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Having served on a jury myself, in the UK, I believe it is fundamentally a good system.

The great majority of jurors take their duty seriously and try to return a verdict on the evidence presented.

Can we take the discussion of the US Judicial system to its own thread? Let's keep to the topic at hand.

Agreed- there's a lot that I'd want to say on that, but I think it's best left to it's own thread!

But thanks again to weeble and all the other folks who work as lawyers / in the area of law for continuing to interpret this case into plain english for us

Guys, Seriously. please stay on topic.

Multiple off topic posts deleted. That's two moderators and two other members who've posted this reminder just this page. Seriously, guys.

 Mannahnin wrote:
Multiple off topic posts deleted. That's two moderators and two other members who've posted this reminder just this page. Seriously, guys.

Dudes, why dont you give the "delete button" a rest, let people talk, it might get off track a little, but it will get back on it as soon as there are updates to the main topic, every other post i see there is, mod warning, mod edit, mod deleted, mod closed...

This is a forum, discussion is implied, otherwise we would be reading blogs.

Because it's a discussion with a topic. Stay on topic and discussion is fine.

xxvaderxx wrote:

 Mannahnin wrote:
Multiple off topic posts deleted. That's two moderators and two other members who've posted this reminder just this page. Seriously, guys.

Dudes, why dont you give the "delete button" a rest, let people talk, it might get off track a little, but it will get back on it as soon as there are updates to the main topic, every other post i see there is, mod warning, mod edit, mod deleted, mod closed...

This is a forum, discussion is implied, otherwise we would be reading blogs.

Because a LOT of people are following this with e-mail alerts. Every time someone posts hundreds of people get an e-mail. It clogs up the servers and spams the people looking for news on this topic.

Please stay on topic. If anyone has a question about moderation, please PM a moderator. If you would like to discuss moderation, please make a new thread either in Dakka Discussions or in Nuts & Bolts. Thanks!

This docket entry was made by the Clerk on Thursday, February 14, 2013:

MINUTE entry before Honorable Matthew F. Kennelly:Hearing held on Motion to seal [284]. Motion is entered and continued generally. (or, )


-----

Feb 14 was GWs Motion to Enforce Prior Discovery Orders, and CHS's response - 284 was CHS's request to file this under seal:

CHS:
"Exhibit D is correspondence between Games Workshop and Stephen Smith. Games Workshop has designated the correspondence Highly Confidential – Attorneys’ Eyes Only under the protective order.

In order to provide this Court with all of the information relevant to Chapterhouse’s Opposition to Games Workshop’s Motion to Enforce Prior Discovery Orders, Chapterhouse requests that this Court grant it leave to file the above identified document under seal pursuant to L.R. 26.2."


Mr Smith designed some of CHS's products and is mentioned extensively in GW's motion (http://www.archive.org/download/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.278.0.pdf). Presumably there is something in that correspondence that rebuts GWs assertions.

So, in that link GW is stating that Chapter House didn't give them a full list of every site they made a statement about their goods on? Okay..

And that someone commenting on their posts stating that it looks like GW's stuff is material in some way? Again, okay..

I'm not sure why it matters if Bob in New Zealand thinks that a shoulder pad produced by Chapter House looks similar to a shoulder pad produced by GW or not. What matters is whether GW has an enforceable copyright on that shoulder pad and whether a judge/jury thinks it looks too similar.

Heck, CH had an expert state that a lot of GWs stuff was similar to preexistent armor and that was thrown out. Random Bob shouldn't have any more standing than a military history expert.

I think a lot of Games Workshop stuff looks like things that have been around for quite some time. Nids look like the creatures from Aliens or Starship troopers; necrons look like Terminators; marines look like power suited troopers on the covers of numerous sci-fi novels going way back... Should this matter? no.

But if it does, then CH or whoever can quote me that I think a lot of GWs stuff is neither new nor materially different from iconography established over the past couple thousand years of human history.

Whatever.

clively wrote:
So, in that link GW is stating that Chapter House didn't give them a full list of every site they made a statement about their goods on? Okay..

And that someone commenting on their posts stating that it looks like GW's stuff is material in some way? Again, okay..

I'm not sure why it matters if Bob in New Zealand thinks that a shoulder pad produced by Chapter House looks similar to a shoulder pad produced by GW or not. What matters is whether GW has an enforceable copyright on that shoulder pad and whether a judge/jury thinks it looks too similar.

It matters because GW can say (and in fact, most of the premise of the case is) that someone could be confused and think that CH is offering a GW product thereby diluting GW's trademark.
Yes, they'd have to actually be granted the trademark in that case - but there are some things iirc that they actually do hold a valid trademark on. If someone mistakes a CH product for a GW product, GW can claim dilution.

IANAL though, so that's just my understanding.

rigeld2 wrote:

It matters because GW can say (and in fact, most of the premise of the case is) that someone could be confused and think that CH is offering a GW product thereby diluting GW's trademark.
Yes, they'd have to actually be granted the trademark in that case - but there are some things iirc that they actually do hold a valid trademark on. If someone mistakes a CH product for a GW product, GW can claim dilution.

IANAL though, so that's just my understanding.

The only problem is the product sold. It requires the GW counterpart that it was modded for. Shoulderpads still dont come with the rest of the Space Marine. Tervigon parts still dont come with the Carnifex model, ect.

rigeld2 wrote:

clively wrote:
So, in that link GW is stating that Chapter House didn't give them a full list of every site they made a statement about their goods on? Okay..

And that someone commenting on their posts stating that it looks like GW's stuff is material in some way? Again, okay..

I'm not sure why it matters if Bob in New Zealand thinks that a shoulder pad produced by Chapter House looks similar to a shoulder pad produced by GW or not. What matters is whether GW has an enforceable copyright on that shoulder pad and whether a judge/jury thinks it looks too similar.

It matters because GW can say (and in fact, most of the premise of the case is) that someone could be confused and think that CH is offering a GW product thereby diluting GW's trademark.
Yes, they'd have to actually be granted the trademark in that case - but there are some things iirc that they actually do hold a valid trademark on. If someone mistakes a CH product for a GW product, GW can claim dilution.

IANAL though, so that's just my understanding.

The problem is that the suing company can have a sympathetic existing customer (to put it nicely) with a link to the suing company purposely claim confusion to help the company with their claim like what happened with Battlefoam's lawsuit prior to its being decided in the defendant's favor including paying the defandant's court costs.

Yes, fraud can happen.
That doesn't mean it always happens.

In this instance though they'd be looking at people posting on CHS threads saying "it looks like GW's" but that's only an opinion and not an actual instance of confusion. By making a comparison these people must have an innate understanding which products are GW's and which are CHS'. Thus none of these statements are proof of confusion just the opinions of possible confussion.

That's *probably* true, but since I don't monitor their posts on every site...

If this has been dismissed, why are we still discussing it?

Because it hasn't been dismissed?

rigeld2 wrote:
Yes, fraud can happen.
That doesn't mean it always happens.

Yes - but it doesn't need to be fraud (at least not like it was in the Battlefoam case).

Here, the evidence that GW produced to support their claim of confusion came from people who clearly understood that CHS was not GW and was not selling GW products. They were not confused - they reported the activities of CHS to GW for whatever reason. In the threads, you don't find confusion - you find people who believe that CHS is copying GW (in terms of the people who go on about the comparison to GW/FW products).

Neither of those are evidence of confusion. For example, if I were to pop over to a site like Techcrunch and looked at news relating to MP3 players, tablets or phones - you would probably find mention of Apple, no matter what the core article might be about. It may be saying this product is faster than the Apple, it is heavier than the Apple, it is a better value than Apple... None of those comparisons are indicative of confusion between the product being discussed and the relevant Apple product to what they might be reviewing.

In the same way, you often see GW pop up in all discussions of miniatures. They may be comparing the size of the miniatures to GW figures (taller, shorter, slimmer, same sized...). They might be comparing price (better value, about the same price, cheaper than finecast). They might be comparing styles (more realistic, more cartoony, bigger shoulder pads...). None of those comparisons reflect a violation of GWs trademark, nor do they indicate confusion. Even if the company owner were to mention the GW product (we sculpt our stuff to be the same style/size as GW's stuff) that is still well within the realm of fair use and do not precipitate any confusion.


Automatically Appended Next Post:

 SoloFalcon1138 wrote:
If this has been dismissed, why are we still discussing it?

 Laughing Man wrote:
Because it hasn't been dismissed?

I think that was confusion regarding the comment on the Battlefoam case which is settled that was mentioned above. That one is over with - this one has a bit left in it.

Right - I'm aware of what is likely in the CHS threads, but I haven't bothered to read them so didn't want to say yea/nay. warboss mentioned a situation that would be fraud (to me). I was just originally pointing out what GW would be looking for (in my NAL opinion).

rigeld2 wrote:

clively wrote:
So, in that link GW is stating that Chapter House didn't give them a full list of every site they made a statement about their goods on? Okay..

And that someone commenting on their posts stating that it looks like GW's stuff is material in some way? Again, okay..

I'm not sure why it matters if Bob in New Zealand thinks that a shoulder pad produced by Chapter House looks similar to a shoulder pad produced by GW or not. What matters is whether GW has an enforceable copyright on that shoulder pad and whether a judge/jury thinks it looks too similar.

It matters because GW can say (and in fact, most of the premise of the case is) that someone could be confused and think that CH is offering a GW product thereby diluting GW's trademark.
Yes, they'd have to actually be granted the trademark in that case - but there are some things iirc that they actually do hold a valid trademark on. If someone mistakes a CH product for a GW product, GW can claim dilution.

IANAL though, so that's just my understanding.

It goes round and round in circles.

If GW do not "own" the copyright on a pauldron or the phrase "Space Marine", they can still legitimately own a TM on Space Marine and the sculptural design of a complete Space Marine model.

However if CH are merely offering compatible parts, the principle is well established in many markets, such as car parts, that they are allowed to refer to the original product in order to describe the use of their replacement part.

In other words, CH cannot say, "This is a Space Marine(TM) shoulder pad" but they can say, "This is a shoulder pad for a Space Marine(TM)".

If customers get confused thinking it is a GW part, that is GW's fault for producing items that are so generic that people get easily confused.

The individual parts are not trade-marked anyway.

Right from the beginning, GW's case essentially has been that anything they put into the 40K universe becomes their property when taken out of it. They argue from the general to the particular and then back to the general again.

IANAL either, though.

I think GW's floundering in their case; that they have little if any evidence of trademark violation and little if any evidence of copyright infringement, but that they are hoping that combining very little proof of two distinctly seperate actions can exceed the burden of proof of either one. Maybe its GW's best shot, but it makes for a very nebulus and unfocused arguement, that lacks punch.

So, in a word, is this still in debate?

yes

So, is there anything of note due to happen soon?

Coming up:

Some motions (discovery issues) are going to be ruled on.

Also, now that the copyright office has said "No" to GW and GW has waived its rights to appeal that decision, Chapterhouse will be refiling their motion to reconsider the summary judgement (trying to get the copyright on the shoulder pads thrown out), and then that will be ruled on at some point.

So while discussing this case with a GW friend of mine, his argument was thus: The case has zero to do with copyright and 100% to do with trademark.

He insists that the shoulderpad issue is a trademark issue and not a copyright issue, and that the lack of copyright on the pad is moot.

I didn't feel like arguing with him long on it, but his argument seemed way off. Can someone shed more light on the specifics of what it is GW is STILL suing over in regards to the pad itself(not the other items that are rolled into the case).

From my understanding, if the pad itself is not protected, than neither can the pad with basic geometric shapes added to it be protected by itself. I understand the entire space marine can be protected, but the pad itself cannot.

Furthermore, can basic geometric shapes be trademarked?

A fun point in the conversation which made me realize the blinders with which my friend lives his life was when he said that GW has NO competition. I tried to explain that negligible competition is still competition, and that ANY company that makes 28mm models and parts is in theory competition.

 Aerethan wrote:
So while discussing this case with a GW friend of mine, his argument was thus: The case has zero to do with copyright and 100% to do with trademark.

The majority of the claims are trademark related, and will be decided based on whether or not it is found that nominative use can be used in this manner (it has already been found to be a legal use of trademarks in the vast majority of other cases that it has been challenged in).

 Aerethan wrote:
He insists that the shoulderpad issue is a trademark issue and not a copyright issue, and that the lack of copyright on the pad is moot.

No. The shoulderpad shape and design is a copyright issue. That they are sold as "Shoulder Pads for Space Marines" is a trademark issue.

 Aerethan wrote:
I didn't feel like arguing with him long on it, but his argument seemed way off. Can someone shed more light on the specifics of what it is GW is STILL suing over in regards to the pad itself(not the other items that are rolled into the case).

If you dig through the documents you will find one which is the claims chart. That will state what GW finds offensive. More often than not, they don't say "Trademark" or "Copyright" rather they will point to a figure or picture that illustrates what is being sold. Sometimes it is clear that they are alleging trademark claims, other times you have to sort of use your melon. There are well over 100 claims, and only a small handful of them were dealt with in the initial summary judgement ruling (which may be back up in the air depending on what the judge decides to do regarding the USPTO issues).

 Aerethan wrote:
From my understanding, if the pad itself is not protected, than neither can the pad with basic geometric shapes added to it be protected by itself. I understand the entire space marine can be protected, but the pad itself cannot.

My lawyer speak is likely going to fail me at this hour...but the shoulder pad is generally what would be regarded as de minimus. They are too small to be covered under their own copyright and instead might be covered as part of a whole. Since the pad on its own doesn't actually reflect scale or proportions - those issues should not come into play (what looks large on a 28mm miniature would look to be about right on something like a 1/48 or 1/43 scale figure). The majority of the specific designs and patterns on the shoulder pads are not protectable either as they tend to be common markings or designs.

Even then, the whole figure might not have a strong copyright due to existing artwork prior to 40K as well as all the non-GW works which have come since then that have made various aspects standard features. They would be protected against straight copying/recasting - but provided that a new sculpture was created using comparable sizes and proportions - that new complete sculpture may not be deemed as infringing...though that is one of those things where it may, or it may not. There isn't a specific legal equation that is used to make the determination and as such, the opinions will vary.

 Aerethan wrote:
Furthermore, can basic geometric shapes be trademarked?

Yes. They can. The Triple Diamond logo for Mitsubishi, the Silver Arrow logo for Mercedes, Chevy's Bowtie, McDonald's Arches... All of those are just basic geometric shapes which are trademarked. However, GW doesn't make a claim to a graphical trademark in this case (they have one for the Citadel Miniatures logo...but I think the rest are plain word marks). The shoulder pad itself couldn't be trademarked, as it isn't a mark which is used for trade though (pretty basic stuff...isn't it). They might be able to make a claim on "Space Marine Shoulder Pad" provided that they sold a specific product under that name...which I am scratching my head, but I don't recall them ever selling anything under that name. However, if they did...and they did make the claim..."Space Marine Shoulder Pad" is different from "Shoulder Pad for a Space Marine" - and would put it back into the nominative use which I mentioned above.

 Aerethan wrote:
A fun point in the conversation which made me realize the blinders with which my friend lives his life was when he said that GW has NO competition. I tried to explain that negligible competition is still competition, and that ANY company that makes 28mm models and parts is in theory competition.

If he would like to assert that - then ask him if we should file an antitrust lawsuit against GW then. I would disagree with his assertion though, however - if a company has no competition, then it should be dealt with as any other Monopoly...they went after Microsoft for less.

How can it be a trademark issue?

I'm not a lawyer but wiki answers says:
"Trademark provides an individualized right to use a distinctive mark, sound, color, word, design, etc, to indicate a particular source and quality of branded goods or services. It is infringed when someone uses the brand to falsely indicate or suggest goods or services came from the rightful brand owner, and not the knock-off producer."

Chapterhouse have never claimed to be selling GW products, nor have GW claimed as much. GW are simply arguing that Chapterhouse have taken a design GW claimed they owned and used it without permission.


Also as to the competition thing, warmachine seems to have surpassed WHFB in most areas so while it has no relevance to the case it is hard for GW to keep pushing that mindset.