Chapterhouse Lawsuit - Settlement reached, Appeals withdrawn - Pg 234! Chapterhouse to re-open store

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**BryllCream**

I thought both parties waived the right to appeal? Or did I mis-read that.

**Specs**

BryllCream wrote:
I thought both parties waived the right to appeal? Or did I mis-read that.

I believe that only applies to the items agreed to in the settlement, not the claims tried in front of the jury.

**cerbrus2**

Any chance we could have a Summary Posted on the original Post.

**BryllCream**

Specs wrote:
BryllCream wrote:
I thought both parties waived the right to appeal? Or did I mis-read that.

I believe that only applies to the items agreed to in the settlement, not the claims tried in front of the jury.

Yeah that makes sense, cheers.

**Steelmage99**

weeble1000 wrote:
aka_mythos wrote:
Really the margin is bigger when you consider GW dropped 1/3 of its initial claims before it got in front of a jury.

As far as the judge goes, my impression is that 99% of the cases that come before him settle out of court and so he sees anything that makes it this far as a nuisance.

Precisely. The Judge already dismissed a ton of claims with prejudice. Those claims dropped since then will likely also be dismissed with prejudice. The claims dropped as part of the consent judgment were also consented to being dismissed, by and large, with prejudice. The story of this case is GW claiming the world and sloughing claims all the way up to trial, then losing on 65% of the claims it did manage to keep, with little chance of an appeal (since most issues went GW's way in front of the Judge) and CHS having plenty of room for both post verdict motions and appellate points.

And at the end of the day, this is what GW was concerned about:

And GW lost hard on that. GW also lost on the CHS logo and on "specializing for custom bits and sculpts for Warhammer 40,000 and Fantasy."

GW lost on the basic size and shape of the space marine shoulder pad, which GW thought it had already won with the Judge. It may be protectable by copyright according to the Judge, but the jury says that using that design is fair use.

The point is that GW had everything to lose and CHS had nothing to lose. GW told CHS that every single thing it did was wrong, and that CHS needed to go out of business. CHS had no reason to do anything other than fight back. Anything other than a total, 100% win for GW is a loss.

And CHS is going to still be alive and kicking. GW failed to put CHS out of business, GW failed to get what it wanted in terms of use of its alleged trademarks, and GW spent a million+ dollars to do it.

A literal garage business stood up to an 800 pound gorilla and said "No, I don't care what you say, that is not the law and I am not going to roll over just because you say so." That garage business took GW all the way through 2 and a half years of litigation, through to a jury trial, and got a very favorable verdict. That is a massive accomplishment.

Nick Villacci did something that no one else was willing to do, that no one else in this industry had the sand to do, and everyone is going to benefit from the sacrifices that he made in order to make it happen. You can say that CHS is wrong. You can say that Nick deserved what he got. You can say that he lost on some claims.

But the fact is that CHS has helped to show us where the line is. The efforts of Nick Villacci have helped to define what is acceptable under the law, regardless of what GW says or believes. This case has shown that GW cannot dictate terms to the accessory market. No matter what happens to CHS, that is a win.

It is not often you see a post so worthy of reposting and exalting.

EDIT.

Actually it would be pretty cool to see a small summary of claims by GW, and how they shrunk.
Something like;

GW initial claim: XXX claims
XXX claims dropped during discovery
XXX claims removed by judge
XXX claims agreed upon
XXX claims presented before jury
XXX claims upheld by jury

**Kroothawk**

Do we have any information who exactly is behind the C&D letter flood strategy and the "we invented the world" stance?

Somehow, I can't see Gill Stevenson http://uk.linkedin.com/pub/gill-stevenson/13/933/526 "master minding" all this. She looks more like the "Yes, Sir" type fullfilling orders to the letter. Is it Tom Kirby? Or Alan Merrett http://wh40k.lexicanum.com/wiki/Alan_Merrett ? Was Mark Wells for or against that strategy?

**insaniak**

Kroothawk wrote:
Do we have any information who exactly is behind the C&D letter flood strategy and the "we invented the world" stance?

Somehow, I can't see Gill Stevenson http://uk.linkedin.com/pub/gill-stevenson/13/933/526 "master minding" all this. She looks more like the "Yes, Sir" type fullfilling orders to the letter. Is it Tom Kirby? Or Alan Merrett http://wh40k.lexicanum.com/wiki/Alan_Merrett ? Was Mark Wells for or against that strategy?

I do seem to recall that the current trend of C&Ding everything, that accompanied a bunch of website take downs for sites using 'trademarked' names, was said to have started when a new legal department head took over. And the timing would have been about right.

**weeble1000**

insaniak wrote:
Kroothawk wrote:
Do we have any information who exactly is behind the C&D letter flood strategy and the "we invented the world" stance?

Somehow, I can't see Gill Stevenson http://uk.linkedin.com/pub/gill-stevenson/13/933/526 "master minding" all this. She looks more like the "Yes, Sir" type fullfilling orders to the letter. Is it Tom Kirby? Or Alan Merrett http://wh40k.lexicanum.com/wiki/Alan_Merrett ? Was Mark Wells for or against that strategy?

I do seem to recall that the current trend of C&Ding everything, that accompanied a bunch of website take downs for sites using 'trademarked' names, was said to have started when a new legal department head took over. And the timing would have been about right.

It started to ramp up in 2009-2010. It tapered off after CHS got solid pro-bono representation and it was clear CHS wasn't backing down.

**GBL**

weeble1000 wrote:
insaniak wrote:
Kroothawk wrote:
Do we have any information who exactly is behind the C&D letter flood strategy and the "we invented the world" stance?

Somehow, I can't see Gill Stevenson http://uk.linkedin.com/pub/gill-stevenson/13/933/526 "master minding" all this. She looks more like the "Yes, Sir" type fullfilling orders to the letter. Is it Tom Kirby? Or Alan Merrett http://wh40k.lexicanum.com/wiki/Alan_Merrett ? Was Mark Wells for or against that strategy?

I do seem to recall that the current trend of C&Ding everything, that accompanied a bunch of website take downs for sites using 'trademarked' names, was said to have started when a new legal department head took over. And the timing would have been about right.

It started to ramp up in 2009-2010. It tapered off after CHS got solid pro-bono representation and it was clear CHS wasn't backing down.

Well before then surely? I remember a popular webcomic getting a C&D from GW, and shutting down due to it, before 2005. In fact I seem to recall there being a whole bunch of targets back then due to GW's "What is this internet thing" phase.

**Kilkrazy**

Issuing C&Ds is certainly something for the legal department of a company to do. They might be urged to do it by the management, but they should do it with regard to the facts of the case.

In this case it turned out that the C&D was ill-considered, premature and unsuccessful. GW were exposed as having a very weak grasp on a lot of their claimed IP.

**insaniak**

GBL wrote:

Well before then surely? I remember a popular webcomic getting a C&D from GW, and shutting down due to it, before 2005. In fact I seem to recall there being a whole bunch of targets back then due to GW's "What is this internet thing" phase.

They were certainly issuing C&Ds before then, but around 4 or 5 years ago it seriously ramped up.

I'm curious about which Web comic you're referring to, though. I don't recall any big ones being shut down.

**Pacific**

Possible TSOALR or the Golden Throne websites? Didn't both of those have to shut down after they were issued with C&D's?

Think the former was to do with the guy trying to sell a collection of his work, not sure about the latter.

**insaniak**

Turn signals asked for permission to publish a book, and were denied, so decided to shut down as running the site was becoming a sizable drain on his available cash, and was unsustainable if he couldn't make money from it. No C&D involved.

**Howard A Treesong**

Was it Turn Signals on a Land Raider?

ninja'd

**BaronIveagh**

Kilkrazy wrote:
Issuing C&Ds is certainly something for the legal department of a company to do. They might be urged to do it by the management, but they should do it with regard to the facts of the case.

In this case it turned out that the C&D was ill-considered, premature and unsuccessful. GW were exposed as having a very weak grasp on a lot of their claimed IP.

Ours was to cease and desist re-posting (with proper attributions) FFG's press releases for upcoming products in our 'News' section, that we may not show covers of FFG's products, and we must stop selling copies of their products in our webstore. (used or not)

At that time, IIRC, the press release re-posts were being posted by Sam Stewart of Fantasy Flight Games and members of one of the playtesting teams. (As I've said, I never have been sure how HBMC gets away with it here.)

We were also to remove all reference to 40k and GW artwork from the site. Needless to say, we've ignored that one.

**Enigwolf**

BaronIveagh wrote:
Kilkrazy wrote:
Issuing C&Ds is certainly something for the legal department of a company to do. They might be urged to do it by the management, but they should do it with regard to the facts of the case.

In this case it turned out that the C&D was ill-considered, premature and unsuccessful. GW were exposed as having a very weak grasp on a lot of their claimed IP.

Ours was to cease and desist re-posting (with proper attributions) FFG's press releases for upcoming products in our 'News' section, that we may not show covers of FFG's products, and we must stop selling copies of their products in our webstore. (used or not)

At that time, IIRC, the press release re-posts were being posted by Sam Stewart of Fantasy Flight Games and members of one of the playtesting teams. (As I've said, I never have been sure how HBMC gets away with it here.)

We were also to remove all reference to 40k and GW artwork from the site. Needless to say, we've ignored that one.

So, FFG is going towards the C&D-hammer trend too, then...?

**TheAuldGrump**

Enigwolf wrote:
BaronIveagh wrote:
Kilkrazy wrote:
Issuing C&Ds is certainly something for the legal department of a company to do. They might be urged to do it by the management, but they should do it with regard to the facts of the case.

In this case it turned out that the C&D was ill-considered, premature and unsuccessful. GW were exposed as having a very weak grasp on a lot of their claimed IP.

Ours was to cease and desist re-posting (with proper attributions) FFG's press releases for upcoming products in our 'News' section, that we may not show covers of FFG's products, and we must stop selling copies of their products in our webstore. (used or not)

At that time, IIRC, the press release re-posts were being posted by Sam Stewart of Fantasy Flight Games and members of one of the playtesting teams. (As I've said, I never have been sure how HBMC gets away with it here.)

We were also to remove all reference to 40k and GW artwork from the site. Needless to say, we've ignored that one.

So, FFG is going towards the C&D-hammer trend too, then...?

The opposite, in a way - the folks at FF were providing the information, not suffering from paranoia.... GW went into a paroxysm of persecution....

As far as I know GW never even tried to find out what the leak was, just shut it down, stat.

The Auld Grump

**BaronIveagh**

TheAuldGrump wrote:
The opposite, in a way - the folks at FF were providing the information, not suffering from paranoia.... GW went into a paroxysm of persecution....

As far as I know GW never even tried to find out what the leak was, just shut it down, stat.

The Auld Grump

Yeah, at the time, FFG was working closely with us, as the largest fan community for the 40k rpg outside their own forums, The C&D and the restriction against FFG employees posting information (the primary reason I now own it as the playtesters involved wanted to keep their jobs) caused that to go south rather quickly, for obvious reasons.

**Kilkrazy**

I really don't understand GW's logic. The reason that companies release press releases is to release information to the press so that it can be re-published.

**Aerethan**

Kilkrazy wrote:
I really don't understand GW's logic. The reason that companies release press releases is to release information to the press so that it can be re-published.

That might be construed as marketing, and GW will have none of that.

**AduroT**

Why would you want to encourage word of mouth press when you rely on word of mouth press? That would be stupid.

**FacelessMage**

OK guys. We are veering off topic here.

**weeble1000**

I posted this on Warseer, but I think it is a very fair characterization of what happened.

I think what Reinholt was referring to was that, unlike other 3rd party accessory companies, CHS did something different in that CHS used GW's trademarks, rather than avoiding them completely. Now, I would characterize that as CHS being the first to attempt to exercise one's proper rights within the law, and consequently GW's response as being completely inconsistent with the law.

The verdict in the GW v CHS case has borne that out. CHS won on the majority of the trademark claims, and in particular won on the claims GW was most concerned about; i.e. the following:

And of course "Specializing in Custom Bits and Sculpts for Warhammer 40,000 and Fantasy."

Now, CHS was a bit sloppy with its use of GW's trademarks, and consequently we see a verdict that is not entirely in CHS's favor. However, CHS is a garage business, and GW's view of the world provided absolutely no reasonable guidance in terms of how to appropriately use GW's marks in a nominative fair use manner. GW argued that virtually any use of any word GW used virtually any way in any type of product (including titles of books, words in books, words never used on any product anywhere, and words never used in any way by CHS ever) was an infringement of GW's "IP."

To me, those claims by GW were grossly unreasonable, and CHS's attempts to use the marks fairly were laudable, and very often perfectly within the bounds of fair use. That CHS made some errors does not make CHS evil. It means CHS tried to do something that is by and large allowed without having a perfectly clear idea about how to do it properly. GW's position vis a vis trademarks of course made such determinations very, very difficult for CHS.

So I think it is rather fair to cut CHS some slack. In principle, and as demonstrated by the verdict, it is okay to use marks fairly. In principle, and as demonstrated by the verdict, GW claimed marks that were not valid. Now, given that it took years of litigation to settle those issues, the fact that CHS may have made some misjudgments, having had little in the way of experience and no reasonable examples in the relevant industry, is understandable.

If GW had gone to CHS with reasonable requests in terms of how to use certain of its properly registered marks in a fair manner, this case would never have gone to trial. Instead, GW said, 'Everything you do is wrong, your whole website is an infringement, go out of business now!'.

**Kilkrazy**

Word.

GW didn't ask CHS to stop using "GW's" trademarks, they asked them to dissolve the entire business and turn over all moulds and so on to GW.

**Howard A Treesong**

Weeble is spot on about something that hasn't really been tackled in full and which those supporting GW against CHS haven't really acknowledged. That being the GW mislead people as to the extent of their IP. Other companies should be allowed to produce stuff within their rights, but which don't infringe GW's rights, I think that is accepted. But GW don't tell people where their rights actually end, in fact they obviously claim things which are not theirs making their copyright pages on their site a joke. If you read these, or ask them, their response is that they seemingly own everything. These claims are in bad faith, and it means that in order for other companies that share the same industry as GW and attempt assert their genuine rights, they have to take a guess where the line is because GW won't be transparent and honest about it. GW seem to want to both be greedy and claim many things which they shouldn't, and also frighten anyone away from going near their IP whether it would be within legal limits or not.

For example, GW still claim the 'chaos logo' and 'chaos devices' on their site as their copyright. The chaos star simply isn't their property, Michael Moorcraft used it first and I think they had to drop it in this case with CHS. But they still claim it. They can't even claim it was a coincidence because they published the RPG based on Moorcock's Elric stories.

**Kilkrazy**

I had that RPG. It was the UK edition, published by GW, of the Chaosium game based on Elric.

If evidence is needed of the Chaos start being known to GW, it is right there.

It was all right as a game, BTW, a bit deadly to characters.

**BaronIveagh**

Kilkrazy wrote:

It was all right as a game, BTW, a bit deadly to characters.

IIRC They also did Call of Cthulhu, so...

**Kanluwen**

Kilkrazy wrote:
I had that RPG. It was the UK edition, published by GW, of the Chaosium game based on Elric.

If evidence is needed of the Chaos start being known to GW, it is right there.

It was all right as a game, BTW, a bit deadly to characters.

It's been mentioned before, but the Chaos Star is not exclusively Michael Moorcock's creation. The eight pointed star existed in the tarot long before Moorcock ever dreamed of the Eternal Champion.

**Koppo**

Kanluwen wrote:

It's been mentioned before, but the Chaos Star is not exclusively Michael Moorcock's creation. The eight pointed star existed in the tarot long before Moorcock ever dreamed of the Eternal Champion.

Really? It's not an item of imagery that I'm aware of in any of the common decks of tarot that I can think of. I'd be surprised if it were in the Rider Waite depictions.

EDIT: the only thing that comes to mind is "The wheel of Fortune", which I cannot remember being commonly depicted as a star. At best an eight spoked wheel, but not a star.

**Kanluwen**

Koppo wrote:
Kanluwen wrote:

It's been mentioned before, but the Chaos Star is not exclusively Michael Moorcock's creation. The eight pointed star existed in the tarot long before Moorcock ever dreamed of the Eternal Champion.

Really? It's not an item of imagery that I'm aware of in any of the common decks of tarot that I can think of. I'd be surprised if it were in the Rider Waite depictions.

EDIT: the only thing that comes to mind is "The wheel of Fortune", which I cannot remember being commonly depicted as a star. At best an eight spoked wheel, but not a star.

The "Thoth tarot" from Crowley.

There's actually a whole Wikipedia entry devoted to the concept of a "Chaos star".

Edit note:
This isn't me trying to start some kind of huge argument about "is Moorcock copying Crowley's tarot?" or "did Moorcock come up with the eight pointed star exist before Moorcock claims he came up with it all on his own?".