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weeble1000 wrote:

We all know the results of the case, and we can feel its impact on the market. Nobody really needs me to write about it.

Curious what impacts you're talking about?

The first one that comes to mind is GW's approach of "no model, no rules".

 Tannhauser42 wrote:
The first one that comes to mind is GW's approach of "no model, no rules".

That's my assumption as well, just wanted to make sure that was where weeble was driving towards.

The other is their plans to rebranding everything to be more IP exclusive, imperial psykers could become 'Astrologica Nincompoops' for example.

 Howard A Treesong wrote:
The other is their plans to rebranding everything to be more IP exclusive, imperial psykers could become 'Astrologica Nincompoops' for example.

Which still doesn't stop anyone from saying they're making parts that are compatible with them.

It makes GW feel happy though.

But GW doesn't grasp that, because they don't understand.

Their head of IP is 'slightly fuzzy' on the difference between trademark and copyright, so it is highly likely that their attempts to protect their products will have absolutely no Merrett at all.

I'm pretty sure it's about giving themselves a pat on the back for all these good ideas to tighten up their IP. But if they didn't constantly want to overreach the protection they have a right to then it wouldn't be an issue. Kirby's comments about the law being stacked against them clearly shows they have their nose put out of joint over the CHS case because they still don't understand they can't do things like own all 3D representation of a drawing. They probably still feel wronged the law wasn't on their side over the Spots the Space Marine thing.

I recall once upon a time I posted about the case that effectively, GW shut CH down, and got shat upon greatly as Chapterhouse "won", but essentially that's what happened.

It really doesn't matter how a big company does it; if they have the will to do so, they can litigate a small business out of business simply by throwing expensive legal proceedings at them. As a small business, litigation is really expensive, because even if you win, and even if you win by such a margin that the judge orders costs paid to you, your recovery on the costs is almost never more than two-thirds, and for one to five or more years, your mind is somewhere other than your business. Because this isn't a frivolous lawsuit, costs wouldn't even be ordered, meaning the small business owner will be out $10,000 a day, for each day in court, plus thousands of dollars each month in legal bills.

What this demonstrates is that GW has the will to go after someone that it perceives as violating its IP. It makes it uninteresting for a passionate hobbyist-gone-pro to sculpt parts for GW models and sell them to make a living, because the threat of litigation is real, and if it happens, your life is flushed down the tubes while you're in court, nevermind the investment you've made in all the years to get to the point where you're worth suing.

I think it was weeble1000 who said above that this was draining for GW as well as CH. Well, however draining it was for GW and its staff, I assure you that what the people at CH went through was orders of magnitude worse. At no time was GW's employees' livelihoods or their business threatened, nor were they in danger of going out of business. The vast majority of GW's employees never even had to think about CH, whereas everyone at CH thought about little else.

I think it has a chilling effect on the industry of making bits for 40k models, which is pretty much what GW wanted. I don't see anyone making bits for other game systems; I'm not sure the demand is there. So basically, we have companies that make bits that are compatible in scale with GW parts, but that aren't generally presented as such (using GW models, etc), and that don't get distributed to independents, or at least not to enough that it matters.

@KK - As a guy who's worked for companies that have been on both ends of lawsuits, I doubt GW sent them a big bundle of money to go away. I think it's more likely that they used a carrot-and-stick approach, and said, "if you present your stuff under these terms we will allow you to exist in peace", with the stick being, "if you don't, we'll find 50 other reasons to sue you." If nothing else, GW could have threatened to sue CH for exactly the same thing in every country that CH shipped to. The other thing is, small companies want to get lawsuits resolved, whereas large companies are happy to let lawsuits -- and appeals -- drag into years.

At the end of the day, the guys at CH probably lost their passion for making GW related stuff and was just too tired of the whole thing and too disillusioned to continue on.

 Talys wrote:
What this demonstrates is that GW has the will to go after someone that it perceives as violating its IP. It makes it uninteresting for a passionate hobbyist-gone-pro to sculpt parts for GW models and sell them to make a living, because the threat of litigation is real, and if it happens, your life is flushed down the tubes while you're in court, nevermind the investment you've made in all the years to get to the point where you're worth suing.

Isn't it actually quite the opposite? It demonstrated that GW had the will and they themselves wrote in their investor thingy that they, more or less, just sunk a lot of money for nothing in that case.

I think it has a chilling effect on the industry of making bits for 40k models, which is pretty much what GW wanted. I don't see anyone making bits for other game systems; I'm not sure the demand is there. So basically, we have companies that make bits that are compatible in scale with GW parts, but that aren't generally presented as such (using GW models, etc), and that don't get distributed to independents, or at least not to enough that it matters.

I am not sure about the chilling effect (because GW themselves said it was a waste of money so one can assume that they won't be that trigger happy next time). In the end companies can create add on parts and even describe them as compatible with GW kit this or that legally (they can't claim it's official or affiliated and so on). GW by going over the top original with their names (what's the name for their dwarves and orcs again?) even makes it easier for people to find compatible parts online if they just use google and the third party bits supplier optimized their keywords a bit.

The situation seems to be like automotive aftermarket parts with the exception being that GW aftermarket parts don't have safety standards as strict as the automotive industry.

@Mario - For sure, it demonstrates that people can make parts that are compatible with 40k kits, and they can say what kits they're compatible with. It's not like GW goes after people who make stuff that just happen to fit their models anyways.

That said, if I'm a hobbyist and I sculpt things in my spare time, I would definitely think twice before crossing the line from "part that fits space marine" to "part that's a replacement weapon". Sure, there's a modelling market for cool looking alternative parts. I'd even argue that this market will pay a premium price (50mm resin bases are $3 a piece, for instance). However, what the mass market wants are parts that are substitutes for things in the game that are cheap. So if you're making a cool newfangled sniper rifle, GW probably won't give you grief; if you're making Grav Cannons that will stop people from buying boxes of devastators, or las/plas turrets for razorbacks, they probably will.

In the hypothetical, as a one-man-shop, though, why in the world would I want to get into a business where I have to watch what I do like that? On top of that, it *seems* that the number of people playing 40k has shrunk, with the people who do play an increasing ratio of less-price-sensitive players (or modelling hobbyists). Which isn't to say nobody wants alternate parts, but the players who remain or start are more likely to just buy the stock part, or look for a *better* part, rather than looking for cheap counts-as combi-plasmas. So, I guess all I'm saying is... there are just better things to do in life for people with that kind of talent than to chase after something that isn't really low hanging fruit anymore, and that you might get sued over

People keep saying CH effectively won.

If, as is being speculated, the have folded up their tent and gone home, either due to the pressure or the terms of a settlement, then did they really win?

In that instance, GW still sells models, CH is gone. It seems like a net loss for CH.

 Jimsolo wrote:
People keep saying CH effectively won.

If, as is being speculated, the have folded up their tent and gone home, either due to the pressure or the terms of a settlement, then did they really win?

In that instance, GW still sells models, CH is gone. It seems like a net loss for CH.

I would view it as a tactical win for GW, while being a strategic loss. Yeah, they may have won in the long run if CH has given up out of exhaustion, but the resulting ruling has shown GW that they really don't have the ability to stifle 3rd party modelers. CH may end up dead, but for the 40k consumers, it's a net win.

 Talys wrote:
@Mario - For sure, it demonstrates that people can make parts that are compatible with 40k kits, and they can say what kits they're compatible with. It's not like GW goes after people who make stuff that just happen to fit their models anyways.

That said, if I'm a hobbyist and I sculpt things in my spare time, I would definitely think twice before crossing the line from "part that fits space marine" to "part that's a replacement weapon". Sure, there's a modelling market for cool looking alternative parts. I'd even argue that this market will pay a premium price (50mm resin bases are $3 a piece, for instance). However, what the mass market wants are parts that are substitutes for things in the game that are cheap. So if you're making a cool newfangled sniper rifle, GW probably won't give you grief; if you're making Grav Cannons that will stop people from buying boxes of devastators, or las/plas turrets for razorbacks, they probably will.

The problem with your statements here is they are unmoored from what GW has actually been doing prior to the CH case, and what they are doing now: prior to the case, they really were in the "goes after people who make stuff that just happen to fit their models" mode.

To the best of my recollection, putting on the webstore "Compatible with Games Workshop's Imperial Guard" was something that GW actively opposed in the suit, and something that they flat out lost on. It is now clear and unambiguous that, if they so choose to, supplementary part makers can market their wares as being compatible with GW's range. This is not something GW has ever desired.

It's also worth pointing out something that should be made distinct: GW was overagressive in asserting rights that they did not have, but that is not to say that they have no enforceable rights. That is why someone selling exact duplicates of existing GW parts would be come after, just as someone making exact duplicates of, say, the art from Magic cards would be gone after; that would be clear copyright infringement.

I think, however, the real issue lies with the second part below;

 Talys wrote:
In the hypothetical, as a one-man-shop, though, why in the world would I want to get into a business where I have to watch what I do like that? On top of that, it *seems* that the number of people playing 40k has shrunk, with the people who do play an increasing ratio of less-price-sensitive players (or modelling hobbyists). Which isn't to say nobody wants alternate parts, but the players who remain or start are more likely to just buy the stock part, or look for a *better* part, rather than looking for cheap counts-as combi-plasmas. So, I guess all I'm saying is... there are just better things to do in life for people with that kind of talent than to chase after something that isn't really low hanging fruit anymore, and that you might get sued over

The bold point is probably the most salient, and one reason it is very difficult to extrapolate anything of importance from the outcome of the CH case.

The second reason, in addition to the general disfavor GW seems to be undergoing on a global level, is that the CH case seems to have caused a massive shift in how GW develops and markets its products.

It behooves us to remember that CH (among others) really only had a business model because GW would release rules that had no associated models, or rules that would have models, but not for a very long time.

This has (to the best of my knowledge) changed: GW now no longer releases rules without models to go along with them, and seems to finally be embracing the distribution of rules outside of army books/Codex's.

It's very important to realize that, and I say this with all due charity, very few people were buying CH products because they considered them superior to GW's products, but rather were buying them because the GW products were either absent entirely or insufficient. The new mode of GW releases means that companies like CH can no longer offer such supplementary elements, because there is simply no need, and when choosing between off-brand models and GW models, GW's use of hard plastic (and improved styling over the years) makes GW products more attractive.

As I said above, making a pure copy of GW's products would not be allowable under even the most critical view of GW's rights: that was never what the CH case was about. What the CH case did was clear the ground for people making... improved, if you will, products.

The simple fact of the matter is that there are several product lines that now fill this niche, with a special emphasis on providing female versions of GW staples. Here I speak specifically about the game lines produced by Victoria Miniatures, which is heavily influenced by the Heroic scale aesthetic popularized by GW, and Raging Heroes, who have been influenced by the heroic aesthetic to a lesser degree, in combination with, I don't know, perhaps the green fairy.

It's worth pointing out that GW has, in the past, sent a legally threatening letter to Raging Heroes claiming ownership of the Lamassu, an ancient mytho-historical creature. It must be appreciated how much more precarious GW's legal position is after the CH case compared to before;

If, say, GW were to take a hostile action to a future maker, not only would said maker have the support of the community, they would have a virtual road map of how to proceed in their litigation against GW, comprising not only knowledge of which attorneys at big firms were previously involved in a similar litigation, but that these firms were willing to act pro-bono.

In addition, any and all litigants in any future action against GW has reams and reams of sworn testimony from GW executives available, without any effort on their part. The sworn statements and testimony given in a US court is admissible in other actions, and could potentially greatly constrain actions by GW in the future.

In addition to that, there is the matter that GW's behavior in court was, shall we say, less then admirable? Over the last several years GW has demonstrated a casual indifference to the IP laws of the US, which has not gone unnoticed in the wider legal world.

All that said, let's be honest: as I pointed out above, the niche that was filled by CH in the past has been made much, much smaller. I mean no insult to CH to say that the general opinion I have seen is that CH did not have the artistic assets that Victoria, Raging Heroes, Kromlek (sp?) and other companies do that remain in that niche. The irony is that, having won the right to operate in the marketplace, it's not clear that CH has a place left in the marketplace. Those companies that exist in the niche now continue by producing goods that GW (for whatever reason) doesn't produce. Either because GW judges the market too small for them to be viable (female infantry?), or a market niche GW no longer wishes to exploit (the very sexual sculpts that characterize the Raging Heroes line), or simply so specialized as to be non-viable for a company of their scale.

@Buzzsaw - I'm pretty much with you, except that for a business the size of Chapter House (a couple of people), the threat of litigation is still very real, and it's just not worth the aggravation of doing it as a business. If I were in their shoes, knowing what I know today, I would make my money some other way.

But yes, you're definitely right; the market for Chapter House's niche is not really there anymore, by virtue of the way that GW engineers its rules and models now.

Incidentally, most large companies *do* vigorously protect their trademarks. For instance, Sky Networks (the television network) sued Microsoft for "SkyDrive" -- and won, to a lot of folks' surprise, since the word "sky" is well, a word in the English language. It just shows you that really, there's no reason NOT to protect your trademarks, because if you do so vigorously all of the time, sometimes you'll win, and when you do, you can win pretty big.

Of course, the whole spots the pace marine thing was silly, and GW's legal should have seen that it was highly unlikely to prevail -- though, again, I would never have thought someone could successfully protect the use of the word, "Sky".

 Talys wrote:
@Buzzsaw - I'm pretty much with you, except that for a business the size of Chapter House (a couple of people), the threat of litigation is still very real, and it's just not worth the aggravation of doing it as a business. If I were in their shoes, knowing what I know today, I would make my money some other way.

But yes, you're definitely right; the market for Chapter House's niche is not really there anymore, by virtue of the way that GW engineers its rules and models now.

Incidentally, most large companies *do* vigorously protect their trademarks. For instance, Sky Networks (the television network) sued Microsoft for "SkyDrive" -- and won, to a lot of folks' surprise, since the word "sky" is well, a word in the English language. It just shows you that really, there's no reason NOT to protect your trademarks, because if you do so vigorously all of the time, sometimes you'll win, and when you do, you can win pretty big.

Of course, the whole spots the pace marine thing was silly, and GW's legal should have seen that it was highly unlikely to prevail -- though, again, I would never have thought someone could successfully protect the use of the word, "Sky".

Not to put too fine a point on it, but you seem to have either totally misunderstood my point or... actually, not seeing a second possible point. Before I go further, let me point out that while I am an attorney, I am not your attorney; none of this is legal advice nor should it be construed in that fashion. Disclaimer done, moving on.

First: so, in your legal opinion, Victoria Miniatures, Raging Heroes and the assorted other companies I named and alluded to are... what, exactly? You say "the threat of litigation is still very real", litigation over what, exactly? The CH case showed, with extreme clarity, that GW pursued causes of action that not only could they not win on, but they had no legal right to pursue. This is just one of the legal elements that radically changes the calculation that goes into any future litigation. As I pointed out, it's easy to check off items to GW's detriment, but very difficult to identify anything in particular that has accrued to their benefit.

Put more simply: do you agree, or disagree, that GW is now in a legally weaker position then before the CH case?

Second, your point about "protecting their trademarks" reveals you don't quite understand why what GW has done in the past is not a matter of zealotry, but unethical and (in my opinion) criminal action. I have a few posts in this thread discussing the matter specifically in the context of the CH case, but the long and the short of it is: GW has gone far beyond 'sharp practice' and into areas of unethical, and quite possibly illegal, behavior. The reference in my above post, you will note, is not to GW defending their trademarks, but using a (claimed) trademark as a fig leaf in an abusive and (legally) improper filing of a DCMA takedown notice with Amazon.

Your proposition "It just shows you that really, there's no reason NOT to protect your trademarks," despite the seemingly ludicrous outcome in the Sky case (about which I know nothing and so will not comment), betrays a lack of knowledge of IP law in general (fair enough), but more immediately, is instantly contradicted by the results of the extant case.

As I allude to above, in pursuing the case against CH, GW actually lost rights that it had previously asserted it had. You must understand that the cornerstone of GW's legal 'fortress' was the idea of bringing legal action only against firms too small to actually meet them in court. The moment their bluff was called, virtually everything that could go badly for them went badly for them, not because of bad luck, but because they have almost no legal backing for many of their claims. Some claims, as I note above, weren't just unsupported, they were borderline (sometimes not so borderline) fraudulent.

Of course, in addition to the legal jeopardy GW would be subject to in any future case, it's also important to be aware that GW has just terrible press on its IP enforcement. Note; typing "Games Workshop Space Marines" into Google will cause the search engine helpfully propose (around the 3rd or 4th suggestion) "Games Workshop Space Marines Lawsuit". Importantly, the links on the resultant page are not just critical of GW (which seems to be more or less universally regarded as an IP troll by IP professionals), but public. Bad press on sites like Dakka or, say, Bell of Lost Souls or Beasts of War is one thing; there are articles on popular sites reaching far outside the gaming niche that disparage GW. When your company's missteps are so bad they make it to Wired, Io9 and the BBC, but your company's actual products are only discussed on the smallest of niche sites, this is, as the publicity people say, not good.

When your attempts at protecting your IP are generating things like being listed on Cracked's "The 6 most ridiculous things People Claimed to Legally Own", you're doing it wrong (it's #4, FYI).

 Jimsolo wrote:
People keep saying CH effectively won.

If, as is being speculated, the have folded up their tent and gone home, either due to the pressure or the terms of a settlement, then did they really win?

In that instance, GW still sells models, CH is gone. It seems like a net loss for CH.

CH won on the balance of the legal points.

GW originally made over 300 claims of infringements. These were whittled down to less than 100 that went into the trial.

GW lost 75% of the claims in the trial.

There was an appeal. The appeal didn't go through because of reasons that are hidden from us by the out of court settlement. We can only speculate about the reasons for Chapter House's current state of apparent hibernation.

GW objective was to prove over 300 IP claims and destroy CH. They failed. It cost them millions of pounds, their in house lawyer, large amounts of public good will (if they care about that) and made them look like a bunch of vindictive incompetents.

GW are still here. GW would still be here now if they simply had ignored Chapter House, and they would have several million pounds more in the bank.

Chapter House are still here. Their business still exists, even if it isn't doing much at the moment. They can come back and make stuff again, which is what GW wanted to prevent. There also are still many bits manufacturers and makers of whole figures for 40K, that GW have not gone after legally, probably because GW now realise they wouldn't have any hope of succeeding.

Probably unrelated but GW are a lot smaller now than at the beginning of the whole thing, in terms of annual sales.

Of course it is possible for a war to be so destructive that neither side wins a glorious victory in the fullest sense.

The irony is that CHS and GW were co-dependent. GW was not terribly dependent directly on Chapterhouse, but GW derived significant benefit from 3rd party bits companies.

GW got promotional benefits out of bits companies, it got deeper market penetration, it derived significant goodwill, and it was able it was able to effectively field test products and release what would actually sell without taking wild stabs in the dark. In short, GW's market share grew because of 3rd party bits companies. This is why most businesses applaud and support aftermarket accessories for their products.

During the litigation, bits-only companies grew into significant businesses that are now able to stand on their own feet without relying on GW for support. The market shifted during the course of the litigation. In 2010, the market was starting to experience an unbroken stretch of double digit year over year growth; growth that has passed GW by. The writing was on the wall.

Chapterhouse did not do what it's direct competitors were doing, and this failure was not a direct result of the lawsuit. As GW's sales have begun to decline, and enthusiasm for its products have begun to chill incrementally in the wake of the lawsuit, all businesses selling bits for GW products have taken a hit.

But companies like Anvil Industries no longer need a good, attractive GW product on the market to be successful. Anvil has Afterlife, for example, and has chiseled its own niche out of GW's declining market share.

Why do you think GW's market share is shrinking? Dozens of companies have gone from making buy-with-this products to buy-this-instead products.

GW's caustic relationship with the market caused that to happen, and the titanic efforts of Chapterhouse Studios provided a huge buffer within which those companies could invest, grow their brands, and take risks with new product lines with wonderful impunity. GW's chilling effect on the market was completely frozen during the lawsuit.

The market is more alive, diverse, and effervescent today because Chapterhouse Studios dared to make God bleed.

Maybe Chapterhouse didn't take advantage of shifts in the market. It sure looks like it to me. Chapterhouse is still a company that needs GW to be successful in order to survive. Maybe this failure to diversify was ultimately a byproduct of the emotional impact of the litigation, maybe it wasn't. Who knows? Personally, I don't think it was.

Nevertheless, it does not matter if Chapterhouse 'won' or 'lost'. The market won, and GW lost. GW is continuing to lose. The market is continuing to win.

I have said repeatedly, the case was never about Chapterhouse Studios. It was about GW and the market. It is certainly sad that Chapterhouse has apparently been unable to capitalize on the benefits of the lawsuit. But that does not mean Chapterhouse 'lost' the case.

Chapterhouse achieved most of its litigation goals. GW achieved none. If you are keeping score in a lawsuit, that's how you determine who won. I have 'won' lawsuits with 50 million dollar adverse verdicts because it was less than the cost of a reasonable settlement. That is unequivocally a win when it comes to litigation.

But keeping score in the lawsuit is quite beside the point. Take a look at the market and observe the massive benefits of the litigation that we are all enjoying today.

Couldn't have Chapterhouse or Nick got money out of GW and agree not to pursue anymore? Maybe Nick came out ahead.

After all as was said, there was an appeal. We don't know who initiated the appeal, but it seems GW didn't want to go through it again so may have offered Chapterhouse or Nick (can't remember who they sued, both?) Maybe it was cheaper for GW to give Nick $50 000 or what ever and be done with the fiasco they lost. Who knows, they could have lost more in the appeal so cut their losses while they could.

With the NDA, we will never know if GW caved in or Nick did. I just hope Nick is doing well.

Now here is a question. Did the GW lawyer get fired or she quit? Can't remember what happened. All I know is she is not with them anymore.

weeble1000 wrote:
The irony is that CHS and GW were co-dependent. GW was not terribly dependent directly on Chapterhouse, but GW derived significant benefit from 3rd party bits companies.

Spoiler:

GW got promotional benefits out of bits companies, it got deeper market penetration, it derived significant goodwill, and it was able it was able to effectively field test products and release what would actually sell without taking wild stabs in the dark. In short, GW's market share grew because of 3rd party bits companies. This is why most businesses applaud and support aftermarket accessories for their products.

During the litigation, bits-only companies grew into significant businesses that are now able to stand on their own feet without relying on GW for support. The market shifted during the course of the litigation. In 2010, the market was starting to experience an unbroken stretch of double digit year over year growth; growth that has passed GW by. The writing was on the wall.

Chapterhouse did not do what it's direct competitors were doing, and this failure was not a direct result of the lawsuit. As GW's sales have begun to decline, and enthusiasm for its products have begun to chill incrementally in the wake of the lawsuit, all businesses selling bits for GW products have taken a hit.

But companies like Anvil Industries no longer need a good, attractive GW product on the market to be successful. Anvil has Afterlife, for example, and has chiseled its own niche out of GW's declining market share.

Why do you think GW's market share is shrinking? Dozens of companies have gone from making buy-with-this products to buy-this-instead products.

GW's caustic relationship with the market caused that to happen, and the titanic efforts of Chapterhouse Studios provided a huge buffer within which those companies could invest, grow their brands, and take risks with new product lines with wonderful impunity. GW's chilling effect on the market was completely frozen during the lawsuit.

The market is more alive, diverse, and effervescent today because Chapterhouse Studios dared to make God bleed.

Maybe Chapterhouse didn't take advantage of shifts in the market. It sure looks like it to me. Chapterhouse is still a company that needs GW to be successful in order to survive. Maybe this failure to diversify was ultimately a byproduct of the emotional impact of the litigation, maybe it wasn't. Who knows? Personally, I don't think it was.

Nevertheless, it does not matter if Chapterhouse 'won' or 'lost'. The market won, and GW lost. GW is continuing to lose. The market is continuing to win.

I have said repeatedly, the case was never about Chapterhouse Studios. It was about GW and the market. It is certainly sad that Chapterhouse has apparently been unable to capitalize on the benefits of the lawsuit. But that does not mean Chapterhouse 'lost' the case.

Chapterhouse achieved most of its litigation goals. GW achieved none. If you are keeping score in a lawsuit, that's how you determine who won. I have 'won' lawsuits with 50 million dollar adverse verdicts because it was less than the cost of a reasonable settlement. That is unequivocally a win when it comes to litigation.

But keeping score in the lawsuit is quite beside the point. Take a look at the market and observe the massive benefits of the litigation that we are all enjoying today.

I think Weeble makes my point with a greater elegance then I mustered, and his impression of the overall impact of the litigation is almost entirely correct. While it may be difficult to point to a particular product or company and say "this would not be possible but for the CH litigation", the evolution of the market as a whole bears the mark of it.

With respect to SkyDrive, I bring it up because it shows how a company that has deep pockets CAN successfully defend a trademark, even when it seems ridiculous to most people.

In 2013, BSkyB owner of the British television network Sky Networks, successfully defended its trademark ("Sky") against two parties. They alleged that Microsoft infringed on its intellectual property, the word "Sky", causing confusion among its customers that SkyDrive, its cloud storage product, was related to Sky Networks. As a result, Microsoft was forced to change the name of the product, which is now named OneDrive.

Earlier that year, BSkyB also successfully defended its "Sky" trademark against an American gadget manufacturer, LiveScribe, who had a product called the "Sky Wifi Smartpen", again, alleging that customers were confused that the product was related to Sky Networks. LiveScribe was forced to recall their product and rename the pen.

It just shows that, for the right company, with the right lawyers, it's possible to protect very vague trademarks like, "Space Marine". If you are curious: http://www.bbc.com/news/technology-23530337

 Buzzsaw wrote:
First: so, in your legal opinion, Victoria Miniatures, Raging Heroes and the assorted other companies I named and alluded to are... what, exactly? You say "the threat of litigation is still very real", litigation over what, exactly? The CH case showed, with extreme clarity, that GW pursued causes of action that not only could they not win on, but they had no legal right to pursue. This is just one of the legal elements that radically changes the calculation that goes into any future litigation. As I pointed out, it's easy to check off items to GW's detriment, but very difficult to identify anything in particular that has accrued to their benefit.

The CH and the Spots case showed that GW is willing to pursue perceived IP violations. My point is that it doesn't matter whether you win or lose a case. As an attorney, you know how expensive it is to defend a case against a litigious party, whether or not you win. As someone who has run small and medium sized businesses, I know how distracting, expensive, and emotionally taxing litigation is.

My point is just that if I can do A and make a bit of money, and someone might sue me, or do B and make a bit of money, and I won't get sued, I'll do B.

I have no idea how anyone would think that Raging Heroes infringes on GW's IP in any way. Victoria Miniatures have some parts which have generic, unprotectable names like "plasma gun" and "bolt pistol", and some of those weapons look similar to (but not identical to) GW parts -- incidentally, those parts are not particularly cheap, either. They don't make kits that represent models which are clear alternatives to representing GW rules, and I don't think they mention GW or 40k anywhere on their website. Victoria also makes models which have nothing to do with GW properties.

Besides, I never said that NOBODY is going to make counts-as or bits for 40k. Just that there would be fewer, particularly in the one-man company category.

 Buzzsaw wrote:
Put more simply: do you agree, or disagree, that GW is now in a legally weaker position then before the CH case?

GW's legal position in one jurisdiction -- I think Chicago or something? -- is probably weakened. But it's irrelevant, because someone doesn't need to win a case to make your life miserable. They just need to be willing to spend money to pursue you through the legal system.

GW registered the term Space Marine in the UK for toys and playthings in 1991, and registered it again in 1996 for a wide variety of categories including for example life-saving instruments, metal building materials, and artificial flowers.

Therefore you cannot legally launch a range of artificial flowers called Space Marine.

However GW did not register the trademark for books so when they attempted to prevent the sale of Spots the Space Marine they were wholly in the wrong.

Talys, are you a lawyer? Also, thank you for another summary Wheeble.

 Talys wrote:
With respect to SkyDrive, I bring it up because it shows how a company that has deep pockets CAN successfully defend a trademark, even when it seems ridiculous to most people.

In 2013, BSkyB owner of the British television network Sky Networks, successfully defended its trademark ("Sky") against two parties. They alleged that Microsoft infringed on its intellectual property, the word "Sky", causing confusion among its customers that SkyDrive, its cloud storage product, was related to Sky Networks. As a result, Microsoft was forced to change the name of the product, which is now named OneDrive.

Earlier that year, BSkyB also successfully defended its "Sky" trademark against an American gadget manufacturer, LiveScribe, who had a product called the "Sky Wifi Smartpen", again, alleging that customers were confused that the product was related to Sky Networks. LiveScribe was forced to recall their product and rename the pen.

Trademarks are supposed to be for the protection of the consumer and not of the company and CH has shown that you are completely okay if you label your work transparently (compatible with, not licensed, and so on). The SkyDrive thing seem to be about a products's actual name and not just a reference to another company's products.

So you could just make ork bits compatible with special-GW-ork-name and your lawyer's job would be to point to that lawsuit (in the US). One could essentially, as a small indie miniatures company, do something like a total conversion (video game modding term) for an GW army and sell them as compatible with GW-name. Let's say I really like halflings, I could make a whole army (inspired a bit by GW's aesthetic but not copied from existing work) that can be used in GW goblin armies (like halfling wombat riders, or all these epicurean-berserkers who like to eat special muffins before a battle and swing cauldrons around) and name each unit whatever–I-want but mention that it's compatible with a GW unit. GW is still a big fish in this hobby so it's a way to kickstart a company and then either double down (if you think you can compete with GW quality and prices) or diversify into stuff that is less dependent on GW.

CH might have overstepped in a few cases and just getting one right (of all the examples given) technically counts as an overall win for GW but in the end we know know that a miniatures based start-up can be much more direct with their references and usage of GW trademarks as long as they, more or less, don't create replicas.

I have great doubt that as a lawyer would call a civil action criminal no matter how frivolous it seems. Quite to the opposite, litigation is simply a tool used by companies and individuals, large and small, to achieve their ends. A party can always countersue.

And if there's fraud, a party can always sue for that, too.

I think the point was that the suit was not criminal (you can always sue, more or less) but that some of the methods they used could have been. Somebody might sue you for some damage you have done. That's okay but them then lying about evidence would be the criminal part (or something along those lines).

 Buzzsaw wrote:
With all due respect Talys, I'm at a loss as to how to proceed: the one case you seem very interested in is irrelevant to the actual case at hand, owing to (among other things) being in a foreign jurisdiction. Beyond that your understanding of the law in general is flawed, the facts of this particular case seem to be inadequate, and your argument constantly loops back on itself in contradictions.

I was waiting for this. Congrats Buzz, you've now come up against Talys. Expect him to continue contradicting himself/moving the goalposts over and over again as he argues with you. It is literally his only strategy.

Where Talys comes from, GW won that case against CH and Spots the Space Marine.

@Buzzsaw - I'm not a lawyer or a trademark expert. I think I've made that pretty clear.

I have held a C-level position near the top of the org chart of a company that spent high six/low seven figures a year on ip lawyers, patents, and lawsuits. The prevailing wisdom in the tech world is patent and trademark everything, no matter how minor, and zealously defend your ip, no matter how seemingly trivial. Among other things, profitable companies need somewhere to spend their money anyhow, and seemingly worthless ip can be worth ridiculous amounts of money some time in the future (eg Northern Telecom). So why not sue people you don't like?

Sometimes, you win a little case that is ridiculous, that helps set a precedent for some more meaningful case down the road. Maybe not, because at trial a more formidable adversary will try to pick apart your previous victory, but it's leverage.

Anyways, all I'm saying... again... is that an independent hobbyist gone pro will likely think twice before infringing on GW's IP, or even tangentially infringing, because it is draining and not fun to be a defendant in a civil action against a company willing to spend any amount of money just because they don't like you. To take it back to the original topic, in my opinion, this is why Chapterhouse has gotten out of the business. I do not think it is because they don't have the talent to do cool stuff (some of their modes are great); I think the whole ordeal just turned them off.

I make no representation as to future litigation. I think there is truth to the 'defense roadmap' that weeble said. However, I would never hire a barrister that couldn't demonstrate a novel defense to me and just relied on the previous record, as no doubt a plaintiff would also be familiar with the same, and pursue strategies with the past in mind. I also don't think it matters much any more because the market for that niche is much smaller today.

In any case, defense of such a lawsuit can easily cost $60,000 - $150,000, if you want to take it to its conclusion, and especially if you are being sued in a jurisdiction geographically distant. That's a lot of $5 bits. So someone worried abut such a thing will likely do something else. Especially in this industry, where most smaller companies are probably not making tons of money.

Going back to Chapter House again, I am sympathetic to what happened to them. In the tech and the resource and agricultural industry, this is very common, and the typical viewpoint is that it's sad to see another small inde shop run over by a woolly mammoth.


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 H.B.M.C. wrote:

Where Talys comes from, GW won that case against CH and Spots the Space Marine.

Clearly not. They also didn't win CH.

My only point was that this probably had a chilling effect on companies making non-official stuff (bits, models) clearly for 40k, though that market has shrunk anyways for the reasons I and Buzz stated, making such businesses less lucrative to invest in.

So basically your position is

 -Loki- wrote:
So basically your position is

Spoiler:

If you take out 'strong', sure. I'm not an expert, and I do have an opinion. I think that describes most people on most topics in DD I'm not sure what your point is.

I have no skin in the game; I never bought anything from Chapter House, but I never had anything against them, nor any other company that makes game compatible parts or bits (as long as they're not knockoffs)

I don't know why we're swimming back into these familiar waters, the OP wanted to know if they were still open for business or not. Let's leave the discussion of the court case, who was right and wrong, all that jazz out of this thread. Are you answering the OP's question? Sure, post. Are you just getting back into the old trenches about the lawsuit? Don't post.