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The IP of Michael Moorcock is not a trademark and doesn't consist of games.

Apple the music business had trademarked the name Apple in the music business. That's why Apple computer could trademark it for computers but not use it for music. They had to do a deal with The Beatles' Apple when they wanted to put midi into their computers.

That said, I am not convinced GW can trademark an eight-pointed star as a minor element of a collection of games and make it stick. It's the "all of everything belongs to us" approach.

That is part of what this suit is about.

agnosto wrote:

NAVARRO wrote:

loki old fart wrote:Any news on case yet

Dont know but Kilkrazy is still a damn nice jap gal

He's not bad for an otsubone (おつぼね).

I mean his not denying it, so I think its agreed!

So long as we all understand that Squiqsmasher has first dibs on asking him/her out.

Kilkrazy wrote:The arrow design is also in Aleister Crowley's work dating from the 1930s.

Actually the design idea is older (example from 1504):

Michael Moorcock wrote:The origin of the Chaos Symbol was me doodling sitting at the kitchen table and wondering what to tell Jim Cawthorn the arms of Chaos looked like. I drew a straightforward geographical quadrant (which often has arrows, too!) – N, S, E, W – and then added another four directions and that was that – eight arrows representing all possibilities, one arrow representing the single, certain road of Law. I have since been told that it is an "ancient symbol of Chaos" and if it is then it confirms a lot of theories about the race mind. … As far as I know the symbol, drawn by Jim Cawthorn, first appeared on an Elric cover of Science Fantasy in 1962, then later appeared in his first comic version of Stormbringer done by Savoy

Kroothawk wrote:

Kilkrazy wrote:The arrow design is also in Aleister Crowley's work dating from the 1930s.

Actually the design idea is older (example from 1504):

Is that newer or older then an eight point compass (compass rose) http://en.wikipedia.org/wiki/Compass_rose?

Kilkrazy wrote:The IP of Michael Moorcock is not a trademark and doesn't consist of games.

Except it does. GW used to make a series of Elric models back in the day, at least until the contract expired and they were forced to stop manufacturing them.

Michael Moorcock hasn't taken a trademark on the Chaos Star for either books or games.

GW claim to have taken a trademark (it isn't registered) on the Chaos Star for games.

The Elric figures aren't the Chaos Star. They are a sculptural work.

BTW does anyone know who licenced the Elric figures to GW? I had a set, but I threw away the box decades ago.

biccat wrote:

Orlanth wrote:

Kilkrazy wrote:The arrow design is also in Aleister Crowley's work dating from the 1930s.

Fine, make as many eight pointed arrowheaded stars as you wish and trademark them. If they symbolise Chaos then you are treading on the IP of Michael Moorcock.

This is why Apple Computers and Apple studios both existed, the word apple is generic just like a star is. however Apple computer company could not call their new technology related to the music industry apple because of Apple studios. Everything else they did was Apple, until iPod.

A slight nit to pick with this.

I acknowledge your below point and part clarification as valid:

biccat wrote:
Trademarks cover what is referred to as a "class of goods." For example, the Apple (computer) trademark covers "computers and computer programs recorded on paper and tape" (among others covered by later registrations).

Apple (music) trademark covers "gramophone records featuring music; pre-recorded audio tape cassettes featuring music; audio compact discs featuring music; pre-recorded video tape cassettes featuring music".

Since the class of goods covered by the computer registration is different than the music registration (lawsuits between the two notwithstanding), both can operate independently.

Switching to the Moorcock/GW case, Moorcock may claim a trademark in the use of the star to sell books while GW can claim a trademark in the use of the star to sell miniatures. Without more, the two wouldn't have any problems.

Note that there's a lot more involved in trademark law, I'm just trying to give a quick overview.

It is hard to simplify that which is a very complex and arbitrary condition in law into a couple of sentences without sacrificing accuracy to some extent, but the gist of the dilemma is easy to broadly cover on the terms given. IP law is very difficult as it is hard to properly word legislation, easy to give non determinate answers to legislation and difficult to prove. Case in point Chapterhouse was counting on the first and third points, GW was trying to count on the second.

Also to muddy your own waters GW uses the Chaos Star in relation to miniatures gaming and published materials. Even a codex, let alone a black library novel treads on the toes of Moorcocks domain in relation to the Chaos Star. This point soils GW's entire claim to trademark.

Kilkrazy wrote:Michael Moorcock hasn't taken a trademark on the Chaos Star for either books or games.

GW claim to have taken a trademark (it isn't registered) on the Chaos Star for games.

The Elric figures aren't the Chaos Star. They are a sculptural work.

BTW does anyone know who licenced the Elric figures to GW? I had a set, but I threw away the box decades ago.

Not at home or could pull my box out and see, all I remember is they done in '86 and the Elric model was my favourite

Kilkrazy wrote:BTW does anyone know who licenced the Elric figures to GW? I had a set, but I threw away the box decades ago.

I believe it was Chaosium Games. IIRC they had a licence to produce a RPG out of the Melnibonean series and took it a bit too far, sub licensing out to figures.

However, I have been wrong in the past and will be wrong in the future and this may be one of those occasions.

Cheers

Andrew

PS Does anyone know what the court calendar's like? I thought there was a conference meeting on Monday?

GW published the UK edition of the Chaosium Elric RPG.

Kilkrazy wrote:GW published the UK edition of the Chaosium Elric RPG.

And now we know where they(GW) got the idea from and how....

Moorcock said a few years back that he'd received no royalties or even communication from Chaosium in years, incidentally:

http://www.multiverse.org/fora/showthread.php?t=959

That thread may be of interest to anyone wanting more info as to why he's not that bothered about GW using his IP. Certainly in the days before gaming was big business, he took a very laid-back attitude to people making games based to a greater or lesser extent on his IP.

Very interesting.

The status hearing is held and continued until the 21st.

Games Workshop has made a motion to compel Chapterhouse Studios to answer its interrogatories, specifically No. 1 and 2.

No. 1:

Identify each Games Workshop publication, including (without
limitation) copies of any of the works identified in paragraphs 12-
14 of the Amended Complaint and/or any Games Workshop
newsletter, and/or any Games Workshop miniatures and/or gaming
accessories, that has ever been in Chapterhouse’s possession,
custody or control.

No. 2:

Identify any and all sources consulted, used, reviewed or relied on
by Chapterhouse in creating each of the Accused Works.

Chapterhouse Studios objected to those interrogatories and has not responded to them to date, as alleged by the Plaintiff. Games Workshop is asking the court to compel the Defendant to respond, or prohibit the Defendant from making an "independent creation" defense based on its failure to respond.

Games Workshop believes that the interrogatories are well founded, arguing that they are "reasonably calculated to the discovery of admissible evidence."

Games Workshop further argues:

"To the extent that Chapterhouse continues to refuse to identify the sources it relied upon in creating the accused works, it should be precluded from using any of the information that should have been provided in its interrogatory answer as evidence to meet any of its burdens of proof in this case, including in support of its defense of independent creation."

And cites as precedent Holiday Inns, Inc. v. Robertshaw Controls, Co., 560 F.2d 856 (7th Cir. 1977) (ruling that the exclusion of evidence requested in the interrogatories not in error).

I'm not crystal on Chapterhouse's objections to these interrogatories at the moment, but I'll look into the issue. I'm not sure why Games Workshop should be allowed to seek discovery prior initial pleading of the case, or even that it expects to be able to. There might be a matter of procedure that I'm not aware of. My guess is that Chapterhouse is generally objecting to the interrogatories to the extent that it believes they are a fishing expedition seeking information beyond the scope of reasonable discovery, or are in some kind of violation of procedure, in addition to its specific objections to No. 2. I'll need to take a closer look.


The Motion will be presented in person to the Court on the 21st and, understandably, the status hearing is held and continued until that time.

weeble, for the benefit of those of us who don't understand legalese, what were the "works identified in paragraphs 12-14 of the Amended Complaint" and are they the same as the "Accused Works" mentioned in number 2.

Request 1 seems massively intrusive - is this related to the point that was summed up as "CH knows which material of ours it used as a source, so we don't need to identify them"?

Without knowing which the Accused Works are, it is harder to comment on request 2. Have they gotten to specific items yet, or are they still claiming anything under the sun?

Dysartes wrote:
Request 1 seems massively intrusive - is this related to the point that was summed up as "CH knows which material of ours it used as a source, so we don't need to identify them"?

This was my thought as well. It seems like Games-Workshop isn't even trying to comply with the judge request that they identify their own material they think was used, constituting their alleged infringement.

Dysartes wrote:Request 1 seems massively intrusive - is this related to the point that was summed up as "CH knows which material of ours it used as a source, so we don't need to identify them"?

GW basically says:" We are not able to say exactly what Chapterhouse did wrong, so we demand Chapterhouse to help us with our accusation."

Next thing you know GW will try to sue the NFL and the Indianapolis Colts for this.

weeble1000 wrote:

No. 1:

Identify each Games Workshop publication, including (without
limitation) copies of any of the works identified in paragraphs 12-
14 of the Amended Complaint and/or any Games Workshop
newsletter, and/or any Games Workshop miniatures and/or gaming
accessories, that has ever been in Chapterhouse’s possession,
custody or control.

No. 2:

Identify any and all sources consulted, used, reviewed or relied on
by Chapterhouse in creating each of the Accused Works.

I understand little enough of US law so can someone clarfiy this please:

It looks to my laymans eyes that GW is demanding Chapterhouse provide the court with a shopping list of self-incrimination. If so isn't this directly contrary to the Fifth Amendment rights? Even if it isn't a Constitutional breach its not specificity in any form. It looks like Games Workshop has hired bargain basement lawyers.

The status hearing is held and continued until the 21st.

Yay!
Happy Anniversary to me! LOL

Dysartes wrote:Request 1 seems massively intrusive - is this related to the point that was summed up as "CH knows which material of ours it used as a source, so we don't need to identify them"?

They're saying, "CHS needs to tell us what works inspired their designs, so we can tell you what works of ours they violated IP on."
LOL

Orlanth wrote:It looks to my laymans eyes that GW is demanding Chapterhouse provide the court with a shopping list of self-incrimination. If so isn't this directly contrary to the Fifth Amendment rights? Even if it isn't a Constitutional breach its not specificity in any form. It looks like Games Workshop has hired bargain basement lawyers.

It looks to me that you hit the nail on the head, re: shopping list.
Not a lawyer, but I doubt that a company can invoke the 5th amendment.
I don't know about "bargain basement," so much as "willing to do anything they think they can get away with."

Eric

Orlanth wrote:
I understand little enough of US law so can someone clarfiy this please:

It looks to my laymans eyes that GW is demanding Chapterhouse provide the court with a shopping list of self-incrimination. If so isn't this directly contrary to the Fifth Amendment rights? Even if it isn't a Constitutional breach its not specificity in any form. It looks like Games Workshop has hired bargain basement lawyers.

5th ammendment doesnt apply. Thats criminal law, no civil law.

However, I'm not sure that chapterhouse has to provide it, but thats for more law minded folks to chime in on.

Re-reading that last part, 'in their possession or control'... is pretty damn generic, and if they really wanted to, CHS could just respond with http://lmgtfy.com/?q=warhammer+40k. Also send them a pack of greenstuff and a sculpting tool, as they are GW miniatures accessories . Most of CHS's stuff is generic enough that it could be sculpted from internet reference pictures, with the exception of getting the dimensions right for stuff like shoulder pads and rhino doors, which is legal. It does seem like GW is being extremely lazy and asking CHS to incriminate themselves....

Orlanth wrote:I understand little enough of US law so can someone clarfiy this please:

It looks to my laymans eyes that GW is demanding Chapterhouse provide the court with a shopping list of self-incrimination. If so isn't this directly contrary to the Fifth Amendment rights? Even if it isn't a Constitutional breach its not specificity in any form. It looks like Games Workshop has hired bargain basement lawyers.

The concept of interrogatories & the general discovery process inherent to US civil litigation is very strange to most foreigners.

No, the 5th Amendment doesn't apply here; the Bill of Rights protects individuals from governmental action, and this is civil litigation between two entities.

Yes, interrogatories and discovery can cause you to disclose things you'd rather your opponent didn't know; that's part of the purpose, actually, to ensure that cases are decided on all the relevant information. But in this case, it's very strange, as GW has yet to really disclose what pieces they claim are infringing; that might be the source of CH's objection to the interrogatory, as it reads like "Tell us every GW item you've ever been exposed to, in any way," which is pretty broad.

Personally, I'd send them a copy of the (now somewhat dated) Citadel Catalog, complete with the broken spine.

From what I understand, an independent development defense depends on lack of access to the allegedly accused work. Unlike patents, copyright law allows for the exact same work of art to be created independently, that is, two people on opposite sides of the world can make the same work of art without knowing about the other and that's okay.

Therefore, a claim of copyright infringement always requires access to the allegedly infringed work. In this case, access doesn't seem like something that will be difficult to establish. The accused works (anything and everything made or not made by Games Workshop relating to the Warhammer and Warhammer 40,000 fictional universes) are widely available and well known to the Defendants.

I expect that Games Workshop is trying to do anything it can to get a dog in the hunt. If, for example, Judge Kennelly grants the Plaintiff's motion, Chapterhouse would essentially be barred from claiming independent development (at least that's one way the Judge could rule). I think the idea is that if the Defendant fails to furnish such evidence during discovery, the Defendant would not be allowed to present a defense relying on said evidence at trial because it would violate the Plaintiff's right to review it and prepare a response, or something to that effect.

Now, what this motion comes down to, as far as I can tell, is that Games Workshop made some interrogatories. Chapterhouse objected to them and failed to respond, Games Workshop attempted to contact Chapterhouse and work it out without bringing the matter to the Judge, but now that those good faith efforts have failed, a motion has been presented to the Court.

However, there is likely a flip side to that coin. Chapterhouse doesn't want to respond to improper interrogatories, and thus furnish the Plaintiff with information beyond the reasonable scope of discovery. The Defendant has already accused the Plaintiff of using the lawsuit as a fishing expedition. Furthermore, Chapterhouse might argue that the Plaintiff was not being reasonable and did not make a genuine good faith effort to resolve the issue. After every contact regarding this matter, even as alleged by Games Workshop, the Plaintiff demanded the information by the end of the following business day. This might be argued to place an unreasonable burden on the Defense given that the Defendant is 1,000 miles away from the Court.

This is just a little spat. A more seasoned litigator would likely better understand whether an exchange like this was common or uncommon within the scope of the suit, but it seems to me like Games Workshop is trying to sink its teeth into, well, something. Ultimately, this is a minor issue within the scope of the lawsuit. Independent development is not a truly viable defense on the part of Chapterhouse studios, and I think it is also plain that Games Workshop is indeed attempting to force the -Defendant- to narrow its claims, rather than providing that clarity itself. And all of this prior to pleadings.

I don't think that Winston and Strawn would be sloppy enough to either willfully defy the Court's order or bungle procedure and wind up losing the ability to claim independent development. This issue will likely be resolved without substantively impacting the case. Although for a Plaintiff that can't make a satisfactory allegation of infringement or make sure all of its allegedly infringed marks are in use, this is a bit like the pot calling the kettle black. And that's without mentioning the relative refusal of the Plaintiff to be reasonable at any step of this trial process thus far.

I don't really think GW interrogatories here are that unreasonable.

In No. 1:

Identify each Games Workshop publication, including (without limitation) copies of any of the works identified in paragraphs 12-14 of the Amended Complaint and/or any Games Workshop newsletter, and/or any Games Workshop miniatures and/or gaming accessories, that has ever been in Chapterhouse’s possession, custody or control.

GW is basically asking CHS to name every GW book it has ever owned. What exactly they think this will prove, I don't know. I'm not sure if a model based on an old picture, or a description in a book, is an infringement or not?

And:

No. 2:

Identify any and all sources consulted, used, reviewed or relied on by Chapterhouse in creating each of the Accused Works.

Here GW is definitely trying to set CHS up, by implying that there were no independent sources relied upon for the models, outside of GW's materials.

Someone with more of an IP background please address this, but my understanding is that a derivative or pseudo-derivative work does not necessarilly translate from one medium of expression to another. Particularly when you are going from words or pictures to a sculpture.

This may be a case of trying to pre-empt the independent development argument. It seems somewhat of a stretch again because of the inherent artistic license taken by translating a work from one medium of expression to another. In this instance there is no direct copying, but rather there is an inherent interpretation based on a prior picture or description. Again, if someone with more IP background would address this?

Eldanar wrote:I don't really think GW interrogatories here are that unreasonable.

In No. 1:

Identify each Games Workshop publication, including (without limitation) copies of any of the works identified in paragraphs 12-14 of the Amended Complaint and/or any Games Workshop newsletter, and/or any Games Workshop miniatures and/or gaming accessories, that has ever been in Chapterhouse’s possession, custody or control.

GW is basically asking CHS to name every GW book it has ever owned. What exactly they think this will prove, I don't know. I'm not sure if a model based on an old picture, or a description in a book, is an infringement or not?

Quick, by the end of business tomorrow, provide me a list of every GW miniature you've ever owned (or borrowed). Oh, and every White Dwarf you've ever read, every codex you've ever had (all editions), and don't forget those old copies of Talisman, Space Hulk, and/or Battlemasters you might have played with 15+ years ago....

Can't do it? I doubt I could.

Janthkin wrote:Quick, by the end of business tomorrow, provide me a list of every GW miniature you've ever owned (or borrowed). Oh, and every White Dwarf you've ever read, every codex you've ever had (all editions), and don't forget those old copies of Talisman, Space Hulk, and/or Battlemasters you might have played with 15+ years ago....

Can't do it? I doubt I could.

I've been playing for about 15 years now, and beyond the first few models I bought, I don't remember most of the stuff in specifics between then and now. Hope GW never tries to sue me and ask that question.

If the judge does require CHS to do what GW want in terms of disclosure, I am sure they'll have a whole lot of fun naming practically every SF and fantasy and horror and modern war DVD, videogame, and novel any of their staff own in Part 2.

Could it be that GW lawyers deliberately try to get this case dismissed by court just to get out of this unwinnable case without setting precedence?

Just out of interest, how do you make an accessory for something without first looking at it? To make Salamander inspired shoulder pads, you would need to know about the Space Marines & Salamanders. Perhaps someone should be asking the GW Tyrant design team to hand over any material that inspired them to come up with such an "original" idea?