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weeble1000 wrote:

 Kilkrazy wrote:
To someone like me who is only moderately familiar with the Cadian IG, the Victoria Lamb Arcadian models look strikingly similar to Cadians, but then the GW "original" Cadians look strikingly similar to various kinds of pre-existing troops such as US Army and the Colonial Marines out of Aliens.

It is the "future soldier" concept that is so widely based and so well established that it isn't possible for any company to claim a copyright on that look and feel. (Thought that is exactly what GW try to do.)

If Lamb had said the soldiers were compatible with Imperial Guard or Astrus Milites™ GW might have come down on her. It was Chapter House using GW trademark names in association with their own products that caused the trouble there, though of course it turned out that Chapter House were right. You can legitimately use another company's trademarks if you do it the right way.

Of course it is bleeding obvious what the name "Arcadians" refers to. There is nothing GW can do about that.

Sure there is. GW could argue that the mark "Arcadian" causes a likelihood of confusion.

I presume that would sink like a rock since it's based on Greek mythology/ancient history.

 slowthar wrote:

weeble1000 wrote:

 Kilkrazy wrote:

Of course it is bleeding obvious what the name "Arcadians" refers to. There is nothing GW can do about that.

Sure there is. GW could argue that the mark "Arcadian" causes a likelihood of confusion.

I presume that would sink like a rock since it's based on Greek mythology/ancient history.

I don't know. It would have to be tested in court. With trademarks, originality (in comparison to the public domain) isn't as important. A trademark needs to identify the source of a good or service so that consumers know what they are buying. There are 8 factors generally taken into account, one of which is the similarity of the marks. Arcadian is similar to Cadian, but not exactly the same. But that is only one factor.

Take "Apple" as an example. That's a very strong mark, but Apple is a regular word, right? Apple is in the public domain. You can't copyright the word Apple. You can't trademark it with respect to selling apples either, because then it would be generic. Everybody selling apples should be able to call their apples "apples," right?

"Apple" as a trademark is valid because it refers to computers, rather than apples. Therefore it is a distinctive mark with respect to computers. When you think "Apple" as a trademark, you probably think of the company and its products. That's good. That's what trademarks are for.

Note, however, that there are also other fruit-based marks in the same product category as "Apple." BlackBerry, right? But BlackBerry, although it is also a fruit, is sufficiently distinct from the Apple mark. When you think about BlackBerry you don't confuse that product with an iPhone, do you? Again, that's good. That's what trademarks are for.

Games Workshop could argue that "Arcadian" is a mark that causes a likelihood of confusion because when people see the "Arcadian" mark in connection with miniatures of sci-fi future soldiers it is likely that consumers would mistake Games Workshop as the source of those products.

But remember, there are 8 factors generally considered, none of which are dispositive of the others. Customer sophistication is one factor. Although table top games products are not expensive, the market is a highly specialized niche, meaning that the consumers are generally highly discerning aficionados, which is something of a legal buzzword. Alan Merrett actually referred to GW's customers as aficionados, with that exact word, in his direct testimony in the Chapterhouse case. So Victoria Lamb would have that going for her in any legal dispute with GW.

Discerning consumers are less likely to be confused, i.e. many of us know who Victoria Lamb is and that her products are different from GW's products. Those who don't would probably be able to figure out the distinction with half a glance at Victoria's website. I expect also that Victoria Lamb has a disclaimer on her website, which helps to mitigate a likelihood of confusion.

In short, it is very easy to meet a prima facie burden in a trademark case, but harder to prove likelihood of confusion. In other words, it is very easy to make a trademark infringement claim, even if it probably won't be successful.

To be honest, I'm really surprised GW made *any* traction with the Spots the Space Marine debacle. Was their whole claim just based on the use of the words "Space Marine"? If it was, I could see them going after Victorian Miniatures in the same way, pointing out the cyborg skull motif on the standard bearer as something GW has ownership of.

That's not to say their claim is any good, but I thought this was more about bullying others out of the business rather than making strong claims.

weeble1000 wrote:

 Kilkrazy wrote:
To someone like me who is only moderately familiar with the Cadian IG, the Victoria Lamb Arcadian models look strikingly similar to Cadians, but then the GW "original" Cadians look strikingly similar to various kinds of pre-existing troops such as US Army and the Colonial Marines out of Aliens.

It is the "future soldier" concept that is so widely based and so well established that it isn't possible for any company to claim a copyright on that look and feel. (Thought that is exactly what GW try to do.)

If Lamb had said the soldiers were compatible with Imperial Guard or Astrus Milites™ GW might have come down on her. It was Chapter House using GW trademark names in association with their own products that caused the trouble there, though of course it turned out that Chapter House were right. You can legitimately use another company's trademarks if you do it the right way.

Of course it is bleeding obvious what the name "Arcadians" refers to. There is nothing GW can do about that.

Sure there is. GW could argue that the mark "Arcadian" causes a likelihood of confusion.

And then get to court and during testimony say that it's crazy and there is no confusion™

 Accolade wrote:
To be honest, I'm really surprised GW made *any* traction with the Spots the Space Marine debacle. Was their whole claim just based on the use of the words "Space Marine"? If it was, I could see them going after Victorian Miniatures in the same way, pointing out the cyborg skull motif on the standard bearer as something GW has ownership of.

That's not to say their claim is any good, but I thought this was more about bullying others out of the business rather than making strong claims.

And hence the incredibly immense value of the GW v CHS lawsuit. Just by fighting back, Chapterhouse Studios has made it incredibly harder for GW to bully anyone else in the market. And the appeal has the potential to seriously inhibit GW's attempts to do so.

If there is a strong appellate ruling in favor of Chapterhouse Studios, GW would be looking down the barrel of that gun in any similar litigation. Any defendant would have the ability to argue that GW was well aware that the claims it asserted did not have merit because of the Chapterhouse decision, and asserting claims that you know do not have merit is a very dangerous game as it opens the door to damages. Every time GW wanted to file a lawsuit, it would have to take all of those rulings into account, assuming they were favorable to Chapterhouse, making it much more difficult and annoying for GW to wield the club of abusive litigation.

 Accolade wrote:
To be honest, I'm really surprised GW made *any* traction with the Spots the Space Marine debacle. Was their whole claim just based on the use of the words "Space Marine"? If it was, I could see them going after Victorian Miniatures in the same way, pointing out the cyborg skull motif on the standard bearer as something GW has ownership of.

That's not to say their claim is any good, but I thought this was more about bullying others out of the business rather than making strong claims.

Just look at this case. GW tried bullying and have ended up handing over their lunch money instead.

Besides, in Victorians case, I really think that GW would pause now, for at least a second, before claiming they own cogs™ and cyberbnetics™ and independently coming up with the idea™ of putting the two together.


Do you know I really can't say this enough. Alan Merrett - and by extension GW - think that you can trademark an idea.

Graphite wrote:
What EARTHLY incentive to they have to damage GW and make the working environment there just that little bit nastier for their mates in order to defend some random bloke from Texas who they will never meet?

It's called "doing the right thing". Perhaps you've heard of it?
If I read something I know is absolutely false and it's possible (and important) for me to set the record straight I'd do it. Sure, my friends might not like me for it at first, but the friends I care about would understand why I did it.
I likely wouldn't even enjoy doing it. That's not the point whatsoever.

Okay, enough digression. It's interesting, but not on-topic. If you're not talking directly about the current status of the case, or information that recently popped up, then you're wandering afield.

I'm interested to know if Citadel were really the first company to do 28mm as appeared to be claimed in testimony. I think it might be true, but of course they were working with Ral Partha and similar so could have been something occurring across several companies at the same time.

I also recall in testimony that Merritt opines that they should have trademarked the '28mm scale' at the time. Now can you really own a scale of toy/miniature? What's even more silly is that their stuff isn't actually 28mm so that wouldn't hold much weight...

'They're copying us and making things in 28mm scale so they are compatible with all our stuff. Only we can make 28mm because we own it.'

'And how big are your miniatures?'

'Typically 30mm or more...'

Historical wargame figures of the time were usually called 25mm but often reached 28mm. IDK if anyone was calling them 28mm. IDK if Citadel called them 28mm, actually. In my fallible memory, Citadel made 15mm and 25mm figures.

There isn't a legally recognised scale of 25mm or 28mm and the term is interpreted differently by gamers. The "classic" definition is the height of a standing figure from sole of foot to the eyes, because this provides a constant reference point unlike the top of the head or helmet. However many people take it to be the height overall.

I have an Essex Miniatures WotR army. Essex used to call their figures 25mm, but they were always on the large side and nowadays their web site lists them as 28mm. My army was bought in the early 90s.

The idea of trademarking "28mm" for wargame figures is fundamentally ridiculous. It would be like Weeble1000's example of trademarking the term "apple" in the fruit trade.

Plus, if that quote by Howard Treesong is accurate and Merrett really did say that (only we can make 28mm because we own it), then this appears to be yet another case of Merrett blatantly lying in court.

AFAIK GW do not hold any trademarks or copyrights on the 28mm scale (or any other scale for that matter) so that's a factually incorrect statement.


Why the guy hasn't been sanctioned or officially warned for dishonesty in court is beyond me...

Sorry, to be clear that's not an actual quote, I was suggesting how such a conversation would go in court, if they were to actually own the 28mm scale.

What he did do was describe how GW was the first company to do 28mm and suggested that they should have trademarked it at the time, but they didn't. I find that somewhat ludicrous, I don't see how you could protect a scale of figure to prevent compatible parts manufacturers, especially when most of your range doesn't actually stick to the 28mm you would claim to own. But that's GW thinking, they either own or should have the right to own everything.

I don't recall where I read these comments about inventing 28mm, but I'm sure I did somewhere, I've read through all the court notes over the last week so it could be anywhere.

Current 28mm figures are totally compatible with the 30mm miniatures of the 1960s and 70s. So even if GW could have cordened off a scale (which is ludicrous), competitors could just point at Spencer Smith miniatures made 40+ years ago in 30mm.

I've seen a lot of people advertising 32mm scale now, presumably as it's a bit more accurate than "heroic 28mm".

But the idea of claiming sole use of a minis scale is ridiculous. If they had sole use of 28mm, what's to stop someone else making a 29mm range with a slightly bigger height ratio, or where the characters in the universe were all a few inches shorter?

It'd be completely unenforceable.

 Alpharius wrote:
Not to mention the STEN series of books - there's even an 'eternal Emperor' in there - although he's a lot more active, and also...

Well, just go read those books - they're a little dated, but still awesome, and you can really see whole sections being lifted by GW as well!

The third book in the series is even called The Thousand Suns for feth's sake...

weeble1000 wrote:

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.

Thank you so much for your updates and analysis. I'm a lurker on here, but had to finally register just to get on this thread.

I hope this case destroys GW. I hope their numbers tank even further, until their investors catch wind and force Kirby off the board (not sure how with his majority, but that idiot needs to go), and have the company taken over by people who know how to run a business.

If this case taught me anything, it is that GW are thieves and liars without a scrap of conscience. And as far as I'm concerned, it's no crime to defraud thieves and liars. I don't even play the game anymore, but I still was collecting the BL books and the occasional model I like.

- Edited by insaniak. Dakka does not, and can not, endorse copyright infringement. -

 Sean_OBrien wrote:

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.

I honestly could not help but remember the Eldar Exodite Dinosaur riders (who had stats in the 2nd ed codex). Or all of the various Kroot mutations. Hell, I converted a Sentinel because it took them years to make a mini for it after having rules. Even the Land Raider spent years being completely unavailable from GW.

And that's not even getting into the Farseer on Jetbike.

 odinsgrandson wrote:

Even the Land Raider spent years being completely unavailable from GW.

At one point they were even considering letting Armorcast make a Land Raider. Mike even started on a basic mockup...

Heck - Multi-Meltas were unavailable for an entire (long lived) edition.

The Auld Grump

Have they even made a miniature for the four-armed Dark Eldar Mandrake special character? He originally appeared in, what, 2002 or so in the first DE codex. I know that no model existed for the entirety of the last codex, but not sure if they've released one in conjunction with this codex.

HandofMars wrote:

weeble1000 wrote:

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.

Thank you so much for your updates and analysis. I'm a lurker on here, but had to finally register just to get on this thread.

I hope this case destroys GW. I hope their numbers tank even further, until their investors catch wind and force Kirby off the board (not sure how with his majority, but that idiot needs to go), and have the company taken over by people who know how to run a business.

If this case taught me anything, it is that GW are thieves and liars without a scrap of conscience. And as far as I'm concerned, it's no crime to defraud thieves and liars. I don't even play the game anymore, but I still was collecting the BL books and the occasional model I like.

- Edited by insaniak. Dakka does not, and can not, endorse copyright infringement. -

As much as I hate to say it Kirby does know how to run a publicly traded board run business. Its all about short term gain and "future gain" is more a representation of closing out a quarter. Not saying its the right way to run a company as I too hate what they have done in most cases but Kirby is doing the job he was hired to do.

Boy that really hurt to say heheh. I feel like I need to go shave my tongue now

I have not been able to follow up on this case for a while. Was Nick still left holding the bag for $25K in damages?

@Fishboy:

Both sides filed appeals, and that process has yet to be completed.

I believe the last update we had was that both sides were still having negotiations that might lead to some sort of settlement.

And the appeals continue to grind away in the background, a year and more later....

I had fully expected that the appeals would have been handled by now, but unless I have missed something then it appears that the two parties are still locked in battle.

Does anybody have any new information at this point, or is it still continuing behind closed doors?

The Auld Grump

From what I understand they are still in pre appeal settlement discussions, meaning it all going away quietly isn't off the table yet.

From CHS's standpoint, IMO, they have zero reason to settle, unless it involves some huge payout from GW(which I'd imagine is impossible from GW's perspective).

Are lawyers allowed to strongly urge a client to not accept a settlement at this stage? I'd imagine all these firms that got added on for appeals do not want a settlement as they want precedent to be set for this.

Personally I'd hate to see this all just quietly settle down after all this time but for the people actually involved from day 1 it's probably been a nightmare that simply won't go away. It would make sense that they'd want to just let it go.

Having said that I don't think I will be disappointed because I can't see GWs layers coming to the table with anything less than "Pay the $25,000 the jury rules on and we'll be kind enough to let you continue selling the products they ruled in your favour on (and only those for the rest of forever)."

Yeah I can't see either side giving way in this. Since CHS has got some big players pro-bono they've got no reason to give in, and GW don't appeal to want any outcome that isn't CHS shutting down.

A question for the resident legal eagles;

If the two sides cannot negotiate their way to a settlement, what happens?

Does the case go back in front of a judge?

I believe it goes above him to the appeal court, which might be several judges?

Anyway there is no more presenting evidence or anything, my understanding is from this point on it'll be about arguing the letter of the law instead of trying to get a jury to understand what's going on.

 Kilkrazy wrote:
A question for the resident legal eagles;

If the two sides cannot negotiate their way to a settlement, what happens?

Does the case go back in front of a judge?

I expected the briefing schedule to have been reinstated by now. In any case, if the schedule does get reinstated, three judges from the Seventh Circuit Court of Appeals would be assigned to the case. This will be a revealing step, as the 7th Circuit Court of Appeals has some big names on it like Judge Richard Posner.

The wiki has a really brief summary of his IP views:

Patent and copyright law[edit]
Posner has expressed concerns, on the blog he contributes to with Gary Becker, that both patent and copyright protection, though particularly the former, may be excessive. He argues that the cost of inventing must be compared to the cost of copying in order to determine the optimal patent protection for an inventor. When patent protection is too strongly in favour of the inventor, market efficiency is decreased. He illustrates his argument by comparing the pharmaceutical industry (where the cost on invention is high) with the software industry (where the cost of invention is relatively low).[21]

Then the parties will be filing briefs in support of their arguments and responses to the opposing party's arguments. If the schedule gets reinstated, the timing for all of that will be laid out on the docket.

It isn't possible for this case to quietly vanish at this stage, is it? Surely they have to at least go on record and say that they've settled, but they're not going to say what the terms were?