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 Howard A Treesong wrote:
Isn't that like saying a hamburger that has the 'M' logo on the disposable box rather than branded on the top of the bap makes it not "part of the product"? I don't think that works, the model and packaging at a complete product when sold to you.

I would argue...

MacDonald's burgers are a service rather than a product. You can't sell the burger separately from its wrapper due to health and safety. All of MacDonald's products and their shops have the same sign on them. It is clearly the trading mark of the company.

40K models are sold in blank boxes if you buy them through the online order system. GW shops are not marked with the aquila. The aquila is not clearly the trading mark of the company. It seems to be the product mark of Imperial Guard. Even then, IG boxed kits do not display it. As far as I can tell, it is a piece of decoration on the IG models.

Was Chapterhouse putting the aquila on their packaging?

Having just finished the entirety of Mr Grindley's testimony (and absolute mockery he made of the GW lawyer Mr Keener), I must say that the tactic that CHS is aiming for, which is to say that they are trying to get the jury on their side by calling into question the originality of the product which opens up the notion that they are attempting to reveal GW as a company that is trying to 'build up its IP moat' by taking ideals from the pool of Science-Fiction and ideotropes and claiming exclusiveness to these items when in fact, their own IP was built up on these same ideals as modestly humble.

This:

Is the one piece of paper they should come into the court room with, along with Mr Grindley's testimony.


Though, to be honest, the level headed amongst us can gleam this case is going to end with CHS winning this lawsuit due in part to GW over zealously protecting their IP to a degree thats damaging to the medium at large to which any sensible jury member will see.

 Xzerios wrote:

Though, to be honest, the level headed amongst us can gleam this case is going to end with CHS winning this lawsuit due in part to GW over zealously protecting their IP to a degree thats damaging to the medium at large to which any sensible jury member will see.

That, or they treat the jury the way they treat their customers, employees and pretty much anyone else not high up in the company and the jury vote against them out of spite.

 Kilkrazy wrote:

Trasvi wrote:

 Kilkrazy wrote:
What is a trademark on the imperial eagle meant to protect?

GW have quite a lot of things sold with the Aquila logo... not just various miniatures; there are a lot of books, their carry cases, hobby products. It is definitely the most uniquely GW and widely used design in this lawsuit.

Yes but does that mean?

If you see the Sony or PS trademarks you know you are looking at a Sony or PlayStation product.

You don't see the aquila on all GW or 40K products, so it isn't a company or brand logo. What does it represent? As far as I can see it merely represents a GW product with the aquila on it.

The term that you are looking for is "Trade Dress" - the product or the packaging of a product is covered. It is related, but not quite identical to, Trademark, and is covered in the US by the same Act.

That the Nazi two headed eagle bears a strong similarity may weaken it, but Chapterhouse isn't calling their emblems "Space Nazi (R)"

For me the two headed eagle brings to mind The Mouse That Roared"

The Auld Grump

There are many two headed eagles in history. The GW aquila is a kind of art deco version.

The Imperial Aquilla is actually not a generic Double Headed Eagle, you'll notice it only has one eye as one head is always depicted blind or hooded.

Whilst it is only a small detail I'm not aware of any historical or current usage that includes such an element.

As can be seen from the big one one their HQ http://goo.gl/maps/HiNir

I had never noticed, possibly because it is so tiny on the IG helmet and so on.

A minor detail is not necessarily decisive in terms of making a new design, and perhaps the court will have to rule on that too.

I believe a Court has already ruled on the GW aquila design in the past, in a different case, although I may just be remembering rumor.

In any case, if you look at GW's Second (Third) Amended Complaint, although GW identifies the Aquila as a registered US trademark (Registration Number 3,646,312), the single mention of the word "aquila" in GW's second revised claim chart is in regards to entry number 4:

"The Blood Raven's icon is a raven with outstretched wings (like the Aquila, double headed eagle) with a blood drop centred on its torso."

The blind eagle head is supposed to represent the Astropaths, each part of the eagle represents different parts of the Imperium.

So, that pointed out could harm GW a great deal, as they could claim ownership of the art deco 2 headed eagle with one eye missing, which would mean others can use the eagle with no eyes or both heads with eyes and, as Kilkrazy points out, it's not visible on a mini anyway, so others could have carte (john) blanche to begin using the eagle on their scifi models.

I think the link for the trademark is to an expired search, this link may work better http://tsdr.uspto.gov/#caseNumber=77575293&caseType=SERIAL_NO&searchType=statusSearch

Those government websites...Yea, that works better, thanks.

Please may one of the law-guys correct me if I am mistaken here, but I recall having read somewhere in connection with the Apple logo and with chinese product pirates that it is not enough to just alter one minor detail of a trademark logo in order to circumvent the trademark. Although the trademark itself it exactly defined, just using the same logo with two eyes would clearly imitate the registered trademark, possibly with the obvious intention of provoking mistaking. It is the same like using the signature "ADIDOS" instead of "ADIDAS" in connection with one stripe more, or producing real-life "Nuca Cola".

A lot of those issues end up going towards the country in question (most those Chinese knock-offs are sold in China itself...so they are only dealing with Chinese trademark laws) or are actually on the wrong side of things...should they ever be taken to court over the action in a Western system.

KFG (as opposed to KFC), IVIKE (as opposed to Nike), Tids (as opposed to Tide), Okay (as opposed to Olay) are a few I recall from my last trip over there. Those products tend not to make it to the west - or if they do, they are sold at flea markets or street vendors...so there is little chance of the owning company actually achieving anything by filing a suit (since they can only go after the vendor as opposed to the manufacturer).

In exceptional cases, they might be able to get an import injunction put in place - but those are hard to enforce with the hundreds of thousands of containers which come into most Western ports each year. Unless they are shipping a complete container from the factory - the manifest might only say something generic like "shoes" or "handbags".

Surely it also depends on how well established and recognisable the trademark might be.

The IG double headed eagle was only registered in 2008, it isn't much used except in a very small representation on individual models, and so it isn't a strong recognisable brand symbol.

Compare it with the MacDonalds' golden arches, the Nike swoop and the PlayStation family PS logos, for example.

I am still having difficulty in understanding what the aquila stands for except itself.

No one ever said GW was particularily adept at developing a brand identity.

It would be one thing if they used that particular symbol on ever product from say the 40K line - as you might see a company like John Deere does with their yellow deer logo, but they use the majority of their logos sporadiclly and without any specific pattern to them. As a result, they become much more difficult to establish and harder to defend.

 Kilkrazy wrote:
Surely it also depends on how well established and recognisable the trademark might be.

The IG double headed eagle was only registered in 2008, it isn't much used except in a very small representation on individual models, and so it isn't a strong recognisable brand symbol.

Was looking at an older box of plastic Ork Boyz (16 in box) and the inner sleeve has a good sized GW 40K eagle wrapped around it.

 Hruotland wrote:
or producing real-life "Nuca Cola".

They were done as an E3 promo for Fallout 3. The only problem Coca-Cola would have with it is if they copied the contour bottle, honestly.

The issue isn't so much when it was registered (registration is an important part of branding - but it isn't actually essential...there are a lot of unregistered trademarks that people know by sight what they are for).

Rather, it goes to the manner in which they are used. GW first used the double eagle back in the Rogue trader days and has used it sporadically since then. Most the time though, it isn't used as a method of actually identifying a product - instead it is a surface decoration of a product. There is a big difference between the manner that Nike uses their "Swoosh" logo on a pair of shoes and the manner in which GW plants an aquila on some figures...but not others with no specific reason that the second might not have the device.

For example, you might say that it is an Imperial symbol and should show up on all Imperial Figures and models - thus creating and enhancing their brand for the imperial guard. So, we take a look at the current Imperial Guard line up over on the GW website. Commissar Yarrick appears to be without the device. The same with Creed (though his belt buckle may be one...though I think it looks like a winged skull more so). A quick glance at the Vostoyans looks as though they all have winged skulls instead of aquilas. Many of the Catachans, Valhalan and Tallarn also lack the aquila.

Even in the current lead army for the IG, you see a lot more winged skulls on the Cadians than you do aquila devices. Even with the vehicles...something that should easily be able to accomodate a well formed and clear aquila in a prominent location it is either missing or in a rather inconspicuous location.

The reason you see the winged skull more than the Imperial Aquila on Imperial Guard is because the winged skull is actually the symbol of the Imperial Guard, at least it was in 2nd ed.

So while the Aquila may mark something as Imperial, the winged skull marks it as Imperial Guard.

So, in essence, there's an in fiction reasoning for it.

 Platuan4th wrote:
The reason you see the winged skull more than the Imperial Aquila on Imperial Guard is because the winged skull is actually the symbol of the Imperial Guard, at least it was in 2nd ed.

So while the Aquila may mark something as Imperial, the winged skull marks it as Imperial Guard.

This is the most true statement regarding the Imperial Guard. The Aquila as a marking for Imperial factions is more common on the Astartes than the Guard.

 Platuan4th wrote:
The reason you see the winged skull more than the Imperial Aquila on Imperial Guard is because the winged skull is actually the symbol of the Imperial Guard, at least it was in 2nd ed.

So while the Aquila may mark something as Imperial, the winged skull marks it as Imperial Guard.

So, in essence, there's an in fiction reasoning for it.

Which goes back to the question which Killkrazy asked...what exactly is it the brand identification for?

The laws behind trademarks depend on the actual use of the mark for identifying products used in trade. If it isn't used in a consistent manner to identify products, than it isn't a valid trademark (even if a registration is in place for it).

Though if they would like to use the winged skull to identify the IG line...they confuse their own customers by using winged skulls so readily within the Space Marine line (which suffers from similiar issues regarding consistent use of the aquila device as the IG do).

 Sean_OBrien wrote:

 Platuan4th wrote:
The reason you see the winged skull more than the Imperial Aquila on Imperial Guard is because the winged skull is actually the symbol of the Imperial Guard, at least it was in 2nd ed.

So while the Aquila may mark something as Imperial, the winged skull marks it as Imperial Guard.

So, in essence, there's an in fiction reasoning for it.

Which goes back to the question which Killkrazy asked...what exactly is it the brand identification for?

The laws behind trademarks depend on the actual use of the mark for identifying products used in trade. If it isn't used in a consistent manner to identify products, than it isn't a valid trademark (even if a registration is in place for it).

Though if they would like to use the winged skull to identify the IG line...they confuse their own customers by using winged skulls to readily within the Space Marine line (which suffers from similiar issues regarding consistent use of the aquila device as the IG do).

"Winged skulls" within the Space Marine line are generally done a bit different to the Guard iconography.

What's more they tend towards being used as "campaign badges" in addition to the Chapter/Company insignias.
The Aquila on Guard models tends to be present on vehicles and heroes, in addition to the "winged skull" and their Regiment/Company markers.

On the Scouts? Half the Guns? A majority of armor?

More to the point, being in line with the fiction is not a legal argument that they can take. If you choose a brand logo, for example the Apple apple - you stamp it on your product in a prominent location consistently. GW fails to do that, as a result they fail to actually establish the logo as being an identifying aspect of their product lines.

If it is simply a design which is used in some way within their fiction - that is not actually an identifying trademark and would not be handled as such (nor should it be registered as a trademark). Designs which are not used to identify products are handled under copyright laws - and then you would need to examine the use in a different light.

As opposed to confusion, you would need to consider how unique it is in relationship to other designs that exist before and after as well as the specific details on it. For example, if CHS were to use an art deco double headed eagle design with no eyes or two eyes visible...and perhaps a different count on the "feathers" on the wings - then they would likely be in the clear regardin the use of aquila devices on their figures and vehicles.

 Sean_OBrien wrote:

 Platuan4th wrote:
The reason you see the winged skull more than the Imperial Aquila on Imperial Guard is because the winged skull is actually the symbol of the Imperial Guard, at least it was in 2nd ed.

So while the Aquila may mark something as Imperial, the winged skull marks it as Imperial Guard.

So, in essence, there's an in fiction reasoning for it.

Which goes back to the question which Killkrazy asked...what exactly is it the brand identification for?

The laws behind trademarks depend on the actual use of the mark for identifying products used in trade. If it isn't used in a consistent manner to identify products, than it isn't a valid trademark (even if a registration is in place for it).

Though if they would like to use the winged skull to identify the IG line...they confuse their own customers by using winged skulls so readily within the Space Marine line (which suffers from similiar issues regarding consistent use of the aquila device as the IG do).

Oh, I wonder as well, I was simply addressing the reasoning for why so few appeared on IG.

However, for a while, the Aquila was simply used as the brand signifier for GW products as a whole. I have plenty of non-game specific GW products(cases, the case "luggage tag", some of their hobby products) that bear the Aquila instead of or in addition to(like the cases) the Games Workshop stylized name logo. In fact, if you look at the "legalese" side of the 40K and Daemon boxes, you'll see an Aquila with 40K above it above the Games Workshop logo.

Looking at a box of packaging, it seems like there are two versions of the Aquila that have been registered.

One is the stylized Aquila that represents the "brand" of Warhammer 40,000:



In that regard that particular Aquila doesn't stand for the Imperium, the IG, or any Space Marine. It is a pure brand logo to identify packaging (and content) to belong to that particular game system.

The Aquila that we are usually talking about seems to actually represent a trademark for either Games Workshop itself or a sub-company:

Looking over the same packaging there is this set of logos:



Which looks like 3 distinct companies are represented there, both in picture and stylized text form:

The first is Middle Earth Enterprises:



The Second is Citadel Miniatures:



And the second would be Games Workshop:

Both in stylized text:



And the picture version of the brand:



So it seems that Trademarking the Aquila has little to do with the in-game use of the symbol as the symbol of the Imperium of Man, but it was done because it appears that they Aquila is actually the symbol of Games Workshop itself.

It seems like almost all "big" brands have a very distinct text and a very distinct logo.

Of course IANAL, but that is just my impression.

Which is honestly additionally problematic...

What in particular is that box for? Games Workshop? Yes. Citadel Miniatures? Yes. But are they Lord of the Ring Figures (needing the Middle Earth Enterprises mark) or 40K figures (needing the aquilla mark)? I am so confused...

Also, the aquila in the background of the Warhammer 40,000 would not be a seperate mark - it would be part of the design of the 40K mark.

The location and size of that mark are troubling when establishing and maintaining a mark. Marks are used to identify and distinguish products in the market place. A small (guessing less than one inch - though I haven't looked closely at a box in years to know for sure how big that section is) logo on the back of a box doesn't go very far in identifying or distinguishing a product for a customer who is browsing the shelves of their local store. Considering it is on the back of the box - it would do absolutely nothing for the large portion of their customer base who shop online and only see the back of the box after they had purchased the product.

 Sean_OBrien wrote:
Which is honestly additionally problematic...

What in particular is that box for? Games Workshop? Yes. Citadel Miniatures? Yes. But are they Lord of the Ring Figures (needing the Middle Earth Enterprises mark) or 40K figures (needing the aquilla mark)? I am so confused...

Also, the aquila in the background of the Warhammer 40,000 would not be a seperate mark - it would be part of the design of the 40K mark.

The location and size of that mark are troubling when establishing and maintaining a mark. Marks are used to identify and distinguish products in the market place. A small (guessing less than one inch - though I haven't looked closely at a box in years to know for sure how big that section is) logo on the back of a box doesn't go very far in identifying or distinguishing a product for a customer who is browsing the shelves of their local store. Considering it is on the back of the box - it would do absolutely nothing for the large portion of their customer base who shop online and only see the back of the box after they had purchased the product.

It is a basic mail order box that is used for products manufactured by Games Workshop (hence the GW typeset and the Aquila as the GW logo, and the Citadel typeset and logo). They used the same box for products licensed by Middle Earth Enterprises (typeset and logo). The product contained could potentially be used as part of the following games (with trademarks used): WH40K, WFB, LotR.

Having all marks present on a box that can be used to ship direct order items for all 3 systems isn't really confusing and it wouldn't really make sense to use a different box for each system.

As for the size and/or location of the GW type and/or logo: it is not really any different than the MB or Hasbro logo on any other game you pick up at the store. The brand of the game is what drives people to the box, they put Warhammer 40,000 in big letters on the box to show that is what they are used for, just like Hasbro puts "Monopoly" in big letters on their games. That is the game, that is what gets top billing. The company that produces the game is secondary. So it gets a small logo in the corner.

The mail order items I have had from GW came in blank boxes.

The Warhammer 40K logo isn't an aquila as far as I can see.

I thought the aquila was found on all IG equipment an uniforms but actually when you look in detail some of them are the aquila and some are a winged skull.

I thought the skull was more of a Space Marine symbol.

I continue to be confused as to what the aquila represents. There is no consistency.

Seems like from the packaging and from looking at the website, the aquila = Games Workshop , just like the Swoosh = Nike.

 d-usa wrote:
It is a basic mail order box that is used for products manufactured by Games Workshop (hence the GW typeset and the Aquila as the GW logo, and the Citadel typeset and logo). They used the same box for products licensed by Middle Earth Enterprises (typeset and logo). The product contained could potentially be used as part of the following games (with trademarks used): WH40K, WFB, LotR.

Having all marks present on a box that can be used to ship direct order items for all 3 systems isn't really confusing and it wouldn't really make sense to use a different box for each system.

Just because it is convenient and economical doesn't actually make it good legal sense. Everytime a logo is used NOT to identify the product which is inside the box - it is dilluting that logo. GW might be saving a few pennies on each order - but in the long run it is damaging to the brand itself. That is sort of year one, semester one, day two of trademarks.

 d-usa wrote:
As for the size and/or location of the GW type and/or logo: it is not really any different than the MB or Hasbro logo on any other game you pick up at the store. The brand of the game is what drives people to the box, they put Warhammer 40,000 in big letters on the box to show that is what they are used for, just like Hasbro puts "Monopoly" in big letters on their games. That is the game, that is what gets top billing. The company that produces the game is secondary. So it gets a small logo in the corner.

Two things there...first - GW is far and away not Hasbro, nor do they sell a product with the name recognition of a game like "Monopoly". At a certain point, trademarks become famous - and you can play a little more loosely with their particular use in the marketplace.

The second thing would be the heirarchy of adjectives used to identify the products. For example, if we were to look at your Monopoly example - the noun would be "Game". The consumer wants to find a particular game, in this case a game called Monopoly. The key trademark that should be on the cover of each box would then be the "Monopoly" logo. That tells the customer that inside each of these boxes you will find a Monopoly game. Further though, most of them which I have seen have a second mark on the cover of each which is the next up on the heirarchy of adjectives - that being "Parker Brothers". This tells people that you are buying the "Parker Brothers" "Monopoly" game. If you like that game, you could look at other games made by "Parker Brothers" like "Clue", "Risk" or "Sorry!". I would not be surprised at all if the 3rd level of the heirarchy of adjectives was completely missing from the boxes to be honest, as Hasbro has not bothered to make itself readily known as the owner of the "Parker Brothers" branch or the underlying "Monopoly" game. Most people don't think Hasbro when they think Monopoly, as the brand has been around for decades before Hasbro even existed as a company and it would cause confusion within the market if they tried to change things now (people might think the "Hasbro" branded "Monopoly" was a different game from the "Parker Brothers" branded "Monopoly" which they used to play and Grandma's house when they were a kid).

Going back to what we are dealing with here - the noun which is the product would be miniatures. The adjective which is the mark that identifies the miniature might be Space Wolves or some other silliness. The adjective that specifies what kind of space wolf would be Warhammer 40,000. The adjective that describes what kind of Warhammer 40,000 Space Wolf miniature would be Citadel. The adjective which describes what kind of Citadel Warhammer 40,000 Space Wolf miniature would be Games Workshop. So the complete heirachy of trademarks (registered or otherwise) which would describe a hypothetical box of miniatures might be "Games Workshop Citadel Warhammer 40,000 Space Wolf" miniatures. That is a mouthful though, so most smart thinking companies truncate their brands down to something like "Warhammer 40,000 Space Wolf" miniatures. What do they generally do with the rest of that? They let it die. Adding more to the mess weakens the brand identification and makes it more difficult to defend the marks which you choose to attempt to develop a brand for.

There really is no reason for GW to keep the Citadel brand anymore. Although they still slap it about (with more regularity than some of their other logos and marks) it hasn't really been a core identifier for them for 20+ years. The aquila device really is just another thing which complicates things and weakens the development of a brand identification for something like the Warhammer 40,000 graphic logo.