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Motograter wrote:

rigeld2 wrote:
there was a procedure that wasn't followed correctly, things like that.

IANAL but that's how I understand it for civil cases.

Only GW are the ones who have not followed procedure. I would say any appeal made by them should they lose would be thrown out based in their incompetence

As Sean said, GW can appeal saying that their lawyer screwed up. It happens a lot actually, especially in criminal cases.

Also remamber that in most cases an appeal done NOT have to be granted. if the prosecuting judge deems it a waste of time for the court the appeal can be denied.

Weeble wuld be able to expain it better in legalize. . .

 Lysenis wrote:
Also remamber that in most cases an appeal done NOT have to be granted. if the prosecuting judge deems it a waste of time for the court the appeal can be denied.

Weeble wuld be able to expain it better in legalize. . .

Not necessarily. I am not a lawyer, nor trained in the law in any formal way. Sean, CZAK, and Janthkin are actually better sources for the type of nuanced and/or detailed elaboration you are looking for. I am very familiar with trials (especially from a social, psychological, rhetorical perspective), and I have had to learn a deal about various areas of the law in order to do my job, principally US intellectual property law.

I can say from personal experience, for example, what the general sorts of risks are in seeking an appeal, what pitfalls there may be, I am familiar with some of the statistics, and so forth. However, I am not so familiar with the particular legal bases on which the Court may grant or deny an appeal, beyond high level generalizations that have already been discussed.

rigeld2 wrote:
As Sean said, GW can appeal saying that their lawyer screwed up. It happens a lot actually, especially in criminal cases.

GW: "Sorry, took us three years to find out, it was the 12 year old son of the lawyer representing us."

I am still amazed, that in USA a company can drag someone to court for 3 years with absolute no evidence to back their ridiculous claims (or 2 years in the case of Paulson, where even a child could prove from the start that he was innocent).

They have got evidence but it needs to be tested in court.

Paulson I believe settled out of court -- forgive me if I am wrong on that -- which makes a difference to the legal outcome.

I can only say extremely general things about the appeals process, I'm not an american, and civil procedure varies. So I don't know the specific grounds for an appeal.

'My lawyer screwed up' wouldn't get very far up here on a civil matter - you would instead sue the lawyer - which is why lawyers are super super anal about putting client instructions / advice down in writing.


One thing I can say is that both Posner and Easterbrook sit in the court of appeal that this would go to and it would be very interesting to see those two get this case.

------------------

Edit - just read a bit more about the 7th circuit. They do their panel assignments randomly, so unlikely to get both Easterbrook and Posner on this case.

 Kilkrazy wrote:
They have got evidence but it needs to be tested in court.

Paulson I believe settled out of court -- forgive me if I am wrong on that -- which makes a difference to the legal outcome.

I believe that Paulson was accused of having made that Tauesque tripod model that Chapterhouse had on their website but had actually nothing to do with it.

Trademarks fall under the Federal Court of Appeals' jurisdiction; this probably wouldn't go to the 7th Circuit.

Not trying to be argumentative. But don't they get jurisdiction over appeals from the administrative side of trademarks and not the trial side?


http://www.law.cornell.edu/uscode/text/28/1295

(4) of an appeal from a decision of—

(B) the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office or the Trademark Trial and Appeal Board with respect to applications for registration of marks and other proceedings as provided in section 21 of the Trademark Act of 1946 (15 U.S.C. 1071);

So if GW had pursued their administrative appeal options (instead of waiving them) they could eventually apply to the Fed Court Appeals for judicial review of the decision?


I could be completely wrong / misreading the statute / missing another part that gives them jurisdiction.

 agnosto wrote:

 Kilkrazy wrote:
They have got evidence but it needs to be tested in court.

Paulson I believe settled out of court -- forgive me if I am wrong on that -- which makes a difference to the legal outcome.

I believe that Paulson was accused of having made that Tauesque tripod model that Chapterhouse had on their website but had actually nothing to do with it.

How could he be a valid target anyway? Chapterhouse are the ones that are selling it and presumably commissioned it to be sculpted. I don't see that Paulson is liable even if he did sculpt it.

 Howard A Treesong wrote:

 agnosto wrote:

 Kilkrazy wrote:
They have got evidence but it needs to be tested in court.

Paulson I believe settled out of court -- forgive me if I am wrong on that -- which makes a difference to the legal outcome.

I believe that Paulson was accused of having made that Tauesque tripod model that Chapterhouse had on their website but had actually nothing to do with it.

How could he be a valid target anyway? Chapterhouse are the ones that are selling it and presumably commissioned it to be sculpted. I don't see that Paulson is liable even if he did sculpt it.

Beats me that was over 100 pages ago.

My memory is hazy - is Paulson in Illinois and did they sue him with Chapterhouse to avoid being dragged to Texas? Or was that just conspiracy theorizing?

czakk wrote:
My memory is hazy - is Paulson in Illinois and did they sue him with Chapterhouse to avoid being dragged to Texas? Or was that just conspiracy theorizing?

If memory serves, that was the case because the perception is that Illinois would be a friendlier court.

They chose IL because it's where Gamesday and Adepticon are at and the Chicago area accounts for a huge portion of their US sales base. They referenced both in their opening claims and likely see IL as not only being a favorable court but in theory gives extra weight to their claims as the "damages" to their line are higher in this area. (Of course it's all more of their BS).

Because online business theoretically offers services in every state, a company can file suit in any state they want. It's a way that they can further use the prohibitive cost of the legal system to step on smaller busiensses. Making a company defend themself out of state adds to the defense cost and time. They always portray lady justice as being blind and impartial, but the truth is in most cases she hears just how many coins are jingling in your pockets.

Plus IIRC, the original claim actually cited several Illinois state laws that they were seeking claims with. Pretty sure those got bumped out of it - but those particular state laws had a substantial built in "fear factor" for a small business owner who would be facing down a large corporation (relatively speaking).


Automatically Appended Next Post:
4. This is an action for copyright infringement under 17 U.S.C. § 101 et seq.;
trademark infringement under 15 U.S.C. § 1114(1) and Illinois common law; for use of false
designations of origin under 15 U.S.C. § 1125(a); for dilution under 15 U.S.C. § 1125(c) and 765
ILCS 1036/65; for violation of the Illinois Deceptive Trade Practices Act under 815 ILCS 510/1
et seq.; for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act under
815 ILCS 505/2 et seq.; and for unfair competition under Illinois common law.

The Illinois Consumer Fraud and Deceptive Business Practices Act in particular is a looong statute containing clauses up to 2OOO (that is through the alphabet twice and almost a third time) and deals with the Attorney General of the state getting involved and issuing subpoenas...damages by the state...potential criminal charges relating to the claimed fraud...

While most states have some manner of their own local trademark laws, Illinois is a special kind of crazy when it comes to those sorts of things.

There's also local brach of Foley and Lardner in Chicago (GW's legal firm) so they don't have to step up their costs by flying lawyers in for case hearings. I think they were also hoping to get a favorable judge, but in that regard they got the short straw. From the get go the judge was clearly annoyed by the case and while he didn't put it into words you could see it written a cross his brow, wtf I could be presiding over important things but I'm here over toy soldiers?? In the inital meeting I attended he was clearly not impressed with Moskin (who was on phone conference) and the judge even hung up on him rather than listen to his ego driven babble.

Despite the seriousness of the situation it was quite hillarious, both myself and CH's legal team were trying very hard not to crack a smile.

From the few transcripts that have been included of courtroom actions (motion hearings and the like) - his annoyance seemed to come through.

Granted the mediator they had seemed to be even more annoyed...

That is saying a lot too as, transcripts do tend to be about the driest reading you will ever find.

 paulson games wrote:
wtf I could be presiding over important things but I'm here I'm here over toy soldiers?

I think this may also be the attitude of the jury, who GW will have to convince that their toy soldiers are really serious business. Because most people are likely to think that all these toy men look the same, stuff like tyranids are just generic alien bugs, and none of it is something they can take seriously.

 Howard A Treesong wrote:
I think this may also be the attitude of the jury, who GW will have to convince that their toy soldiers are really serious business. Because most people are likely to think that all these toy men look the same, stuff like tyranids are just generic alien bugs, and none of it is something they can take seriously.

I imagine that will come into play, I don't think most non-gamers have any clue about how large aspects of the miniatures industry are. I'm sure during the course of the trial that they will be dropping some sales figures to try and bridge that gap. Toy and model companies can have sales running into hundreds of millions of dollars and it is a serious business when you disconnect the use of the product vs the business aspect, but that's not something the average person considers at first thought.

My attourney was very interested in the case on a personal level as he'd had no prior exposure to gaming outside of video games and they did a lot of research into it and he was floored by the money involved with the industry as a whole. (particuarly with conventions) For a somewhat niche subculture that most people aren't even aware of it generates huge revenue chains. He also thought the artistic aspects behind the painting and sculpting were incredible.


.

Chapterhouse Lawyers wrote:Certain Forum Postings Constitute Irrelevant and Improper Lay Opinion

You're teling me. It's interesting how both sets of In limine motions reveal the biggest concerns of each sets of lawyers. I've got no axe to grind in either direction, so I'm looking forwards to some judgements next week.

 Kilkrazy wrote:
They have got evidence but it needs to be tested in court.

If you claim copyright infringement in court, you first have to prove that you actually own that copyright. GW didn't do that or even try. They made wild claims, couldn't prove any, retracted a few too ridiculous claims, tried to trick some copyright holders to transfer copyright to them a year after the lawsuit started, and tried to trick judge and government agency into letting the shoulder pad form copyright be admitted to jury decision.

That is far from what is usually required from a copyright infringement lawsuit.

Copyright infringement can only be proved in court. GW can claim a copyright, like the shoulder pads, then in court the claim can be proved or disproved..

You can only ever enforce the law in court, ultimately.

First requirement for a copyright infringment lawsuit is, you must prove that you actually own the copyright in question. GW hasn't met that requirement and didn't even try seriously.

 Kroothawk wrote:
First requirement for a copyright infringment lawsuit is, you must prove that you actually own the copyright in question. GW hasn't met that requirement and didn't even try seriously.

How can a case go on so long with so little substance? If Chapterhouse wasn't pro-bono, they'd have been bled dry ages ago. I guess this is how cases are often settled, drag out a spurious claim and wear them down before it comes to court, so much for any sort of 'justice'. Is there much sign of this being settled before christmas, as it'll be three years, and GW still haven't shown they own the things they claim and appear to have a string of behaviour that amounts to poor practice. Writing to people claiming to have 'lost' the paper work so as to hoodwink them into signing away their copyrights. That's going to be admissible in court, right? Because it's disgusting.

 Kroothawk wrote:
First requirement for a copyright infringment lawsuit is, you must prove that you actually own the copyright in question. GW hasn't met that requirement and didn't even try seriously.

The way of proving effectively in law that you own a copyright is to sue the person you have accused of violating it.

To put it differently, how would GW impose their notional copyright claim on Chapter House without suing them?

Chapter House clearly do not accept that GW hold a valid copyright in the shoulder pads, and will not arbitrate on the matter, so GW have no option but to sue. This will test the claim of the copyright.

What I am trying to say is that if one company writes to another and says, "Hey, you've broken our copyright! Look at our registration (ect.)" , the second company can go, "Oh yeah. Sorry, we'll compensate you." or, "feth off, you don't have a copyright." In the second case, the complaining company will need to go to court to enforce their copyright. If they have an easily provable claim it will be an open and shut case. However, it is also possible that Company A thinks it has an enforceable copyright and when it gets to court finds that its claim is weaker than supposed. This is the situation that GW now find themselves in.

I think the issue is a little more basic than that...at least in terms of what Kroothawk is refering.

Normally, you have to prove you own a copyright as the basic level of having grounds to file suit. For an artist, this is pretty basic, as artists own the copyright by default for anything they produce.

For a company though, it is more complicated. While they might produce a product based on art created by an artist...they do not automatically own the copyright and thus the right to bring the suit. The artist has to assign the rights to the company in a contract. GW failed to present those contracts, subsequent to that failure, they attempted to secure a contract after the fact by sending letters to various freelancers and former employees asking them to assign the rights after the suit had already been going on for 2 years. This is the importance of the Chalk letter which CHS secured last fall.

In a way, it would be like me suing my neighbor because I think their son might hit my mailbox. After the suit has been ongoing for a few months...he finally does hit my mailbox. That he did eventually hit my mailbox does not make my preemptive lawsuit legitamate. GW should have had all their ducks in a row before hand, and the nature that they got assignments after the fact makes the assignments somewhat questionable as well in several instances.

Heck, it wasnt until the last few months that GW got Bob Naismith to assign the rights for the space marine figures...and those are really the core of the case (all other GW marines since being derived from those).


Automatically Appended Next Post:
Having the copyright though is only the start, as you then have to move on to examine the work, determine what aspects are unique enough to be protected and figure out what is just basic stuff.

For example, if I were a modern artist who painted a canvas red...I would have a copyright on that painting. It would prevent a museum from creating lithographs that showed the brush strokes and what not of my painting...but it would not prevent another artist from painting their own canvas red. A red canvas is too basic an item to have broad protections. If the combination was more unique...maybe a circular canvas of a specific odd diameter, it would have more protections.

 Howard A Treesong wrote:

 Kroothawk wrote:
First requirement for a copyright infringment lawsuit is, you must prove that you actually own the copyright in question. GW hasn't met that requirement and didn't even try seriously.

Writing to people claiming to have 'lost' the paper work so as to hoodwink them into signing away their copyrights. That's going to be admissible in court, right? Because it's disgusting.

Personally, aside from everything else that has been going on, that bit really saddened me. For me, it was the final proof of what the company has become these days. and I agree, 'disgusting' is the term I would use also.

 Sean_OBrien wrote:
Heck, it wasnt until the last few months that GW got Bob Naismith to assign the rights for the space marine figures...and those are really the core of the case (all other GW marines since being derived from those).

Wait, Bob signed? That's a shame.

Not sure if he signed, but the deposition made it clear that he assumed he was doing works for hire...though there are aspects of the laws which can make that irrelevant without a signature.

I would need to dig back through the documents to see if they got an actual written assignment of rights.

Edited by AgeOfEgos