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It was amusing that right after the Winston & Strawn press release celebrating their successful defence of the legitimate use of trademarks by Chapter House, a user wrote a comment on purpose as far as I can tell that Chapter House had stolen GW's trademarks.

Thank you for the link. The attorney's summary proved very insightful, and I am please that ChapterHouse and other companies like them now have a legal precedent of protection for the creation of after market "add-on" parts.

 Perturabo's Chosen wrote:
Thank you for the link. The attorney's summary proved very insightful, and I am please that ChapterHouse and other companies like them now have a legal precedent of protection for the creation of after market "add-on" parts.

As a caveat, so far there is only a lower court finding, which does not equate to broadly applicable precedent. There were also some bad opinions and findings in the case, at least in my view insomuch as the wargaming market is concerned.

The appeal has the potential to set much stronger precedent, especially as it would come out of the 7th Circuit, which has a very strong track record with copyright and trademark decisions. The 7th Circuit is generally given a bit more consideration when it comes to copyright and trademark rulings. Rulings in one Federal Circuit Court are not binding on different Circuit Courts, but decisions by a Court of Appeals are generally given more weight, and when it comes to copyright and trademark cases, the 7th Circuit Court of Appeals is generally given a measure of especial weight.

As I see it, what the case thus far has demonstrated is that GW cannot put up, and has since filing the lawsuit largely shut up. The case has for the past three years been a bulwark against further litigation by GW. It has monopolized the company's resources. It has also shown GW that no assertion of intellectual property rights comes without a cost, and combined with the Spots debacle (which amusingly came up in the trial record in the Chapterhouse case...prep your witnesses much GW?) GW has seen steep costs both financial and in terms of brand perception.

The trial showed GW that the company can't just say what it wants and get away with it, and there have been a cascade of little reactions by GW since the trial result. Astra Militarum is one glaring example. Of course, GW also failed to achieve a finding of trademark infringement on the alleged "Termagant" mark.

The trial result has also provided the market with an effective road map to a successful defense against the types of claims GW threw at Chapterhouse Studios. It has helped to clarify areas that are easy to defend and areas that are more difficult to defend. You see a lot more "compatible with" marketing language in the industry today, and companies are less shy about using GW's trademarks.

The litigation also severely increased GW's potential risk in filing another, similar lawsuit. Any defendant, anywhere, has a road map to a defense, and the docket is replete with the fruits of very, very expensive discovery that defendants can now make use of much more cheaply. For example, should GW ever file another lawsuit like this the company will have to re-fight the toys-are-not-subject-to-copyright battle, which has the potential to cut the knees out of the company's copyrights. GW didn't win that fight in the Chapterhouse case, except to the extent that the Court decided to sidestep it. But a value-packed expert report is hanging out there in the public domain; low hanging fruit for any defendant to pluck.

GW's witnesses (and the company has few alternative options) have also pigeon-holed themselves with wretched deposition testimony that, again, is in the public domain and ripe for a defendant to exploit.

And the biggest thing right now is that GW is still immersed in this fight and completely unable to extricate itself without the willingness of Chapterhouse Studios to allow it. Chapterhouse Studios has filed an appeal, and has some seriously big guns to fight that battle. GW can't simply drop the appeal and slink away. The tables are turned and now it is GW fighting for the survival of the company, rather than Chapterhouse Studios. GW faces the potential of literally millions of dollars of exposure that could come home to roost at a time when the company is in a bad cash position and struggling.

GW has to fight, and fight hard, which means spending lots of money, or risk allowing a powerhouse firm to walk all over the appeal process with impunity. And as I said, GW cannot get out of this mess without the sufferance of Chapterhouse Studios; a company that GW tried to kill run by a guy who GW called a thief and a liar.

The next 6 months will be interesting indeed.

Edit: And to point something else out, GW has repeatedly seen its assertions of intellectual property met with pro-bono representation. Chapterhouse Studios has been represented now by three major US law firms and the EFF quickly came to the aid of Spots the Space Marine. Chapterhouse Studios got Winston and Strawn on board when the lawsuit was first filed, Marshal, Gertsein, & Borun came on board when GW filed a second lawsuit against Chaprterhouse Studios, and WilmerHale came on board when the appeal was filed.

Quite literally, at every major phase of this litigation, every time the game has changed, a different major US law firm has come to the aid of Chapterhouse Studios. GW faces the risk that should it file another lawsuit, it could wind up facing another spate of pro-bono representation. In effect, this case has blessed the aftermarket accessory industry as qualifying for pro-bono representation. In a landmark move, Winston and Strawn took on a pro-bono client that is not, by the strictest definition, indigent. Chapterhouse Studios was merely indigent to defend itself against GW's overblown case. But now the cat is out of the bag. Any attorney can now go to the pro-bono committee at their firm and point to Winston and Strawn, Marshall, Gerstein, & Borun, WilmerHale, the Electronic Freedom Foundation, and Lawyers for the Creative Arts to justify taking on such a case pro-bono.

Nice analysis, weeble.

I hope companies are able to continue making related or "compatible with" kits. I just bought a few items from Chapterhouse last month, both of which GW has never produced: a tyranid defense line, and a spore pod (I'll be converting it for terrain or hopefully a tyranid bastion!).

Looking forward to seeing the appeals process move forward.

Very interesting analysis. Curious to see how it all plays out.


Automatically Appended Next Post:

 jonolikespie wrote:
[disclaimer] I have no respect for BoLS [/disclaimer]

Here is a link that has, what I believe to be, a fairly decent summery:
http://www.lounge.belloflostsouls.net/showthread.php?33351-LEGALWATCH-Games-Workshop-vs-Chapterhouse-Verdict

Thanks for the link! Does anyone know if there is a point-by-point summary available somewhere?

Isn't a verdict like this public domain? Where would one go to get all the specific details?

Click on "filter thread" by Weeble's name. He did a very detailed description back when the verdict came out.

 Jimsolo wrote:
Very interesting analysis. Curious to see how it all plays out.


Automatically Appended Next Post:

 jonolikespie wrote:
[disclaimer] I have no respect for BoLS [/disclaimer]

Here is a link that has, what I believe to be, a fairly decent summery:
http://www.lounge.belloflostsouls.net/showthread.php?33351-LEGALWATCH-Games-Workshop-vs-Chapterhouse-Verdict

Thanks for the link! Does anyone know if there is a point-by-point summary available somewhere?

Isn't a verdict like this public domain? Where would one go to get all the specific details?

You could get it by registering with ECF/Pacer. But most of the court documents have been put onto Recap.

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.docket.html


Actually - now that I've been back to the recap page - are there transcripts of the trial waaaay down at the bottom that haven't been discussed yet?

For those who are interested - what Czakk is referring to are the actual in session transcripts of the trial (to include witness testimony from GW muckety mucks).

420 starts testimony with Merret and he talks through all of 421 and into 422:

http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.420.0.pdf

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.421.0.pdf

422 also has the Naismith Deposition and Andrew Jones testimony:

http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.422.0.pdf

423 continues Jones and has Gill Stevenson and Nick Villacci:

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.423.0.pdf

424 continues Nick and has Robert Lippman as well as the Tomas Fiertek deposition:

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.424.0.pdf

425 has the Wyatt Traina and John Blanche depositions, Jeffrey Nagy, Carl James Grindley testimony

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.425.0.pdf

426 has the William Brewster, Neil John Hodgson, Gill Stevenson, Jes Goodwin testimony:

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.426.0.pdf

427 is sort of the end of the more interesting bits with the closing arguments:

http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.427.0.pdf

Well, it is all in the public record now. Thanks Sean.


Automatically Appended Next Post:
I'll cherry pick some gems.

Let's start with this one:

[Merrett] I've lost particularly -- of particular interest to
us on this is -- it sounds crazy to us, but it's that detail
there which we think is sort of characteristic of a Games
Workshop Lasgun.
Q. The end of the muzzle?
A. The end of the muzzle, yeah. I'm pointing to the end of
the muzzle break on the Games Workshop Lasgun illustration.

That right there is GW's 30b6 witness testifying under oath that to him and all of GW one of GW's claims in a jury trial "sounds crazy."

Of course, then there's the fact that his testimony was that the barrel shroud is "sort of characteristic" of a Games Workshop lasgun. Sort of. Sort. Of. In a copyright infringement claim.



Automatically Appended Next Post:
Here is another fun one:

[Moskin] Let's call up Plaintiff's Exhibit 1020, Page 38. In your testimony today, you said that you were inspired by something called a Cthulhu and a brain bug. Do you recall that?
A. Yes.
Q. In making your Ymgarl model heads.
A. Yes.
Q. And can you show me anywhere on this page where you refer to your Ymgarl model heads as Cthulhu or brain bugs?
A. Right there, sir.

Note that the answer said plaintiff attorney was looking for there was "No."


Automatically Appended Next Post:
Gill Stevenson: Witness Extraordinaire

Q. And my question is you only examined a handful of actual
products in deciding what claims to bring; is that right?
A. I don't think the examination of the products was relevant
to the decision on what claims to bring.
Q. But that's not my question. Do you remember the question?
A. Yeah, but I don't think it makes sense.
Q. Well, do you understand the question?
A. Do you want to repeat it for me?
Q. Of course. Games Workshop only examined a handful of
Chapterhouse's actual products before deciding what claims to
bring in this lawsuit; is that right?
A. That's a slightly different question, but that is a yes.
Q. That is a yes?
A. Yes.
Q. Thank you.



Automatically Appended Next Post:
Q. Now, Ms. Stevenson, you're aware that Chapterhouse's
attorneys were permitted to inspect Games Workshop's reference
materials earlier this year; is that right?
A. Yes, that's right.
Q. And that inspection took place at Games Workshop's
headquarters in Nottingham; is that right?
A. That's right.
Q. And you were there for that inspection, weren't you,
Ms. Stevenson?
A. I was.
Q. And when Chapterhouse's attorney arrived for the inspection,
is it true that all the reference materials had been boxed up in
blue boxes?
A. Yeah, blue crates.
Q. Blue crates. Approximately 200 blue crates?
A. Approximately 200 blue crates.



Automatically Appended Next Post:
Q. Before we get to those e-mails, it's true, isn't it, that
Games Workshop has no evidence of confusion as to products it
added to the case in the second phase; is that right?
A. Yeah. I mean, the jury have heard quite a lot about the
forums that people who are fans of Warhammer 40,000 look at and
post on, and actually -- I know you're not allowed to look at
the Internet, but if you were allowed to look at the Internet,
what you would see is an awful lot of speculation about this
case, and actually our customers, our staff, and even just
people who are interested all know about this case and have for
a very long time. So, the likelihood of there being any
confusion where there's such a publicly well known case, it's
just not really very likely because people know.
Q. But, Ms. Stevenson, you haven't presented any evidence of
confusion as to the products added in the second phase of the
case, have you?
A. No.

I wonder why she was looking for new opportunities two months after the verdict...


Automatically Appended Next Post:
I'm sorry...Gill's testimony is really low hanging fruit:

Now, Ms. Stevenson, as you recall, you testified that
this chart was put together at your direction by Games
Workshop's hobby team, and they painted and posed the Games
Workshop figures on the right column to look like the colors
and poses of the Chapterhouse products, is that right?
A Almost. The hobby team didn't put the chart together, but
they did build and paint the model.
Q And you said that you found this confusing when you see
them side by side like this?
A I find it compelling.
Q You said you found it confusing, correct?
A I said customers could find it confusing.
Q But you haven't offered any evidence that customers have
ever been confused by these two products, have you?
A Well, they haven't seen these two images side by side, so
they couldn't be.
Q So that's a no?
A Um...

Except of course that the fething JURY has now seen those deliberately constructed for litigation images wherein, according to the testimony of Ms. Stevenson, the GW hobby team was instructed by the GW legal team to copy paint jobs and model posing of Chapterhouse's products. Of course Judge Kennelly thought that this was perfectly okay to show to the jury.

'So...you had your guys create for litigation images that have never before been seen by any member of the public in which you instructed the artists to emulate the unique artistic choices of someone you are suing for copyright infringement for the express purpose of demonstrating how, when such elements that are expressly not part of the claims you are making have been copied by you, the two products look a whole lot similar...well that sounds okay to me.'

The whole trial have the markings of a farce rather than an actual legal proceeding.

Q And, Ms. Stevenson, can you please identify for me,
focusing your attention on the Games Workshop figurine, the
trademark that appears on that figure that Games Workshop is
claiming in this case?
A The figure is an Eldar Farseer figure, but the trademark
would appear on the product or on the website.
Q And --
A This isn't being offered for sale, so there is no
trademark on it.
Q So on the figure in the Games Workshop column, there is no
trademark that Games Workshop is claiming in this case, is
that right?
A No. That figure isn't being offered for sale in that
format.

And, again, you said that this was -- the Games
Workshop model was painted for demonstrative purposes in the
pose and color schemes of Chapterhouse, Chapterhouse's models,
is that right?
A That's right, yes.



Automatically Appended Next Post:
Q And looking at the last sentence of that paragraph, it
says:
"I'm looking at their Space Marine shoulder pads
here, Salamander, Luna Wolves, et cetera, which look
reasonable enough, but perhaps lack the sharpness and detail
of, quote, unquote, official Games Workshop products."
Do you see that?
A It says "GW," but, yes.
Q In that last sentence, the person's distinguishing the
Chapterhouse products that he saw from, quote, unquote,
official GW products, isn't he?
A Yes, but the key is in the following question, isn't it?

Q Okay. And looking back up to the email header, do you see
the address where it says the email address is at an
@Yahoo.co.uk?
A I do.
Q And I believe a moment ago you indicated that that would
indicate a U.K. email address, is that right?
A That's right.
Q So do you have any reason to believe this individual was
in the U.S.?
A No, but Chapterhouse Studios were.
Q But the individual sending you the email reporting about
it was not?
A Not so far as I'm aware.

Q This -- do you consider this to be evidence of confusion?
A I don't think he's necessarily confused. He's clearly
unhappy.
Q So he doesn't appear confused to you?
A No.
Q Okay.

Q Can you pull up the -- go up a little bit to the blank
space in the middle of the page, okay, and pull up from there
down.
Ms. Stevenson, it appears you forwarded that last
email, and we see a message here:
"And another one who clearly is not confused,
exclamation point."
Do you see that?
A I do see that. That was an email to my external lawyers,
yes.
Q Your external lawyers?
A Yes, and it was an email which was following an earlier
email which I sent two seconds earlier referring to someone
who was confused. So it was here's one who is and here's one
who isn't.
Q And that's your name underneath where I just read,
"another one who clearly is not confused"?
A Yes. One who was, one who wasn't, as I said.
Q So that's your name right there?
A That's right.

Q So, Ms. Stevenson, what you are telling us that in the
five years that you have been aware of Mr. Villacci and
Chapterhouse Studios, that you have received these three
emails that you think are evidence of confusion, is that
right?
A Yes, and they're all prior to his issuing the court
proceedings.
Q And what is the relevance of that?
A Well, the public knowledge afterwards would mean that
people wouldn't be confused.
Q So the litigation itself has mitigated any likelihood of
confusion; is that fair to say?

Q And so you have identified three emails that you consider
to be evidence of confusion, is that right?
A Absolutely.
Q And two of those emails were sent from what appears to be
U.K. email addresses?
A That's right.
Q And the third one didn't show the sender's email address
at all, did it?
A It didn't.
Q Okay. And Games Workshop has no way of knowing if any of
these three individuals were in the United States, does it?
A No.
Q And the most recent of those three emails was dated
February 15th, 2010, is that right?
A I don't know. Sorry.
Q Well, we can go back through them, if you would like.
A Not really. Yes, we can do that.

Low. Hanging. Fruit.


Automatically Appended Next Post:
Merrett Knows DakkaDakka exists:

Q In any particular types of places on the Internet have you
heard?
A Oh, on forums about Games Workshop, on places like
Dakkadakka, WarSeer, Bolter and Chainsword, loads.



Automatically Appended Next Post:
Merrett's end of testimony narrative:

Q What do you mean by that?
A Well, without permission. I mean, Mr. Villacci might
claim to be a fan of our products. He might claim to be an
actual -- a hobbyist. He might claim to be someone who
actually understands what it is to collect and play our games.
But if he had any notion, any inkling of what it means to be a
fan, he'd know darn well that every single thing we put in
every single one of our books, every single one of our codex,
every unit, every character, every model, every vehicle is a
model that we intend to make and sell.
So when you hear his counsel telling you, oh, there
are gaps, he's doing our fans a favor, let me tell you, he's
not doing our fans a favor. He's lining his own pockets at
our expense. Where's his 31 years of development of our IP?
Where is it? He can't show you any creative of his own
creations.
MS. HARTZELL: Objection, narrative, your Honor.
THE COURT: Let's ask another question at this point.
MR. MOSKIN: I think we can conclude the testimony
now.



Automatically Appended Next Post:
- you can't testify as to what
materials the designers looked at for any of these products,
to design any of the products that are allegedly infringed
here today?
A I can testify that I know what they're expected to do and
how they're expected to do that and what instructions they are
expected to follow, and I can testify that those instructions
involve generating original ideas and using Games Workshop
original ideas as the wellspring and source of all the design
work they do.
Q But you can't testify that they all did that?
A No, of course I can't testify they all did that.



Automatically Appended Next Post:
Q Let's talk specifically about one of the products that you
identified as wholly original to Games Workshop. The item is
the product No. 112, the gun-Halberd weapon in Exhibit 120,
page 104 -- or 121 -- 1020, page 104.
Do you recall testifying about this product?
A Yes.
Q And you testified that it was a wholly original Games
Workshop design?
A Wholly original Games Workshop idea, and therefore that's
a copy of a Games Workshop idea, and the expression of the
idea is illustrated opposite.
Q On the right-hand side?
A Yes.



Automatically Appended Next Post:
Q You testified that the Tau race presented a departure in
style from the already existing 40K races; is that correct?
A Yes.
Q So the designers of the Tau race did not draw inspiration
from the look -- for the look of the Tau from within Games
Workshop?
A That's correct. They looked for it inside their own
imaginations.
Q You also testified that you wanted to look very sci-fi,
correct?
A Yes, probably.
Q And by sci-fi you were referring to science fiction?
A As popularly understood, yes.
Q And specifically science fiction created by third parties?
A No, I didn't say that.
Q It was not any science fiction that existed within the Tau
universe -- or within the Warhammer 40K universe, you've
already testified, correct?
A Yes. It is perfectly possible for us to invent something
from scratch, you know. That's our stock in trade. That's
what we do for a living.
Q So you don't believe that any external robots were
considered by any designer of any Tau product?
A Not to my knowledge, no.
Q But do you have knowledge what they referred to?
A Well, they didn't refer to anything. What we did is we
generated concept drawings, and the guys that were working on
the project brainstormed concepts of -- for the Tau idea.
Q And none of them had ever seen a robot?
A Well, that's preposterous to suggest, isn't it?
Q It is.
A Yeah, of course it is.



Automatically Appended Next Post:
Q So you can't say which elements of the Tau race were
original?
A To the best of my knowledge, all the elements of the Tau
race -- of the Tau mortals were original.
Q But we've already established that you don't have
knowledge of what the designers looked to in creating their
design?
A No, no. A lack of knowledge doesn't imply a positive
affirmation of another fact. That's not logical. Just
because I don't know that they didn't look at any -- cause I
can't say they didn't look at anything else doesn't mean that
they did look at something else. It just means that I don't
know whether they looked at it or not.
Q So you don't know what was original?
A The brief was to create original ideas, and our guys
generated concept work. I've got no way of absolutely
completely one hundred percent knowing if those -- if the
elements in the conceptual work that they did were original,
but that was the objective. That was the brief. That's what
they were all actually working towards doing. And that's what
they all said they were doing.



Automatically Appended Next Post:
Q But that idea, the idea of having a warrior inside a robot
battle suit, that's not original to Games Workshop?
A No, that's not original to Games Workshop.
Q And the idea behind the Eldar was Elves in Space? You
testified to that yesterday?
A Yes.
Q And you also testified about in the development of
Warhammer 40K the creation of rankings within chapters, and
you said, "it's intended to feel like the kind of organization
that a real military unit might have," correct?
A Yes. That's correct.
Q So you were aware of real military units when you decided
to incorporate that idea into Games Workshop's Warhammer
40,000?
A Yes, of course.
Q And you drew inspiration from the hierarchy of real
military units?
A Yes. I would say that would be fair.
Q And at the time you were working to create the Space
Marines, you were familiar enough with the military to know
that they use a hierarchy?
A Yes.
Q And when you were designing products for Warhammer 40K,
you were familiar with the military's use of tanks?
A Of course.
Q And Games Workshop's tanks are intended to feel like the
kind of tanks that a real military unit might have?
A No. They're intended to be fantastical, other worldly,
bizarre, strange, futuristic interpretations of what military
tanks could be.
Q But did you draw inspiration from real tanks used by the
military?
A I wouldn't say that deliberately, but, yes, I think that's
fair to say, inspiration from.
Q And that would be true for guns as well, that you drew
inspiration from real world guns?
A Yes, both things would be true.
Q Did you -- and you referenced real guns when designing
products for Games Workshop?
A No. Not especially, no.
Q You don't believe that any designer in Games Workshop ever
looked at a picture of a real world gun when --
A I didn't say --
Q -- designing guns --
A I didn't say that.
Q -- for Games Workshop?
A What you asked me is if they drew references from real
guns.
Q I asked if they referenced any real guns.
A Asked if they referenced real guns. What do you mean by
reference? Qualify the question.
Q Look at during the design process.
A I can't swear to that. I can't say that under oath.
I know our designers looked at guns, and I know
they're involved in the design process. But when they're
designing a thing, I can't testify that they looked at guns or
they looked at anything whilst they were designing that thing
because that's -- I don't know what they looked at whilst they
were designing it.
Q But do you know that the designers were aware of real life
guns when designing guns for Games Workshop?
A Yeah. Our designers are clued up chaps, and they are
aware of such things, I suppose. It's impossible to not be
aware of things like guns and robots and tanks and military
formations.



Automatically Appended Next Post:
Q But you waited until 2010 to file the lawsuit?
A Waited. My understanding is that our small but very
hard-working legal team had been working on the case for quite
a long time before that.
Q But you waited to file it until December 21st of 2010?
A As I said, my understanding is that the team had been
working on the case for a long time up to that point, but I
don't know the specifics of why that date and why that time.



Automatically Appended Next Post:
A The reason why I said the name's of concern because it
actually is a direct reference to our power armor and the
shoulder pad. And if you want to go, okay, so, if I need to
understand what that product is, the label on it really,
hopefully, provides that information for me and makes me go,
oh, what other power armor shoulder pads do I know and where
are they sitting, and that's why the name is a concern.
Q But you're not claiming that you own a trademark in power
armor, right?
A I don't think we are claiming that at all, no.
Q So when you testified this morning about items in the
names that were of concern to you, you don't know whether or
not you were asserting that you have a trademark in those
names?
A I'm not personally, no, because I'm not testifying on the
trademark stuff. Sorry. Sorry. Yeah. Some of the names are
of concern because they're trademark infringement. Some of
the names are of concern because they're actually our names.
Whether or not there are trademark or not, they're actually --
they're identifying -- they're helping us to identify which
Games Workshop products are actually we think are infringe --
are being infringed.
Q But if you don't have trademark rights in the name, then
you don't have any legal remedy for anyone -- or even a basis
for a legal claim for anyone else using those words, right?
A Well, technically I have a copyright claim in it if it was
using our names in a form that was -- but I'm not sure
that's -- that's by the by, isn't it? There's no point going
down that road. No, I suppose not.
Q So you have no basis to complain that Chapterhouse has
used the word power armor in this product title?
A No. That's why it's not highlighted in yellow.
Q But you brought it up as a concern even though it's not
relevant to a trademark claim?
A Oh, okay. I concede that. Yes. Sorry.
Q And you were testifying about the copyright claims,
correct?
A Yes.



Automatically Appended Next Post:
Q So if you look only at the product itself, for those
products where you brought in the concerns about the name, if
you look only at the product itself, that's not sufficient to
establish a claim?
A No, I didn't say that. I said it's the accumulation of
all those things makes the product the thing that -- it
highlights the importance of the product to us. It's what
makes us focus on those products and look them, isn't it?
Q But that's not an element of the copyright infringement
analysis, whether you think it's important or not.
A We're not claiming that it is, though.
Q You're not claiming copy infringement with respect to --
A Sorry. Trademark infringement.
Q I'm asking you now about the copyright infringement. You
testified about the names that were used. But whether or not
a name is used does not make the product that's accused of
infringing any more or less similar to the image that you've
shown on the right-hand side?


Automatically Appended Next Post:
Q But you've not identified either of those on the ground as
being the ones that are infringed, correct?
A No. It was the one flying through the air above the
creature shown.
Q So not the one in the foreground that's close up that we
can see?
A No, because that's a smashed up, broken one that's crashed
into the ground.
Q And the remnants that you can see on the side are linear?
Would you say they are straight pieces?
A I think the artist was trying to imply it was kind of like
wet goo.
Q What's your basis for that understanding?
A Because I just don't -- after looking at it, thinking it's
kind of indistinct, isn't it, and I think it looks like wet --
it looks like it's -- the way that it's stretching and stuff
around the creature's legs, I just thought it was -- I've
always assumed it was supposed to be kind of like horrible
sort of sticky, sticky goo.
Q So you agree that the sole image that is your basis for
copyright infringement is rather indistinct with respect to
the design of the mycetic spore?
A It is rather indistinct, yes.



Automatically Appended Next Post:
This one is awesome:

Q On the Chapterhouse product you see an oval opening on
three sides?
A Yes.
Q Where can I find that in the image that it is allegedly
copied from?
A If you close your eyes and scrunch your face up, you might
be able to image there's one there, but you can't see it, can
you?


Automatically Appended Next Post:
Q Do you still have your laser pointer?
A I do, yes.
Q Could you point to where those are on the spore?
A Well, yeah. I mean, this is a -- it's fuzzy and
indistinct, but that's what the artist was referring to.
Q You're not the artist?
A No.
Q So you don't know what the artist was referring to?
A You know that's what they were referring to because that
was their instruction, refer to Tyranid detail and information
on it.
Q So it's your position that Chapterhouse copied that image
to create this work?
A If that -- yeah. I've got to admit it's not the strongest
of our claims, but if our picture didn't exist and if this
thing didn't exist, that wouldn't exist. So Chapterhouse was
inspired by this picture. It looked at this picture, and it
made a model to fulfill that thing. That's what our case is
there.



Automatically Appended Next Post:
I say it's not to strongest claim that we've got, but
that's -- if our picture didn't exist, if this page in our
codex didn't exist, that model would not exist.
Q You talked about the difference between referencing and
copying. Is that difference that referencing is only using
the underlying idea?
A I don't -- sorry, I can't remember making that distinction
between referencing and copying.
Q When we were talking about whether or not Chapterhouse
copied this product.
A Oh, I see. Sorry.
Q They referenced it.
A Now I don't know how I'd describe it. They looked at this
picture and they make a model to -- to not -- not look like
that, like our picture, I suppose.
Yeah, as I said, it's not our strongest copyright
case, but that's --


Automatically Appended Next Post:
Q. So, as it's sold, it does not include the imagery that is
shown in the bottom right-hand side of the Games Workshop
product identified as PEX858 at GW0015353?
A. That would appear to be correct, yes.



Automatically Appended Next Post:
Q. Is it your contention that the Chapterhouse product copies
from this Games Workshop product?
A. No. I can't remember -- that's probably --
Q. So, you don't believe -- so, there is no copyright
infringement claim as to this product?
A. No. I didn't talk about that product. This is the first
time today that that product's been on the screen.



Automatically Appended Next Post:
A. If you didn't know what they were, you'd be hard-pressed to
figure out what they were for. It's a bit random, if you didn't
know what purpose they were intended for.
Q. So, in order to sell them, Chapterhouse has to identify the
purpose for which they are intended.
A. Well, clearly, that's what they're doing. The question is
whether that's legal and whether that's appropriate for them to
use the trademarks, which I don't know. You'd have to talk to
Mr. Jones about that later on because he'll have a better idea
about whether that's -- whether or not we think that's --
Q. But as you mentioned when you --
A. -- a fair use of our trademark.
Q. As you mentioned when I read the name, conversion kit for
Storm Raven, it's apparent from that name that the product being
sold is intended for use with the Games Workshop product.
A. Yes.
Q. So, the use of the words Storm Raven in the name actually
refers to Games Workshop's product.



Automatically Appended Next Post:
Q. And when you were describing -- or when you identified the
parts that are added to the Storm Raven by the Chapterhouse
product, once those are put together, the overall shape of the
Storm Raven is different, correct?
A. Yes.
Q. It changes the look of the product?
A. In my opinion, it spoils the look of the product, yes.
Q. And it no longer has that somewhat distinctive helicopter
type shape that you mentioned?
A. That's correct. It doesn't


Automatically Appended Next Post:
Q. Looking at the Chapterhouse product on the left-hand side
and the three different heads, as compared to the product, the
miniature designed by Jes Goodwin and Mark Harrison identified
as PEX117 at GW001439, which of the Chapterhouse heads do you
contend is a copy of the head on that figure?
A. Well, they're all basically the same idea on this. It's a
monstrous head with horrible tentacly attachments in sort of a
normal jaw. There's no specific literal exact copy of that
head.
Q. So, it's the idea of the monstrous head, tentacly head, that
you allege is infringed?
A. Yes.

Q. But the expressions of the different heads vary from the
Games Workshop product?
A. This is a trademark issue, this one, for us. This is a
trademark issue first and foremost. I mean --
Q. So, there's no copyright claim as to product 43?
A. I don't know. Yes. No. I'm sorry. I don't know what --
I'm tired. I'm not sure what I'm thinking here at the moment.
What I'm thinking is actually they're octopussy -- octopussy
kind of tentacle heads, but it's not a literal copy.
Q. So, there's no copyright claim as to product 43?
A. I think there's some form of copyright claim. I think that
needs to be tested.
Q. So, which of the Chapterhouse heads do you contend is copied
from the PEX117 product?
A. I don't know which ones are copied, but they actually are --
I can't say any of them are directly copied from the head.

The GW boys need to get out more if they really have never heard of companies like EM4 Miniatures who have been around years.

This is a fun one too:

A. There are some products that we've taken out of the case
because we didn't -- or that we didn't include in the lawsuit
because we have concentrated on the products that we thought our
copyright claims were stronger and where actually we were
instructed, I believe, to simplify the case. So, we took out
quite a few products we didn't think were -- or the case was as
strong on the copyright. So, yes, there are some products that
we're not accusing Chapterhouse of infringing on the copyright.
Of course, yes.
Q. So, for those products that you're accusing only of
trademark infringement, any allegations of copyright
infringement would be even less strong than the Mycetic Spore
copyright claim?
A. Well, I don't know. I'm not an expert in the strength in
that way because that's what we're here for, isn't it, to
determine that.
Q. But you kept Mycetic Spore in the case, although you admit
that it's a weak claim.
A. Yes.

A. Well, the stuff that's not -- the things that aren't part of
the lawsuit are not part of the lawsuit. We've bent over
backwards to try and resolve this not in court. We've tried
everything to not have to get to this place, and we've been
quite accommodating about streamlining the case.
Q. So, you brought --
A. There's a lot more than a hundred and however many products
we've been through today.
Q. So, you consider that bringing a claim against this Mycetic
Spore is being accommodating? A copyright infringement claim
based on that blurry picture that you showed, that's being
accommodating?
A. Because it's a very sensitive product to us because of what
it represents.

Need some aloe for that burn?

What a great read, keep them coming!

I'm loving these little snippets.

It just keeps on giving, doesn't it?

Makes you wonder how they won as many as they did.

I love the part where they say "we don't reference outside materials when creating our unique products" followed by "I don't know what they look at or don't look at, we assume they did as they were told"

Paraphrased of course.

In the interest of fairness, are there any snippets that bad from CHS's testimonies?

That all reads quite damning to GW's case.

 loki old fart wrote:
Makes you wonder how they won as many as they did.

And thus the appeal....

I wonder if anybody had to mop up the sweat from the courtroom floor after some of those statements....

The Auld Grump

 TheAuldGrump wrote:

 loki old fart wrote:
Makes you wonder how they won as many as they did.

And thus the appeal....

I wonder if anybody had to mop up the sweat from the courtroom floor after some of those statements....

The Auld Grump

You can practically read the tremor in Gill's voice. I love the "not really" knee jerk response to the suggestion that they go back through those emails.
Merrett and jones are true believers. They really believe that stuff. And Merrett has no idea why saying that something is a copy of an idea is bad.

There's good stuff for GW, but someone else can dig that up. There's plenty of out of context stuff that sounds bad, mostly stupid things in emails that look really bad, unless you bother to realize that it is often Chapterhouse trying to NOT copy something.

There's stuff like, 'how are we going to do that and still make money' and 'is it copying if we do that' (paraphrased). CHS crossed a few lines in my view, but this case was never about a few legit complaints. It was about angled barrel shrouds, space elves, and halbards. As Heartzell said, you think it is reasonable to claim the spore pod infringes one blurry corner of a drawing that looks like a blob? Copyright only goes so far. GWs beef was that someone had the temerity to make accessories for their products.

Loved the combination of GW admitting they basically nicked the tentacled genestealer head from Cthulhu, and then shortly afterwards claiming ownership of the very idea of a tentacly head.

I read through the quotes, and my first thought is "God, I feel sorry for the jury. If they're not wargamers, and maybe even if they are, they must be bored out of their fething minds listening to this crap".

I'll pull out more quotes tomorrow. Amusingly enough, there's awesome stuff in Merrett's direct testimony. Andy jones has some good stuff too. You can tell he's fighting with Bryce Cooper, chapterhouse's lawyer, until Bryce wears him down and the judge breaks jones in half. Rare to have a witness dressed down by a judge in open court.

If I had to pick my favorite so far, it is Nick Villacci pointing out that the claim chart shows that his website does in fact say "Cthulhu." Reading testimony is a lot more interesting when you sat through a bunch of trials, because you have a better sense of the flow, and the way questions usually get asked. That was a total bonehead thing for Moskin to have asked. If you read the way he questions you can really tell he is not a trial lawyer, and this might have been his first show.

Seriously, read the cross by Bryce cooper and any questioning by the F&L associate on the case, Jason Keener. Keener should have been lead counsel. He is a much better trial lawyer.

weeble1000 wrote:
There's stuff like, 'how are we going to do that and still make money' and 'is it copying if we do that' (paraphrased). CHS crossed a few lines in my view, but this case was never about a few legit complaints. It was about angled barrel shrouds, space elves, and halbards. As Heartzell said, you think it is reasonable to claim the spore pod infringes one blurry corner of a drawing that looks like a blob? Copyright only goes so far. GWs beef was that someone had the temerity to make accessories for their products.

Merret gave a pretty succinct summary of GW's position on the case IMO (already quoted above - but separated here for clarity):

A Well, without permission. I mean, Mr. Villacci might claim to be a fan of our products. He might claim to be an actual -- a hobbyist. He might claim to be someone who actually understands what it is to collect and play our games.

But if he had any notion, any inkling of what it means to be a fan, he'd know darn well that every single thing we put in every single one of our books, every single one of our codex, every unit, every character, every model, every vehicle is a model that we intend to make and sell.

So when you hear his counsel telling you, oh, there are gaps, he's doing our fans a favor, let me tell you, he's not doing our fans a favor. He's lining his own pockets at our expense. Where's his 31 years of development of our IP?

Where is it? He can't show you any creative of his own creations.

Of course, this is especially ironic in light of the tongue in cheek definition of the GW hobby (to buy GW products).

It is also something that people who have been long time "fans" of the regular type...not the brainwashed type, who have been waiting for 8 years for a jetbike farseer and warlocks for their Eldar armies might take issue with.

It ignores that the vast majority of CHS (and other companies 40K related products) are designed not as standalone figures and models - but to be used in conjunction with GW products, allowing GW to actually line their products at the expense of companies who make add-ons and options for the short fallings within GW's offerings.

 Sean_OBrien wrote:


Of course, this is especially ironic in light of the tongue in cheek definition of the GW hobby (to buy GW products).

I don't think that was tongue in cheek...


Automatically Appended Next Post:
This stuff is just painful to read.

Do we know what the general atmosphere was during proceedings? Did people laugh and snigger?

If I was in the Jury, I'd be stifling giggles.

Reading some of this makes my brain sad.

 Sean_OBrien wrote:
For those who are interested - what Czakk is referring to are the actual in session transcripts of the trial (to include witness testimony from GW muckety mucks).

420 starts testimony with Merret and he talks through all of 421 and into 422:

http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.420.0.pdf

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.421.0.pdf

422 also has the Naismith Deposition and Andrew Jones testimony:

http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.422.0.pdf

423 continues Jones and has Gill Stevenson and Nick Villacci:

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.423.0.pdf

424 continues Nick and has Robert Lippman as well as the Tomas Fiertek deposition:

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.424.0.pdf

425 has the Wyatt Traina and John Blanche depositions, Jeffrey Nagy, Carl James Grindley testimony

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.425.0.pdf

426 has the William Brewster, Neil John Hodgson, Gill Stevenson, Jes Goodwin testimony:

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.426.0.pdf

427 is sort of the end of the more interesting bits with the closing arguments:

http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.427.0.pdf

Are these full transcripts or just excerpts? Sorry to ask, but I'm on a limited download.

Cheers

Andrew

Gavel to gavel (don't recall specifics that were not there...though there might have been a few things that were off the record...). Each document is a days worth of testimony IIRC (read them several months ago - so memory is a bit foggy).

They are text PDFs though, so the files are not huge in terms of bandwidth (though they are each a couple hundred pages long).

Thank you, I'll start downloading for my bedtime reading.

Cheers

Andrew

weeble1000 wrote:
Jason Keener. Keener should have been lead counsel. He is a much better trial lawyer.

He appears to have made partner at F&L - so his hard work was rewarded.