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aka_mythos wrote:They don't have status to send such a letter. Its no different than if GW's janitor sent a letter. This isn't a case of CH choosing to ignore something so much as US law doesn't recognize it for what it was trying to be.

Listen, I've practised law for over 20 years. I am not an IP lawyer, but there is a huge amount of misinformation being posted in this thread about legal process.

If someone is authorised to send a letter on behalf of their employer, then it's 'official' - they are usually regarded as the employer's agent. The contents of the letter may be utter bollocks, but it's still from the employer. There are some documents that require specific authorisation to be executed lawfully (e.g. a director, or someone empowered by the board of a company), and sometimes a company's articles will limit who can bind it. But there is also a principle of apparent/ostensible authority. I've never seen an indication that the position is any different in the US, and US lawyers refer to the same issues. Nor is there a requirement that a 'cease and desist' letter has to come from a lawyer. All this talk of somehow getting into trouble because you send a misconceived 'cease and desist' letter is a red herring - a lawyer's 'cease and desist' letter should be more compelling, and will (hopefully) get the law right; the real risk of sending one yourself is that it'll be wrong and you'll look stupid.

So if there was indeed a letter from 'a GW paralegal' (which is perfectly possible - GW presumably has a legal department which employes paralegals), then it wasn't invalid just because it wasn't signed by Tom Kirby. Now, you can ignore such a letter because you don't think they can or will go after you (perhaps because they're not in your jurisdiction), or because you think their allegations are bollocks (see above). But if you do ignore them, you do so with the risk that they will in fact come after you - especially of they're actually making a point of substance. So you've either taken a calculated risk that hasn't paid off, or you've misjudged the situation badly.

MagickalMemories wrote:Well, to be fair, I *was* trying to be as neutral as possible in the comment.
GW has no legal-fu. They're a fat kid on the playground with a big mouth. Now, they're got to put up or shut up & be shown for the blowhard that they are.

You didn't try to be neutral for long, did you.

Different comment.
I was only trying to be neutral in the comment they quoted, not the one you did.

I'm anything but neutral. I believe fully in the legality of what CHS is doing and have since before they were doing it. My opinions of GW's bullying antics has never been secret.

Eric

Tailgunner wrote: But if you do ignore them, you do so with the risk that they will in fact come after you - especially of they're actually making a point of substance. So you've either taken a calculated risk that hasn't paid off, or you've misjudged the situation badly.

Chapterhouse took the risk that GW made itself ridiculous in court ... and bam, GW actually did. Guess Chapterhouse can live with that.

Kroothawk wrote:

Tailgunner wrote: But if you do ignore them, you do so with the risk that they will in fact come after you - especially of they're actually making a point of substance. So you've either taken a calculated risk that hasn't paid off, or you've misjudged the situation badly.

Chapterhouse took the risk that GW made itself ridiculous in court ... and bam, GW actually did. Guess Chapterhouse can live with that.

I agree with you Kroot Hawk and thank you for keeping things in perspective and the continue updates (and thank you to the rest who are keeping us abreast with the situation).

Tailgunner wrote:
So if there was indeed a letter from 'a GW paralegal' (which is perfectly possible - GW presumably has a legal department which employes paralegals), then it wasn't invalid just because it wasn't signed by Tom Kirby. Now, you can ignore such a letter because you don't think they can or will go after you (perhaps because they're not in your jurisdiction), or because you think their allegations are bollocks (see above). But if you do ignore them, you do so with the risk that they will in fact come after you - especially of they're actually making a point of substance. So you've either taken a calculated risk that hasn't paid off, or you've misjudged the situation badly.

When something is written and sent by a legal secretary... there is the perception of a lack of sincerity on the part of the offended and greatly dwarfing party because it conveys a low level of concern and a diminished sense of the gravity of their demands. As I said this at most contributed to a decision, but was obviously not the only reasons.

Your reasoning seems irrational to me. IF you were a company going out of your way to follow your country's laws and you receive a letter from someone in another country threatening you with legal action in that other country, where you have no physical presence... where that letter is from a person who doesn't seem experienced enough to make the independent determinations in their country let alone ones based on the laws of a country other than their own... while demanding extreme actions and not just conciliatory ones... do you think anyone would anyone take that seriously?-They wouldn't, just as if a Sudanese imam told you to whip yourself for your violation of Sharia law in consuming alcohol, and assuming you aren't a Sudanese Muslim... you wouldn't actually have yourself whipped. Its a person who doesn't seem adequately capable, demanding you commit harm to yourself with no sense of the gravity of their demands. My opinion, the level of sincerity and effort GW put forth is only a marginal improvement from receiving a letter printed on the back of a cocktail napkin.

As I understand the history of the affair, Chapter House would have considered any C&D they might have received from GW to be invalid because their prior legal advice said they were acting within their rights, not because it wasn't signed by a lawyer.

I wouldn't try to conflate presumed authority to send a C&D letter with the level of concern that the recipient of such a letter has. Those are two different things all together. Tailgunner correctly laid out the general principles for sending one out; and it really makes no difference on who sent it out. A corporate counsel or CEO can be incorrect or exaggerating in their C&D letter, just as the lowly clerk or paralegal can astutely lay out the correct law and policies for a jurisdiction. A C&D carries no more or less weight of law behind it than the will to act by the author, and carry out whatever demands or threats it has on it.

As someone who deals in a lot of official looking documents going out all of the time, I would imagine that GW probably has a standard form letter that they slightly modifiy, if at all, to send out in most instances; and that a clerk or paralegal is more than likely responsible for sending this out.

aka_mythos wrote:When something is written and sent by a legal secretary... there is the perception of a lack of sincerity on the part of the offended and greatly dwarfing party because it conveys a low level of concern and a diminished sense of the gravity of their demands. As I said this at most contributed to a decision, but was obviously not the only reasons.

Your reasoning seems irrational to me. IF you were a company going out of your way to follow your country's laws and you receive a letter from someone in another country threatening you with legal action in that other country, where you have no physical presence... where that letter is from a person who doesn't seem experienced enough to make the independent determinations in their country let alone ones based on the laws of a country other than their own... while demanding extreme actions and not just conciliatory ones... do you think anyone would anyone take that seriously?-They wouldn't, just as if a Sudanese imam told you to whip yourself for your violation of Sharia law in consuming alcohol, and assuming you aren't a Sudanese Muslim... you wouldn't actually have yourself whipped. Its a person who doesn't seem adequately capable, demanding you commit harm to yourself with no sense of the gravity of their demands. My opinion, the level of sincerity and effort GW put forth is only a marginal improvement from receiving a letter printed on the back of a cocktail napkin.

I'm sorry, but a perceived lack of sincerity, on one side, does not equal a lack of concern by the other side.

Firstly, I don't know what was said in the letter with regard to which countrys' laws CHS was, allegedly, in violation of. Experience/age/whatever, when faced with such a measure, you don't just write it off because of that. And yes, you do take such matters seriously, CHS did. They took it to legal advice, which IMO, failed them badly by, apparently, telling them the letter had no valid/legal standing and to ignore it. With regard to your example, whether you were a Sudanese Muslim or not, you then can't visit Sudan, because you would be whipped.

@Kilkrazy, not quite, while CHS has always operated within the limits set out to them by their legal checks, this part is about the last legal advice given, which was to ignore a letter based, apparently, on who signed it, not the contents/demands/threats*

Cheers

Andrew

*delete as applicable

AndrewC wrote:

@Kilkrazy, not quite, while CHS has always operated within the limits set out to them by their legal checks, this part is about the last legal advice given, which was to ignore a letter based, apparently, on who signed it, not the contents/demands/threats*

I thought that this was just idle speculation to pass the time until we got more news? Where did this come from, that CHS ignored a C&D letter from GW based on who sgned it?

He's taking a small something I said and running wild with it.

AndrewC wrote: And yes, you do take such matters seriously, CHS did. They took it to legal advice, which IMO, failed them badly by, apparently, telling them the letter had no valid/legal standing and to ignore it.

Why did CHS's lawyers fail? They assumedly said that the letter has no valid/legal standing and up to now, GW lawyers haven't found any valid/legal standing yet, stubornly ignoring fundamental requirements like a layman when filing the case. So according to current evidence, the CHS lawyers were 100% correct.

AndrewC wrote:
I'm sorry, but a perceived lack of sincerity, on one side, does not equal a lack of concern by the other side.

It speaks to diminished concern compounded by many other contributing factors. I think you're latching on to one small detail, others wanted expanded on, and you've taken that as having greater proportion than it actually does because of the additional clarification. What I've said is only as I understand it and not necessarily the way it was interpreted.

AndrewC wrote:
Experience/age/whatever, when faced with such a measure, you don't just write it off because of that. And yes, you do take such matters seriously, CHS did. They took it to legal advice, which IMO, failed them badly by, apparently, telling them the letter had no valid/legal standing and to ignore it.

I think an aspect thats been ignored by everyone is even though GW has taken legal action it didn't follow through with its C&D. While GW has taken legal action its not in the specific way it threatend, because it never could do exactly it said. I think the fact that GW couldn't legally follow through with its specific threat shows precisely how dishonest and insincere its initial assertions were. They may have always sincerely wanted to destroy CHS, but that isn't the same as sincerely having a case. The difference in GW's exectution to me shows proof of the lack of quality in what GW originally wrote as it pertained to this specific situation. By going to court GW has shown it sincerely believes it does have a case, but has failed to rationalize that belief.

aka_mythos wrote:It speaks to diminished concern compounded by many other contributing factors. I think you're latching on to one small detail, others wanted expanded on, and you've taken that as having greater proportion than it actually does because of the additional clarification. What I've said is only as I understand it and not necessarily the way it was interpreted.

In which case I have misunderstood what you wrote earlier. From what I have seen, CHS has always operated within the bounds of the law, and took serious legal consideration of their actions. The last remark on your earlier, deleted, post I took exception to, which smacked of arrogance on the lawyers behalf. If it was conjecture, then, yes, I am guilty of jumping to a conclusion that is not warranted. But it didn't seem like conjecture at the time.

aka_mythos wrote:I think an aspect thats been ignored by everyone is even though GW has taken legal action it didn't follow through with its C&D. While GW has taken legal action its not in the specific way it threatend, because it never could do exactly it said. I think the fact that GW couldn't legally follow through with its specific threat shows precisely how dishonest and insincere its initial assertions were. They may have always sincerely wanted to destroy CHS, but that isn't the same as sincerely having a case. The difference in GW's exectution to me shows proof of the lack of quality in what GW originally wrote as it pertained to this specific situation. By going to court GW has shown it sincerely believes it does have a case, but has failed to rationalize that belief.

But, if as everyone thinks it's a copy/paste proforma, it may not fit what GW wanted/meant to confer. But without the exact wording of the letter I can't/shouldn't comment.

@Kroothawk, the failure I refer to is the inferred instruction to ignore a letter based on the legal authority of the signatory. Which has nothing to do with the ineptitude of GWs lawyers in constructing a case. Which in all likelyhood, is to do with GWs inability to write clear consise instructions, which doesn't rely on TMIR.

When do you think that the GW Court Case FaQ will appear on the website?

Cheers

Andrew

timd wrote:I am assuming that the suit is being driven from Nottingham by GW's UK lawyers.

odinsgrandson wrote:Wow, I sure hope not. Unless they've passed the bar exam in the US, they would be in a lot of trouble. In fact, I doubt that they could even send the cease and desist letter on GW's behalf if they hadn't passed the bar.

I was referring to the strategy and tactics of the suit rather than the actual legal mechanics happening in the US.

Eldanar wrote:And has been pointed out by many minds much more versed in U.S.-based and UK-based commercial codes than I am, there are some glaring differences to how the rules for copyrights, trademarks, fair use, etc., have been interpreted and applied in the two systems, and this is apparently where some of the disconnect is occurring.

This is what I have been suggesting might be the problem: GWUK lawyers are setting the strategy and tactics of the suit (telling the US lawyers what to do) based on their knowledge and expectation of the way UK copyright law works and are perhaps having a hard time dealing with uppity colonial lawyers who are telling them that copyright does work the same way in the US...

Tim

AndrewC wrote:@Kroothawk, the failure I refer to is the inferred instruction to ignore a letter based on the legal authority of the signatory. Which has nothing to do with the ineptitude of GWs lawyers in constructing a case. Which in all likelyhood, is to do with GWs inability to write clear consise instructions, which doesn't rely on TMIR.

Actually these two are linked. If CHS lawyers say, GW has no case, and GW laywers can't construct the case, it might be because GW has no case. Saying that CHS lawywers were just lucky is missing the point. Esp. when complying would have meant the destruction of all moulds and probably the end of Chapterhouse. You don't do that just because a secretary in UK asks you to.

timd wrote:

timd wrote:I am assuming that the suit is being driven from Nottingham by GW's UK lawyers.

odinsgrandson wrote:Wow, I sure hope not. Unless they've passed the bar exam in the US, they would be in a lot of trouble. In fact, I doubt that they could even send the cease and desist letter on GW's behalf if they hadn't passed the bar.

I was referring to the strategy and tactics of the suit rather than the actual legal mechanics happening in the US.

Eldanar wrote:And has been pointed out by many minds much more versed in U.S.-based and UK-based commercial codes than I am, there are some glaring differences to how the rules for copyrights, trademarks, fair use, etc., have been interpreted and applied in the two systems, and this is apparently where some of the disconnect is occurring.

This is what I have been suggesting might be the problem: GWUK lawyers are setting the strategy and tactics of the suit (telling the US lawyers what to do) based on their knowledge and expectation of the way UK copyright law works and are perhaps having a hard time dealing with uppity colonial lawyers who are telling them that copyright does work the same way in the US...

Tim

Initially that could have been the case. But as almost always happens in these types of situations, usually the lead outside counsel has a sit down early on with the corporate chief counsel and explains what is going on. From then on in it is all about CYA's internally, damage control, and possibly leveraging a settlement. Occasionally there is just some general milling about and flailing as different "pull it out of your backside" scenarios are considered.

AndrewC wrote:
But, if as everyone thinks it's a copy/paste proforma, it may not fit what GW wanted/meant to confer. But without the exact wording of the letter I can't/shouldn't comment.

I believe it stated UK law and consequences of legal action in the UK court, which wouldn't have jurisdiction over CHS, and thus the suit generally wouldn't have standing there, being an inappropriate venue.

This was a thought I had, but there may have been some intent in purposefully stating a course of action in the UK courts... a general counter to a C&D is for a recipient who believes themselve in the right is to go to a local court after they believe a suit is inevitable and seek a declaratory judgement to clear the air of impropriaty and have stated what legally can or can't be done... GW by making its suit imminent outside of the US could prevent a US company from seeking such relief from a US court.

Kroothawk wrote:

AndrewC wrote:@Kroothawk, the failure I refer to is the inferred instruction to ignore a letter based on the legal authority of the signatory. Which has nothing to do with the ineptitude of GWs lawyers in constructing a case. Which in all likelyhood, is to do with GWs inability to write clear consise instructions, which doesn't rely on TMIR.

Actually these two are linked. If CHS lawyers say, GW has no case, and GW laywers can't construct the case, it might be because GW has no case. Saying that CHS lawywers were just lucky is missing the point. Esp. when complying would have meant the destruction of all moulds and probably the end of Chapterhouse. You don't do that just because a secretary in UK asks you to.

Slightly missing the point I was trying to make. The advice seemed to have been in two parts, one related to the content of the letter and the second to the authority of the signatory. I inferred, from what was written, that regardless of how valid/accurate the content was, CHS could ignore it on the strength, or lack of, of who had signed the letter.

Cheers

Andrew


Automatically Appended Next Post:

aka_mythos wrote:This was a thought I had, but there may have been some intent in purposefully stating a course of action in the UK courts... a general counter to a C&D is for a recipient who believes themselve in the right is to go to a local court after they believe a suit is inevitable and seek a declaratory judgement to clear the air of impropriaty and have stated what legally can or can't be done... GW by making its suit imminent outside of the US could prevent a US company from seeking such relief from a US court.

Why couldn't CHS simply do that anyway. If they were prepared to pay for the Courts time and costs couldn't they simply have asked to courts judgement anyway?

Cheers

Andrew

AndrewC wrote:

aka_mythos wrote:This was a thought I had, but there may have been some intent in purposefully stating a course of action in the UK courts... a general counter to a C&D is for a recipient who believes themselve in the right is to go to a local court after they believe a suit is inevitable and seek a declaratory judgement to clear the air of impropriaty and have stated what legally can or can't be done... GW by making its suit imminent outside of the US could prevent a US company from seeking such relief from a US court.

Why couldn't CHS simply do that anyway. If they were prepared to pay for the Courts time and costs couldn't they simply have asked to courts judgement anyway?

Costs aside, US law requires that there be an "actual case or controversy" before you can invoke the federal courts. Basically, it's not enough to know that someone might object to what you're doing, and could possibly sue you; you need a legitimate reason to believe that litigation is imminent before you can file a declaratory judgment suit. (Declaratory judgment is available to give you a legal recourse if someone is threatening to sue you, but hasn't done so; it lets the threatened party advance the process, rather than sitting there eternally anticipating a lawsuit.)

Janthkin wrote:Costs aside, US law requires that there be an "actual case or controversy" before you can invoke the federal courts. Basically, it's not enough to know that someone might object to what you're doing, and could possibly sue you; you need a legitimate reason to believe that litigation is imminent before you can file a declaratory judgment suit. (Declaratory judgment is available to give you a legal recourse if someone is threatening to sue you, but hasn't done so; it lets the threatened party advance the process, rather than sitting there eternally anticipating a lawsuit.)

This points to another problem:
GW might face a conviction to have waisted everybody's time by refusing to file a formally correct case.

Hi all.
Having read with great interest all the informed discusion about the C&D letter sent by GW , and the legal advice to ignore it by CH lawyer.

I am just wondering if the CH lawyer had simply replied to the letter pointing out the 'erroneous' statments and omitions.(EG parts that were not aplicable for a C&D letter for a company outside the UK etc.)
And Given GW plc an opportunity to send a 'properly' structured letter to CH.

Would this have helped the resolution of the process?
If GW recieved a letter from an American Lawyer stating CHs case clearly using current American IP Law.
Perhaps GW plc would have taken CH position more 'seriuosly' and delt with it in a more 'professional' way?

I use the words in ' ' as I am not sure the correct terminology, but I hope you understand what I mean...

TTFN

Lanrak wrote:Hi all.
Having read with great interest all the informed discusion about the C&D letter sent by GW , and the legal advice to ignore it by CH lawyer.

I am just wondering if the CH lawyer had simply replied to the letter pointing out the 'erroneous' statments and omitions.(EG parts that were not aplicable for a C&D letter for a company outside the UK etc.)
And Given GW plc an opportunity to send a 'properly' structured letter to CH.

Would this have helped the resolution of the process?
If GW recieved a letter from an American Lawyer stating CHs case clearly using current American IP Law.
Perhaps GW plc would have taken CH position more 'seriuosly' and delt with it in a more 'professional' way?

I use the words in ' ' as I am not sure the correct terminology, but I hope you understand what I mean...

TTFN

Of course, CHS should have shown GW how they could sue them more efectivelly and that would make everything go much faster, how did we miss that?

PhantomViper wrote:Of course, CHS should have shown GW how they could sue them more effectivelly and that would make everything go much faster, how did we miss that?

Seems like the the whole premise GW's advanced with its litigation. "Why don't you help us DESTROY you?"

Let's just say, American judges are now trying to teach GW's US lawyers the basics of US IP law

aka_mythos wrote:Seems like the the whole premise GW's advanced with its litigation. "Why don't you help us DESTROY you?"

So true

Kroothawk wrote:This points to another problem:
GW might face a conviction to have waisted everybody's time by refusing to file a formally correct case.

It's not so much they haven't filed correctly, but they have had a very large claim and are trying very hard to maintain the contents of that claim. Unfortunately, according to those who are familiar with the legal process, it'll be a while before we find find out how right or wrong CH is/was.

Did the meeting go ahead on Monday with the Judge?

Andrew

AndrewC wrote:Did the meeting go ahead on Monday with the Judge?

There hasn't been anything posted since Oct. 20.

That was why I was asking, I saw from the short notes that someone from the UK was flying over to appear at the status hearing scheduled for Monday. I was curious to know if anyone knew who it was. (Minute entry 104).

Cheers

Andrew

I wonder if a settlement was reached on this past Monday's conference. Would they have brought someone from the UK just for discovery? I would not think that it would be necessary.

Continued to the 21st Nov it would appear. I guess someone rolled a six and so another turn takes place....

It looks like Paulson is in the clear though, did GW finally realise he wasn't involved to the extent they alledged?

Cheers

Andrew