat Shields
Legion of the Damned Player Components
Soul Drinkers Player Components
Dark Angel, Death Watch or Inquisition Player Components

Conversion Kit for Farseer Jetbike Rider

Black templer, Blood Raven's, storm shields, farseer jetbike ect.
Shoulder pads for the space marines and the skull helmet are the exact scale and design of GW products.
the design/art work for the items they are sculpting ? Copying ? is IP and is the property of Either GW or the original artist's


all inventions by games workshop i believe

pretty much seems that they are trying to hop on GW coat tail's and get money for doing so.

how are these items not just direct copy's.
most of the skulls in the green are copyed, all the gray's are GW plastic's as to the skull's being IP the old style skulls on the trophy racks and chaos spike's are styalised to GW as the picture of a human skull show's.

Wait, so a company making bitz to fit onto another company's stuff, actually used that company's style? Wow, that's just... Rather an obvious move. Why would you make skulls for GW figs, and then not make them look like the style of GW's skulls? And given the sheer massive massive volume of skulls GW has made on well, pretty much everything, just about any skull you would make could be found somewhere on some GW fig.

I've been reading all the different strands of the discussion on various forums and I've realised the particular aspect I'm really annoyed about.

I hope that Chapterhouse do come off badly from this, because they have stirred up a ****storm that was totally avoidable. Whoever wins this case, there could be bad ramifications for both GW and/or other bits makers.

The blatant arrogance that CHS have displayed in every thread I've seen (from way back) now threatens to impact on a lot of other people in the hobby ...all because CHS couldn't be bothered to be subtle and, dare I say it, respectful to GW's IP. If anyone else is affected badly by this in the future (like Paulson for a start) it's all Chapterhouse's fault.

There are ways of making bits that GW haven't/won't get round to, that people want, while making a little money from it, without ****ing all over the GW brand (both in terms of subtle marketing and quality of product).

It's a shame really, because I remember discussing the lack of product support for the Salamanders on B&C a very long time ago, just before CHS started. Who'd have thought their badly sculpted 'dragon' head logos would lead to such a massive disaster?!