Author |
Message |
 |
|
 |
Advert
|
Forum adverts like this one are shown to any user who is not logged in. Join us by filling out a tiny 3 field form and you will get your own, free, dakka user account which gives a good range of benefits to you:
- No adverts like this in the forums anymore.
- Times and dates in your local timezone.
- Full tracking of what you have read so you can skip to your first unread post, easily see what has changed since you last logged in, and easily see what is new at a glance.
- Email notifications for threads you want to watch closely.
- Being a part of the oldest wargaming community on the net.
If you are already a member then feel free to login now. |
|
 |
![[Post New]](/s/i/i.gif) 2013/06/16 11:29:23
Subject: Re:Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Decrepit Dakkanaut
|
weeble1000 wrote:The jury verdict is pretty laser-like consistent; unusually so, especially for a case as large, complex, and confusing as this one.
So you have seen it? Can you post a link?
PsychoticStorm wrote:That 200 companies claim had me raised an eyebrow, are there even that many related companies in the industry?
They will also sue anyone using the words human, elf, dwarf, Imperial, grenade launcher, and jetbike without their permission, not to forget Roman numbers, arrows and crosses. They will make Monsanto and Myriad genetics look humble
|
This message was edited 2 times. Last update was at 2013/06/16 11:36:18
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 11:51:28
Subject: Discussion of the consequences of the Chapterhouse vs GW verdict - speculation, thoughts, feelings
|
 |
Longtime Dakkanaut
|
OrlandotheTechnicoloured wrote: Killionaire wrote:This is nothing but massive win for CHS. Anyone who says otherwise just isn't paying attention. CHS has a legal precendent that their business does not infringe on IP, and that allows a lot of smaller businesses in the similar '3rd party Warhammer accessories' field to work with greatly reduced fear. Overly simplistic 'CHS had to pay so they lost!' statements are absurd. 25k paid in some slow payment scheme is absolutely nothing for a business that makes apparently a few hundred k a year, for protecting your business from a giant that's pissed away over a million dollars in pursuing this case.
] It may be a massive win for CHS, or it may be a big disaster we just don't know enough yet (although things look reasonably positive so far). The verdict has to survive the Judge and any possible appeals If there are appeals then CHS has to keep their pro-bono representation (can their lawyers leave now if they want to or are they forced to carry on representing them?) Then they have to be able to pay the fine (or avoid it via chapter 11 or similar) and survive as a going concern Only then will it have been a massive win No, it is a massive win right now. GW got clobbered by a guy working out of his garage, that's a win, period. And GW lost on what it cared most about: using GW's trademarks prominently and nominatively; i.e. "Specializing in custom bits and sculpts for Warhammer 40,000 and Fantasy." GW spent more than 1 million dollars to put a garage business under and succeeded only in getting a 25K judgment that probably won't ever be paid, severely damaging its view of the company's "IP," and helping to establish a clear line that other 3rd party accessory companies can happily operate behind. GW showed that when it tires to enforce its "IP" it gets smacked down. GW showed that you can stand up to GW's "IP" enforcement, no matter how small you are. GW showed that there are people out there who believe that GW's view of the world is wrong, and are willing to step in and lend a significant hand. GW severely damaged its willpower to ever go through with anything like this ever again. And if GW does, there is now an established road map for how to put together a successful defense, and a huge amount of work has already been done. Game. Set. Match. How many judges set aside jury verdicts? CHS is not likely to lose on anything it already won with the jury, especially because the Judge ruled almost all important factors in GW's favor. This actually gives CHS openings for appeal in addition to making it very difficult for GW to overturn any aspect of the jury verdict. Did the jury make a mistake? What was that mistake based on? Jury instructions that heavily favored GW's position? Rulings from the judge that are arguably erroneous in favor of GW? Evidence favorable to CHS that was ruled inadmissible by the court? Did CHS fail to provide sufficient evidence for a jury to have returned the favorable verdicts? Well, fair use is so darn squishy that it is hard to say what the jury did, much less if no evidence was presented. Keep in mind also that before the trial the judge personally weighed at least half of the fair use factors for both copyright and trademark in favor of CHS. In other words, there was evidence. And unlike GW, CHS did not run around saying it had no evidence. Did GW fail to provide sufficient evidence? Oh, you mean like saying you have shown no evidence of confusion and that it is not likely that customers would be confused? Yea, like that. That's an argument you can make post verdict. That's an argument you can make on appeal. If you show no evidence then there is no reason a jury could have found in your favor. If your sole purpose in testifying was to establish likelihood of confusion and you say that you have provided no evidence of confusion, then you have a serious problem post verdict if they jury found any trademark infringement. And why might the jury have found trademark infringement even though you provided "no evidence?" Maybe because the Judge instructed the jury that for ~70 of GW's asserted marks the court found that they had been used in commerce as valid trademarks, obliterating the defendant's ability to contest ownership, validity, use as a trademark, etc. That doesn't help GW. All that does is give CHS an opening to attack any adverse verdict on those marks without exposing those that it won on to being overturned. Game. Set. Match What is left is to see how much of what it lost CHS can overturn. What is left is to see if this case goes on appeal and makes new case law when Judge Kennelly gets reversed. What is left is to see if in two years time people are citing the GW v CHS case as precedent. Even if none of that happens, CHS still wins. Automatically Appended Next Post: Adam LongWalker wrote: Now if people are really patting CH on the backs, then as a community we should be doing some crowd source funding to help pay for the bills. Or buy lots of their product in question. That right there will send an important message to GW. "We the customers are not happy with the corporation". "We are voting with our wallets". This old timer has done what he can do. It's up to you young guns to take over and take charge of the situation. Adam. You can also order products you want before the court determines injunctive relief (if any). So if you want it, get it now while it is still okay to sell it.
|
This message was edited 2 times. Last update was at 2013/06/16 12:04:49
Kirasu: Have we fallen so far that we are excited that GW is giving us the opportunity to spend 58$ for JUST the rules? Surprised it's not "Dataslate: Assault Phase"
AlexHolker: "The power loader is a forklift. The public doesn't complain about a forklift not having frontal armour protecting the crew compartment because the only enemy it is designed to face is the OHSA violation."
AlexHolker: "Allow me to put it this way: Paramount is Skynet, reboots are termination attempts, and your childhood is John Connor."
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 12:10:16
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Owns Whole Set of Skullz Techpriests
Versteckt in den Schatten deines Geistes.
|
I dunno... your post seems pretty vague, weeble. I think you're saying that this is a good result for CHS? Maybe?
|
This message was edited 1 time. Last update was at 2013/06/16 12:10:42
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 12:20:14
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Longtime Dakkanaut
|
H.B.M.C. wrote:I dunno... your post seems pretty vague, weeble. I think you're saying that this is a good result for CHS? Maybe?  It is an amazing result. A spectacular result. An unexpected result. The only way it could be better is if CHS won everything, but that was never very likely, just as it was insanely unlikely for GW to have won everything. The unlikely nature of a total win for either party means GW should have settled out a long time ago. Any loss is a huge loss for GW. Remember that back in the beginning of this case, Magistrate Judge Gilbert told the parties that after this whole thing was over, both companies were still going to be alive, in business, in the same market, and they would have to find some way to coexist. His point was that even if GW wanted to be harsh, wanted to be unreasonable, and wanted to go all the way to a jury verdict, GW was still not going to be able to get what it wanted, so why not work it out like reasonable people beforehand and save everyone a lot of time and money. Well, GW ignored his advice and you see what happened.
|
This message was edited 2 times. Last update was at 2013/06/16 12:21:07
Kirasu: Have we fallen so far that we are excited that GW is giving us the opportunity to spend 58$ for JUST the rules? Surprised it's not "Dataslate: Assault Phase"
AlexHolker: "The power loader is a forklift. The public doesn't complain about a forklift not having frontal armour protecting the crew compartment because the only enemy it is designed to face is the OHSA violation."
AlexHolker: "Allow me to put it this way: Paramount is Skynet, reboots are termination attempts, and your childhood is John Connor."
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 12:42:50
Subject: Re:Discussion of the consequences of the Chapterhouse vs GW verdict - speculation, thoughts, feelings
|
 |
Longtime Dakkanaut
|
Raesvelg wrote:
Nothing wrong with brevity.
I'm not so prone to it myself, of course, but I'm enjoying the debate.
It's fairly easy to say that GW is losing money by their decision regarding third-party manufacturers of accessories, but it's difficult to actually prove it. Saying that CHS was doing $100k/yr in sales makes it sound like GW is losing $100k/yr that they could have been making otherwise (had they been making the product themselves), but it's significant to note that a lot of CHS's products overlapped FW products. Salamander should pads? FW has them. Various vehicle door/armor kits? FW has them. Imperial Jetbikes? FW has them. They're not even that much more expensive most of the time; heck, the FW Shrike warrior wings are cheaper in bulk than the CHS kit. Just wings, rather than wings/legs/head, but we can also admit, I expect, that the FW products are significantly higher quality than anything produced by CHS.
It's not that GW isn't producing the models, it's that CHS is making an inferior version that costs less. You could argue that GW is failing to fulfill a market for cheap, inferior goods, but if GW doesn't want to fill that market (and 3rd Edition Dark Eldar models aside, I'd say that they don't), then we can't expect them to let someone else undercut them on their own IP.
I disagree with your assertion that GW is producing the models. CH's business was built upon items that GW did not produce, such as shoulder pads for a x chapter. Over the course of years GW has started producing SOME of the items. I suspect that if CH did not make the parts then GW would not have bothered to produce them at all.
GW made a horrible business decision to leave gaps in its range and to cancel its bits production. (They are still leaving huge gaps to this day. Even with the release of the new Eldar codex, GW still does not produce a seer on jetbike. Even on plastic sprues they do not include all weapon loadout combinations. For example, they may include one blaster when you can take three. There is also the recent business decision that prevents retailers from selling bits from GW products. This just increases demand for third party bits.) If there were no gaps and bits were produced, then there would have been few or no third party makers such as CH. As it stands now, there are such makers and GW was shown not to own some concepts that it thought it owned.
It is abundantly clear that there is a market for bits, especially for ones that GW does not produce. Given that GW is not making the parts, it appears that there is room for licenses.
You bring up the topic of quality. I think that this is a red herring. There could be debate about the CH parts being inferior to GWs. Have you experience the disaster that is finecast? I have seen some bad forge world stuff as well. CH was making a part that was superior to GWs solution of having a generic shoulderpad with a decal on it.
Raesvelg wrote:
As for issuing licenses, it would pretty much be limited to very specific things, upgrade kits to be exact. There's no way GW would be handing out licenses to make full miniatures in direct competition with themselves, after all.
GW used to issue such licenses. Armorcast had one. I assume the deal they made with Milton Bradley was also similar. It is not direct competition if both companies are not producing the same product. Further, given that it is licensed, the companies would not be competing, as GW would earn money when the other product sold.
Raesvelg wrote:
So if we engage in the hypothetical that GW would issue upgrade kit licenses, we have to consider a few things.
If GW wants to maintain control of quality and IP, after all, they're going to have to arrange these licenses in a very specific fashion, giving themselves full control over end product. They'll have to pay someone to vet all the products that they're busy licensing out, control which products they are, and so on. That all costs money, and that's going to be reflected in the license itself, which will in turn be reflected in the cost of the end product. GW isn't going to issue blanket "make whatever you want and if it's good we'll approve it" licenses. They'd be issuing "submit a design and we'll tell you if you can make it or not" licenses. There'd be a lot of back and forth from GW to the studio in question (adding to cost), and quite possibly a percentage of each sale included as part of the licensing fee.
When you add it all up, it doesn't seem particularly likely that the sort of small operations that typically produce these products would be able to afford a license on start-up, or inclined to put up with the necessary hoops that GW would probably add on for quality control purposes.
Again, more about quality. It is unusual to hear quality control and GW in the same sentence. This is the same company that has tons of typos in its books, and produces figures that have air bubbles, and missing parts. There are lots of ways that they could potentially arrange a license, the one you proposed above is only one possibility. If they wanted the licenses to be successful, then they would want to keep costs of the license down.
Raesvelg wrote:
Like everyone else here, I don't have access to the sort of market analysis that I'd need to make a definitive statement, but it wouldn't surprise me if GW hadn't considered the possibility, and already decided they'd be better off just sticking with Forgeworld.
I am always amazed that GW is not run like a business. For example, in court they were asked about market research, and of course had none that could show customer confusion. They are just greedy, and thus decided to take all production in house rather than have licenses. What they failed to consider is that they can only produce so much. If they cooperated with other companies and issued licenses, then more items could be produced and they could potentially make more money.
Raesvelg wrote:
C&D letters aren't a belligerent or adversarial approach to the matter, is the other thing. They're the industry standard; it might be nicer if GW called them up and said "We'd appreciate it if you'd stop making products X, Y, and Z because we feel that they infringe on our IP", but the end result is the same. Most people just do away with the pretense and issue the C&D letter.
There is no problem with C&D. The problem is what GW considers its IP to be. Sending C&Ds over the use of the term jet pack is ridiculous. I could see sending C&Ds over someone recasting their parts. Most of GWs TM are taken from other sources. You do not see Disney suing them for using Kruellagh the Vile. GW thinks that they owns everything. They are greedy. Thus, I am glad that they did not get a big win in this case.
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 13:30:12
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Decrepit Dakkanaut
|
I am pretty sure GW is *satisfied* that it got some rulings. The IP battle I think works to GW's advantage for the following reasons: It shows that their threats are not hollow; it can and will go the distance to protect itself and its IPs. There are things that are uniquely theirs and other model makers must beware when considering their own product launches and bits that revolve around the GW hobby cores (40k, fantasy, ect.). They probably knew a lot of what they were doing was shotgunning and thus were pleased they got what they did. Because now here comes the kicker: In today's day and age, IPs are king. What your idea is worth basically sums up how much others are going to pay in order to use your idea or buy your idea from you. Disney or Hasbro cannot just simply start from scratch and make their own miniature games that resemble Warhammer 40k, let alone a small third party business (Hasbro and Disney have their own respective sci-fi IPs so I highly doubt they really care about imitating GW). But it goes back to the value of what GW has. I do think the long term strategy of GW is to eventually sell out and become subsumed by another entity (even if GW doesn't want to do it, the people who own the shares of GW want return investment and make more money in the long run; protection of IPs does all that and increases the value of the company as now their IPs have clearly defined borders and protection that they won't be subsumed by cheap knock offs. If there is anything in this world that investors like as much as making money is stability).
|
This message was edited 1 time. Last update was at 2013/06/16 13:31:04
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 14:02:14
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Dakka Veteran
|
Does anyone know if CHS offered to settle the case early on?
Also, does rule 68 operate the way I think it does? If CHS offered to settle for $50k back in 2010 for instance, does this displace the 'American Rule' and make GW liable for CHS's legal costs? Or does 'costs' have a defined meaning in the federal rules (like only court fees, or disbursements, and no attorney fees)?
http://www.law.cornell.edu/rules/frcp/rule_68
Making an Offer; Judgment on an Accepted Offer. At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment.
.....
Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.
|
This message was edited 4 times. Last update was at 2013/06/16 14:11:14
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 14:09:30
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Beautiful and Deadly Keeper of Secrets
|
I can't wait for Warmachine/horde models to start getting a few models made by a different company , so I can get them at a far cheaper price.
|
This message was edited 1 time. Last update was at 2013/06/16 14:20:17
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 14:23:27
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Insect-Infested Nurgle Chaos Lord
|
ZebioLizard2 wrote:I can't wait for Warmachine/horde models to start getting copied a bit, so I can get them at a far cheaper price.
That's not this thread is about......
CHS got the a-okay to continue with 3rd party bits =/= open season for recasters.
You do not *need* extra parts for WMH, and in the case where you feel the need to do so PP already has an extensive bits service like GW of old and also produces those additional parts themselves. For example the BDIFP kit.
|
    
Games Workshop Delenda Est.
Users on ignore- 53.
If you break apart my or anyone else's posts line by line I will not read them. |
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 14:32:31
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Beautiful and Deadly Keeper of Secrets
|
Grimtuff wrote: ZebioLizard2 wrote:I can't wait for Warmachine/horde models to start getting copied a bit, so I can get them at a far cheaper price.
That's not this thread is about......
CHS got the a-okay to continue with 3rd party bits =/= open season for recasters.
You do not *need* extra parts for WMH, and in the case where you feel the need to do so PP already has an extensive bits service like GW of old and also produces those additional parts themselves. For example the BDIFP kit. 
Really? I never knew about that group, thanks!
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 14:37:09
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Wraith
|
Um, clear it with your TO and you already can. I used a Reaper pug for years as a Khador wardog. Thanks for trying though.
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 14:44:50
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Insect-Infested Nurgle Chaos Lord
|
ZebioLizard2 wrote: Grimtuff wrote: ZebioLizard2 wrote:I can't wait for Warmachine/horde models to start getting copied a bit, so I can get them at a far cheaper price.
That's not this thread is about......
CHS got the a-okay to continue with 3rd party bits =/= open season for recasters.
You do not *need* extra parts for WMH, and in the case where you feel the need to do so PP already has an extensive bits service like GW of old and also produces those additional parts themselves. For example the BDIFP kit. 
Really? I never knew about that group, thanks!
I'm detecting a hint of sarcasm there....
I see you've edited your original post that I quoted, as there is some confusion there. Whilst my first sentence is no longer relevant, the part about PP not needing extra parts is. This situation is somewhat uniquely GW's. Yes, there are units/solos etc. mentioned in the background that do not have models yet (Magnus loyalists and Amethyst Rose Gun Mages come to mind. ATM you just have to sub them with he standard Trenchers/ ATGM and have a different paint scheme). GW's model, as it were is set up for almost infinite combustibility, it's almost a requirement in some cases with codex creep and the changing of whatever is considered to be the weapon of choice in any particular edition.
Yes, these companies can come out with other bits for other companies, and I highly doubt PP will be as up in arms about it as GW were. They have already had licensed stuff made for them by GF9 (although incidentally I heard that did not end well). On their official forums, suggestions for alternate models in threads are not considered verboten. Whilst this shows there is a gap in the market for some of PP's more "questionable" sculpts (Kayazy, non- PP store exclusive Ashlynn, Zerkova etc.) as people are constantly asking for alternatives for them.
|
    
Games Workshop Delenda Est.
Users on ignore- 53.
If you break apart my or anyone else's posts line by line I will not read them. |
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 15:20:35
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Regular Dakkanaut
Bothell, WA
|
ZebioLizard2 wrote:I can't wait for Warmachine/horde models to start getting a few models made by a different company , so I can get them at a far cheaper price.
A friend of mine is in the process of sculpting some "mechs" that can be used as PP Warjacks, SM Dreadnoughts or any other generic mech.
He's been planning to start his own bits company for a while now, but he wanted to wait to hear the results of this trial before he put more of his time into it.
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 15:31:07
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Beautiful and Deadly Keeper of Secrets
|
Grimtuff wrote: ZebioLizard2 wrote: Grimtuff wrote: ZebioLizard2 wrote:I can't wait for Warmachine/horde models to start getting copied a bit, so I can get them at a far cheaper price.
That's not this thread is about......
CHS got the a-okay to continue with 3rd party bits =/= open season for recasters.
You do not *need* extra parts for WMH, and in the case where you feel the need to do so PP already has an extensive bits service like GW of old and also produces those additional parts themselves. For example the BDIFP kit. 
Really? I never knew about that group, thanks!
I'm detecting a hint of sarcasm there....
I see you've edited your original post that I quoted, as there is some confusion there. Whilst my first sentence is no longer relevant, the part about PP not needing extra parts is. This situation is somewhat uniquely GW's. Yes, there are units/solos etc. mentioned in the background that do not have models yet (Magnus loyalists and Amethyst Rose Gun Mages come to mind. ATM you just have to sub them with he standard Trenchers/ ATGM and have a different paint scheme). GW's model, as it were is set up for almost infinite combustibility, it's almost a requirement in some cases with codex creep and the changing of whatever is considered to be the weapon of choice in any particular edition.
Yes, these companies can come out with other bits for other companies, and I highly doubt PP will be as up in arms about it as GW were. They have already had licensed stuff made for them by GF9 (although incidentally I heard that did not end well). On their official forums, suggestions for alternate models in threads are not considered verboten. Whilst this shows there is a gap in the market for some of PP's more "questionable" sculpts (Kayazy, non- PP store exclusive Ashlynn, Zerkova etc.) as people are constantly asking for alternatives for them.
Nah, I started posting while half asleep. So it's less sarcasm then some odd caffeine deficient enthusiasm, though a friend of mine who I've been collecting PP stuff with has had a few snapped pieces, and needs some cheaper replacements which is what I've been trying to find for him.
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 16:05:12
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Dakka Veteran
|
czakk wrote:Does anyone know if CHS offered to settle the case early on?
Also, does rule 68 operate the way I think it does? If CHS offered to settle for $50k back in 2010 for instance, does this displace the 'American Rule' and make GW liable for CHS's legal costs? Or does 'costs' have a defined meaning in the federal rules (like only court fees, or disbursements, and no attorney fees)?
http://www.law.cornell.edu/rules/frcp/rule_68
Making an Offer; Judgment on an Accepted Offer. At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment.
.....
Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.
Bit of a follow up: Anyone have any thoughts on
http://www.law.cornell.edu/uscode/text/17/505
17 USC § 505 - Remedies for infringement: Costs and attorney’s fees
In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.
Both 68 and 505 seem to be deviations from each party pays its own costs model.
Does a 68 settlement offer preclude 505 from being applied against CHS? Is 505 rarely applied?
|
This message was edited 3 times. Last update was at 2013/06/16 16:09:42
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 16:14:26
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Fixture of Dakka
|
czakk wrote:Does anyone know if CHS offered to settle the case early on?
Also, does rule 68 operate the way I think it does? If CHS offered to settle for $50k back in 2010 for instance, does this displace the 'American Rule' and make GW liable for CHS's legal costs? Or does 'costs' have a defined meaning in the federal rules (like only court fees, or disbursements, and no attorney fees)?
http://www.law.cornell.edu/rules/frcp/rule_68
Making an Offer; Judgment on an Accepted Offer. At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment.
.....
Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.
Given that settlement discussions are privileged, we're unlikely to know what terms, if any, were put forward before the trial (unless there is a rule 68 motion). That said, defining what terms are "more favorable" in a case this complicated is going to be a fun game - if even one of the terms that GW won on wasn't on the list CHS could have presented, is the ruling "more favorable," even if the financial terms quantitatively aren't?
I don't think I've ever seen a rule 68 motion succeed, but my practice is fairly narrow.
On 17 U.S.C. 505. The usual use of 505 is for the sorts of cases that don't survive summary judgment motions; by letting it go go trial, the judge has pretty strongly indicated that GW's case was not "objectively weak."
|
This message was edited 1 time. Last update was at 2013/06/16 16:18:13
Quis Custodiet Ipsos Custodes? |
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 16:18:13
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
[MOD]
Anti-piracy Officer
Somewhere in south-central England.
|
GW didn't say they had a list of 200 companies they were going to sue. They said there were 200 companies that had come to their attention as possible violators of their IP.
|
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 17:10:20
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Fixture of Dakka
|
Kilkrazy wrote:GW didn't say they had a list of 200 companies they were going to sue. They said there were 200 companies that had come to their attention as possible violators of their IP.
Either way, I'd love to see the list.
|
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 17:18:31
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
The Daemon Possessing Fulgrim's Body
|
Cyporiean wrote: Kilkrazy wrote:GW didn't say they had a list of 200 companies they were going to sue. They said there were 200 companies that had come to their attention as possible violators of their IP.
Either way, I'd love to see the list.
Me too. I'd probably place orders with a bunch of those I hadn't heard of before!
|
We find comfort among those who agree with us - growth among those who don't. - Frank Howard Clark
The wise man doubts often, and changes his mind; the fool is obstinate, and doubts not; he knows all things but his own ignorance.
The correct statement of individual rights is that everyone has the right to an opinion, but crucially, that opinion can be roundly ignored and even made fun of, particularly if it is demonstrably nonsense!” Professor Brian Cox
Ask me about
Barnstaple Slayers Club |
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 17:48:02
Subject: Re:Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Longtime Dakkanaut
|
I think its too late for them to try what would have to be mass lawsuits, the horse has already bolted. There are many manufacturers providing us with alternatives that are steadily veering off from any possible ip infraction yet still providing us with perfectly acceptible items that still fit the frame work for our needs. I've just finished a Hawklords army that is constructed with weapons/helmets/backpacks from various other makers, and I have to say none of them remotely remind me of any GW stuff.
The point I'm making is this; I've made quite a few GW armies over the past 25 years and with each build they all just look the same. While Gw seems to be hell bent on banning creativity by not selling much in the way of bits and stopping others from selling them, the third parties allow us the chance to really customise our forces and make them unique. Long may it continue.
|
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 18:40:42
Subject: Re:Discussion of the consequences of the Chapterhouse vs GW verdict - speculation, thoughts, feelings
|
 |
Been Around the Block
Delawhere?
|
spaceelf wrote:
I disagree with your assertion that GW is producing the models. CH's business was built upon items that GW did not produce, such as shoulder pads for a x chapter. Over the course of years GW has started producing SOME of the items. I suspect that if CH did not make the parts then GW would not have bothered to produce them at all.
I never said all of the models, just quite a few. Whether or not GW would have stepped in to produce models, or when such models were produced in relation to CHS models, is open to debate, but it's pure speculation for the most part.
spaceelf wrote:
GW made a horrible business decision to leave gaps in its range and to cancel its bits production. (
I don't think anyone is disputing that. I certainly haven't.
spaceelf wrote:
It is abundantly clear that there is a market for bits, especially for ones that GW does not produce. Given that GW is not making the parts, it appears that there is room for licenses.
Only if GW wants there to be room for licenses. Period. You can't expect them to submit to blackmail from third parties, "make this piece or we'll make it and you can face an expensive lawsuit to stop us".
spaceelf wrote:
You bring up the topic of quality. I think that this is a red herring. There could be debate about the CH parts being inferior to GWs.
Not really, everything I've seen from CHS is amateur-hour sculpting. Better than most people can manage themselves, certainly, but nowhere near the quality of FW material. You can attempt to debate that if you like, but objectively speaking, it's an inferior product for the most part.
It's been less than optimal, but hardly the end of the world in my experience. A few bubbles here and there and never on anything particularly important from the pieces I or my friends have picked up. YMMV, of course.
spaceelf wrote:
I have seen some bad forge world stuff as well. CH was making a part that was superior to GWs solution of having a generic shoulderpad with a decal on it.
Everyone will have production issues occasionally, even FW. Had a bubble in one of them myself, it happens, and it happens to CH too from all accounts.
The last part, that I'll grant. The market exists, and GW should service it, failure to do so represents a bad business decision.
It doesn't represent an excuse for a third party to do so in violation of IP laws.
spaceelf wrote:
GW used to issue such licenses. Armorcast had one. I assume the deal they made with Milton Bradley was also similar. It is not direct competition if both companies are not producing the same product.
Yes, Armorcast had one. They also collaborated with Marauder back in the day, and the early-years GW was rife with such deals.
It's irrelevant to what we're discussing today.
I've said this before, and others have said it before me. Games Workshop is not the market. GW failing to produce a given piece is not an excuse for a third party to step in and do so, and your freedoms are not being trampled by their attempts to control their own IP.
spaceelf wrote:
Again, more about quality. It is unusual to hear quality control and GW in the same sentence. This is the same company that has tons of typos in its books, and produces figures that have air bubbles, and missing parts. There are lots of ways that they could potentially arrange a license, the one you proposed above is only one possibility. If they wanted the licenses to be successful, then they would want to keep costs of the license down.
Quality of sculpts is what I'm talking about for the most part, as previously mentioned. Yes, typos, yes, production issues, all of which are endemic to the industry. GW is neither a paragon of perfection nor an exemplar of failure; they're just par for the course.
As for the cost of licenses, the only way to do that, really, is to surrender control to third parties, and GW has no interest or incentive to do so. They'd want to maintain control, for the aforementioned reasons, and in so doing the costs of the license would escalate to the point where it's doubtful that it would be an especially attractive option for a small garage studio.
spaceelf wrote:
I am always amazed that GW is not run like a business. For example, in court they were asked about market research, and of course had none that could show customer confusion. They are just greedy, and thus decided to take all production in house rather than have licenses. What they failed to consider is that they can only produce so much. If they cooperated with other companies and issued licenses, then more items could be produced and they could potentially make more money.
It's difficult to produce market research for things like this. You're pretty much reliant on anecdotal evidence, when you get right down to it, the guy who shows up to play with someone else's bits on their mini and someone asks them if that's something that GW makes, and/or where they got it. If you threw a bunch of pictures of Marines with CHS shoulder pads up there in front of people who didn't know about CHS, hell yes there'd be some confusion. GW was put in an invidious position there; in order to conduct proper market research on whether or not customers would be confused about the origin of a product, they'd have to expose customers who didn't already know about CHS to something that they'd prefer didn't exist in the first place.
And of course they're greedy. Precisely as greedy as the guys at CHS, and every other group that makes a living off of GW's IP.
spaceelf wrote:
There is no problem with C&D. The problem is what GW considers its IP to be. Sending C&Ds over the use of the term jet pack is ridiculous. I could see sending C&Ds over someone recasting their parts.
Here, we can both agree wholeheartedly. GW tends to try and trademark everything it can, though that's actually not especially unusual, but given the nature of the business some of the things they try and grab are a little vague. And trying to kill fair use of their trademarks was just silly, they had to have known that that wouldn't pass muster. Then again, the usual approach to matters like this is to just throw as many things as you can at the wall and see what sticks, including some outlandish ones in the hopes that you might get lucky.
spaceelf wrote:
Most of GWs TM are taken from other sources. You do not see Disney suing them for using Kruellagh the Vile.
The funny thing about trademarks is part of the reason why GW defends them so vigorously; if you don't, someone else can grab them up. Typically after 5 years, unless you've got it registered and defend it, it's fair game for someone else to register.
As for Kruellagh, that would almost certainly fall into the category of a transformative work, ie a parody. Disney probably took a look at it and said "meh, there's no possibility of confusing that with our character, just a similarity in names used in a punning fashion, and it doesn't affect any of our markets in any fashion, not worth the effort to pursue."
spaceelf wrote:
GW thinks that they owns everything. They are greedy. Thus, I am glad that they did not get a big win in this case.
And again, of course they're greedy. Everyone is greedy. You think CHS is out there doing this out of the goodness of their hearts? Of course not, they're doing it to make money on a proven market without having to do any work in establishing it. Their entire business model is parasitic, which is practically the definition of greed.
GW getting slapped down on some of their trademarks, and their attempts to control fair use, that much I applaud.
But it could be the number of my friends that are authors and artists that leads me to view things to some extent from the view of the IP holder. It sucks when someone takes something you did and uses it to make money, especially when you're not seeing any of it.
Like I said, the situation is analogous to fanfics. 99% of authors have no interest in handing out licenses to other people to write books in their universes, unless those people are proven quantities, and that's typically done on a work-for-hire basis, "write a story for this anthology and we'll pay you x amount of dollars up front if we approve it, and then we'll publish it. Or not. Whichever we decide." For the most part they tolerate the existence of fanfics so long as nobody is selling them, but the notion of handing down C&D letters to people who try to profit from it?
Yeah, that's what pretty much everyone does. It doesn't make them greedy, or evil. It makes them interested in protecting their livelihood.
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 18:49:06
Subject: Re:Discussion of the consequences of the Chapterhouse vs GW verdict - speculation, thoughts, feelings
|
 |
[MOD]
Anti-piracy Officer
Somewhere in south-central England.
|
Raesvelg wrote:
...
...
Not really, everything I've seen from CHS is amateur-hour sculpting. Better than most people can manage themselves, certainly, but nowhere near the quality of FW material. You can attempt to debate that if you like, but objectively speaking, it's an inferior product for the most part.
...
...
A lot of people have made the same point. It is irrelevant to the legal or ethical concerns in the case, though, except that buyers might confuse the Chapter House product with the official product.
There isn’t any evidence of confusion having occurred, however, so we needn’t concern ourselves with this particular issue any more.
|
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 19:00:09
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Nurgle Chosen Marine on a Palanquin
|
PsychoticStorm wrote:That 200 companies claim had me raised an eyebrow, are there even that many related companies in the industry?
The number probably includes lots of small time ebay recasters...
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 19:04:07
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Thermo-Optical Spekter
|
timd wrote: PsychoticStorm wrote:That 200 companies claim had me raised an eyebrow, are there even that many related companies in the industry?
The number probably includes lots of small time ebay recasters...
I thought so myself, but still looks as a really big number.
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 19:12:54
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Decrepit Dakkanaut
UK
|
PsychoticStorm wrote:That 200 companies claim had me raised an eyebrow, are there even that many related companies in the industry?
Probably if you include the really small outfits and the places that do bases where it's not uncommon to see bits of other kits, GW and otherwise used as scatter/junk etc, the re-casters etc
|
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 19:22:03
Subject: Re:Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Hellish Haemonculus
|
I scanned the last four pages but didn't see it. Do we have a link to the actual judgment yet? Or is that still pending?
|
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 19:24:43
Subject: Re:Discussion of the consequences of the Chapterhouse vs GW verdict - speculation, thoughts, feelings
|
 |
Nurgle Chosen Marine on a Palanquin
|
spaceelf wrote:
GW used to issue such licenses. Armorcast had one. I assume the deal they made with Milton Bradley was also similar. It is not direct competition if both companies are not producing the same product. Further, given that it is licensed, the companies would not be competing, as GW would earn money when the other product sold.
I'm pretty confident that the Armorcast license was the last ever GW license for miniatures. GW will never do another because of the financial results of the Armorcast licenses. Armorcast sold 30,000 (something over $1,000,000) Warhammer 40K resin kits in three years while limited solely to the US market.
When the first resin model kit license for Titans was set up with Mike Biasi Studios(1991), GW did not think there was a market for the scaled up Epic models and stated this in the letter to Mike allowing him to start production of his Reaver model kit. Mike did not produce large numbers of models and neither did Epicast, but once Armorcast took over for Mike and did some marketing, sales really picked up and started rolling. Pretty obviously GW started looking at the sales numbers and decided it wanted all of that market to itself and decided not to renew Armorcast's rolling two year license. A year or two later GW's own resin company Forge World appeared...
I can't imagine what GW's reasons are for not producing a female Farseer or Warlocks on jetbikes or any number of other missing models in obvious demand, especially given the problems that NOT producing them has caused...
Tim
|
This message was edited 2 times. Last update was at 2013/06/16 19:28:43
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 19:37:54
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
[MOD]
Anti-piracy Officer
Somewhere in south-central England.
|
PsychoticStorm wrote:timd wrote: PsychoticStorm wrote:That 200 companies claim had me raised an eyebrow, are there even that many related companies in the industry?
The number probably includes lots of small time ebay recasters...
I thought so myself, but still looks as a really big number.
Yes, it looks like an impressive number but it doesn't actually mean anything at all without some analysis of which companies are listed and why.
Nonetheless, GW presented it as if it was a convincing piece of evidence.
|
|
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 19:50:11
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Calm Celestian
Florida, USA
|
Raesvelg wrote:
As for who I am, suffice to say that I'm one of the people in this picture who is NOT Jervis Johnson.
I realize that doesn't really narrow down my identity that much (unless you happen to know who took the picture and when), but if you're insinuating that I'm involved with GW beyond the role of a long-time hobbyist, you're mistaken.
Are you Chris 'Other List Maintainer' Bickford?
Anyway, from my post in the other thread:
Evil Lamp 6 wrote:First off, I'm surprised that CHS didn't win on more of the claims, but as of yet, we don't have all the specific breakdowns of what exactly was won/lost aside from the few that were mentioned. I know overall this is still a win for CHS.
As it is, I see reasons for both sides to file for an appeal, GW more than CHS though. GW lost so much on these rulings that I will be extremely surprised if they don't appeal. CHS doesn't have as much to gain by appealing, but if they could even avoid coughing up $25k they might take that chance (assuming they would get pro bono representation for the appeal as well).
Once the final judgements are made, what sort of time frame would the more knowledgeable people in this thread say that GW/CHS would have in order to comply with the rulings? Will CHS have a chance to do a Doomseer blowout sale or would it be effective immediately that they could no longer sell that particular model? Also, how would either side appealing these decisions affect such things?
[wild speculation&musing]
It would be very interesting if a bunch of 3rd party SM shoulder-pads were to be produced between the end of this trial and the rulings overturned on appeal, thus shutting them down again (3rd party SM shoulder-pads, not CHS).
[/wild speculation&musing]
|
There is a fine line between genius and insanity and I colored it in with crayon. |
|
 |
 |
![[Post New]](/s/i/i.gif) 2013/06/16 21:21:51
Subject: Discussion of the consequences of the GWS vs Chapterhouse verdict - speculation, thoughts, feelings
|
 |
Been Around the Block
Delawhere?
|
No, but thank you for playing.
Like I've said before, the whole winners vs losers aspect of this is up in the air until we see a detailed set of rulings, and most importantly the actual final judgement on the case.
GW not being able to stop fair use of their trademarks isn't a "loss" for GW in any real sense; it was going to happen the first time they got challenged on it and they must have known it. It makes for a decent threat to hang over people's heads when you're handing out C&D letters though.
|
|
 |
 |
|
|