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 Kilkrazy wrote:

 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.

Not according to Apple, who are suing that polish site because they use the url/name "A.pl", ie the letter A and the Polish url extension, and because they previously used a logo of an apple that consisted of a solid green circle with a single teardrop-shaped leaf above it. Stuff like this is why a lot of people consider the entire intellectual property system to be corrupt and worthless, it stopped being about protecting people's right to make a living from their ideas a long time ago, now it's just a tool to allow corporations to bully competition out of business or make money by suing smaller unrelated companies. For eg, GW's legal strategy for the last decade or so.

Yep. There is something in that I am afraid.

xraytango wrote:

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?

Forgeworld does not own the IP. They are granted a license by GW to use it. As such, GW is the party with proper standing.

There's no license granting - it's the same entity.

rigeld2 wrote:
There's no license granting - it's the same entity.

Quite so. GW says as much in its complaint against Chapterhouse. GW describes it as Games Workshop's "Forge World division."

As to marks being enforced beyond a given product category, generally that requires a claim of trademark dilution, which requires a mark to be famous. By the way, GW did make federal and state dilution claims agianst the Defendant, but the Court dismissed the claims in their entirety for lack of evidence.

weeble1000 wrote:

rigeld2 wrote:
There's no license granting - it's the same entity.

Quite so. GW says as much in its complaint against Chapterhouse. GW describes it as Games Workshop's "Forge World division."

As to marks being enforced beyond a given product category, generally that requires a claim of trademark dilution, which requires a mark to be famous. By the way, GW did make federal and state dilution claims agianst the Defendant, but the Court dismissed the claims in their entirety for lack of evidence.

I noticed that. Though I am confused as to what claims by GW are still standing. They have made it a horror show to follow from the outside by filling and refilling claims, getting stuff dismissed and then adding new stuff. Is anyone keeping track?

The Court has dismissed GW's claims of trademark dilution, GW's claim against the Defendant's website (arguably including any clims of infringement in the aggregate under the Castle Rock precedent), 37 claims of copyright infringement (with prejudice), and the court will dismiss GW's state court claims to the extent that they are preempted by federal claims.

Everything else is still in the case.

rigeld2 wrote:
There's no license granting - it's the same entity.

Whoops! You're correct. My mistake.

(I should stop posting before my first cup of coffee in the morning)

weeble1000 wrote:
Everything else is still in the case.

weeble, is there any chance of a brief layman's guide to what "everything else" would now be defined as?

 Dysartes wrote:

weeble1000 wrote:
Everything else is still in the case.

weeble, is there any chance of a brief layman's guide to what "everything else" would now be defined as?

Please?

 Dysartes wrote:

weeble1000 wrote:
Everything else is still in the case.

weeble, is there any chance of a brief layman's guide to what "everything else" would now be defined as?

The best thing to do is to read the complaint, including the third revised calim chart. There is no way to give a non-partial, layman's explanation of that. The claims are, in many respects, ambiguous in nature. As a result, any explanation or summary would naturally involve a liberal amount of interpretation.

For example: "The Orks are a Warhammer 40,000 race. The Evil Sun(z) is an Ork clan. Their icon is a circle with 'sun rays' extending outwards." That is from the Second Revised Claim Chart, product entry number 12.

What does that mean in terms of actual legal claims? Is it a trademark claim? Well, "Evil Sun(z)" is not a mark listed in the complaint, neither is Ork, but then the complaint was rather ambiguous too. Is it a copyright infringement claim? The 'Evil Sun(z)' icon is not pictured in the claim chart, merely described as "a circle with sun rays extending outwards." That claim is asserted against the Defendant's "Sawblade Shoulder Pad & Jewel (1)" product.

I am sorry if it sounds like I am being deliberately obtuse. There really is no good answer. How are the particulars going to be resolved...well, there are motions in limine for the Court to rule on, but in my experience, Judge's tend to reserve ruling on those until the eve of trial, or even during a trial. I assume that at some point the parties will have discussions with the Court about these issues, perhaps in the pre-trial conference.

The claims in this case are a crazy mess. They are like a gordian knot, and thus far the Court has parried all attempts to slice through it.

I understand that. I am still trying to understand the mess GW made out of this lawsuit. I am kind of surprised on how patient the judge has been towards GW. I would have figured he would have thrown the whole thing out as a SLAAP suit by now, given the first opportunity.

Mohoc wrote:
I understand that. I am still trying to understand the mess GW made out of this lawsuit. I am kind of surprised on how patient the judge has been towards GW. I would have figured he would have thrown the whole thing out as a SLAAP suit by now, given the first opportunity.

There is no federal SLAPP statute, though many states have adopted them.

You have to keep in mind that the Judge probably has 100+ cases on his plate at the moment. This case is massive and complicated with literally hundreds of claims. How much work is it to sort out the good claims from the bad? What is the harm in letting a possibly less legitimate claim go in front of a jury versus what is the harm in tossing a legitimate claim by mistake.

Situations like these are hard, and many Judges let it ride hoping the case will settle out. Most of them do. Now, when they don't settle out, a trial date has a miraculous ability to create clarity. Sometimes it takes until right up to the first day of court.

I have seen judges make very radical and unexpected decisions on day one. Once, a Judge looked at what exhibits the parties planned to use in opening statements and said that it was ridiculous and that bth sides only had 15 min for openings. He said that they could use whatever exhibits they wanted, but that he recommended they spend their limited time talking to the jury.

I wouldn't be surprised to learn that Judge Kennelly still expects this case to settle out. If it doesn't a lot may change very shortly.

weeble1000 wrote:
You have to keep in mind that the Judge probably has 100+ cases on his plate at the moment. This case is massive and complicated with literally hundreds of claims. How much work is it to sort out the good claims from the bad? What is the harm in letting a possibly less legitimate claim go in front of a jury versus what is the harm in tossing a legitimate claim by mistake.

Situations like these are hard, and many Judges let it ride hoping the case will settle out. Most of them do. Now, when they don't settle out, a trial date has a miraculous ability to create clarity. Sometimes it takes until right up to the first day of court.

I have seen judges make very radical and unexpected decisions on day one. Once, a Judge looked at what exhibits the parties planned to use in opening statements and said that it was ridiculous and that bth sides only had 15 min for openings. He said that they could use whatever exhibits they wanted, but that he recommended they spend their limited time talking to the jury.

I wouldn't be surprised to learn that Judge Kennelly still expects this case to settle out. If it doesn't a lot may change very shortly.

I don't think(based on where things stand currently) that CHS has any reason to settle unless they someone get money thrown at them to make this all go away. CHS has very little to lose here, and GW has "everything" to lose. The risk IMO is not worth it.

With a firm date set it can be like watching a game of legal chicken. Lots of trials can be settled moments before the case starts, when things come down to the wire it can cause things to shift where early preceedings they were pretty much static. Although in this situation I don't see either side backing down at this point. GW has far too much to lose if their claims aren't enforceable, they also have a lot of hurt pride at this point. CHS has dug in and is going for scorched earth to do as much damage as they can. Regardless of which side wins it'll be painful for GW if they lose any ground on their IP ownership.

weeble1000 wrote:
The Court has dismissed...37 claims of copyright infringement (with prejudice)....

So in other words, the court thinks that app 20% of GWs claims are/were frivolous and should never have been included? Moskin, sanctioned for his actions, and only a week to go before the first court date.

Bet there's a few sleepless nights for GW hierarchy.

Cheers

Andrew

 AndrewC wrote:

weeble1000 wrote:
The Court has dismissed...37 claims of copyright infringement (with prejudice)....

So in other words, the court thinks that app 20% of GWs claims are/were frivolous and should never have been included? Moskin, sanctioned for his actions, and only a week to go before the first court date.

Bet there's a few sleepless nights for GW hierarchy.

Cheers

Andrew

It is a little more weird than that. The 37 claims are shoulder pads. The Court dismissed those claims at the same time that it found the shoulder pads protectable by copyright. Confusing, right? Well, those claims were dismissed because GW voluntarily dropped them. The Court then made sure that having dropped them, that they could not being them again in the future.

See, GW dropped the right about when the Defendant was raising serious questions about GW's ownership of the works, such as for example the Gary Chalk situation, where Defendant alleged that Plaintiff had deliberately withheld contact information for certain of its artists who had refused to sign the confirmatory assignment GW had been sending around. Then, surprise, GW decides to drop not one, but 37 claims. The Court may have had such possible malarkey in mind when it dismissed such claims with prejudice.

weeble1000 wrote:
It is a little more weird than that. The 37 claims are shoulder pads. The Court dismissed those claims at the same time that it found the shoulder pads protectable by copyright. Confusing, right? Well, those claims were dismissed because GW voluntarily dropped them. The Court then made sure that having dropped them, that they could not being them again in the future.

See, GW dropped the right about when the Defendant was raising serious questions about GW's ownership of the works, such as for example the Gary Chalk situation, where Defendant alleged that Plaintiff had deliberately withheld contact information for certain of its artists who had refused to sign the confirmatory assignment GW had been sending around. Then, surprise, GW decides to drop not one, but 37 claims. The Court may have had such possible malarkey in mind when it dismissed such claims with prejudice.

Does with prejudice mean just for this case or can GW bring up the same issues with a future defendant?

 fullheadofhair wrote:

weeble1000 wrote:
It is a little more weird than that. The 37 claims are shoulder pads. The Court dismissed those claims at the same time that it found the shoulder pads protectable by copyright. Confusing, right? Well, those claims were dismissed because GW voluntarily dropped them. The Court then made sure that having dropped them, that they could not being them again in the future.

See, GW dropped the right about when the Defendant was raising serious questions about GW's ownership of the works, such as for example the Gary Chalk situation, where Defendant alleged that Plaintiff had deliberately withheld contact information for certain of its artists who had refused to sign the confirmatory assignment GW had been sending around. Then, surprise, GW decides to drop not one, but 37 claims. The Court may have had such possible malarkey in mind when it dismissed such claims with prejudice.

Does with prejudice mean just for this case or can GW bring up the same issues with a future defendant?

IIRC it means that GW cannot sue CHS for those items again, there may be conditions involved in that.

It does not mean that GW can't sue someone else for making them, although the fact that they were removed with prejudice from this case may give a stronger defense for anyone who might find themselves staring down the GW legal barrel.

Future defendant...yes. CHS, no.

Even if GW were to loose on everything, they could still sue another third party company for the exact same claims the next day. What a loss would do is give something for a lawyer to point to should they sue someone else.

Should that happen, the new judge would be more willing to tell GW to go away as their would be settled law on which to tell them to shut up.

For the other third part company, it would mean being able to put up a defense for a few thousand dollars versus, what I would guess has surpassed a hundred thousand worth of billable hours plus travel and other costs.

 Sean_OBrien wrote:
Future defendant...yes. CHS, no.

Even if GW were to loose on everything, they could still sue another third party company for the exact same claims the next day. What a loss would do is give something for a lawyer to point to should they sue someone else.

Should that happen, the new judge would be more willing to tell GW to go away as their would be settled law on which to tell them to shut up.

For the other third part company, it would mean being able to put up a defense for a few thousand dollars versus, what I would guess has surpassed a hundred thousand worth of billable hours plus travel and other costs.

Now, CHS's legal firm is willing to eat that cost on the gamble of winning the case and gaining reputation from it correct?

Should CHS win, would their lawyers be able to then go after GW for legal fees even though they are pro bono?

I suppose 100k to a legal firm is a small price to pay for making a name in IP law.

 fullheadofhair wrote:
Does with prejudice mean just for this case or can GW bring up the same issues with a future defendant?

It means that the matter has been decided by a Court, and that the Plaintiff cannot bring such claims against the Defendant again, baring certain specific circumstances. Generally, most districts will honor a dismissal with prejudice by another district, although I think the ruling is only technically binding in the 7th circuit, but then this is where not being a lawyer hurts. I do not really know the particulars down to that level of detail.

However, I can say that when a claim is dismissed with prejudice, as a practical matter, you just can't sue that party on that basis again. In other words, Chapterhouse Studios can manufacture and sell those 37 products until the stars burn out.

In contrast, if a Court dismisses a claim without prejudice it means that you can turn around and sue again. Usually dismissals without prejudice are based on procedural issues, threshold issues, and so forth. It is kind of like saying, "Look, what you have here is not enough to bring this claim at this time."

A dismissal with prejudice is like saying, "I have come to a reasoned decision on this claim and the matter is resolved." You are not supposed to recover damages more than once for the same action in civil cases, for example, so once a matter is resolved, the Courts generally treat it as resolved. It is sort of like double jeopardy. It would be inequitable to hit someone over and over again for the same thing, and it would be an incredible waste of public resources.


Automatically Appended Next Post:

 Aerethan wrote:

 Sean_OBrien wrote:
Future defendant...yes. CHS, no.

Even if GW were to loose on everything, they could still sue another third party company for the exact same claims the next day. What a loss would do is give something for a lawyer to point to should they sue someone else.

Should that happen, the new judge would be more willing to tell GW to go away as their would be settled law on which to tell them to shut up.

For the other third part company, it would mean being able to put up a defense for a few thousand dollars versus, what I would guess has surpassed a hundred thousand worth of billable hours plus travel and other costs.

Now, CHS's legal firm is willing to eat that cost on the gamble of winning the case and gaining reputation from it correct?

Should CHS win, would their lawyers be able to then go after GW for legal fees even though they are pro bono?

I suppose 100k to a legal firm is a small price to pay for making a name in IP law.

pro bono publico: for the public good. A law firm working pro bono is taking on the responsibility of zealously representing a client's best interests, just as if it were a paying client. Firms ideally take on pro bono cases because they feel that representing the client is in the interest of the public good.

For example, I worked on the Savana Redding civil suit pro bono because I felt that the Defendant's actions towards Ms. Redding were grossly unconstitutional. For me, there was a public interest in the success of Ms. Redding's case.

Now, representing a client pro bono, especially in a case like the one under discussion (multiple years of costly litigation, massive discovery across two continents, lots of motion practice, etc.) is a serious commitment. It would be unethical for a law firm to take a case pro bono and work it half-heartedly, or to consider the interests of the firm above the interests of the client. That said, there are lots of side reasons why a firm takes a case pro bono. Most departments in major law firms have a commitment to work so many pro bono hours per year. Also, working pro bono can give attorneys valuable experience. There may also be points of law at issue that a firm feels are important, or a lawyer finds particularly interesting. BUT, it would be unethical for a firm to put its interests ahead of the client's.

Lawyers working pro bono are absolutely keeping track of hours worked though, and in a circumstance in which reasonable fees are awarded, well, that award would typically go to the firm. However, such awards are exceedingly rare, and I can't imagine a firm getting into a pro bono case expecting to recoup expenses in such a manner.

Awarding reasonable expenses is essentially a punishment for doing something wrong. For example, Jonathan E. Moskin was required to pay the expenses incurred as part of the Defense's independent investigation to discover the fact that he deliberately or at least recklessly withheld discoverable documents. One would also seek attorney's fees in a claim of malicious litigation, or abuse of process; i.e. it was wrong to file this lawsuit, therefore the cost of the defense is measurable harm that you caused. Making the defendant whole would involve paying those expenses.

I will also add that 100K is a crazy low number. Even if you took all of the documents filed by a party in this case figured out the total number of pages written, not documents produced but written by counsel, and assumed 1 hour of fees per page (which would be minimal in the extreme) I bet that even with an evaluation of fees based on an average of the market rather than a particular lawyer's actual fees, you would get to well above 100K for both parties. It would only take 500 hours at 200/hour to get to 100K.

Now also remember that in the 7th circuit, parties must present each and every motion to the Court in person. How many hours does that take? How many status conferences have there been in this case? How many appearances in Court? How many settlement conferences? The Court just said that the parties' responses to motions in limine was too freaking large to download, just responses to motions in limine. The Plaintiff has repeatedly characterized defense counsel as spending "lavishly" on the case, flying lawyers internationally, videotaping depositions, and so forth.

100K? Not a prayer for either party. The trial alone would likely run up a 6 figure bill.

So to my understanding, Chapterhouse can now make shoulderpads 'til the stars burn out', and the remainder of the case is to decide whether they can also continue to make Tervigon bits and 'Space Elf Wizards'?

Or is the remainder of the case to determine if they can still stay in existence as CH studios, at which point if disallowed it wouldn't matter that they can make Iron Warriors shoulderpads because they can't operate as CH?

Only the 37 claims which were dismissed in the Summary Judgement...

"In its Second Revised Copyright Claim Chart (“Claim Chart”), GW indicates that it is no longer pursuing copyright infringement claims regarding a number of products. Specifically, GW states that it does not claim copyright infringement for the products listed in entries 8, 15-16, 25-26, 28-30, 32, 38-42, 44, 70-72, 81, 84-86, 88-89, 91-93, 107, and 109 on the Claim Chart. Given the stage to which this litigation has advanced, GW cannot simply drop these claims without prejudice. Chapterhouse is entitled to summary judgment on Count 1 with regard to the products identified in these entries."

http://www.archive.org/download/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.258.0.pdf

The claims chart which those numbers reference can be found in the 124 filing:

http://www.archive.org/download/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.224.0.pdf

http://www.archive.org/download/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.224.1.pdf

http://www.archive.org/download/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.224.2.pdf

http://www.archive.org/download/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.224.3.pdf

So...looking at the list and comparing it to what was dismissed...you get this:

8 - Shoulder are ads for Deathwatch or Dark Angels - Tactical (2)
15 - Shoulder Pads for Imperial Fist - Tactical Marines (2)
16 - Shoulder Pads for Imperial Fist - Terminator Marines (2)
25 - Dragon or Salamander Icon Shoulder Pad Bit - Tactical (2)
26 - Dragon or Salamander leon Shoulder Pad· TenninalOr (2)
28 - Dragon or Salamander Storm Shield Diamond Scales (2)
29 - Dragon or Salamander Storm Shield - Smooth no skull (2)
30 - Dragon or Salamander Storm Shield - Smooth w/ skull (2)
32 - Salamander, Alpha Legion or Dragon Conversion Kit fbr Land Raider
38 - Lashwhips - Tyrant Size (1)
39 - Lashwhips - Warrior Size ( 1)
40 - Tyrant Bonesword Arms tor Tyranids (1)
41 - Warrior Bonesword Arms for Tyranids (1)
42 - Xenomorph 28mm Head bits for Tyranids ( I)
44 - Female Heads - Imperial Guard 28mm ([)
70 - Shield lor Iron Hands (2)
71 - Shoulder Pad for Iron Hands Power Annor (2)
72 - Shoulder Pad for Iron Hands Terminator Armor (2)
81 - Celtic Wolf Shield tor Space Wolves (3)
84 - Celtic Storm or Combat Shield (3)
85 - Generic Hammer 2 (2)
86 - Imperial or Eagle Storm Shield (2)
88 - Armoured Predator Armour Kit - side ( I)
89 - Armoured Predator Kit - Centred ( I)
91 - Brazier - Dragon / Serpent - 2 pieces (I)
92 - Brazier Eagle 2 pieces (1)
93 - Mark I Rhino COnversion Kit (I)
107 - 28mm Spartan Heads
109 - Wheeled Chimera Conversion Kit

Forgive the spelling mistakes...the original document appears to have been OCRed and there were a lot of goofs in it as a result. I corrected the most erroneous ones so that it is more clear what is being addressed.

 Sean_OBrien wrote:
Only the 37 claims which were dismissed in the Summary Judgement...

Thanks Sean. That is very helpful. I was honestly not sure what the products were as I had not gone through the docs to track it all down.

Looking at the list again - I only count 29 here...I might be missing something...not near my papers where I can double check it all...but that is a good representation of what is what.

The other items might have been related to claims which were not dismissed but ruled in favor of CHS...and that would require me to read the judgment more thoroughly again...

 Sean_OBrien wrote:
Looking at the list again - I only count 29 here...I might be missing something...not near my papers where I can double check it all...but that is a good representation of what is what.

The other items might have been related to claims which were not dismissed but ruled in favor of CHS...and that would require me to read the judgment more thoroughly again...

Any chance of us laymen to get a good comprehensive summary on where everything stands right before the trial? That way people like myself can more easily follow things from afar? I know it is a lot to ask.

I must say I am tremendously grateful to the lawyerly types among us for ploughing through what looks like an interminable slough of verbiage to dig out the important nuggets.

So, GW really thought they could have a copyright on a model of a female human head, a piece they don't even produce or depict in art AFAIK?

Boggled is barely the start of it.

Mohoc wrote:

 Sean_OBrien wrote:
Looking at the list again - I only count 29 here...I might be missing something...not near my papers where I can double check it all...but that is a good representation of what is what.

The other items might have been related to claims which were not dismissed but ruled in favor of CHS...and that would require me to read the judgment more thoroughly again...

Any chance of us laymen to get a good comprehensive summary on where everything stands right before the trial? That way people like myself can more easily follow things from afar? I know it is a lot to ask.

I do my best to answer what I can - but the judge put it best in his summary judgment opinion:

The Court notes that GW has not identified with specificity what marks it contends Chapterhouse has infringed...Despite GW’s failure to identify in particular what it is claiming...

In a normal case, I could give you are really easy break down of what the plaintiffs are claiming and what the defendants response is. In this case, as the judge notes - GW hasn't really said specifically what they are claiming. Mostly they have just pulled every item from the CHS catalog and said that we don't like these. They don't say why, they don't say what part they don't like - just that they do not like them. So, as of right now - it is pretty much the CHS website...minus the items I listed above for possible copyright and/or trademark claims.