Network News: Anniversary of Games Workshop vs. Chapterhouse verdict and the appeals

Wow! I can't believe it, but it has been one year since the trial to end all Wargaming trials had its verdict! Last year, Games Workshop lost a good chunk of its copyrights and trademarks against Chapterhouse, maker of third-party Warhammer 40k models. Sure Chapterhouse, has to pay 25,000 in damages and GW did establish shoulder pad dominatance, but the vast majority of pain hit GW right on the nose.

So, what now? Well as many of you know, this is just one battle, in a war destined to fill many lawyer pockets.

Smelling blood Chapterhouse quickly started the appeal process and gained another set of reinforcements in the form of Apple Inc. IP lawyers, yes that Apple. If you want to know more read-up from this previous article.

Network News: It ain’t over for Games Workshop and…

Chapterhouse now has even better counsel, the war quickly has dragged to halt. The reason for this is partly our legal system, but it is mostly because the judge in the case wants to avoid a further escalation. From my minor legal understanding, he has attempted to put GW and Chapterhouse to settle their differences. Now we don't know what is going behind doors, but it is assumed a final settlement isn't going to happen.

It can either be Chapterhouse feeling they have a stronger appeal, or it could also be GW's legendary stubbornness, either way it is looking like this is going to the Seventh Circuit Court of Appeals. The circuit courts are a dramatically different beast, where juries often attempt to split the baby, the court of appeals can just bring the hammer down by a panel of judges.

While we wait though, I want to take a look back at testimony that has put GW in the current legal hell.

Luckily, the epic forum thread over at Dakkadakka has made dissecting this case much easier than going through tons of documents oneself.

Here are some highlights...

Gill Stevenson: Head GW Lawyer

Q. Before we get to those e-mails, it's true, isn't it, that
Games Workshop has no evidence of confusion as to products it
added to the case in the second phase; is that right?
A. Yeah. I mean, the jury have heard quite a lot about the
forums that people who are fans of Warhammer 40,000 look at and
post on, and actually -- I know you're not allowed to look at
the Internet, but if you were allowed to look at the Internet,
what you would see is an awful lot of speculation about this
case, and actually our customers, our staff, and even just
people who are interested all know about this case and have for
a very long time. So, the likelihood of there being any
confusion where there's such a publicly well known case, it's
just not really very likely because people know.
Q. But, Ms. Stevenson, you haven't presented any evidence of
confusion as to the products added in the second phase of the
case, have you?
A. No.
Now, Ms. Stevenson, as you recall, you testified that
this chart was put together at your direction by Games
Workshop's hobby team, and they painted and posed the Games
Workshop figures on the right column to look like the colors
and poses of the Chapterhouse products, is that right?
A Almost. The hobby team didn't put the chart together, but
they did build and paint the model.
Q And you said that you found this confusing when you see
them side by side like this?
A I find it compelling.
Q You said you found it confusing, correct?
A I said customers could find it confusing.
Q But you haven't offered any evidence that customers have
ever been confused by these two products, have you?
A Well, they haven't seen these two images side by side, so
they couldn't be.
Q So that's a no?
A Um...

The next testimony gets to the real heart of how GW is just as disingenuous of Chapterhouse when it comes to taking ideas from different sources.

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

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

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

If you want to read more here is a link to all the PDFs from the trial.

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Network News: Anniversary of Games Workshop vs. Chapterhouse verdict and the appeals

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