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

 SickSix wrote:
WOW, GW either is being sneaky or their lawyers are just incompetent.
1. CH doesn't make plastic shoulder pads
2. That is clearly the back of a GW shoulderpad.

Remember, these are the same GW lawyers who dragged a random guy with no links to Chapterhouse to court for supposedly sculpting a CHS model, and continued to make him responsible even after settling his case out of court.

Guess in US Courts, fraud is a legitimate, legal, common and accepted strategy by lawyers.

Here's another chuckle worthy exchange;

On page 79/80 GW has a Statment of Fact regarding how the Chapterhouse Tervigon Conversion Kit shares similarities with it's depiction of the Tervigon. Notably;

This conversion kit contains the same unique characteristics as Games Workshop’s depiction of a Tervigon, including two small hind legs, four large pointed legs that each have a small horn extending off the “elbow” of the leg, several bony protrusions that extend off the back of the creature, and the overall stance of the creature.

Problem is---that description and unique characteristic list--is actually identifying Games Workshop's own model in the picture...heh. Or as the CH response states;

GW very misleadingly claims that CHS’s Conversion Kit “contains the same unique characteristics as Games Workshop’s depiction of a Tervigon, including two small hind legs, four large pointed legs that each have a small horn extending off the ‘elbow’ of the leg, several bony protrusions that extend off the back of the creature, and the overall stance of the creature.”

But those features are not part of CHS’s accused product. Rather, they are features of GW’s own pre-existing “Carnifex” figure

My gawd, can't CH countersue for libel or fraud or ... something???

This statement is immaterial because, even if true, it has no bearing on the essential
elements of Games Workshop’s claims or Chapterhouse’s defenses.

I guess if you have nothing substantive to say, you say this...

52. On March 9, 2012, in its second supplemental response to Interrogatory No. 18
(“Rog 18 Response”), GW claimed 110 marks were infringed by CHS—omitting 17
marks alleged in its Second Amended Complaint (“SAC”) , and adding 44 marks not
alleged in its SAC. The 17 omitted marks are: WARHAMMER 40,000; TYRANID;
BLOOD RAVENS MARINES; ALPHA LEGION; BONESWORD; GAUNT;
HOWLING GRIFFONS; LASHWHIP; LUNA WOLVES; MANTIS WARRIORS; MK
ARMOUR; MYCETIC SPORE; SONS OF RUSS; SWARMLORD; THUNDER
ARMOUR; TERVIGON; and YMGARL.

Games Workshop’s Response: Games Workshop does not contest this fact.

Can't quite figure out what this means. They dropped the (trademark?) infringement claims on these marks, but are still going after the copyright infringement for at least some of them?

66. When asked to describe trademark use for SOUL DRINKER and Grenade
Launcher, GW 30(b)(6) witness Andrew Jones contended that GW used them as
trademarks in a title of books and book excerpts.
Games Workshop’s Response: Games Workshop does not contest this fact.

So no 3D/sculptural products or even images at all, and yet they are claiming a 3D/sculptural copyright.

51. CHS product no. 110 has not yet been cast, and has never been sold or offered for
sale.
Games Workshop’s Response: This statement is immaterial because, even if true, it
has no bearing on the essential elements of Games Workshop’s claims or Chapterhouse’s
defenses. Chapterhouse’s creation of an infringing sketch and publication or display of
that sketch online infringes Games Workshop’s copyrights even if it has not sold a
corresponding product.

So folks, don't post any of your sketches or other 40K inspired artwork anywhere on the net or GW will be coming after you for copyright infringement...

9. For many of Chapterhouse’s products, Games Workshop is unable to specifically
identify which Games Workshop work out of its Warhammer 40K universe Chapterhouse
used as the basis for its copies. This is due to the fact that for many of Chapterhouse’s
products, Chapterhouse failed to produce the underlying design documents, even after the
Court directed it to do so on March 6, 2012. (Ex. 133, Supp. Moskin Decl. ¶8). These
products include the Shoulder Pads for Chalice or Soul Drinker – Tactical (product no.
23), Shoulder Pads for Chalice or Sould Drinker – Terminator (product no. 24), Ymgarl
Heads for Tyranid Genestealers (product no. 43), SXV-141 Super-Heavy Asault Walker
SAW (product no. 45), Mark I Rhino Converstion Kit (product no. 93), Rhino Tank
Conversion Kit for Iron Snakes (product no. 106), Gun-Halberds (product no. 112), and
Conversion Beamer Servo Harness Kit for Space Marines (product no. 113). (Id.) As
late as February 29, 2012, when Mr. Villacci appeared for his deposition as document
custodian, he could not explain vast apparent gaps in Chapterhouse’s document
production – notwithstanding that Games Workshop had alerted his counsel 2 days before
the deposition that that was a question he was expected to answer. (Ex. 21, Villacci Tr.
47:14-48:17; Ex. 148, Moskin email dated 2/27/12)

So GW can't figure out which GW products Chapterhouse is allegedly infringing without Chapterhouse providing the necessary evidence?

Tim

Surely asking CHS to provide those materials they think will assist GW in identifying infringing items is tantamount to asking them to incriminate themselves. Seeing as GW brought the case, they should have already identified specific examples... right?

timd wrote:
So GW can't figure out which GW products Chapterhouse is allegedly infringing without Chapterhouse providing the necessary evidence?

That sounded more to me like the court was asking Chapterhouse to provide design sketches and/or documents detailing the design of potentially infringing items in order to show that they were designed from scratch rather than just copied from something made by GW, and that section quoted was GW pointing out that Chapterhouse had not provided such documents in some cases.


Given that not all sculptors work off concept sketches, I'm not sure how realistic or enforcable that requirement would be anyway.

 AgeOfEgos wrote:
We might be looking at a different document--are you viewing the Summary Response by CH? I just took a screenshot of the PDF;

note the curvature of the left blue and gold pad. That's wider than the one on the right. CHS's pads are not a square fit on marines. The one on the left is CHS product, the one on the right is GW. CHS has a bit of a different shape to it, CHS' pads are a smidgeon wider than GW's

 poda_t wrote:
The one on the left is CHS product, the one on the right is GW.

I agree.

 AgeOfEgos wrote:

 poda_t wrote:
The one on the left is CHS product, the one on the right is GW.

I agree.

oh geeze, okay. I see. That actually completely slipped by me, it took me until now to realize what you were getting at, and it didn't dawn on my that it wasn't a comparison, but a show, using GW product and passing it as CHS product... yeah, i see this now.

So, now GW's attorneys are in real trouble now i think about it. I'm pretty sure this classifies as perjury.

Heh, no worries--I had to read that portion (the document) a couple of times to make sure I wasn't misunderstanding it.

What's interesting is that I've seen at least two instances of that in a cursory glance at the document (this and the Tyranid example I posted). CH's representation actually outright states it was deception in the Tyranid example--whereas I think in this one it's more lack of due diligence. *Shrug*, regardless---a pretty 'doh' moment for the GW team.

Did anyone else notice how often Jes was quoted? His entire deposition regarding Games Workshop's use of symbols seems pretty damaging on a great deal of the claims. (I am not an attorney though).

More or less Jes' deposition shows that 99% of GW's "unique" marks are actually marks that have existed for centuries. The part where GW claims that a pile of skulls is unique to 40k anything is laughable.

Also,(correct me if I'm wrong) but isn't burden of proof on GW? The case has already pointed out that inspiration is not infringement, and meaning is not protectable. So even if CHS told a sculptor "make a female eldar scorpion whatever", as long as the actual features and official branding of the product aren't direct copies, there is no foul. That howling banshee male sketch looks at first glance quite different than the GW female ones.

CHS shouldn't have to prove how they came up with ideas, as that is just inspiration, which means nothing here. If GW insists that inspiration is tantamount to infringement, then they owe Rome some answers.

It is up to GW to prove infringement here, and so far they haven't. And on the things they claim to be infringing, they haven't shown copyright ownership of their own works.

The more I read the worse this case gets for GW. Their legal teams idiocy and their own employees depositions have doomed this suit as it stands.

 AgeOfEgos wrote:

Did anyone else notice how often Jes was quoted? His entire deposition regarding Games Workshop's use of symbols seems pretty damaging on a great deal of the claims. (I am not an attorney though).

I would have to double check the filing numbers to make sure (read through everything...but at this point speciifc Exhibits and motions relating to them are a blurr)...

But Jes's deposition was one which GW was attempting to keep under seal which the judge said no to. I don't recall it being as exhaustive under the 208 series of CHS documents but it is in the 230 series both in part in the response and in larger part as an exhibit filed by CHS.

 Sean_OBrien wrote:

 AgeOfEgos wrote:

Did anyone else notice how often Jes was quoted? His entire deposition regarding Games Workshop's use of symbols seems pretty damaging on a great deal of the claims. (I am not an attorney though).

I would have to double check the filing numbers to make sure (read through everything...but at this point speciifc Exhibits and motions relating to them are a blurr)...

But Jes's deposition was one which GW was attempting to keep under seal which the judge said no to. I don't recall it being as exhaustive under the 208 series of CHS documents but it is in the 230 series both in part in the response and in larger part as an exhibit filed by CHS.

Hi Sean--do you mind elaborating on what affect GW's keeping it under seal would have? Is that specifically in regards to public disclosure--but his testimony would still be considered by the judge--right?

Jes's deposition seemed like an honest guy just telling the truth--without the aid of legal representation helping him frame it

 AgeOfEgos wrote:

 Sean_OBrien wrote:

 AgeOfEgos wrote:

Did anyone else notice how often Jes was quoted? His entire deposition regarding Games Workshop's use of symbols seems pretty damaging on a great deal of the claims. (I am not an attorney though).

I would have to double check the filing numbers to make sure (read through everything...but at this point speciifc Exhibits and motions relating to them are a blurr)...

But Jes's deposition was one which GW was attempting to keep under seal which the judge said no to. I don't recall it being as exhaustive under the 208 series of CHS documents but it is in the 230 series both in part in the response and in larger part as an exhibit filed by CHS.

Hi Sean--do you mind elaborating on what affect GW's keeping it under seal would have? Is that specifically in regards to public disclosure--but his testimony would still be considered by the judge--right?

Jes's deposition seemed like an honest guy just telling the truth--without the aid of legal representation helping him frame it

Sealing it means that it won't be a matter of public record. It will still be used in the procedings, and presented to the judge and any jury. Things that are sealed on those documents show up as black bars. Oddly enough, a few questions to Vallacci are sealed, but the response to the sealed statements pretty much explain what the blacked out part says.

GW wanted Jes' depo sealed likely to prevent everyone from seeing that GW's claims over these marks is unfounded. He says flat out that every symbol they asked him about existed before GW used them.

It is also interesting that GW keeps misquoting Vallacci, using his words out of context and edited in ways that mean entirely different things than what was said. Basically they are falsifying information in their claims, which would just piss me off if I were the judge involved. Between things like that, and the other false accusations mentioned in the last page or so of this thread, GW is sinking fast.

Primarily just keeping things out of the public record as opposed to actually keeping it out of the courtroom.

In the Index of Exhibits in 208.2, there is no mention of a Goodwin Deposition and 10 sealed Exhibits. Some will be relating to things which CHS would like to keep quiet (future releases and business related communications) but the majority of information on the CHS side they would have little desire to keep out of public domain.

On the GW side, you do see a fragment of the Goodwin deposition at the tail end of 213.4 (GW Exhibit 7) and also in 229.4 (GW Exhibit 10 for that series). They cherry pick lines which make them look good in their claim and leave out the rest (though to be fair the other side will do the same).

Now with why they would want to keep it under seal - that would be because it could cause potential harm. The lead design guru demi-god sculptor of Nottingham saying that everything which they use in their iconography has been done before could be harmful to their IP...if no other reason than the next time they go to negotiate a contract with a company like THQ, they might be less willing to kick in the big dollars.

The sad part though is that even in what GW lawyers have cherry picked it really makes people like Jes look like disingenuous spankers:

Q And are you aware of depictions of heads with tentacles other than in the Warhammer 40,000 universe?

A Pictures of them? I'd be pushed to think of it. No, not really.

from 229.4, page 12 - Jeremy Goodwin Deposition, GW Exhibit 10

Are we actually supposed to believe that Jes Goodwin could not think of a single head with tentacles outside of the GW $40,000 universe? We are to believe that he had never heard of a little guy named Cthulhu. Should we believe that he never read the White Dwarf magazines from back in the day when they covered games other than GW and had adverts for D&D and their Mind Flayers?

With someone who can provide such a bold face lie as that under oath - it isn't too hard to figure out why GW has ended up in the state they are in.

Thanks for the additional hilarity, folks!

Just wondering how GW HQ is going to look after Conan calls round, wanting his pile of skulls back.

 AgeOfEgos wrote:

Jes's deposition seemed like an honest guy just telling the truth--without the aid of legal representation helping him frame it

Missed that last part...I think you might still have a bit of hero worship to work through though. Nothing to be ashamed of, everyone goes through it at one point in their life or another.

I would recommend you read this one:

http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.229.4.pdf

First Exhibit in the bunch, first page of the exhibit...

Although it is hard to read attitude into things like depositions and internet posts - his deposition (like most of the GW HQ staffers) stinks of snarkiness found only in tin-pot dictators and new age gurus who are offended that anyone question their claims to greatness.

 Sean_OBrien wrote:

Q And are you aware of depictions of heads with tentacles other than in the Warhammer 40,000 universe?

A Pictures of them? I'd be pushed to think of it. No, not really.

from 229.4, page 12 - Jeremy Goodwin Deposition, GW Exhibit 10

Are we actually supposed to believe that Jes Goodwin could not think of a single head with tentacles outside of the GW $40,000 universe? We are to believe that he had never heard of a little guy named Cthulhu. Should we believe that he never read the White Dwarf magazines from back in the day when they covered games other than GW and had adverts for D&D and their Mind Flayers?

With someone who can provide such a bold face lie as that under oath - it isn't too hard to figure out why GW has ended up in the state they are in.

Forget about Cthulhu and DnD, apparently Jes has never watched Star Wars!

 A Town Called Malus wrote:

Forget about Cthulhu and DnD, apparently Jes has never watched Star Wars!

Was mainly speaking to things which would have popped up within GW's own product, White Dwarf. Cthulhu and Mind Flayers I know for certain did on a regular basis, I don't recall if any Star Wars related material did...after all, it is possible that he has lived in a cocoon of GW material for the past 35 years or so.

 Sean_OBrien wrote:

Missed that last part...I think you might still have a bit of hero worship to work through though. Nothing to be ashamed of, everyone goes through it at one point in their life or another.

I would recommend you read this one:

http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.229.4.pdf

First Exhibit in the bunch, first page of the exhibit...

Although it is hard to read attitude into things like depositions and internet posts - his deposition (like most of the GW HQ staffers) stinks of snarkiness found only in tin-pot dictators and new age gurus who are offended that anyone question their claims to greatness.

While I appreciate the concern, my heroes (child or adult) have never included miniature sculptors--and in the future, a simple "I disagree because of x" will suffice in lieu of an ad hominem. Unless that was simply meant as a joke and I missed it--as heavy sarcasm translates difficult into text.

Regardless, moving on...




What is the next step in this process? A judge reviews and based upon his decision--we move to an actual trial?

Afaik summary judgement was requested by both parties, and that hasn't happened yet(unless I missed it).

After summary judgement, each side will determine whether or not to offer a settlement(CHS has zero reason at this point IMO to settle out of court).

If no settlement is agreed on, the case moves to trial.

I could be entirely wrong though, I'm certainly no lawyer.

I can only hope that the judge reads that entire response, as it damages GW in so many ways.

Sean- The thing is, he's being interviewed by an "opposing" lawyer in a somewhat hostile fashion. You can't blame him for being a somewhat hostile witness in return.

Not that I'm wanting to take sides here- I would love for 3rd party companies to be free to make things compatible with the 40k universe without walking on eggshells. But, I think your characterization of him based on text (and kind of picking an answer that is not his finest, when he was answering many questions over and over all on the spot) is a little unfair / jumping to a conclusion you can't necessarily make based on the evidence you have.

 AgeOfEgos wrote:
Unless that was simply meant as a joke and I missed it--as heavy sarcasm translates difficult into text.

Joke...sarcasm isn't well translated.

 AgeOfEgos wrote:
What is the next step in this process? A judge reviews and based upon his decision--we move to an actual trial?

The judge has them back in the court room on the 11th to make sure that everyone has their requests for summary judgement and responses to the requests and what not in. After that, he will review the requests, evidence provided and any related information and make any summary judgements which may or may not be appropriate. Likely won't see much on that front till mid to late October though.

The court date has already been set though for early December, at which point anything that remains up in the air will be readied for jury trial. Once things get to that stage, the trial normally moves pretty quickly and depending on how much time is allotted for jury selection and preparations regarding getting various witnesses in the same place at the same time...it wouldn't be too surprising to see a jury verdict in the first few months of 2013.

Granted, you can almost guarantee that what ever happens in this case will be appealed. I had never been involved with that aspect though, so I can't speak towards a timeline for getting a ruling on the appeal (and without knowing for sure what the grounds for the appeal would be, who will be filing it and what not...I think it would be hard to say for certain). Historically though from what I recall, those tend to go fairly quick as well since more often then not it is a review by a judge or panel of judges as opposed to all this in the pretrial discovery and motion phase.

 Sean_OBrien wrote:

 AgeOfEgos wrote:
Unless that was simply meant as a joke and I missed it--as heavy sarcasm translates difficult into text.

Joke...sarcasm isn't well translated.

 AgeOfEgos wrote:
What is the next step in this process? A judge reviews and based upon his decision--we move to an actual trial?

The judge has them back in the court room on the 11th to make sure that everyone has their requests for summary judgement and responses to the requests and what not in. After that, he will review the requests, evidence provided and any related information and make any summary judgements which may or may not be appropriate. Likely won't see much on that front till mid to late October though.

The court date has already been set though for early December, at which point anything that remains up in the air will be readied for jury trial. Once things get to that stage, the trial normally moves pretty quickly and depending on how much time is allotted for jury selection and preparations regarding getting various witnesses in the same place at the same time...it wouldn't be too surprising to see a jury verdict in the first few months of 2013.

Granted, you can almost guarantee that what ever happens in this case will be appealed. I had never been involved with that aspect though, so I can't speak towards a timeline for getting a ruling on the appeal (and without knowing for sure what the grounds for the appeal would be, who will be filing it and what not...I think it would be hard to say for certain). Historically though from what I recall, those tend to go fairly quick as well since more often then not it is a review by a judge or panel of judges as opposed to all this in the pretrial discovery and motion phase.

Ahh, ok--thought it might be as it was kind of out left field .



So--I've read multiple times that these cases are almost 'always' decided in a settlement prior to a proper trial. With it advancing to this stage--is that still the case or are most decided before this step (and we might be looking at an actual trial).

That was a good point that hasn't really been talked about RE: appeal. So in the end---this firm does not represent CH in an appeal pro bono---GW simply has to come back again and drown CH in another case (provided no further pro bono)?


Thanks for the insight--helps us non-litigious types digest what's going on!

 RiTides wrote:
Sean- The thing is, he's being interviewed by an "opposing" lawyer in a somewhat hostile fashion. You can't blame him for being a somewhat hostile witness in return.

While I would agree with the opposing part, I haven't seen much hostile on the part of the CHS legal team. The GW legal team though is full of hostility (some could even read bigotry into it as well as noted in the Oh, oh, oh Mr. Oh remark made by Moskin.

The manner in which he automatically answers No, has the full question stated, requests for it to be restated and then cuts the CHS attorney off again with another No...that isn't really a response that I have seen as a result of simple questioning. More often then not, the lawyers taking depositions are very calm and casual in order to create a relaxed state on the part of the witness. They may end up reasking the same questions again later on in the deposition in an attempt to trip them up, but the time stamp shows that that part of the interview was fairly early in the process.

It is a good bit different than in court testimony in that regard - though even there, lawyers are not allowed to be hostile to witnesses and can face severe penalties if they do (which if Moskin thought the CHS attorney was being hostile he would have likely played that card).

That was a good point that hasn't really been talked about RE: appeal. So in the end---this firm does not represent CH in an appeal pro bono---GW simply has to come back again and drown CH in another case (provided no further pro bono)?

Although the selection of pro bono cases is unique to each firm as to why and how much they want to devote to them - I would guess that W&S would gladly take this case to the supreme court. They are largely an IP firm and probably want this as a feather in their cap. If they win here but it doesn't make it through the appeals process - they wouldn't have the feather. Most the expensive stuff is already done with. All the hours of depositions and case law research (billable hours) are behind them for the most part. It would sort of like paying $10,000 to have an engine and transmission rebuilt for a car but not paying $400 for new tires.

Now, if they were to loose at this point - they might consider cutting their losses...but I don't see it going that badly for them. GW on the other hand almost has to appeal any decision which goes against them. Even if it is a slim to none chance of winning the appeal, their position relies on an iron grip.

That's very helpful (I hadn't really considered the differences of it being a deposition, rather than in court). Thanks!

 AgeOfEgos wrote:

That was a good point that hasn't really been talked about RE: appeal. So in the end---this firm does not represent CH in an appeal pro bono---GW simply has to come back again and drown CH in another case (provided no further pro bono)?
!

Well, the first step will be the Motion for Summary Judgement decisions. I can't see GW winning on its MSJ and if CH's MSJ is granted, the case is thrown out of court and the suit is finished. Judge has determined that there is not enough of a case to take it to trial. Don't know if you can appeal the loss of an MSJ. Sean, can you answer this?

There is nothing to stop GW from filing a new suit based on the new CH pieces that are not included in the suit, but without new lawyers the suit will probably again fail. I would think that any judge looking at a new suit would look at the old one and be less than impressed. A new suit might well look like harassment.

I would imagine that CH's lawyers would be happy to do the appeal. I think they are having too much fun ripping up their opponents.

Tim

Any Summary Judgements can be appealed, however it is a lot more difficult from my understanding. I have been involved in them, just not in any appeals of them. Because they are a based on a simple evaluation of the law and evidence provided...you basically have to prove that the judge didn't properly understand the law (not easy...and not something most other judges are quick to grant).

I don't think there are other grounds for appeal regarding Summary Judgements though - but it isn't something which I have specific knowledge of.

Regarding anything stopping GW from filing suit again...they would be cautioned against it most likely by legal counsel. I forget the specific term off the top of my head (few pints into the night right now) - but if you file a case like this and loose...the court can basically bar you from filing cases against anyone for a period of time as a punitive measure. Although I don't think that specifically will happen here, a judge will likely take a less favorable opinion of GW the second time around...especially against the same defendant for effectively the same claims.

My wife tells me it has something to do with res judicia or something like that - but she hasn't been in a courtroom since I started to make enough money for her to shop for shoes all day long. Before that though, she was a practicing IP attorney...so she might have something to go on.

 Sean_OBrien wrote:
Any Summary Judgements can be appealed, however it is a lot more difficult from my understanding. I have been involved in them, just not in any appeals of them. Because they are a based on a simple evaluation of the law and evidence provided...you basically have to prove that the judge didn't properly understand the law (not easy...and not something most other judges are quick to grant).

I don't think there are other grounds for appeal regarding Summary Judgements though - but it isn't something which I have specific knowledge of.

Regarding anything stopping GW from filing suit again...they would be cautioned against it most likely by legal counsel. I forget the specific term off the top of my head (few pints into the night right now) - but if you file a case like this and loose...the court can basically bar you from filing cases against anyone for a period of time as a punitive measure. Although I don't think that specifically will happen here, a judge will likely take a less favorable opinion of GW the second time around...especially against the same defendant for effectively the same claims.

Exacty!

Thanks for clarifying Sean.

Thanks for the class on IP law proceedings! This is very interesting.

But it is far more entertaining seeing how incompetent GW's lawyers are and how abysmally awful their case is!