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I wonder if there have been other cases of someone sending a thing into the Copyright Registration office and the CRO refusing to register it because it lacks sufficient originality, and the sender going to a court to get the judge to allow it to be registered.

IIRC, the judge just ruled "Let the jury decide" and not "this is definitely copyrightable". So the decision is post-poned.
Let's just hope that US law doesn't give any local jury the right to grant copyright on anything to anyone.

 Kroothawk wrote:
IIRC, the judge just ruled "Let the jury decide" and not "this is definitely copyrightable". So the decision is post-poned.
Let's just hope that US law doesn't give any local jury the right to grant copyright on anything to anyone.

Which again is why I'd rather have some non corporate entity like the CRO be in charge of deciding if something is significant enough to be copyrighted at all, not 12 random people from Chicago who couldn't think up an excuse to get out of what would likely be an insanely boring case to those not familiar with the hobby(don't get me wrong, there are some juries I'd love to serve on, and others that I'd make up any excuse to get out of). It's not like the jury is going to be a panel of people who already have a decent grasp of IP and copyright laws/ideas having arguments given to them by equally qualified people.

This will be a case in which 12(is it 12?) people from 100% random backgrounds are given a very heavy decision to make, whether they realize the weight that decision carries or not.

So many times prior cases and judgements are quoted in new suits, and I guarantee that those who made the quoted ruling had very little idea that their ultimate decision would be the legal basis for many future decisions.

Basically, I'd rather have experts dealing with areas like IP than laymen.

This is most illogical. Unfortunately the law doesn't have to be logical. Judges aren't robots so we have no idea what is going on in his head or why he sees things the way he does.

This happens quite often.

GW makes shoulderpads. These shoulderpads are of a certain size and shape.

Chapterhouse makes shoulderpads. These are a similar size and shape.

GW uses common heraldic devices and geometric shapes.

Chapterhouse also uses common heraldic devices and geometric shapes.

Could there be confusion of these products by a reasonable person?

Has Chapterhouse infringed on a distinct, unique, and singular design that is nowhere else to be found?

Have GW's lawyers acted in their client's best interests?

Have Chapterhouse's done the same?


What do you all think?

xraytango wrote:
This is most illogical. Unfortunately the law doesn't have to be logical. Judges aren't robots so we have no idea what is going on in his head or why he sees things the way he does.

This happens quite often.

GW makes shoulderpads. These shoulderpads are of a certain size and shape.

Chapterhouse makes shoulderpads. These are a similar size and shape.

GW uses common heraldic devices and geometric shapes.

Chapterhouse also uses common heraldic devices and geometric shapes.

Could there be confusion of these products by a reasonable person?

Has Chapterhouse infringed on a distinct, unique, and singular design that is nowhere else to be found?

Have GW's lawyers acted in their client's best interests?

Have Chapterhouse's done the same?


What do you all think?

In order:

Maybe
No
Definitely Not
Yes
GW has hit rock bottom and issued a C&D letter for a jackhammer

Let's not digress into a general discussion thread, please. This thread is for distribution & discussion of updates peculiar to this case, and not general discussion of the merits of the case or GW's business.

So some of the transcripts are starting to be available. Anybody in Chicago care to take a gander at the public terminal?

TRANSCRIPT OF PROCEEDINGS held on 2/14/13 before the Honorable Matthew F. Kennelly. Court Reporter Contact Information: Laura Brennan, 312-435-5785, Laura_M_Brennan@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.
Redaction Request due 4/23/2013. Redacted Transcript Deadline set for 5 /3/2013. Release of Transcript Restriction set for 7/1/2013. (Brennan, Laura)

CHS motions to oppose GWs motion in limine and to compel.

There are a bunch more filings (up to 344) but going to wait for them to hit RECAP.

Interesting filing to say the least.

Fun tidbits:

GW similarly argues that CHS cannot refer to GW’s settlement with Jon Paulson—a
former defendant in this case. But the naming of Paulson as a defendant shows the pattern by
which GW acts: shoot first and ask questions later. It would be unfairly prejudicial to preclude
CHS from informing the jury what happened with a co-defendant in this very case, along with
others whom GW wrongfully accused of infringement. GW has espoused a plan or pattern,
relevant under Rule 404(b)(2), simply to threaten individuals into stopping their work, whether
they infringe or not.

GW seeks to preclude evidence regarding CHS’s trademark license from Michael
Moorcock for use of Moorcock’s eight pointed Chaos symbol. Pursuant to the Court’s
Memorandum Opinion and Order dated April 1, 2013, GW must show ownership and prior use
in commerce of the Chaos Space Marines Eight-Pointed Star Icon. Dkt. 333. Michael
Moorcock, a science fiction author, identifies himself as the originator of an eight pointed chaos
symbol dating back to at least his Elric of Melnibone stories in the early 1960s and has licensed
CHS to use his chaos symbol in connection with CHS’s miniatures business. See Ex. 18, Ex. 19.
GW’s ownership of the mark is in dispute, and the fact a third party asserts ownership of that
mark in connection with science fiction miniatures is relevant. Further, based on Moorcock’s
license, CHS has the right to invoke its superior rights in defense of GW’s infringement claim.

Paraphrasing motion IX:
GW doesn't want the fact that CHS has free lawyers to be known to the jury because if the jury sees them as paid then it makes CHS look like they have far greater resources and profits than they really do. Basically GW wants to withhold information that is 100% public and anyone with google can find out.


From the second document:

Games Workshop first seeks sanctions for Mr. Villacci’s inability to locate four books
that are published by Games Workshop and that were already made available for inspection in
August, 2011.

GW wants to sanction someone for not still having items that he already showed them and that they at the time declined to copy as evidence.

And ultimately:

G. Conclusion
Because Chapterhouse has complied with the Court’s prior discovery orders,
Chapterhouse requests that Games Workshop’s Motion to Enforce Prior Discovery Orders be
denied as moot.

Hah. I see we finally come to a long overdue discussion about who actually owns the rights to the 8 pointed Chaos star.

GW might claim in that case that Moorcock never made an sculpt of the star and that the expression of something in one medium does not carry over to other mediums... but I guess that wouldn't fly well with their prior Tervigon IP claims

Seriously, does Moorcock have a claim to something that has been around in similar forms for ages just by adding a "Chaos" to it? And is it possible within US Law to deny the jury of a case access to evidence that it's damaging to one side just because the plaintiff screwed it up in the initial phases?

M.

 Miguelsan wrote:
GW might claim in that case that Moorcock never made an sculpt of the star and that the expression of something in one medium does not carry over to other mediums... but I guess that wouldn't fly well with their prior Tervigon IP claims

Seriously, does Moorcock have a claim to something that has been around in similar forms for ages just by adding a "Chaos" to it? And is it possible within US Law to deny the jury of a case access to evidence that it's damaging to one side just because the plaintiff screwed it up in the initial phases?

M.

Out of context (an 8 pointed star or an star which has the same design with 8 rays pointing from the center) it has been around for a very long time - and as such is really outside the scope of anyone "owning it". Moorcock did do a lot in setting down on paper the various aspects of "chaos" and applied the 8 pointed star to it. Prior to him, the closest example would be something like the 8 of wands (or is it swords) which IIRC was supposed to mean scattering of energy...which I guess would be somewhat chaotic.

Well before GW decided to coop it though, Chaosium went through and expanded on a lot of the different ideas and symbols (though they likely picked much from early texts as well) and you see various examples show up in GW books like the Lost and the Damned.

Which gets back around to your first point (and beyond the tervigon as well). If GW would like to ignore Moorcock's claim in order to exercise their claim over chaos related CHS items - they would then be hard pressed to exercise a claim over a lot of the shoulder pad icons which they never sold as products. Since so many of the claims are based on what they refer to as distinctive designs (not sure if that is the exact wording they used) which is neither trademark protected nor really copyright protected due to the simple geometry...then they would have to acknowledge other claims in the same vein. Even if it was not Moorcock who described it in words, it would be one of the artists who illustrated covers or magazine art for him...or one of the game companies which licensed the property from Moorcock before hand...heck, even the various other parties who have picked up on the symbology would have a stronger claim than GW in terms of original source (I think it was a symbol in the first edition of Palladium's Fantasy RPG back in the early 1980s).

And yes - it is possible to deny pretty much anything from the jury for any number of different reasons. Might be because it would be damaging to one side or another. Might be because of a paperwork snafu. Might be because the sky is blue...

I would have thought that since GW have been using the star for the last 30 years without any challenge from Moorcock, they could still put up quite a strong case for ownership of the star as a trademark.

I think it is distinct from the shoulder pad designs because GW has always been active in asserting ownership of those.

As far as I have understood what was said before, the 8 sided star cannot be a trademark, because it's use was not that of a brand symbol. GW doesn't sell "Chaos", but the games of warhammer and 40k. Concerning copyright, my experiences as a musician tell me you have the copyright on something because you created it first, uses of your work by others do in no way change anything about it, nor does registering or not registering. Registering just makes it easier to insist on your rights. But in no way would your use of something give you the copyright of it, just because the original creator never cared about. He is still the creator, and as long he doesn't explicitely give away the copyright, it's his.
Well, what about if Moorcock never claimed "all rights reserved" before, can he do so now still? Because as far I understand it, that would deny GW to use his creative work as a trademark, unless he allows it?

The issue becomes that if you don't defend your copyright/trademark you could lose it.

It's to stop things like a copyright troll seeing a new product but not bothering to say that it violates his copyright until it's wildly successful (and therefore generates a larger settlement)

That's my understanding anyway

 Aerethan wrote:
Fun tidbits:


GW doesn't want the fact that CHS has free lawyers to be known to the jury because if the jury sees them as paid then it makes CHS look like they have far greater resources and profits than they really do. Basically GW wants to withhold information that is 100% public and anyone with google can find out.

To be fair, the Federal Rules of Evidence allows public information to be withheld quite often (though, as with everything in the law, there are exceptions and exemptions). Past criminal convictions (609/404(b)), mental health (404(a)), character faults (404(a)), insurance status (411), redesigning a faulty product (407), fixing a faulty property feature (407). The usual way to block information to a jury is to show that it is either irrelevant (401) or if the probative value of the evidence is substantially outweighed by the unfair prejudicial effect that it will have (403).

I'm guessing GW will be very keen on using number 403 on the tidbit that they love suing first and checking if they have a case later.

M.

rigeld2 wrote:
The issue becomes that if you don't defend your copyright/trademark you could lose it.

It's to stop things like a copyright troll seeing a new product but not bothering to say that it violates his copyright until it's wildly successful (and therefore generates a larger settlement)

That's my understanding anyway

You are mixing up copyrights with trademarks.

czakk wrote:

rigeld2 wrote:
The issue becomes that if you don't defend your copyright/trademark you could lose it.

It's to stop things like a copyright troll seeing a new product but not bothering to say that it violates his copyright until it's wildly successful (and therefore generates a larger settlement)

That's my understanding anyway

You are mixing up copyrights with trademarks.

Yup. Trademarks have an affirmative duty to defend against potential infringements that are known/should be known to the trademark holder (largely because they have no limit on duration - the theory being that once you've stopped defending a trademark, it's because you're not claiming it any more). Copyrights simply exist. You don't have to assert them against all potential infringers.

Sorry if this is completely off post , tho i think its related enough to post it here , but does anyone know why GW is not comfortable enough for other firms to make parts that fit on their products ?
Its not such a dumb question when you consider other industries that have a large after sales parts market , the easiest to equate it to is vehicles , tho there are many others.
An example , most adverts on the web or press for custom parts are only too obvious about there compatiblity with the intended vehicle , prospective buyers would be wary of parts that weren't compatible.
Now consider a firm making resin parts for , lets say , Rhino's . You would still need to purchase a rhino from GW to fit said parts to , who loses out ?
Would a firm advertising its wares with " Compatible with Games Workshop" not be benificial to GW too ?

 Big H wrote:
Sorry if this is completely off post , tho i think its related enough to post it here , but does anyone know why GW is not comfortable enough for other firms to make parts that fit on their products ?
Its not such a dumb question when you consider other industries that have a large after sales parts market , the easiest to equate it to is vehicles , tho there are many others.
An example , most adverts on the web or press for custom parts are only too obvious about there compatiblity with the intended vehicle , prospective buyers would be wary of parts that weren't compatible.
Now consider a firm making resin parts for , lets say , Rhino's . You would still need to purchase a rhino from GW to fit said parts to , who loses out ?
Would a firm advertising its wares with " Compatible with Games Workshop" not be benificial to GW too ?

The cynical response to this is that GW can not actually compete as a business, they are the biggest (for now) in the industry and rely on sucking in new customers, milking them and then letting them go off and find about other games and companies. (This would be the reason GW refer to it as "The Games Workshop Hobby" as opposed to just the hobby.)

The less cynical response is that they are just very protective about their products.

How does it protect their product A to try and stop Chapter House from selling add-on part X to stick on to it?

Could the whole thing actually be a colossal legal balls-up by GW? When you look at the depth of business and legal incompetence that has been revealed by the case so far, it makes you wonder.

That is really the biggest part of the issue. Why would you not encourage the sales of your product?



GW gets the money from the sale of their model kit and that should be all there is to it. If some 'random' guy wants to craft gubbins that will fit on it and sell those, he should be allowed to do so, as it does not interfere with sales for that kit, because it does not compete for usage with that kit.

It is not an alternate product nor is it a direct copy of a product, but an interpretation of something that would be cool to use on that product.

This opens a big question as there are similar additive parts produced by Forge World that CHS is closer to than any GW design, why aren't they or their representatives named as co-plaintiffs?

xraytango wrote:
That is really the biggest part of the issue. Why would you not encourage the sales of your product?



GW gets the money from the sale of their model kit and that should be all there is to it. If some 'random' guy wants to craft gubbins that will fit on it and sell those, he should be allowed to do so, as it does not interfere with sales for that kit, because it does not compete for usage with that kit.

It is not an alternate product nor is it a direct copy of a product, but an interpretation of something that would be cool to use on that product.

This opens a big question as there are similar additive parts produced by Forge World that CHS is closer to than any GW design, why aren't they or their representatives named as co-plaintiffs?

The original issues (as GW employees still insist are the ONLY claims in the case) were with trademark use. With trademarks, the owner of them MUST defend them when they see an infringement, or they risk losing claim to the trademark.

And example would be the Apple logo and name. It is a trademark. Now if I put that same logo on a van and call it "Apple House Cleaning Service" then clearly it would cause brand confusion and people would think that Apple had branched out into the ever so lucrative house cleaning market.

As soon as Apple is aware of my use of their trademark they have X amount of time to react to it and tell me to stop(and sue me if I don't) otherwise they lose their claim on the marks.

The problem here is that when you assert a mark is yours, and the person doesn't back down, then you have to actually prove the mark was yours to begin with, and that is what GW hasn't done.

Now, GW took things further by insisting that using disclaimers and nominative use of their marks is still infringement, which is pretty much the only reason trademarks are still part of the claim. GW says "We own the trademark for 'Space Marine Shoulder Pad' " and CHS is now saying "prove it". Furthermore, even if GW manages to get their ducks in a row with ownership, fair use is in play.


Then there's the copyright half of the issue which is much less cut and dry.

You could put Apple Cleaning Service, though, as long as Apple Computer have not registered Apple for cleaning services.

It is the principle that allowed Apple Computer to use a trademark confusingly similar to the Apple Corp trademark. Apple Computer did nothing in the music line. When they did start to put midi functions in their computers, they were sued by Apple Corp.

Would not nescessarily stop Apple (or a trademark crazed company like them...GW...) from suing you though.

http://www.pcmag.com/article2/0,2817,2409669,00.asp

Though in theory, you are correct. Trademarks are limited to specific industries. If the name is used in anunrelated field, you are generally in the clear. Logo marks are more difficult though as although they are governed by the same laws as text marks, the logo of a company tends to be more readily recognized as tied to a product (for example the Citadel logo will have stronger protections then the text mark "Citadel Miniatures"). You might have a miniatures company that is founded by alumni from the Citadel...but using the same or similiar logo as GWs citadel logo would have stronger claims towards confusion.

 Kilkrazy wrote:
You could put Apple Cleaning Service, though, as long as Apple Computer have not registered Apple for cleaning services.

It is the principle that allowed Apple Computer to use a trademark confusingly similar to the Apple Corp trademark. Apple Computer did nothing in the music line. When they did start to put midi functions in their computers, they were sued by Apple Corp.

I think the logo was the bit Aerethan thought would cause a problem - though giving yourself the job title iClean could be entertaining...

 Dysartes wrote:
I think the logo was the bit Aerethan thought would cause a problem - though giving yourself the job title iClean could be entertaining...

They might get in trouble with the Apple branch iSue

 Dysartes wrote:

 Kilkrazy wrote:
You could put Apple Cleaning Service, though, as long as Apple Computer have not registered Apple for cleaning services.

It is the principle that allowed Apple Computer to use a trademark confusingly similar to the Apple Corp trademark. Apple Computer did nothing in the music line. When they did start to put midi functions in their computers, they were sued by Apple Corp.

I think the logo was the bit Aerethan thought would cause a problem - though giving yourself the job title iClean could be entertaining...

You couldn't duplicate either Apple Computer or Apple Corp's logo, but you could still make a logo that represented an apple.