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 Janthkin wrote:
That's certainly a...unique...reading of Castle Rock. I look forward to seeing what the court does with it.

It is a hook which they can attempt to hang their hat on.

For those who were unaware, the Castle Rock case revolved around a "trivia" book based on the Seinfeld TV series which took the form of a bunch of quizzes (the book was called the Seinfeld Aptitude Test IIRC). Each of the questions or parts of questions related to one or more different elements from within the series.

In that case, the defendants claimed fair use as they were using only small parts of each episode to create the questions. The plaintiff countered that as a whole of the book in question is copied substantial parts of the Seinfeld series. The court agreed with the later argument, finding that point for point on each question or part of the book it would have been fair use - however as an aggregated book, it was not fair use.

It required the court to consider the Seinfeld as a single property as opposed to individual episodes. Games Workshop will likely attempt to make the same claims. Their position on each portion of their copyright infringement claims is somewhat weak, however it may become somewhat stronger if they manage to convince the court to allow (and persuade the jury) that their work isn't the individual items which they sell, rather the whole 40K setting.

 Kilkrazy wrote:
IANAL.

It seems fair to regard the whole of Seinfeld as a property in the Castle Rock case as the book was created of whole chunks of original material written by the Seinfeld writers.

In contrast, much of what GW claim as copyright -- arrows, the Omega symbol, and -- can better be characterised as the individual words that the Seinfeld writers used to create their scripts.

I tend to agree, I was merely presenting the probably train of thought behind the reference.

More so, each portion of the 40K universe has been developed independently of the others. There has never arose a unifying structure or design style as you might find between the different factions of a game like Infinity or PP games. Part of that is that each race has its own flavor, but also each faction (and quite often versions of a faction) are designed separately from the whole, normally by a seperate designer. A stronger argument would be to argue that the shoulder pads should be taken as parts of the whole Space Marine - though the wording which they used doesn't seem to indicate that that is the path which they want to attempt to take.

czakk wrote:
Reading through CHS' exhibits list:

"236 Ku Klux Klan Symbol and Screenshot

(Exhibit 2 to 8/14/12 CHS Mot for Judicial
Notice)

Exhibit not produced
during discovery; FRE 402, 802, 901"

"298 Nationalist Movement Symbol and
Screenshot (Exhibit 1 to 8/14/12 CHS Mot for Judicial Notice)
Exhibit not produced during discovery; FRE 402, 802, 901"

Wonder where that is going.

Others have linked to the symbols - but I will elaborate some on the actual words (or abbreviations). Each side presents the evidence that they wish to enter in during the actual trial. The opposition can than object to the evidence. In the case of those two items, they were not entered in through normal discovery (though they were addressed in expert testimony IIRC) and were submitted for judicial consideration. The judge will deal with the various points of contention prior to the actual trial.

In most cases, both sides will object to anything that the other side enters in after discovery closes. Some might not be allowed - though in most cases, the burden during discovery is much more strict on the plaintiff (as they determine when they want to bring suit) than for the defense. For example, GW objects to the Chalk testimony and related evidence - however because he was not found till rather late in discovery and his response wasn't until after the discovery period officially closed it is likely the court will allow his statement to enter into evidence. In large part because of the significance to the testimony (in completely refutes GW's claim of having a standing policy to transfer all rights to GW) and also because GW didn't provide his name and the related correspondence with CHS prior to the close of discovery. Because of this - it wouldn't be entirely surprising if the Judge were not too terribly happy with GW in general (and if it is found that GW's counsel had access to the information they may well be sanctioned).

 odinsgrandson wrote:
So, trial.

My understanding of trial by jury is that it can go in any direction, and that juries often do things that make no sense to anyone, especially the law.

It just seems to me like a trial by jury is kind of like rolling the dice, and whoever rolls higher gets to determine the rules...

The summary judgements still need to be addressed - though in all likelihood, it will still have the majority of the claims left for the trial.

One thing to keep in mind is that the request for the jury trial is largely a strategic move for pretrial than an actual desire for a jury trial on the part of either party. Jury trials are many, many times more expensive than bench trials. When GW filed their original paperwork, they put in the jury demand to intimidate both CHS and any legal representation that they might find. The local lawyer from down the street probably is not well suited to deal with a jury trial...let alone a jury trial relating to IP law. Quite often, the jury demand alone is enough to put off many of the smaller law firms.

When CHS received their pro bono representation from Winston & Strawn though - they called Folley and Lardner's bluff. They were basically saying - OK, we will fight your case...but you know what? Even if you decide to back away from the jury demand at a later date, we are going to demand a jury too...so make sure your clients are prepared to pay out the nose.

Once it goes to trial though, the jury is a wild card... Selection is key, as you want to make sure that the alpha of the jury is inclined to favor your case. People tend to follow, and if a strong voice is present who is skeptical of your opponents claims, then that can be enough to return a verdict in your favor or at least prevent a unanimous decision on the part of the jury. If you can manage to get one or two seated who have strong personalities and are favorable to your case - you are in a great position, the actual law becomes somewhat less relevant.

Following the jury trial itself though, appellate courts are reluctant to overturn decisions which favor the defendant - though not so reluctant to overturn decisions which favor the plaintiff. Roughly 33% of appeals on behalf of the defendant are won, while only about 10% of plaintiff appeals win.

 Aerethan wrote:

 Sean_OBrien wrote:

Following the jury trial itself though, appellate courts are reluctant to overturn decisions which favor the defendant - though not so reluctant to overturn decisions which favor the plaintiff. Roughly 33% of appeals on behalf of the defendant are won, while only about 10% of plaintiff appeals win.

So only 43% of appeals have a resolution?

Or do you mean that when a defendant appeals they win 33% of the time and when a plaintiff appeals they only win 10% of the time?


I'd give anything to be in this jury.

Czakk well and good covered it - I don't recall where or when I had heard the stat...though it seems to either have changed a little or the numbers are a bit different from what I remember.

Remember though - a trial has three basic outcomes (many more variation there of...but each count can generally break down to one of the three). The court can rule for the plaintiff, they can rule for the defendant or they can not come to any ruling at all. No ruling can be retried in the case of the original case, though if an appellate court comes to no ruling it generally means that they concur with the lower courts rulings - it doesn't count as a win or a loss directly (in terms of the appeal).

So...

GW could have a count of a copyright on Skulls:

1) The jury might agree with them that they own all skulls.
2) The jury might disagree and say CHS can freely use skulls.
3) The jury might be split where half think that GW owns all skulls and the other half thinking that CHS can freely use skulls. This is effectively a win for CHS, however GW can sue again the very next day.

On appeal for each of those cases, the appellate court might decide that the jury decision was right or wrong on a number of different reasons. They may also agree in part, for example that GW might own skulls...however they might disagree with the specific penalty tied to that (damages for example). Gets to be a bit of a mess - but generally speaking, the defendant is favored on appeal.

 Aerethan wrote:
Since it got lost in the pages of nonsense, when is trial set to start?

By which I mean opening arguments and all that, not jury selection.

Specific date hasn't been set - though IIRC it should be mid December to begin the court procedures - though that will likely start off with the jury selection.

czakk wrote:
Court tv is mostly state stuff I think.

Mostly salacious stuff (or otherwise interesting to the various gossip distributors). Remember, Court TV is a commercial venture, so there has to be mass appeal to what they televise. IP cases, especially those regarding niche products will not likely make it to the level of interest to qualify.

Once the trial actually starts, it shouldn't take that long. Worse case scenario would be a month or so, but more likely half that. The way the transcripts are set up though, you can't normally access the transcripts while the trial is ongoing. Members of the legal teams can, as can certain media representatives - the rest of the public though doesn't normally get access to them for several months after the case has finished.

 Pacific wrote:
I thought the informed comment made above said that a trial by jury almost certainly wouldn't happen?

I don't recall any informed comment that would lead to that conclusion. Barring a settlement of some form prior to the trial - the jury trial will happen. GW may or may not be inclined to offer an attractive settlement depending on the outcome of the summary judgement motions. It is unlikely that CHS will be inclined to accept it though without it being an extremely attractive settlement at this point though as the primary motivating factors which would make them inclined to seek a settlement are negated through pro bono representation.

Again though, if GW were to throw up a 7 figure number...CHS would be hard pressed to reject the offer no matter how principled they might be in seeing this through and if things look badly for GW based on the judges comments during the summary judgement, GW counsel may well recommend that as the cheaper option in the long run.

A small pile of money to prevent a judgement being actually issued against them will allow them to more or less maintain the existing status quo of GW using C&D letters combined with various other legal tactics (DMCA take down orders and what not) to keep their particular lock in place. However, should the court issue a judgement that breaks their lock (especially if the court ruled on the potential Design Right issue) would cost GW 7 figures plus a year in losses - not to mention the damage to their licensing potential and other long term losses.

rigeld2 wrote:
I think I know the answer, but can CHs counsel change their mind on the pro bono representation?

Not normally - a contract has been entered...though there are likely a variety of clauses which would allow them to revoke their side or change the agreement.


Automatically Appended Next Post:

 Pacific wrote:
Can't imagine GW offering a settlement to be honest. That would require them to make a concession or acknowledgement of some sort, which I don't think is within the vocabulary of their company culture.

Again, it ends up being an issue where their representation looks at the case and provides advice based on the situation on the ground. GW could pay off CHS and then just pretend like this never happened. You see those sorts of settlements happen fairly often. Generally the pay off is accompanied by various clauses which prevent both sides (in this case especially CHS) from talking about what the agreement actually entails. It would place a cloak over who actually wanted the agreement and what the terms were. Much speculation, but no closure to the issues of the case.


Automatically Appended Next Post:

 scipio.au wrote:
Would that be worthwhile to CH's representation though? Surely a big win is worth more to their reputation in IP than a settlement?

Again, it would largely depend on what the offer actually entailed. While law firms enjoy a feather for their hat - they also enjoy money in the bank. If the settlement offer included a clause for compensating the expenses of the CHS legal team, plus a little bit extra to make it worth their time...it may well be well received by them as well. Keep in mind though, unless there is a specific clause in the representation contract which CHS and W&S entered into...the interests of W&S can not override the interests of CHS (including a big payoff to shut up and go away).

They might rather have a go in court, but they also have to provide honest and truthful legal advice to CHS. Honestly and Truthfully - if someone offered me a few million dollars to go away, I would have to seriously consider the offer.

 Aerethan wrote:

Now if GW lose the case altogether, then smaller companies will view that differently, in that they may often decide it's worth fighting over.

As for settlement, at this point I don't think CHS has any reason or need to settle. Then again perhaps he has a number in mind that would mean he could just walk away from the entire industry and retire somewhere.

If GW loses altogether, the matter becomes one of settled law. GW could no longer bring cases unless they are substantially different against anyone in the US (being a Federal Court Case)...well they could, but the case has a much greater chance of being dismissed from the outset and potentially GW being sanctioned for being overly litigious (doesn't happen too often - but it does happen).

I am sure that CHS has a number in the back of their head - pretty much everyone does. It isn't always specifically tied to this case or that, rather it is a number which is pondered from time to time which would allow them to stop doing what they are doing and go do something else they would rather do.

In the case of CHS, a number which is high enough would not need be a number that would cause them to walk away from gaming at all. It could be a sum which is sufficient to roll out a line of products like Mantic, PP or Infinity. As opposed to scratching together bits and pieces over the course of a decade - they could push it out in a single go. A few million would be enough if that were there number - and for GW that would only represent dropping the dividend payment by 10 cents or so per share for a single year.

 Dysartes wrote:
Purely out of interest, by the way, what s this "jury nullification" that frozenwastes mentioned?

Quick cliff notes version - jury nullification refers to the jury saying that while the defendant is guilty of the law as written...the law sucks, so we will let them off. For various reasons, it isn't nearly as popular now as it was back when our courts were first getting started, but it is still an existing part of the system. The basic principle though is to provide a direct feedback from the people regarding laws. If a law is nullified often enough, it can effectively demonstrate that the law no longer represents the will of the people (see the Fugitive Slave Act).

Currently, because of the lack of instruction on the matter - a jury is more likely to just find someone not guilty as opposed to opting for the more technical jury nullification.

Still digging through the documents while attempting to do actual paid work...and something which is REALLY interesting jumped out (which will likely be redacted later on...so download and save now).

http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.251.2.pdf

That is big document containing CHS exhibits for their pretrial limine motions...the interesting part that jumped out so far starts on page 95. It is the breakdown of the value of the trademarks in terms of US sales. Year by year for a bunch of items from 2004 till 2012.


Automatically Appended Next Post:
BTW - for those interested in the trial date - the Judges minute in entry 253 states that an issue with the court's calender has caused the date to be pushed back until after the first of the year.

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.253.0.pdf

czakk wrote:

 Kroothawk wrote:
You mean the part of the document marked "Highly confidential"?

That's one of the consequences of starting a lawsuit. People get to look at your private gak.

Those would be the ones.

A lot of private stuff is kept private under normal circumstances. Previously that set of documents was filed under seal and I would guess it was a mistake (either on the part of the court record keeper or on CHS lawyers) that they are part of the larger file. Like I said - save it, as it is quite likely that they will disappear from the "official" records sooner rather than later.

Yah, basically the limine motions just formalize the objections which each side brought up in the previous pretrial filings. There are some interesting bits in the supporting exhibits, but they aren't directly relating to the case (though the deposition by GWs expert witness regarding English law does indicate that many of the claims which GW makes aren't nearly as solid as they would like people to believe).

Regarding a future potential suit...

CHS may not receive pro bono representation the second go around.

GW may not be intending on filing suit in the US.

Over the past few months GW has been doing a bunch of stuff in order to strengthen various trademark claims (advertising and marketing expenditures in the way of GenCon presence...bits rereleased to satisfy the Trade aspect of trademarks...).

I wouldn't be surprised if they file suit in a Eurozone backwater (or Germany...I understand they can be very vicious relating to IP cases). A win in a far flung location which is still part of the EU would allow them to leverage a ban on CHS products in the zone and possibly work into the US market depending on how cooperative the courts want to be at the time.

 Adam LongWalker wrote:

I do not believe that GW will pursue another suit against CHS because I believe that the corporation can not afford another long term suit.
This reasoning is bolstered by the continual cost cutting efforts (such as the reduction of store hours in the UK which people should take notice as that is the crown jewel of the corporation) being implemented. As far as filing other suits in other countries? That is possible however this corporation does everything as cheaply as possible and I don't see anything different or any change from this mindset.

Like many, such as myself who have said over the years. The key to growth for GW to have a broad base licensing program for third party companies. Over the years I've been involved in licensing product. This is not hard to do.

Let's hope reason prevails and both parties settle amicably so that financial resources can be made creating quality content.

Actually - at this point, the future suit must go forward. There are laws in the US that says you can not say you will sue someone...and then not (roughly speaking). They have said they are planning a future suit in official court filings - so either they have to go forward with the suit or they stand exposed to being held liable for not suing. Specific laws involved will largely depend on how CHS would like to go forward. They can look into declaratory judgements or possibly look at filing under other local, State or Federal laws which govern "legal threats" - some of which go all the way up to tie ins on the extortion and black mail statutes.

The reason they will likely not seek to sue in the US again are covered fairly well by Czakk - they are unlikely to attempt to sue in the UK, even though there is a certain home court advantage because of the ruling in the LucasFilm case. It is probably that they will use a smaller Eurozone country (who they could probably demonstrate jurisdiction with because of sales information they got through discovery in this case...which is unethical and in many cases illegal).

Czakk well and good covered issues relating to concurrent litigation (or in this case probably sequential) for the US. The only thing I would add is that if they choose not to appeal the ruling within this case they can in theory proceed with a suit in the US under a different district. Although there are not specific hard and fast laws which define it, in the US we have vertical and lateral (not sure if that is the correct "academic" term) res judicata. In the case of vertical res judicata - a case which has been heard by a higher court will likely be used to influence a lower court case directly as settled law. If the case is dealt with only by a court of similar standing (District 7 versus District 8 for example) it has a lesser impact on the court. A judge can take it under consideration, or he can choose to ignore it completely.

The big problem though is that courts tend not to like companies which bring multiple lawsuits against the same defendant for effectively the same case. Sort of an if mommy says no, ask daddy type situation. Unless they can demonstrate substantial differences between the two cases. Which is hard to imagine substantial differences...it will mostly be "They copied our X" instead of "They copied our Z". Considering that a plurality of CHS items have been on the complaints list, the court will likely find that they should have been part of this case as opposed to the attempt to overwhelm CHS with legal fees. That opens GW up for abuse of process or malicious prosecution claims which could have HUGE impacts on how GW is allowed to do business in the US (the court can actually revoke the right of GW to defend their IP in the worst case scenario).

 AgeOfEgos wrote:
Is that as grey of an area as it appears to a non-lawyer? Specifically, the res judicata--is it entirely judicial discretion that they feel res judicata applies in a future suit (and where it does not). As an example;

GW sues CH for the sale of its "Not Eldar"
GW loses
CH produces another model called "Not Dark Eldar"
GW brings suit again due to the new violation (which while in spirit is like the first case--the new model warrants a new case)

If that's the case, wouldn't the most successful strategy for a company as large as GW be to simply be done with the current case, bring suit after suit waiting until CH cannot get free (or afford) proper representation?

Which is were abuse of process and malicious prosecution come into play. Judicial discretion regarding lateral cases will only go so far. If they get on the wrong side of the court, very bad things happen.

clively wrote:
Also, does anyone have any idea what Exhibit E is supposed to mean?

There are things in there like The Alamo, Alexander the Great, Route 666, American Meat? A lot of those have nothing to do with GW.

8. Attached hereto as Exhibit E is a true and correct copy of a printout of sales data
produced by GW at GW0011031, which it seeks to introduce as proposed GW Trial Exhibit 371,
“Black Library Sales Data – 2007-08.”

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.251.1.pdf - page 2

It is entered in as evidence for CHS en limine motions, and apparently you are not the only one confused:

Because they were all produced for the first time after the close of fact discovery and
depositions, CHS had no opportunity to depose GW about any of those sales summaries,
including the discredited Tr. Ex. 216. This late production is particularly prejudicial because it
involves spreadsheets that are incomprehensible to anyone outside GW. See, e.g., Tr. Ex. 371,
“Black Library Sales Data – 2007-08 (Golinveaux Decl., Ex. E). Moreover, “[t]here is no way
for this Court to know that this alleged sales sheet bears any relation to reality . . . [as it is]
simply something Plaintiff[] generated on a [] computer for the purposes of this litigation.”

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.251.0.pdf - page 5

Although I don't necessarily think it is quite that confusing, I do have some background dealing with reports like those - so they are somewhat easier to decipher. However, in terms of this case - their point is valid... What the Hell? Prove it.

One other thing that popped into my head as well when thinking back on reports like that is that while they might be truthful...they are not necessarily accurate in the grand scheme of things. As the listing states, it is Black Library Sales Data (or at least claimed to be). The problem though is that it only covers a short period of time. This is exceptionally problematic because of the manner in which the book trade does its business. If I am a distributor for Black Library, I might order up a hundred copies of their latest book. I then sell those off to the various retail book stores and they sit on shelves for a bit (not to mention the ones sitting in my warehouse). After a given time - which may in fact be longer than the period reported on in the report, the book stores come back to me and say "We ordered 70 books and only sold 20 - we want credit for the unsold books". I credit their account and they destroy the books which they have in their possession (some companies have them ship back the front covers to get credit...though that varies from store to store and by distributor). I then go back to GW and say, we bought 100 books and I had to credit my retail network for 50 books and I have 30 left in my warehouse. I'll keep 5 of those for special orders, but I want credit for 75 books which I couldn't sell.

That is why a lot of the entries in the list show a negative entry under the units and revenue columns.

Also...there was a branch of GW's publishing arm, Black Library which was called Black Flame for a period of time (not sure if they are still in existence or if they have been sold off or shut down - would need to dig more). Books produced under that branch are listed as "NOVEL BF REGULAR" in the list and include titles like "American Meat"

http://www.amazon.com/American-Meat-Future-Stuart-Moore/dp/1844162990

Part of the "Dark Future" series by Stuart Moore for that particular one. There are others by other authors which are set in that particular universe...Route 666 was written by Kim Newman for example in the same setting.

Certain language used might not be flattering, however most of it doesn't seem exceptionally damaging to me at least. The issue which I would have with admitting that in as evidence is more as it regards to relevance. GW had their opportunity to depose Nick for several hours - if he gave statements that could be refuted by forum posts, then those posts are relevant to the case. If not, the deposition should be sufficient evidence as well as any questioning which they may or may not be able to do in court. Although there are some wiggly things, which are done with a wink and a nod - I don't think anything in particular was done which would impeach his credibility in terms of the court.

At that point though, you would need to be able to demonstrate a chain of custody on the "evidence". Again, while it isn't necessarily likely - was his account hacked, was he the one who made the posts, were the posts altered by anyone who might have been a moderator on the website it was found on? The SCA places that determination with the judge in each case - both whether or not the information is relevant and then whether or not the information is reliable. I would assume it is reliable, as there is little reason for someone to hack an account and make the posts - the relevance, as I said would only be in order to impeach Nick's credibility if the posts contradict his deposition or testimony.

I don't really think this will come down to a question of whether or not parts are made for Eldar or Space Marines. I know a lot of people like to make that argument, but the law is fairly clear in numerous instances that you can make stuff for other peoples stuff.

The question doesn't even relate to using GW products in order to ensure proper fitment. For example, it would be difficult to design an iPhone case without having an iPhone in hand to make sure it fits properly.

The bigger question (assuming Design Rights are discounted) is are things like the GW shoulder pad design unique enough to be protected, and further if the combination of common symbols and other design elements on a shoulder pad protectable.

The use of the Trademarks goes back to whether or not the court (or jury if it makes it past the summary judgement phase) believes that their is confusion created by the manner in which they are used and whether or not the item can be identified without using the Trademark of another company.

Again, the example of an iPhone case. Try to imagine a way which you could market an iPhone case without calling it an "iPhone Case". That uses a trademark which is owned by Apple - but it doesn't attempt to make a claim on the mark. In a similar way, we can find all sorts of shoulder pads made by dozens of companies which are not sold as "Space Marine Shoulder Pads" - though it is merely through familiarity that people know what they are for. To the untrained eye, a nominative use of the trademarked term "Space Marine" and the generic term "Shoulder Pads" may well be deemed as fair use of the Trademark.

The question which the jury will need to answer than comes to confusion. Do people think that CHS is producing "official" GW products like you might get through Forgeworld or is it understood that they sell third party products?

Contesting ownership is the base level of any legal case. Before the case moves forward, the plaintiff has to prove that they have grounds to sue someone. I can't sue my neighbor because his dog pooped on a different neighbor yard. I don't have any standing. If GW can't demonstrate that they own a design or have used a Trademark - then they have no standing and no case.

It is interesting though that it seems like amateur night in many ways at GW in that they are having a difficult time in meeting that base level of proof though. From not having employee records to not having contracts for freelance artists and not even being able to pull up a sales receipt for a given item or set of items which prove that they were sold in the US. All of these are basic elements of doing business.

 paulson games wrote:
The iPhone or other aftermarket items are a differant legal area then what GW is trying to prove, GW is going largely after things as derivative works and deceptive trademark use.

GW needs to sell the jury that their items are "artwork" and thus protected by that set of laws, which normally don't apply to things like aftermarket car parts or iPhone cases.

I tend to agree - however, when presented with the claim which GW makes...the counter point is that it is a descriptive use of the trademark and that there is no confusion caused (as confusion is the key to GWs claim).

 paulson games wrote:

Is this normal court procedure, or is the judge just wanting to see how incompetent someone can be at suing over IP?

There is always the possibility that it meets the court requirements to be filed?

Based on the previous motion hearings and the judge's response to it - he still hasn't made up his mind on that one (well, he may have and is simply allowing the process to take due course). If you go back through the ReCap site, their are a few pages of transcripts from in front of the judge - in particular starting from page 39 of this document:

http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.171.0.pdf

And starting on page 6 in this document:

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.172.0.pdf

Also on that page, the judge interjects with a throw away line that may give some hint of where he stands on the matter of originality of the GW products. However, because of the process - he is allowing things to go forward, not necessarily because he believes one side or the other is correct...rather because that is the process. He makes similar comments as well at other points which seem to be in somewhat of disbelief to claims of originality by GW.


Automatically Appended Next Post:

Herzlos wrote:
Even though they haven't been able to prove any confusion.

Correct.

Comparable cases regarding confusion and trademarks can be seen within various counterfeit cases dealing with designer fashion (the infamous Red Shoe case for example). One thing which distinguishes those cases from this is that the products are clearly marked in an identifiable manner which is unique to their products. It may be a textile pattern which is used (for example, many of my wife's Coach bags have a "C" pattern on them). On its own, the "C" isn't a trademark - but it is an identifying feature which adds to the fame of the Trademark. If GW used something which was unique to their company which CHS copied (a particular motif which is tied to their company or perhaps a specific color of plastic) than the case for confusion would be stronger.

The best case would probably be best met by the Aquila - though it is not nearly as unique as the other above cases as you do find similar designs in historic cases and other fictional universes.

 AndrewC wrote:
I know this is OT, but I want to ask anyway. GW has stated that they are bringing a second case for further CHS products, as I understand it the female 'not-a-seer' and 'not-a-scorpion'. But, wasn't both these items subject to discovery in this case? Isn't it forbidden to use discovery as a fishing trip to see what else you can pin on them?

Shouldn't they have been folded into this case?

Cheers

Andrew

Largely - which is something which I see will become potentially problematic for them in the future. Things which were addressed during various points during discovery for this case (the not-a-seer and not-a-scorpion were both parts of the depositions) are generally off limits in a future case. Discovery from this case can also not normally be used as the basis for a future case as well.

I would need to sit down though and look at the most recent complaint (not to sound like a CHS lawyer) as GW has a fairly active moving target on that. A lot of stuff has been added to, removed and generally shuffled about in terms of what they are claiming. Off the top of my head, I think there are a couple of vehicle kits which haven't been addressed - though to be honest, those would likely be an even weaker case due to the presumed functional nature of mechanical models.

It is getting a bit outside my area of personal experience - so the particulars of which statute might apply to the practice are not specifically known to me, but they largely fall under the broader "abuse of process" category. Some of these are criminal, some a civil and some are simply procedural slaps on the wrist. However, should a judge issue a procedural slap on the wrist that says something along the lines of "leave CHS alone" and GW were to decide not to - they can be held in contempt of court (which can have numerous penalties up to and including jail terms).

C&D orders are not the same as C&D letters. A C&D letter can be issued by anyone to anyone for anything (more or less). They have no particular enforcement power. A C&D order can only be issued by a judge, either as a result of a successful case or in the form of a temporary injunction.

Just want to make it clear on that particular issue as my level of confidence in my understanding of that portion of the law isn't as high as it is for other aspects relating to this case.

Bolognesus wrote:
Hell, I'm only a law student and a European one at that (so perhaps insufficiently familiar with the finer points of this in US law) but really, would you say it's a *realistic* option for someone just wanting to make a living?

Yes, and no.

Putting on a full on legal defense like you see in this particular case would be outside the scope of your average industrious hobbyist. However, if you take a look back through the history books you can see some examples of how one person can stand up against a larger organization. For example, Battle Foam v Outrider Hobbies.

http://www.livingdice.com/4759/battle-foam-v-outrider-hobbies-trademark-case-the-judge-ruled-and-the-case-is-over/

Although that case actually went to trial and the one man show prevailed against the larger Battle Foam company - it demonstrates fairly well that the little guy doesn't just have to roll over. IIRC, most the documents were prepared by Outrider themselves...though I would have to reread the case to be 100% certain on that.

Quite often, just the hint that you will in fact stand up is enough to get another company to back down, even if it does go forward - there is a fair amount of room for a person to represent themselves, though they should seek guidance through legal groups like Chilling Effects and others who can connect you with attorneys in your area who have expertise and are of the mind that many parts of IP law have run a muck.

czakk wrote:
Hmmm did they just pull down the CHS A-H exhibits that should have been filed under seal?

I would assume that the way the Recap server works is that if a more recent version is detected the old one is dropped. The new one will likely have all the good stuff removed from it...

Not to say I told you so, but...

Just a reminder to those who are watching this case. The judge said the summary judgement would be released in 10-14 days...12 days ago. Should be popping sometime this week.

I will be out of town for the Thanksgiving Holiday though starting tomorrow night through Sunday, so if those from the Great White North, Down Under or the other side of the pond are interested - they will want to watch the Recap site.

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

http://ia601208.us.archive.org/12/items/gov.uscourts.ilnd.276476/gov.uscourts.ilnd.276476.1.0.pdf

The new complaint (new case...though it was kicked over to the same judge of the first case...so GW might have some 'splainin to do).

Exhibit A to their claim is a list of their copyright claims:

http://ia601208.us.archive.org/12/items/gov.uscourts.ilnd.276476/gov.uscourts.ilnd.276476.1.1.pdf

All of the ones listed their were filed for this year.

http://ia601208.us.archive.org/12/items/gov.uscourts.ilnd.276476/gov.uscourts.ilnd.276476.7.0.pdf

Judge Kennely actually requested that the case be given to him as opposed to a new and different judge... <cue dramatic music>Duh, duh duuuuh</>

Oh...and just for ease of use:

http://ia701208.us.archive.org/12/items/gov.uscourts.ilnd.276476/gov.uscourts.ilnd.276476.docket.html

Recap root for the new case.
___________________________________________

(MODs - I assume we don't want two threads?)

OK - so I gave everything in the new case a good read.

The jist of the second case is effectively like so:

We sued CHS on claims that they violated our trademarks and copyrights. As opposed to completely stopping any work and product development, they continued to release new products while they waited to find out if they won or lost the first case.

Subsequent to the commencement of the related case, Games Workshop Limited
v. Chapterhouse Studios LLC, 1:10-cv-08103 (MFK), Chapterhouse has also introduced
numerous new products copied from Games Workshop’s original WARHAMMER and
WARHAMMER 40,000 universe, including without limitation various “Tru-Scale” conversion
kits to change the size scale of genuine Space Marine figures to a new size that Chapterhouse
contends is more “true” to Games Workshop’s own original artwork than Games Workshop’s
actual Space Marine figures;Tau heads for Tau “Crisis Model” warriors; various “Heresy” era
shoulder pads for Terminator Space Marines and a “Pilum Imperial Attack Jetbike” equipped
with new weapons copied from Games Workshop’ Space Marine Bike and Games Workshop’s
weapon designs.

The vast majority of the case is a rehash of the claims of the first case. They are still making trademark claims to some generic terms like "Plasma" as well as some things which they no longer are doing business under like "Adeptus Mechanicus".

New case...new facts.

GW paid a few grand for a booth at GenCon this year and they are also paying for a small advertising campaign on Facebook as well this year.

czakk wrote:
... well I guess a few grand might qualify as a considerable sum....


Do you folks down there keep track of who's been assigned as the clerking students for federal judges? I know the Supremes' clerks get announced... This would be a fun case to catch as a clerk.

I wouldn't necessarily call that a considerable sum (we don't advertise at all - but probably spend more than they do all year on advertising on business cards). However, it at least prevents them from immediately blowing their claim by the prior deposition.

You can take a look at the Judges staff on the Northern District Court website.

https://www.ilnd.uscourts.gov/Judges.aspx - Doesn't allow direct linking - just look up Judge Kennelly in the list.

It has two clerks listed, Avani Bhatt and Sarah Grady. Normally they will be full fledged lawyers to become clerks for District courts (at least all of them I have met are).