Ghamak raising a GoFundMe for legal defence against GW lawsuit

[Wispy]

Yeaaaaah... I think this sort of thing is going to be a big problem for Ghamak... GW will probably argue that Ghamak authorized these merchants to advertise knock off products using keywords associated with the GW product they are replacing. 

 

Edited 5 hours ago by Wispy

[Dr. Clock]

30 minutes ago, Mogger351 said:

It's a very round about way of trying to higlight that the 3d artists sort of need GW to survive in the first place a the bulk of their income will depend on siphoning GW revenue.

 

Which is why GW are in the position of challenging it in the first place, it's also why when people bang on about the death of 40k or GW via 3d printing, they often haven't really considered the fact they got into 3d printing because of GW quite often.

 

This is kinda what I was getting at in my abortive draft above... 

 

There is a world in which GW is taken over by heedless venture capitalists who abandon quality competition and get strong on price, and that would/could include offshoring and contracting out every good piece of their value chain. 

 

GW is a conservative company, but it appears to be to the market's benefit to have a clear and high price/quality standard. In a world where GW decides to undercut everyone we might get a few years of cheap kits out of the deal but a flooded market would eventually crater, and most especially because they couldn't afford to keep investing or leaving space for design and development on too-thin margins.

 

Put another way, I definitely prefer a market where there's lots of room for fair competition because the industry leader at least maintains a strong core margin benchmark and knows how to invest in and maintain their whole value chain from creative to retail.

 

I like to support independent creators and other companies as well, but a big swing in GW's core market ethos would knock the legs out from under the whole industry... and I guess I'd just take up Gunpla?

 

Cheers,

 

The Good Doctor. 

Edited 5 hours ago by Dr. Clock

[Rain]

I think some people are allowing their own appreciation of the existence of third party sculpts, and/or their general socio-political views on large corporations to cloud their judgment a bit.

 

The issue here is clearly not that this guy is making generic space soldiers on 28mm bases. As to GW’s alleged overreach in this alleged suit, that is absolutely standard in most suits. You usually plead the moon to leave yourself room to (a.) find things in discovery that happen to substantiate your “optimistic” complaint; (b.) you never know what whacky theory your particular judge(s) take a shine to; and (c.) to negotiate down to what you really want. The vast majority of these cases are settled.
 

So, in a case like this, I am really not shocked that they claim his entire catalog (if that is indeed the case) as potentially infringing to give themselves room to figure out the details later. That said, I get it. If you like using 3rd party sculpts because of aesthetics/price whatever, go ahead, it’s no big deal. But this guy knew exactly what he was doing.

[phandaal]

16 minutes ago, Rain said:

But this guy knew exactly what he was doing.

 

He does seem to know that he was on the line, hence his admission that he was willing to change things if GW would confirm what they wanted him to change. However, being on the line is actually fine and allowed.

 

I heard a saying once: "you don't have to be more legal than the law." As in, if the law draws a line somewhere, you can be right on that line. You do not have to be further back to be OK. If the line is "looks like a Leviathan dread with extra doodads and details," then he should be allowed to do that with the understanding that he is following the law.

 

In any case, I want to see what Ghamak will provide to back up his claims. He is obviously going to present his side in the best light, but if it is true that he did attempt to work things out with GW prior to this then I would like to see where that went off the rails.

[DemonGSides]

Dropping a 200GBP donation on someone who isn't even providing the lawsuit is some hilarious stuff.  Especially when the message attached to the dono is "Well, I would like to know more about what this is actually about."

 

A fool and their money are soon parted stays true, I guess.

[Rain]

@phandaal

 

Right, we just don’t know. That said, there is no bright line in IP law to skate just inside of. I’m actually a practicing IP lawyer in the States, so I have experience in the field, though in a different jurisdiction, and focusing on trademark. Legal standards such as what is or is not “confusingly similar” or what constitutes “false association” are both technical, and frustratingly subjective.

 

That said, I have never personally dealt with a case involving minis or gaming pieces. The closest I’ve come is aftermarket car parts, which are easily and materially distinguishable from gaming minis. Anyway, we need to see the complaint, but this is all making me raise an eyebrow, and I’m not exactly a current year GW fanboy.

 

Edit: To be clear, I am not claiming that Ghamak’s case is to be analyzed under Federal US trademark law concepts such as the “confusingly similar” infringement standard. The designs of models are not trademarks, and the jurisdiction is Italy. I am just providing examples of the innate subjectivity in IP law as I know it. 

Edited 3 hours ago by Rain

[Dr. Clock]

Have people looked at the update on the gofundme? Pizzo has posted the full complaint, and I'm confused by his insistence that GW's claim is based 'only on unfair competition' Art. 2598 when the first line of the complaint refers to EU trademark violation. Is something lost in translation there? It certainly seems like it. 

 

Also honestly weird that GW seeks (in part) literal acknowledgement in the press, including possibly in White Dwarf? That'd be a stark departure from the customary content of that musty ol' girl, surely.

 

Cheers,

 

The Good Doctor. 

[Mogger351]

15 minutes ago, Dr. Clock said:

Have people looked at the update on the gofundme? Pizzo has posted the full complaint, and I'm confused by his insistence that GW's claim is based 'only on unfair competition' Art. 2598 when the first line of the complaint refers to EU trademark violation. Is something lost in translation there? It certainly seems like it. 

 

Also honestly weird that GW seeks (in part) literal acknowledgement in the press, including possibly in White Dwarf? That'd be a stark departure from the customary content of that musty ol' girl, surely.

 

Cheers,

 

The Good Doctor. 

It is very interesting. This feels oddly slightly similar to the cosplay stuff in my eyes.

 

I wonder if GW is actually quietly looking into something different in terms of stockists, or perhaps even a side step into 3d parts themselves? It feels like a chance to clean up shop a bit and carve a space out for them to stamp their territory in a different market, hence the want/need for the advertising and messages in publications.

[phandaal]

Initial reading of this seems to align with other folks here who said GW is using a law similar to laws used elsewhere to go after knock-off handbags and the like.

 

Is Ghamak's claim that this lawsuit is a first of its kind for this specific use accurate? If so, that would also support what your favorite, most humble poster - me - said yesterday about GW maybe using this as a test case to expand and knock out other proxy model creators.

 

This is gonna be interesting to watch.

[caladancid]

2 minutes ago, phandaal said:

Initial reading of this seems to align with other folks here who said GW is using a law similar to laws used elsewhere to go after knock-off handbags and the like.

 

Is Ghamak's claim that this lawsuit is a first of its kind for this specific use accurate? If so, that would also support what your favorite, most humble poster - me - said yesterday about GW maybe using this as a test case to expand and knock out other proxy model creators.

 

This is gonna be interesting to watch.

Oh man. I wonder if anyone who was claiming/insinuating he was lying will admit to being wrong. Waiting on that from a few folks here. 

[Bryan Blaire]

I think GW is going to have a hard time explaining exactly what they think is infringing here, even if they are going to go with some kind of “class of infringement” argument. They’ll have to get the judge to agree that what they present about is “close enough” to justify a judgment against Ghamak. I don’t personally believe it’s to that level (and am obviously not an Italian judge), but there’s clear distinction in the models themselves, even if the intent of use is obvious.

 

Now the business practices - if things are being advertised using meta tags like “GW” as may be evidenced by the Google search results - those may pose Ghamak issues. That very much could be seen as the “unfair competition” issue, but may be able to be solved by removing the tags that cause something to come up. There could also be a defense presented if Ghamak is not advertising these items in that way, but resellers are - not sure what the fault would look like there under Italian law.

 

This could very well result in a judgment that results in negatives for both parties, leaving them both footing their own legal bills, and no silly advertising “Look how bad you are!” articles being published. It doesn’t seem like a slam dunk/easy to prove for either party.

Edited 1 hour ago by Bryan Blaire

[Rain]

I am totally unfamiliar with Italian law, but it looks like GW *is* raising a trademark claim. If trademark law in Italy works anything like it does in the US, this could indeed be a fairly novel and interesting argument. In short, trademarks are "indicia of source" mostly being names, slogans, and logos which indicate to consumers the source of a product, meaning the company that produces it. It's a purely commercial right, to prevent third parties from "trading on your name" as it were. However, it can also include trade dress (packaging and non functional "product configuration"), and in some cases even abstract things such as color as long as that element is not functional in any way, and the claimant can show a lot of "acquired distinctiveness" meaning evidence that this element is very highly associated with the claimant by consumers. For example, Owens Corning has trademark to dye their insulation pink, as the color is purely a source indicator, and has no functional purpose.

 

Any functional element can generally never be argued to be subject to trademark, however, as function is a separate IP right, generally protectable (if at all) under patent. Similarly, artistic works are protectable under copyright. Models are a weird case, because they are arguably artistic works, but also arguably functional as game pieces, but also arguably trade dress/ indicia of source, as when you see "space soldier with bulky armor, a power pack, rounded shoulder pads, and a blocky gun" I guess you could say that indicates the source as GW.  The argument would probably be along the lines that as the appearance of the models at the point of sale is similar to the appearance of GW models at their point of sale, down to 2 oblits and 2 "definitely not oblits" sold together and the dwarf guy with the same number of drones, and that this creates potential source confusion. Marketing them this way was probably not the wisest move, but this would still seem to me like one of those "see if the judge likes how clever I am" kinds of arguments.

 

It's potentially a really interesting case. He is clearly trading on GW's designs, market, and game with at least some of his models, but what he is doing may not cleanly fall into any established IP paradigm, and I highly doubt that any actual consumer confusion exists. In reality, his models are substitutes, and the buyers know that they are substitutes, they are not mislead. I feel like the "unfair competition" claims may be the bigger threat here, as such laws tend to exist specifically to cover "you knew what you were doing" cases that do not cleanly fall into established paradigms. Of course some of them are also, to put it nicely, well intentioned nonsense. I guess we'll have to see.

[Osteoclast]

Is liability insurance to cover the costs of such a lawsuit not a thing in Italy or did they just decide to cheap out? Cuz that’s the other bit that’s bugging me: This is an actual business and should be run like one, including insurance. 

[Mogger351]

27 minutes ago, Osteoclast said:

Is liability insurance to cover the costs of such a lawsuit not a thing in Italy or did they just decide to cheap out? Cuz that’s the other bit that’s bugging me: This is an actual business and should be run like one, including insurance. 

I mean they're being sued for a million Euros in damages just form the 1k+ models they think need removing. Plus if they're found criminally liable and to have operated knowingly for 3 years-ish it would likely void the insurance I'd imagine?