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1.) Can you briefly explain what the deal is with the ebay postings they want? Is this in regards to revenue from the kits they wish to claim as damages, or something else?

2.) Boy, they really have a lot of Dakka Dakka forum postings in there, huh? Apparently posting on Dakka Dakka in the CHS discussion thread makes you a "customer".

3.) I wonder if the quantity of Dakka forum postings that have appeared in this motion will prevent developers from discussing their products in fora from now on. I know that if I were making things that I knew were primarily going to be proxies in 40k, I'd certainly be very Brother Vinni in how I release stuff - dump a thread saying "we have this" and then nothing else, if even that.

weeble1000 wrote:

czakk wrote:
http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.357.0.pdf

Joint status report.

CHS still going for the hail mary

"When the Plaintiff cannot even identify any symbol consistently used as a source identifier, CHS cannot be expected to defend against these unidentified marks. For that reason as well, the icon marks should be excluded. "

I do not know if I would call that a "Hail Mary." I would think that not being able to trademark a word used in a book is, like, black letter trademark law. And, well, if you can't tell me what your trademark is, how in the Hell can a customer know what it is?

I would be dismayed to see the Court to rule against Defendant's MIL on that point.

"Tell me what trademark I am infringing, tell me when you have used it, tell me how you have used it, and tell me how I have infringed it."

"Space Wolves. You do Space Wolves."

"Okay, is 'Space Wolves' the trademark?"

"Maybe."

"When did you use the 'Space Wolves' mark, remember how I asked that?"

"Oh yea, ummm...we used it in, like, 2004 or something. That was before you sold anything, right? Yea, we used it in '04."

"Fine, so how have I infringed it?

"You do Space Wolves, like that thing there, and you say 'Space Wolf."

"Okay, well, that's a start."

"OH YEA! You like infringe these trademarked drawings too. These are 'Space Wolves' drawings!"

"Seriously? the trial was supposed to be, like, a week ago. I thought those were copyright claims."

"YEA. They're 'Space Wolf' trademark claims too. Gotcha!"

"So when I asked you about your trademarks...you didn't mention those drawings."

"So, we gave the drawings to you...at some point. That totes counts."

"You said we infringed your copyright on those."

"Naa, we just said 'Space Wolves'. That could have meant, like, anything bra."

"That is WHY we asked you to be specific. That is WHY the law REQUIRES you to be specific. Because the trial was SUPPOSED to be like a week ago, and we're just learning about this BS now. That's not cool."

"Naa, we're good. You do 'Space Wolves' we totes owns everything 'Space Wolves', totes do...everything."

This made my day.

 Ouze wrote:
1.) Can you briefly explain what the deal is with the ebay postings they want? Is this in regards to revenue from the kits they wish to claim as damages, or something else?

It's to show that CHS is "pretending" to be GW.

2.) Boy, they really have a lot of Dakka Dakka forum postings in there, huh? Apparently posting on Dakka Dakka in the CHS discussion thread makes you a "customer".

Yeah - I think that most of those should be thrown out as they're comments on a picture with no way to trace them to a customer.

3.) I wonder if the quantity of Dakka forum postings that have appeared in this motion will prevent developers from discussing their products in fora from now on. I know that if I were making things that I knew were primarily going to be proxies in 40k, I'd certainly be very Brother Vinni in how I release stuff - dump a thread saying "we have this" and then nothing else, if even that.

Honestly it'll probably depend on how the CHS case shakes out.

rigeld2 wrote:

 Ouze wrote:
1.) Can you briefly explain what the deal is with the ebay postings they want? Is this in regards to revenue from the kits they wish to claim as damages, or something else?

It's to show that CHS is "pretending" to be GW.

2.) Boy, they really have a lot of Dakka Dakka forum postings in there, huh? Apparently posting on Dakka Dakka in the CHS discussion thread makes you a "customer".

Yeah - I think that most of those should be thrown out as they're comments on a picture with no way to trace them to a customer.

3.) I wonder if the quantity of Dakka forum postings that have appeared in this motion will prevent developers from discussing their products in fora from now on. I know that if I were making things that I knew were primarily going to be proxies in 40k, I'd certainly be very Brother Vinni in how I release stuff - dump a thread saying "we have this" and then nothing else, if even that.

Honestly it'll probably depend on how the CHS case shakes out.

And why would GW sell on ebay? GW have never sold on ebay. They have a web store, and local stores. Every GW "customer" in the history of ever knows this.

So you say. And I agree.

That doesn't give anyone the right to "pretend" to be GW on ebay. And I'm not saying that CHS is - I'm saying that it seems like that's what GW is trying to get at.

But Chapter House has a web store and AFAIK has never sold stuff on eBay. Have they sold stuff on eBay?

Well apparently they sold a lot on ebay in 2009, and then a couple of things in 2011.

Part of it is likely tit for tat on the sanctions issue.


Re: Hail Mary.

I meant more in the last second game winning throw sense, than in the desperation move sense.

 Ouze wrote:

3.) I wonder if the quantity of Dakka forum postings that have appeared in this motion will prevent developers from discussing their products in fora from now on. I know that if I were making things that I knew were primarily going to be proxies in 40k, I'd certainly be very Brother Vinni in how I release stuff - dump a thread saying "we have this" and then nothing else, if even that.

It feels like a severe majority of companies already DO that when posting on forms, or have threads posted by proxy posters or fans so there is zero official company posting.

Many companies are very clear in never discussing or saying what their models MAY be used for even though we all know they are "Not-model-X" or something.

Regardless of this case, it has shown that customers don't need you to connect the dots, so why bother with the burden or risk?

Hail Marys are, by definition, last minute desperation attempts to win a football game!

On topic - yeargh!

 Alpharius wrote:
Hail Marys are, by definition, last minute desperation attempts to win a football game!

On topic - yeargh!

Forgive him... He is Canadian.

 Alpharius wrote:
Hail Marys are, by definition, last minute desperation attempts to win a football game!

I knew the church stole it from somewhere

I'd be surprised if bringing up Dakka posts is doing GW any favours in the trial. From what I recall, the CHS thread is full of people saying they finally had a reason to buy the GW Stormraven, because CHS made an aftermarket part that made it look half-decent. There's absolutely no evidence of confusion between the two companies in that thread. If anything, there's evidence that CHS drives further GW sales, and possibly evidence that CHS's products are after-market add-ons like in auto parts... none of that sounds like it's what GW wants!

But the only things being admitted are the posts that were mentioned.. and I don't think there were any of those.
I might have missed them though.

 Kilkrazy wrote:
But Chapter House has a web store and AFAIK has never sold stuff on eBay. Have they sold stuff on eBay?

As noted - they did, but not so much anymore. eBay is still a fast and effective way for new companies to get their product in front of the eyes of a large audience. A lot of people who don't go through the various internet forums still look at eBay from time to time for deals on the army of their choice.

GW is grasping at their trademark claims in trying to demonstrate that CHS misrepresented their product as "official" GW products as opposed to "compatible with" GW products. The silly thing is that the courts generally understand that your average lay person is not well versed in the intricacies of the proper use of trademarks - so when these do actually have a ruling come down, it is normally simply an instruction to the offending individual on how to properly label their products and an admonition to not do it again.


Automatically Appended Next Post:
The forum posts actually also go to confusion - which is odd, because confusion isn't an issue for copyright and they are not addressing trademark issues in the posts.

If you read most the GW responses as to why they think they should be included it is because they want to demonstrate that when people see CHS items, they think of GW. Of course, that is actually the intention of CHS and it is perfectly legal. The selling of goods compatible with products from a company would require your customers to think of that company when they see your goods.

...Granted they are in fact attempting to backdoor hearsay testimony from lay people who can not be cross examined that goes towards copyright issues as almost every one of them involve a poster saying something along the lines of "exact copy" in their posting...but, the judge should be able to see through that easily enough.

I thought the Chapterhouse case was initiated after some people from another site wrote to GW reporting CHS. But in doing so rather dubiously claimed to be 'confused' when anyone who knows anything about this hobby knows what is and isn't GW.

 Howard A Treesong wrote:
I thought the Chapterhouse case was initiated after some people from another site wrote to GW reporting CHS. But in doing so rather dubiously claimed to be 'confused' when anyone who knows anything about this hobby knows what is and isn't GW.

If you read the emails, they very much are aware that CHS was not GW. They say "CHS's stuff looks like your stuff". There was zero brand confusion.

I'm getting a massive headache trying to follow all the back and forth at this point. I cannot imagine how much time of Judge Kennelly this is taking up.

I know! Who would be a judge?

He must have the patience of Job not to have blown up at one side or the other in all of this case.

 Kilkrazy wrote:
I know! Who would be a judge?

He must have the patience of Job not to have blown up at one side or the other in all of this case.

That's who courts are often in big old buildings.
If the judge is safely tucked away in his chambers, no-one can hear the frustrated ranting between hearings.

This docket entry was made by the Clerk on Thursday, April 25, 2013:

MINUTE entry before Honorable Matthew F. Kennelly:

Continued final pretrial conference held on 4/25/2013.

Rulings made, as stated in open court, on remainder of plaintiff's motion to enforce discovery orders; defendant's motions in limine 1 and 4, and plaintiff's motion in limine 11.

Plaintiff's disclosures identifying defendant's products alleged to have infringed the "icon marks" are to be made to defendant by no later than 5/2/2013.

Joint status report on prior use in commerce issue regarding trademark claims as to certain products is to be submitted by 5/6/2013.

Argument heard regarding privilege claw−back issue as identified in letter dated 4/8/2013; the Court concluded that the privilege claims, at this point, have not been sufficiently supported and described what would be necessary to support the claims.

Telephone status conference regarding prior use issue, to be initiated by counsel, is set for 5/9/2013 at 8:45 AM. (mk)


359, the latest ruling on the motions is attached as well.

10. Pro bono status of defendant’s attorneys. Evidence or argument
regarding this topic is excluded. See Tr. 89.

Rightfully so. I hardly see the relevance of what is essentially a private contract with no bearing on the case directly.

What are these "TR"s? (e.g. See Tr. 89)? I assume attached paperwork of some kind, motions or whatever?

Pages / line numbers of a transcript perhaps?

czakk wrote:
This docket entry was made by the Clerk on Thursday, April 25, 2013:

MINUTE entry before Honorable Matthew F. Kennelly:

Continued final pretrial conference held on 4/25/2013.

Rulings made, as stated in open court, on remainder of plaintiff's motion to enforce discovery orders; defendant's motions in limine 1 and 4, and plaintiff's motion in limine 11.

Plaintiff's disclosures identifying defendant's products alleged to have infringed the "icon marks" are to be made to defendant by no later than 5/2/2013.

Joint status report on prior use in commerce issue regarding trademark claims as to certain products is to be submitted by 5/6/2013.

Argument heard regarding privilege claw−back issue as identified in letter dated 4/8/2013; the Court concluded that the privilege claims, at this point, have not been sufficiently supported and described what would be necessary to support the claims.

Telephone status conference regarding prior use issue, to be initiated by counsel, is set for 5/9/2013 at 8:45 AM. (mk)


359, the latest ruling on the motions is attached as well.

So the court is telling GW to properly identify what items they claim are infringing on what GW items?

Can we get a layman recap of what this entry means?

 Ouze wrote:

10. Pro bono status of defendant’s attorneys. Evidence or argument
regarding this topic is excluded. See Tr. 89.

Rightfully so. I hardly see the relevance of what is essentially a private contract with no bearing on the case directly.

It does have bearing on the case. I believe the idea was for CH to put in the jury's mind that GW is a big bully that is throwing around it's weight and picking on poor defenceless companies that can't afford to defend themselves. GW can now point out all these attorneys that CH is using and make it look like CH can pay damages and aren't so poor...

Not in so many words, likely, but this can likely be implied through testimony, etc...

I still think that the only real relevant issue is whether or not the works are infringing. The other stuff is all secondary.

It shouldn't have a bearing on the case, which should be all about whether or not something is is infringing upon someone else's copyright, but sadly the way the legal system works it will have an impact to some degree. Knowing that GW are the big company bullying the little guys will affect the jury's opinion them as would them being given the impression that CH are a rival company of equal size trying to beat their competitors.

What GW are doing by stopping that being brought up is stopping CH try to get the jury on their side since they are the little guys being picked on.

 jonolikespie wrote:
It shouldn't have a bearing on the case, which should be all about whether or not something is is infringing upon someone else's copyright, but sadly the way the legal system works it will have an impact to some degree. Knowing that GW are the big company bullying the little guys will affect the jury's opinion them as would them being given the impression that CH are a rival company of equal size trying to beat their competitors.

What GW are doing by stopping that being brought up is stopping CH try to get the jury on their side since they are the little guys being picked on.

Except that the lawyers COULD point out that CHS is a single man operation and show his company income then show GW's annual revenue. Ignoring the pro bono, there are plenty of other ways to show that CHS is not some major player in the 28mm market, but rather a specialty shop selling mostly addons to existing products.

Is it legal to extend discovery time for plaintiff like that? GW had 2 years time to identify items but decided not to.

 Aerethan wrote:

 jonolikespie wrote:
It shouldn't have a bearing on the case, which should be all about whether or not something is is infringing upon someone else's copyright, but sadly the way the legal system works it will have an impact to some degree. Knowing that GW are the big company bullying the little guys will affect the jury's opinion them as would them being given the impression that CH are a rival company of equal size trying to beat their competitors.

What GW are doing by stopping that being brought up is stopping CH try to get the jury on their side since they are the little guys being picked on.

Except that the lawyers COULD point out that CHS is a single man operation and show his company income then show GW's annual revenue. Ignoring the pro bono, there are plenty of other ways to show that CHS is not some major player in the 28mm market, but rather a specialty shop selling mostly addons to existing products.

The relative size of plaintiff and defendant does not formally alter the defendants or the plaintiffs lawful rights. The same lawful rights could occur if the the case was in reverse.

 Orlanth wrote:

 Aerethan wrote:

 jonolikespie wrote:
It shouldn't have a bearing on the case, which should be all about whether or not something is is infringing upon someone else's copyright, but sadly the way the legal system works it will have an impact to some degree. Knowing that GW are the big company bullying the little guys will affect the jury's opinion them as would them being given the impression that CH are a rival company of equal size trying to beat their competitors.

What GW are doing by stopping that being brought up is stopping CH try to get the jury on their side since they are the little guys being picked on.

Except that the lawyers COULD point out that CHS is a single man operation and show his company income then show GW's annual revenue. Ignoring the pro bono, there are plenty of other ways to show that CHS is not some major player in the 28mm market, but rather a specialty shop selling mostly addons to existing products.

The relative size of plaintiff and defendant does not formally alter the defendants or the plaintiffs lawful rights. The same lawful rights could occur if the the case was in reverse.

Yes, but in front of a jury of 12 laypeople, this means nothing. It is many people's nature to root for the underdog, and once in the courtroom, the jurors are more likely to go with their gut instinct of what is 'right' rather than what is technically legal, matters of clear law or definition aside.