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George Spiggott wrote:

malfred wrote:I've always wanted to pick up a set of Impact! miniatures.

I'd never heard of them until this happened. Go GW!

http://www.impactminiatures.com/index.php?option=elfballteams

Me neither.

Pretty good looking figures -- more variety than Blood Bowl. The Egyptian Gods and African Animals teams look rather jolly.

I might buy a set just to piss on GW's chips. After all, the Blood Bowl rules are available free, aren't they, so I could use the Impact figures for both games.

Hmmm... Let me just check the availability of Blood Bowl...

Games Workshop wrote:
Games Workshop Welcome!

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Oh!

Their search function doesn't work (try searching for "warhammer").

http://www.games-workshop.com/gws/content/article.jsp?catId=cat1290025&categoryId=1100014§ion=&aId=4800003

Their search function sucks, lol.

Standard disclaimer; while I am an IP attorney, none of the follow should be interpreted to be binding legal advice or constitute an actual opinion. None of the following should be construed to constitute any form of relationship or interest in the matters or entities involved.

TBD wrote:

Archonate wrote:Nobody is arguing that GW has the right to protect their IP. The issue is that GW is harassing people who are not infringing on their IP. People who they know will not fight back. And they're doing it to their very own fans, no less.

Except that GW has been doing the same thing to similar websites which do not contain "Bloodbowl". They're not protecting their IP. They are just antagonizing their fans.

I'm not sure what you are arguing here? I have seen several people say that GW has no right to do this, even though they clearly do have that legal right because that site is infringing on their IP. So who are these people they are harrassing who are not infringing on their IP?

And can you give me an example of any of those other sites they did this to as well? It should be a "simple" matter of taking a look at what such a site is doing and what GW is claiming.

Now I note that your flag is non-US, so perhaps you are referring to IP law outside of the Lanham Act, the Madrid protocal, the Copyright act or the Digital Millennium Copyright Act. My own impressions of these (which is no doubt a mere journeyman's by comparison) is that they do not support such actions by GW. Course, I'm probably overdoing the cough syrup tonight. Would you deign to enlighten us as to the basis for your conclusion?

TBD wrote:If a site knows it has nothing to worry about because it is doing nothing wrong then they can just let GW take them to court and GW would lose. I doubt GW would go to court unless they have an actual legit case.

Heh.

Hehehe.

BWUHAHAHAHAHAHAHAHA...

Cane wrote:Yea its not GW you should hate. Its lawyers!

It's funny because it's true.

Old joke..

What do you call 100 lawyers at the bottom of the ocean?


A good start.


-- That said, I hated my sojourn into the legal field...of course if could be I was doing all the work while the lawyer I worked for got 99% of the money.

Don't Hate the playah, Hate the game.

George Spiggott wrote:

malfred wrote:I've always wanted to pick up a set of Impact! miniatures.

I'd never heard of them until this happened. Go GW!

http://www.impactminiatures.com/index.php?option=elfballteams

Oddly enough I have their egyptian team allready, because they were based of one of my favorite furry artist's work...

BeefyG wrote:...Also this issue has grown much larger than the initial post if you cared to read through properly... Apparently now approximately 54 letters to varying websites and companies have been forwarded by GW.

Wow, this is both sad and scary. And personally I'm offended. I don't want to blame GW, because legal departments make recommendations to exec's and board-and then they follow any legal course that is available to "protect" their profits. My last two orders from GW and FW were in excess of 1K each, and now it saddens me that I feel as though I should take the only action which is to no longer patronize a product which I enjoy because of the perceived actions by a company which I don't agree with. I worry about getting a C&D letter for a stupid guide I made (see my sig). What this looks like is the George Lucas'ing of the GW franchises. They've eliminating themselves from the hobby community because they want to just have the GW community. It's a major corporate mentality and it's sad.

Chapterhouse wrote:Unless GW is sending the letters certified with proof of delivery and reciept, I doubt that anyone could take these seriously.

Try ripping off a legitimate companies IP for real, and youll have a certified letter being delivered to you by your post man.

And that is called bullying, threats without legitimate intent.

TBD wrote:Looking at the site, that kind of forum is the exact same kind of forum my student club/fraternity has. I think it costs us about 30,- Euro a year, and that is it.

If there are any updates needed for a forum like that in the first place, they are either included in the 30,- you pay once a year or there aren't any. We certainly have never had to pay additional money for updates.

So that makes me wonder: where do those donations go? It is perfectly reasonable to assume he is indeed making a profit if only a small portion of those 4610 registered users occasionally donate.

If this JohnnyP really cared about the website all he had to do is make a few simple and cheap changes. If JohnnyP and three or four other members skip their weekly meal at McDonalds they would probably be able to cover the expenses of buying a new domain.

But no, he hardly visits the site anyway and "can't be bothered with all that". Looks to me like he either doesn't care and/or he knows damn well he is doing something wrong.

GW is perfectly within their legal right to protect their IP and ask for these changes. That site should be happy they have been left alone for so long.

Nothing in your statement regards the legal rights of GW, you merely state that the owner doesn't care and GW is right. How the legal system works, and because lawyers are paid to know how to exploit they system-that doesn't make anything right. Allegations that actions like this are designed to protect the integrity of their IP for profits sake is complete gak. Even if the guy who made TSoaLR sold his book, it wouldn't affect GW adversly in any way what-so-ever. I don't see how being a dick company helps them. The bigger the community which enjoys your product, the larger your sales base becomes.

As an aside, I've wondered about things like the image hosting at dakka or CMON, isn't there a case to be made there?

George Spiggott wrote:

malfred wrote:I've always wanted to pick up a set of Impact! miniatures.

I'd never heard of them until this happened. Go GW!

http://www.impactminiatures.com/index.php?option=elfballteams

Wow, some of those sculpts really are quite impressive, especially the Egyptians.

Buzzsaw wrote:Would you deign to enlighten us as to the basis for your conclusion?

Would you enlighten us as to why you (apparently) think they do not (support GW's actions)?

It is nice that you Googled some stuff, but if you would have actually read some of it too you would have found out that "likelihood of confusion" (about the origin, authorization and/or affiliation etc of the talkbloodbowl site) is one of the main criteria used to determine trademark infringement, and that it is very much supported by the Lanham Act among others.

And that the Madrid Protocol is a system of registering trademarks. I would like to know why you think it does or does not support any actions since it has nothing to do with that part.

And that the Digital Millennium Copyright Act has very little if not nothing at all to do with this either.

Unfortunately for the talkbloodbowl site it appears GW has a very strong case against them as far as "likelihood of confusion" goes, and the fact that they have a donations box also does not help their cause at all.

But I give you a for effort and I hope that you enjoy the rest of your cough syrup





Btw they already made a new site/forum without "blood bowl" in it, so for me that confirms the idea that even though it was such an easy fix JohnnyP simply didn't give enough of a Skaven's arse about it (which he doesn't have to of course, and I wish him well).


Automatically Appended Next Post:

jabbakahut wrote:Nothing in your statement regards the legal rights of GW, you merely state that the owner doesn't care and GW is right. How the legal system works, and because lawyers are paid to know how to exploit they system-that doesn't make anything right. Allegations that actions like this are designed to protect the integrity of their IP for profits sake is complete gak. Even if the guy who made TSoaLR sold his book, it wouldn't affect GW adversly in any way what-so-ever. I don't see how being a dick company helps them. The bigger the community which enjoys your product, the larger your sales base becomes.

I never said I agree with their methods, but this is the way it usually goes. Does anyone really expect uncle Jervis to send the guy at talkbloodbowl a friendly email asking him to please change the name and never do it again?

TBD wrote:
I never said I agree with their methods, but this is the way it usually goes. Does anyone really expect uncle Jervis to send the guy at talkbloodbowl a friendly email asking him to please change the name and never do it again?

Ha, sadly it would probably more effective.

TBD wrote:
I never said I agree with their methods, but this is the way it usually goes. Does anyone really expect uncle Jervis to send the guy at talkbloodbowl a friendly email asking him to please change the name and never do it again?

Would be nice if they would make the attempt once and a while, instead of pissing on and off the fan base. Its tiring to watch GW do the 800 gorrilla act on their fans all the time. I mean if they did and they sites didnt comply, sure come down with the sledge hammer....but hey, its GW. Pissing off their fan base since, well, forever.

TBD wrote:

Buzzsaw wrote:Would you deign to enlighten us as to the basis for your conclusion?

Would you enlighten us as to why you (apparently) think they do not (support GW's actions)?

It is nice that you Googled some stuff, but if you would have actually read some of it too you would have found out that "likelihood of confusion" (about the origin, authorization and/or affiliation etc of the talkbloodbowl site) is one of the main criteria used to determine trademark infringement, and that it is very much supported by the Lanham Act among others.

Sigh. See, this is where the old saying comes from "a little knowledge is a dangerous thing".

Likelihood of (consumer) confusion is, indeed, a vital part of a Trademark case. But, here's the thing, it's a little thing, very subtle, easy overlooked... the word "trade" that comes before "mark"? Yeah, it's actually important. No goods being offered? No infringement. Now, could you make a case for dilution (for those that give a crap, check here) I suppose. Well, except for the express provisions in the law that exempt commentary sites and non-commercial uses (note, commentary sites do not need to be purely non-commercial).

But hey, like I said before, feel free to elaborate on why 15 U.S.C. SS 1125(c)(3)(A) and (B) and (C) aren't on point, or what the applicable foreign laws are. After all, it's not like there are provisions for when the mark is "use[d] in connection with" "identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner."

I mean, it's not like the 8 factor likelihood of confusion test is for comparing goods and services of one party to those of another, or that on-point case law exists.

TBD wrote:And that the Madrid Protocol is a system of registering trademarks. I would like to know why you think it does or does not support any actions since it has nothing to do with that part.

And that the Digital Millennium Copyright Act has very little if not nothing at all to do with this either.

Fascinating. I surmise from your original conclusion that "perhaps you are referring to IP law outside of the Lanham Act, the Madrid protocol, the Copyright act or the Digital Millennium Copyright Act" (that is, that these do not support GW and your position), and you demonstrate your Google foo by... agree they have nothing to do with the topic at hand. Thanks? Bravo?

TBD wrote:Unfortunately for the talkbloodbowl site it appears GW has a very strong case against them as far as "likelihood of confusion" goes, and the fact that they have a donations box also does not help their cause at all.

But I give you a for effort and I hope that you enjoy the rest of your cough syrup

Hmm, you seriously think I'm passing myself off as an attorney? Because... I want to bask in the warm glow of humanity associated with attorneys?

Buzzsaw wrote:No goods being offered? No infringement. Now, could you make a case for dilution

Blabla

Fascinating. I surmise from your original conclusion that "perhaps you are referring to IP law outside of the Lanham Act, the Madrid protocol, the Copyright act or the Digital Millennium Copyright Act" (that is, that these do not support GW and your position), and you demonstrate your Google foo by... agree they have nothing to do with the topic at hand. Thanks? Bravo?

And that is where the donation box comes in. Without it I would agree, but the donation box is one of the things that makes it a bit iffy.

Also, if (and this is very likely) any other company's miniatures are being advertised on that site, if only in threads, then it can be viewed as competition for GW's Blood Bowl miniatures. Some people could even think Impact's miniatures are officially related to Blood Bowl.

In that case someone would A) go to a site that can appear to be affiliated with GW, + B) once on that site see advertisements and links for/to GW's competitor's products.

So no, I would not toss the lack of commercial use out of the window so easily. Facilitating commercial use also does not always have to be intentional.

The case law is a nice find, but the details are not the same, as in that case the "Bally sucks" site clearly had a different nature and it explicitly mentioned it.


(1) strength of the mark; GW owns the trademark

(2) proximity of the goods; unlike the case law the difference in purpose is not so clear. Talkbloodbowl does not pass off it's site as being GW, but they also do not mention they are not, unlike "Bally sucks".

(3) similarity of the marks; unlike the case law, talkbloodbowl did not add a negative, so GW can certainly argue there only is a minor difference. On the other hand the style of the letters is not the same.

(4) evidence of actual confusion; if people have expressed confusion on that site, comments such as "oh I thought this was the official GW Blood Bowl forum", "does Impact manufacture miniatures for GW?" or "does GW own this site?", and screenshots have been made, then there is possible evidence of confusion.

(5) marketing channels used; I don't think talkbloodbowl actively uses any marketing channels, so that is positive for them

(6) degree of care likely to be exercised; could go either way, but unlike the case law there can be reason to believe an internet user thinks talkbloodbowl belongs to GW.

(7) defendant's intent in selecting the mark; neutral, but it may actually be in GW favor. In the Bally case they needed to specifically have Bally as part of the name, because otherwise it would be impossible to to talka bout Bally. In the talkbloodbowl case the purpose is not to prevent anyone to talk about Blood Bowl, but the name doesn't necessarily have to be part of the site's name (as it can be called "talkminiaturesfootball", for example, while in the Bally case the is no alternative).

(8) likelihood of expansion of the product lines; GW could choose to operate an official Blood Bowl forum in the future. Talkbloodbowl is not likely to expand into the business of manufacturing miniatures (however they could expand in areas such as official advertising of GW's competitors on their website, but I'm not sure that is relevant).

I wouldn't dismiss GW case just yet.

I'm still not sure what your purpose was of the last part of the quote. You originally said:

My own impressions of these (which is no doubt a mere journeyman's by comparison) is that they do not support such actions by GW

.

That comment didn't make sense because the Madrid Protocol has nothing to do with that part of it, so it neither does or does not support GW's actions. Why bring it up? What you said makes about the same sense as saying you are under the impression the US internet gambling laws do not support GW's action, so perhaps I was referring to something outside the US internet gambling laws. Duhh.

Nice conversation btw. I doubt anyone else is still reading these posts

Wow very interesting reading there "for those of us that like to read legal jargon and try to understand it".

Really did open my eyes more to what GW is doing, and I have no doubt GW would lose their case if ti was taken to court.. and the defendant could get the legal fees paid for as well.

Nick

TBD wrote:
Nice conversation btw. I doubt anyone else is still reading these posts

I am and don't you fething dare get this locked down by making it personal.

I want this to remain live. I want people to see what a gakker GW has been on this and express their ire.

I want some GW flying monkey to ferry this message back to their dark corporate masters.

Oh just calm down, would you? Have a jaffa cake!

And another thing...

If you visit that Impact miniatures site
(and here's the link again http://www.impactminiatures.com/index.php?option=home ) then you'll note that company actually has links to other miniatures sites that make elfball suitable minis.

What a great shame GW doesn't take a leaf out of their book eh?
But that's about all we can say about GWs attitude towards other companies, independent events, their own tournaments and their own fans who had the sheer temerity to make a FANSITE for a game they themselves can't be bothered with, A GREAT SHAME.

Fine, I'll eat it then.

Anyway, I agree with you, I don't really have anything else to add...

Is it just me, or does that look 'shopped to anyone else?

MeanGreenStompa wrote:

"I'm tired of these ing cakes on this ing plane!"

talkbloodbowl.com differs with Bally in three ways:

1. The "Bally sucks" website clearly stated on its page that it was an unofficial site. Talk Bloodbowl does not. This is a clear distinction brought up in courts.

2. The court finds that a domain name is under tighter scrutiny than the text of a website (also cases like Taubman or Pananvision do as well, and maybe become more on point than Ballys". Whether "talkbloodbowl" is significantly different enough from "bloodbowl" to create a separate entity in a consumer's mind is a bit cloudy when compounded with point number one. Sucks websites are allowed use of a trade marked name, but because adding "sucks" is recognized as not marking an official site because of its connotations, "talk" might not.

3. Dilution of GW's mark may be found by any advertisement, endorsement etc. on the website of another company's fantasy football game or minis if points one and two hold. The easy course to rectify these issues does not help. The exclusions to the Lanham act would not then apply. The "Bally Sucks" website was found to have no commercial intent because its advertising was deemed unrelated to Bally or its services, the name was not used to generate traffic for the advertisements, and there was a clear effort to side step points one and two. The change to talkfantasyfootball.org does eliminate any concerns, except by anyone wondering if they should start JaMarcus Russell or Josh Johnson this week.

MeanGreenStompa wrote:What a great shame GW doesn't take a leaf out of their book eh?

Definitely.




Automatically Appended Next Post:

Niccolo wrote:The change to talkfantasyfootball.org does eliminate any concerns, except by anyone wondering if they should start JaMarcus Russell or Josh Johnson this week.

I would probably start Jervis Johnson over Jamarcus Russell

Before anything else, I must reitereate that I am not forming an opinoin as to the issues at hand here, merely offering more general commentary on the state of the law, and this informatino is merely of academic interest.

TBD wrote:A series of meandering irrelevancies

Remember when I said "a little knowledge is a dangerous thing"?

In fairness though, this is a new experience: I've always wondered what it must be like to be a doctor arguing with a "vaccines cause autism" promoter, or an engineer arguing with a 9/11 Truther. In other words, someone what knows just enough to be convinced they're right, but not enough to understand why they're wrong.

You're taking a real test, the Sleekcraft 8 factor test for likelihood of confusion, and applying it to the wrong situation.

AMF, Inc. v. Sleekcraft Boats, the case that establishes the factors, is a case between one maker of boats, and another maker of boats.

Bally v. Faber (the Ballysucks.com case), is where it was established that the Sleekcraft factors don't apply; where one party is, for example, the proprietor of gyms and health clubs, and the other is a website designer, the "goods" are not related. Or, in the words of the court;

"The fact that the parties both advertise their respective services on the Internet may be a factor tending to show confusion, but it does not make the goods related. The Internet is a communications medium. It is not itself a product or a service."

Given mere second-hand and assuredly unreliable facts, the appearance of the parties here is of a manufacturer of toys and games versus a seller of... nothing, so far as has been related.

Moreover, you seem determined to ignore the fair use exception to Trademark for discussion embodied both in statute (15 USC SS 1125(c)(3)(B) and (C) and case law.

You want to hang your hat on the Lanham (Trademark) Act? Then heed the words of the court in Bosley (linked above);
The Lanham Act, expressly enacted to be applied in commercial contexts, does not prohibit all unauthorized uses of a trademark." And that "[Plaintiff] cannot use the Lanham Act either as a shield from [Defendant]’s criticism, or as a sword to shut [Defendant] up."

You want to hang your hat on the donation button? Again, the court in Bosley;
"[T]he appropriate inquiry is whether Kremer offers competing services to the public. Kremer is not Bosley’s competitor; he is their critic. His use of the Bosley mark is not in connection with a sale of goods or services — it is in connection with the expression of his opinion about Bosley’s goods and services." Italics in original.

Wanna hang your hat on links to other companies in the discussion group? Bosley again;
"Kremer’s website contains no commercial links, but rather contains links to a discussion group, which in turn contains advertising. This roundabout path to the advertising of others is too attenuated to render Kremer’s site commercial."

By the way, for those that think the domain name must be disparaging to be seperate, the website Kramer used was "www.BosleyMedical.com," which scarcely seems obviously negative.

Or, consider the statement reiterated in Mattel (the Barbie Girl case);
"The First Amendment may offer little protection for a competitor who labels its commercial good with a confusingly similar mark, but trademark rights do not entitle the owner to quash an unauthorized use of the mark by another who is communicating ideas or expressing points of view.”

Remember, I'm intentionally unfamiliar with the site the OP talks about; for all I know it's engaged in actively impersonating an official GW site, and so none of the above applies. These are general principles, just as generally orphans are treated mercifully by the court, but that scarcely matters if you've become an orphan by killing your parents.

TBD wrote:I'm still not sure what your purpose was of the last part of the quote. You originally said:

My own impressions of these (which is no doubt a mere journeyman's by comparison) is that they do not support such actions by GW

.

That comment didn't make sense because the Madrid Protocol has nothing to do with that part of it, so it neither does or does not support GW's actions. Why bring it up? What you said makes about the same sense as saying you are under the impression the US internet gambling laws do not support GW's action, so perhaps I was referring to something outside the US internet gambling laws. Duhh.

Nice conversation btw. I doubt anyone else is still reading these posts

Again, I brought it up as part of a list of the relevant US and international trademark and copyright laws to point out that none of them is relevant. It was an invitation to provide your basis for thinking it's relevent... so, from this exchange I am to assume that you do not, in fact, have any other grounds on which to anchor your opinion?

Chapterhouse wrote:Wow very interesting reading there "for those of us that like to read legal jargon and try to understand it".

Really did open my eyes more to what GW is doing, and I have no doubt GW would lose their case if ti was taken to court.. and the defendant could get the legal fees paid for as well.

Nick

In fairness, you forget the bluff that unfortunately underlies most threats to litigation: say GW sues, you can't just ignore it or they will get a default judgment, regardless of the merits of their claim.

On the other hand, you can fight, but that costs money.

For example, say I opened a site at "GamesWorkshopBlowsGoats.com". They send me a cease and desist letter. I know, from case law, that I am in the right (straight repetition of the facts of BallySucks), but I still have to weigh weather I can spend the money to fight them.

This is roughly analogous to the idea of nuisance value: after an auto accident, personal injury lawyers will sue for perhaps $10,000 for an injury. Well, to fight the lawsuit might take an insurance company $7,000 in lawyers fees, so they settle for $5,000, because it's cheaper then fighting.

Ultimately, that's the real issue, you see; right or wrong, if a company like GW sends you a letter, you're playing chicken. They can very easily throw a few thousand dollars worth of legal filings at you with very little impact on their bottom line, but that's far more then enough to destroy whatever margin a fan site generates.

The way to get GW (or any company that relies on devoted fans) to stop "bullying" their fan sites, is to let GW know it will impact your purchases.

Just visited Dark reign ( the fan site for Dark Heresy RPG ) and they too have received the GW threat mail . Just how far reaching is this GW offensive? It obviously is a coordinated effort against a large number of fan sites. Do have any kind of list of the sites under assault?

The Dreadnote wrote:Is it just me, or does that look 'shopped to anyone else?

Definitely shopped. That actor is an American. Americans don't eat Jaffa Cakes. Clearly someone replaced whoever was holding the Jaffa Cakes with a picture of an actor.

Sadly, it seems that GW would rather increase market share than increase market size. If they believe the market is already as large as it can get, that makes some sense, but in the long run I am still not sure it is the best idea.

I remember "the good old days" when even WD was a "hobby magazine", not a "GW magazine".

Thanks for the analysis Buzzsaw. I wish I had studied IP in law school. Oh well, I was having too much fun taking tax classes.

Copyright law allows for use of copyright artworks for the purposes of criticism and review.

Depending how bloodbowl.com and darkreign40k.com run their forums, it should be easily possible to carry on and defy GW. They'll need to delete gratuitous examples of GW imagery, that's all.