Chapterhouse vs. GW studios - Summary Judgement called

[Trasvi]

I think it's fairly obvious that GW has never claimed to invent Elves (and Tolkein never invented them either), but they have developed their own brands of Elves across 40k and Fantasy that are different enough from pre-existing Elves to not infringe copyright. That is why your wheel analogy is wrong: Alan Merrett himself said in his deposition that GW would neve try to copyright or trademark the term Halberd, but they would copyright Empire Halberdiers because it means something specific to their Universe. Incidentally the only time GW has been allowed to produce Tolkein Elves is when they procured a licence to do so. CHS has never aqcuired a licence to produce GW Elven parts or models, but according to their own logic they are perfectly entitled to such a practice.

Your intermingling of the terms 'copyright' and 'trademark' show that you don't fully understand what this legal issue is about.
GW Elves are one of their least unique creations. Their entire fantasy range is incredibly derivative (as most high fantasy is) but their elves are amongst the worst offenders. Tall, graceful, flowing robes, magical, lyrical voices, deadly in battle but few in number, a dying race being usurped by the numbers and technology of men. Favoured weapons in battle tend to favour spears and swords with slender leaf-shaped blades, armour and weapons tend to be lighter and more intricately wrought than anything man could achieve. They have great affinity for magic and creatures of magic especially including dragons and eagles, and use 'traditional' weapons such as bows in contrast to the more advanced weapons of other races. Tend to get split into kindreds based upon their alignment. That pretty much describes every single elf in every (post-Tolkien) fantasy work. GW cannot copyright this idea (because it is an idea, not an expression) nor can they copyright anything related to their elves which is inseparable from this general idea of elves.

Given that general idea of elves, there isn't much left about GW elves (aside from specific characters in the backstory) which is unique. They're not quite as badly off as the Dwarves are, but very nearly.
GW were not allowed to produce LOTR elves, because those aspects which would distinctly tie the elves to being LotR elves are characters, which are copyrightable (because they're characters). And after Peter Jackson's LotR movies, making elves in that style would have been directly copying PJ's unique copyrighted expression of elves.

CHS does are not producing 'GW Elven parts or models': they are producing parts which are compatible with GW models, using designs which are based upon the concept of elves in general and upon concepts and images in the public domain.
Alan Merrett said that GW would never trademark Halberd. They could probably never trademark Empire Halberdiers either, because the term is almost purely descriptive and non-unique. They could certainly never copyright those, because they are concepts.('Halberdiers of the Empire of Sigmar', on the other hand, could be trademarked as the Empire of Sigmar is a protected work). They could however trademark something more unique, like 'Necron' or 'Cryptek'. A trademark is quite literally a 'mark' (identifying word or logo) used in trade (to sell goods by allowing your customer to identify with it). So in the deposition, it came out that lots of terms which GW claims are associated with their products are not 'trademarks', because no item was ever sold using those identifiers. Tervigon, for example: GW never used that term in commerce before CHS came out with their kit (being written in a GW book is not sufficient to protect something as a trademark, as the word within the book is not generally used to identify the book to customers; and is disallowed on the basis that I could print a book containing every 8-letter-or-less word and tie up numerous trademarks).

[Trasvi]

Yes because everybody knows that gwPLC invented tabletop wargaming

Do yourself a favour and never read Robert A. Heinleins 1959 novel Starship Troopers, because you will evidently come to the conclussion that it rips off gwPLCs' Space Marines.

I think the point (which is probably misplaced in a thread about copyright) is that GW is to a large extent responsible for the level of popularity that exists for fantasy-based wargames today, especially for those people in the UK, due to their ubiquitous high-street presence.
There is nothing particularly unique about a business springing up specifically to complement other people's businesses, or feed off their success. Many companies make cases/headphones/accessories for iDevices, after-market parts to go in specific cars, fancier handles to go with Gillette razors, darts to go in Nerf guns...

[TonyFlow]

This is probably a bit off topic, but I thought it was interesting to read about Nestlés recent defeat in court to several companies making coffee capsules compatible with the Nespresso coffee machine. Aside from the obvious fact that this trial was in Switzerland and laws are not the same in different countries, it seems like a case with similar principles. These are third party products made specifically for nestle's espresso machine and marketed as such.

[starlight]

I can walk into an auto parts store and buy fenders, rims, spoilers, canopies, and so on for a (for example) Ford F-150 truck. The packaging specifically says it is for a Ford F-150 truck of a specific year and style (if that's relevant to fit/etc). Ford does not (generally) receive any compensation, nor do they give permission for the aftermarket companies to do so.

When Chevrolet hired the former designer of the Chrysler PT Cruiser, they subsequently came out with the HHR...which bears more than a passing resemblance to the PT Cruiser... Apparently inspiration can come from many places...

Quite aside the apparent ineptitude of their witnesses and legal team, GW is likely in for a hard fight with this one.

[Private_SeeD]

Going back to the post regarding if GW weren't around and say PP was the top dog, CHS would be doing this to PP instead, doesn't seem right since don't PP actually release rules and models at the same time? so CHS wouldn't need to make a 'Lancer' model becasue it already exists so the point is moot?
I agree that CHS have done certain things poorly but I still don't understand why ppl have such a massive problem with companies selling after market bits, you still need to buy the GW model in the first place and it helps ppl who don't have the skills themselves to convert and etc (I know CHS are relasing stand alone models but my point is regarding there after market bits)
Like another post pointed out if CHS employed top notch, award wining sculptors I'm sure ppl wouldn't be that offended by CHS offerings, but thats by the by.

[Erazmus_M_Wattle]

People are getting too caught up in the argument about making compatible parts.

I'm a fan of Maxmini. What thru do is after Market parts and complete models for Games Workshop games. However their products are innovatively named and quite original in appearance. To my knowledge they've been operating for years and going fine.

Chapterhouse on the other hand have just copied space marine chapter icons wholesale on their pads. If anything that's what they should be hammered for and they'd thoroughly deserve it. Talk or trademark aside, because they ate not using them anymore anyway, it's copyright infringement that matters now. It's CHS's lawyers that still seem to be hanging onto this. I have no idea why.

[Trasvi]

I believe one of the major reasons for this case is the idea of 'innovative naming'. A company should be allowed to call a spade a spade - or in this case, a Space Marine Shoulderpad a Space Marine Shoulderpad.

Trademarks are intended to protect consumers first, and companies second. A consumer should be able to purchase an item in good faith knowing where it comes from and what it is for. I can buy something called an Apple iPad and know it is made by Apple and is indeed what it purports to be. I can see a Volkswagen logo on a car and immediately know some things about that car, and the kind of quality I should expect. However, I should also be able to purchase a 'Case for Apple iPad' and know that it will fit my Apple iPad: I shouldn't need to go around searching various stores for 'Pear eSlate Cover' or 'cover for popular 9.7" tablet computing device'. That kind of weasely naming harms consumers and businesses as you don't quite know what it is that you're buying. CHS is protesting GW's claim that they need to use different naming schemes: the laws regarding fair use of trademarks should protect them as long as they take steps (like they have) to tell the customer that this is not a GW product.

Maxmini, whilst they do use 'original' naming, are no less guilty of copying GW's art style in many cases. They don't use the GW chapter symbols, but the fact that you can look at most Maxmini (or Kromlech, or Scibor, or whatever) items and immediately know what GW parts they replace, means they are in the same boat as far as any copyright infringement goes.

[Wintermute]

I agree that CHS have done certain things poorly but I still don't understand why ppl have such a massive problem with companies selling after market bits, you still need to buy the GW model in the first place and it helps ppl who don't have the skills themselves to convert and etc

Agreed. You don't see Airfix, Dragon, Tamiya, Revell or any other plastic kit manufacturer objecting to the plethora of companies who make after market parts for their model kits, so why do GW think they can?

[Erazmus_M_Wattle]

I believe one of the major reasons for this case is the idea of 'innovative naming'. A company should be allowed to call a spade a spade - or in this case, a Space Marine Shoulderpad a Space Marine Shoulderpad.

Trademarks are intended to protect consumers first, and companies second. A consumer should be able to purchase an item in good faith knowing where it comes from and what it is for. I can buy something called an Apple iPad and know it is made by Apple and is indeed what it purports to be. I can see a Volkswagen logo on a car and immediately know some things about that car, and the kind of quality I should expect. However, I should also be able to purchase a 'Case for Apple iPad' and know that it will fit my Apple iPad: I shouldn't need to go around searching various stores for 'Pear eSlate Cover' or 'cover for popular 9.7" tablet computing device'. That kind of weasely naming harms consumers and businesses as you don't quite know what it is that you're buying. CHS is protesting GW's claim that they need to use different naming schemes: the laws regarding fair use of trademarks should protect them as long as they take steps (like they have) to tell the customer that this is not a GW product.

Maxmini, whilst they do use 'original' naming, are no less guilty of copying GW's art style in many cases. They don't use the GW chapter symbols, but the fact that you can look at most Maxmini (or Kromlech, or Scibor, or whatever) items and immediately know what GW parts they replace, means they are in the same boat as far as any copyright infringement goes.

To a certain extent they need to fit with the models. So they need to pay homage to the art style in order to not look out of place. I don't think that's necessarily a case of copying. But CHS copies are blatantly the same as GWs actual imagery.

http://img.tapatalk.com/56a12ab2-d9ec-adf8.jpg

This is a pad they haven't released yet but the fist is clearly exactly the same as the Imperial Fist symbol. Apart from the fact it's not sculpted as well. It's not even an attempt at something original. Clearly they've learned nothing.

[shelfunit.]

You do realise GW don't have any rights to the image of a fist? You do understand that, yes?

[Private_SeeD]

But CHS copies are blatantly the same as GWs actual imagery.

http://img.tapatalk.com/56a12ab2-d9ec-adf8.jpg

This is a pad they haven't released yet but the fist is clearly exactly the same as the Imperial Fist symbol. Apart from the fact it's not sculpted as well. It's not even an attempt at something original. Clearly they've learned nothing.

My point has been made by above post a fist is a fist, But your point is exactly the same when they originally tried to argue they owned stylised wolf skulls, blood drops and etc... a fist is a fist.
Also this point about consumers mistaking CHS for GW, they never did show proof of this 'major' concern in the evidence they provided
imo if someone can get confused with a product from GW and CHS... well I'd better not say any more for fear of being told of by a mod, and if little Timmy ask his parents for said item then I don't see CHS at fault tbh

[Erazmus_M_Wattle]

You do realise GW don't have any rights to the image of a fist? You do understand that, yes?

Yeah, talk to me like I'm stupid. That's really how you make a great argument.

GW may not own copyright of a fist. That is correct. But that particular fist they do. the wrist part is identical or at the very least too similar.

CHS could have done a fist that was sufficiently different. It wouldn't be difficult. But it's a copy. They even painted it black on a yellow field. I mean come on!

PS: it's not very good so I'd rather get a GW sculpt anyway. I won't be alone. I doubt GW have much to worry about lost sales. However they cannot be seen to be allow other companies to muscle in on their copyright lest the really big fish take notice and seek a share of the Market. Like Hasbro for instance. They don't have the finances to take them on in court. That's the real reason that they are as litigious as they are.

[Ronin[XiC]]

It's not identical and "very least too similar" is irrelevant.

Heck, the GW fist is a generic fist O_o

[shelfunit.]

Yeah, talk to me like I'm stupid. That's really how you make a great argument.

Then don't make the argument so badly then.

GW may not own copyright of a fist. That is correct. But that particular fist they do. the wrist part is identical or at the very least too similar.

A direct copy may have problems, the example you gave of a CHS fist was clearly different to what GW produce - for a start the CHS one was holding a hammer... "Similar" doesn't cut it in this case.

CHS could have done a fist that was sufficiently different. It wouldn't be difficult. But it's a copy. They even painted it black on a yellow field. I mean come on!

They did, as explained above. What colour scheme was used in the picture is entirely irrelevent as it is sold unpainted. Your definition of the word "copy" needs to be re-thought.

PS: it's not very good so I'd rather get a GW sculpt anyway. I won't be alone. I doubt GW have much to worry about lost sales. However they cannot be seen to be allow other companies to muscle in on their copyright lest the really big fish take notice and seek a share of the Market. Like Hasbro for instance. They don't have the finances to take them on in court. That's the real reason that they are as litigious as they are.

What you do with your own money is your own business. It is unlikely people who buy from CHS will be alone either (as shown by the fact that CHS is still around and releasing new products). For GW to protect their product, first they need to correctly figure out exactly what they can and cannot protect.

[Lockjaw]

Have you read 1% of the posts on this forum. I could easily see many pathetic posters that would do this. Just look at how many freely admit to downloading illegal PDF's.

to be fair, GW makes most it's money on the minis, the rules and codexes are secondary



GW protecting it's IP doesn't bother me, it's the fact they try to claim everything as thair IP, the term 'space marine', old, world, dwarf, elf, chaos, alien, orc, ogre, monster, prauge, monday, dinosaurs, the word 'the'. I have to find where I saw the article, but someone had pointed out a chunk of the symbols GW claims as IP have been used by real world militaries well before the company existed


also some of the levels of their IP paranoia, seriously, how are they going to prevent people from getting a tattoo of something like the Blood Angels chapter symbol?

[Sean_OBrien]

I have to find where I saw the article, but someone had pointed out a chunk of the symbols GW claims as IP have been used by real world militaries well before the company existed

Not sure on a specific article, but the expert witness testimony from CHS covers this particular aspect in a fair amount of detail. I think it is around 208.20 from the Recap site linked to at the beginning of this thread. Should be the testimony and then several additional documents which cover the actual sources from the testimony (books and what not for the most part).

[The bearded one]

Your intermingling of the terms 'copyright' and 'trademark' show that you don't fully understand what this legal issue is about.
GW Elves are one of their least unique creations. Their entire fantasy range is incredibly derivative (as most high fantasy is) but their elves are amongst the worst offenders. Tall, graceful, flowing robes, magical, lyrical voices, deadly in battle but few in number, a dying race being usurped by the numbers and technology of men. Favoured weapons in battle tend to favour spears and swords with slender leaf-shaped blades, armour and weapons tend to be lighter and more intricately wrought than anything man could achieve. They have great affinity for magic and creatures of magic especially including dragons and eagles, and use 'traditional' weapons such as bows in contrast to the more advanced weapons of other races. Tend to get split into kindreds based upon their alignment. That pretty much describes every single elf in every (post-Tolkien) fantasy work. GW cannot copyright this idea (because it is an idea, not an expression) nor can they copyright anything related to their elves which is inseparable from this general idea of elves.

Given that general idea of elves, there isn't much left about GW elves (aside from specific characters in the backstory) which is unique. They're not quite as badly off as the Dwarves are, but very nearly.

White lions are probably more unique, with them being axewielding 'manly elves', truly a rarity

[Sean_OBrien]

White lions are probably more unique, with them being axewielding 'manly elves', truly a rarity

http://www.ralparthaeurope.co.uk/020...-6-p-1832.html

So very rare I bought some back in the early 1990s from Ral Partha.

[Avatar_exADV]

Um, there's a hammer in that fist, no?

The thing is, there are cases with respect to car repair parts where the car companies have sued parts manufacturers and said "look, those are very clearly using our exact design, including artistic elements", and the parts companies have said "yeah duh, they need to go on the car and not change how the car looks!" This is -explicitly legal- through statute and precedent. There was another case regarding printer ink, where the printer required the ink to have certain codes to recognize the ink cartridge, and the printer manufacturer claimed they had a copyright on the codes. The printer manufacturer sued a third-party cartridge firm, but lost the case, as the court ruled that you can't add a trivial element of copyright to an otherwise-legally-okay replacement in order to make it illegal due to copyright violation.

There are other cases with verdicts essentially saying "you can't put out a story about Parry Hotter and his adventures at Dogwarts - you can do original parodies using some of the elements, but just swapping the letters of the names and telling the same story is a violation of copyright". Generally speaking, fiction gets a pretty good amount of protection.

The question before the court could be boiled down to "how much is this like a Ford, versus how much is it like Harry Potter". Where does the balance of interests lie? Is it okay if CHS is using original images along the same lines, so long as they aren't actually just casting actual GW sculpts? Or is a shoulder pad with a snake on it an infringement because GW once had a shoulderpad with a different snake on it?

These are questions of law, really. "Given these criteria, is this like that?" is a question of fact that can be put before the jury, but the judge will mostly determine which instructions the jury gets about what those criteria are. We can opine what the judge might -ought- to say, but he's the one that's going to determine this. Best we can do is make analogies to similar things, but there's no guarantee that the analogy we draw will be the same one that the judge tells the jury to draw.

Finally, GW says "we would never try to claim copyright on 'halberd'," but they did. It's in the court document. They might have done so negligently, not paying close attention to which claims they had which were reasonable, but this is a perfect example of what people are complaining about - that GW has a tendency to claim that everything under the sun is protected by their copyright, whether it's reasonable or ludicrous on its face, hoping other people will avoid doing things which are totally legal and not immoral at all because GW is too sue-happy. (You could argue that they did it as a perfectly reasonable effort to exhaust CHS's legal resources on irrelevant claims, but that in and of itself is emphatically not very nice!)

Don't get me wrong, I like GW. I like playing 40K orks. The models are good, well-done, fun to paint with many characterful details, and I enjoy messing around with them as a hobby. I think they've come out with a succession of nice models, some of which I did in fact rush out to buy. I'm enjoying 6th edition and I intend to keep doing so. But that said, GW's made many legal claims in the course of this case that aren't really defensible, and I think it would be no bad thing for a court to clearly elucidate the standard by which we can judge what's legal or not legal. That way, we can expect the things which ARE okay to be produced in greater quantity and variety, while people will stay away from things that actually -do- step on GW's copyright toes.

[susu.exp]

Fixed your post for you, since it was not really accurate

Ironically, fixing a quote is an infringement of the copyright equivalent in many continental european countries...

The position is simple enough.

But what type of position is it? Is it a position on how existing copyright and trademark law is to be interpreted? Or is it merely a statement of how you want the law to be interpreted? Or a statement on how the law should be altered?
Currently there´s nothing on the books that precludes third parties to sell models that can be used with particular games. Heck, a lot of people convert IG forces up from historical figures. When it comes to particular units, a third party has to be different from the GW model, because substantive similarities would infringe copyright. And they can´t use names that GW legitimately claims as Trademarks. If they sell assessories they can however note which product they go with, using trademarks in an informative way - the stipulation here is that the use is minimal, if there´s a word mark and a logo the logo is off limits as the word mark is sufficient to inform consumers.
"There ought to be a law" is not sufficient for legal action and the exceptions for informative use are there to prevent monopolies in the aftermarket - If Nokia can´t exclusively make cellphone covers for their own cellphones, if Ford can´t exclusively make Taillights for their own cars, what makes tabletop games special?

There is no reason at all for anyone to ever publish a game which they produce and sell miniatures for, if somebody-else can come along and start making and selling their own range for that game.

Of course there is. It´s not as if somebody else automatically outcompetes the models of the game-publisher. Quality, price, availability... Not to mention that copyright and trademark law allow some protection, though it´s not as sweeping as companies sometimes wish it to be.

Of course, all of this would be entirely unnecessary if CHS had enquired about possibly being licensed to make add-on 'x' and GW had been reasonable enough to work out some kind of deal which would work for both parties

GW have a clear policy of not licensing to miniature makers. This includes game systems they do not actively support (there are some 6mm companies that tried to get a licence for Epic models, GW refused). They argue that between the GW studio and FW all needs are adressed (whereas in the past they had the Armourcast licence). That of course ignores the things the aftermarket does produce.