View Full Version : Legalwatch: Chapterhouse vs Games Workshop - Appeal filed
Bigred
01-08-2014, 01:41 PM
Chapterhouse has started the appeals process by filing its notice of appeal.
Appeal Number 14-1027 in the 7th circuit.
Transcript is due on the 21st of January.
Chapterhouse's brief is due the 18th of February.
NOTICE IS HEREBY GIVEN that Chapterhouse Studios LLC, defendant in the above
named case, hereby appeals to the United States Court of Appeals for the Seventh Circuit from: (1) the Judgment in a Civil Action entered in this action on June 27, 2013 (Dkt. No. 403), including all prior and underlying interlocutory orders; (2) the Order on Post-Trial Motions entered in this action on December 5, 2013 (Dkt. No. 462); and (3) the Permanent Injunction entered in this action on December 5, 2013 (Dkt. No. 465), as modified by the Plaintiff and Defendant’s joint Stipulation Regarding Disposition of Materials on December 13, 2013 (Dkt. No. 469).
Dated: January 6, 2014
Wilmer Hale has joined Winston & Strawn as counsel for Chapterhouse.
Donald R. Steinberg
Louis W. Tompros
Kevin A. Goldman
Elizabeth C. Mooney
of WILMER CUTLER PICKERING HALE AND DORR LLP
6658
Blaznak
01-08-2014, 02:03 PM
I'm just not positive where this gets them. I would have thought they would have waited to see if GW appealed first. Maybe they felt they could do better than they did?
confoo22
01-08-2014, 02:04 PM
I get that it's "cool" to be anti-GW, but i hope Chapterhouse gets slapped on this since it feels like now they're overreaching. They should've been happy with their substantial victory slice, but now they want the whole pie. Their products aren't even that great to begin with.
William Lang
01-08-2014, 02:07 PM
I'm just not positive where this gets them. I would have thought they would have waited to see if GW appealed first. Maybe they felt they could do better than they did?If I were Chapterhouse, I'd have declared victory and went home. They basically won already and this has the potential to be a bridge to far as it were.
gcsmith
01-08-2014, 02:16 PM
What are they actually appealing? Sorry, not too good at legal stuff, but it seems they are appealing that GW got to keep some IP, almost as if they are trying to say, "Please US Courts, let us make money from someone else's work."
Joshua Clark
01-08-2014, 02:20 PM
You win... And then appeal? Good luck with that.
spagunk
01-08-2014, 02:22 PM
They didn't win hard enough I am guessing? vOv
lattd
01-08-2014, 02:24 PM
I wonder if this judge will actually apply English law a bit more, I know it's only a consideration but the last judge just ignored it and went for American company must wins
nekoali
01-08-2014, 02:25 PM
I was kind of confused by this too. I opened the thread thinking that GW was going to appeal. For pretty much all intents and purposes Chapterhouse won this. They get to keep making their products pretty much the same as before and the ruling drew the lines better on what GW can legally claim is within their IP so... What is Chapterhouse thinking here?
Chalji
01-08-2014, 02:39 PM
I'm just not positive where this gets them. I would have thought they would have waited to see if GW appealed first. Maybe they felt they could do better than they did?
The Federal Rules of Civil Procedure have strict deadlines to file any appeal. If Chapterhouse waited for GW to appeal, it may have been too late to also appeal. As for who appeals, first it doesn't matter. You can cross-appeal within a few days of another party appealing. I expect GW to Cross-Appeal Chapterhouse's appeal.
As for why, I would say the terms of the Permanent Injunction are sufficient grounds. The order pretty much clamps down on a lot of Chapterhouse's arguments including a determination that Chapterhouse waived a few key arguments. Legally, it wouldn't be too good to let that pass by unchallenged.
However we won't know exactly what issues they are appealing until the briefs are filed.
Most likely the 7th Cir will just uphold the jury verdict unless some key issue of law prior to trial wasn't applied correctly by the Trial Judge.
Kevin Boyd
01-08-2014, 02:41 PM
Chances are they are appealing the ruling of what constitutes intellectual property and what they have to pay Games Workshop in royalties.
http://www.brickarms.com/ had the same issue with LEGO
weeble1000
01-08-2014, 02:56 PM
I like how the negativity has gone from 'GW kicked Chapterhouse's thieving butt,' to 'I can't believe Chapterhouse is appealing after they already won'.
I think it is interesting to note that GW has not appealed. GW can still cross-appeal, but if CHS had not filed a notice of appeal, GW would have by now lost its opportunity to appeal.
Remember that the jury found that Chapterhouse's 'compatible with' trademark use fell within fair use, e.g. "Space Marine Compatible Bits" and "Specializing in Custom Bits and Sculpts for Warhammer 40,000 and Fantasy." Did GW not want to appeal findings like this?
Ghostofman
01-08-2014, 04:18 PM
It's a bit of a game in itself.
Chapterhouse is appealing because it's what they can (and therefore should) do. Appealing means GW has to spend more lawyer money to defend against the appeal, come to a settlement, or just give up lose the appeal. More then likely CH is hoping GW will either settle or give up rather then pay the legal bills to fight this to the bitter end.
Mr Mystery
01-09-2014, 04:40 PM
I thought GW had long since appealed?
weeble1000
01-10-2014, 01:38 AM
I thought GW had long since appealed?
Where do these ideas come from? It's like wishlisting army rules before a codex is released.
In fact, if Chapterhouse had not filed a notice of appeal, Games Workshop would now be way past its ability to do so. Because Chapterhouse Studios filed an appeal, Games Workshop now has a limited time frame in which to file a cross appeal, and may yet not do so.
Watching a lawsuit unfold can seem like watching two aliens have a conversation while wearing a blindfold, but the basic process is pretty straightforward:
Pre-trial, trial, post-trial, appeal
GW filed a lawsuit, it went through pre-trial litigation, progressed to a jury trial, the jury made a decision, that decision was upheld by the trial judge, and now Chapterhouse has filed an appeal.
If GW had filed an appeal, it would have been just as much news as it is that Chapterhouse filed an appeal, and I'm sure there would have been many predictions of swift victory here in the BOLS Lounge. If GW ever decides to file its own appeal, I'm sure it will be posted about in record time.
Psychosplodge
01-10-2014, 02:50 AM
Why would GW be out of time to appeal if CHS aren't? :confused:
Mr Mystery
01-10-2014, 06:37 AM
It's like I have my own personal Troll.
How dare I have a differing opinion, and a gap in knowledge. Bad Mr Mystery! Dirty Mr Mystery! In your bed, on your rug!
Now, anyways...
I thought the other thread (was in General 40k, now, who knows!) had GW appealing a while back?
Psychosplodge
01-10-2014, 06:46 AM
I certainly recall the suggestion had been made in another thread that both already had.
*shrugs* who knows?
Mr Mystery
01-10-2014, 06:51 AM
Well clearly not me, seeing as I took the frankly outrageous step of trying to clarify missing information with a perfectly civil and open question!
weeble1000
01-10-2014, 09:05 AM
Well clearly not me, seeing as I took the frankly outrageous step of trying to clarify missing information with a perfectly civil and open question!
I think a comparison to rumor wishlisting is perfectly appropriate. The correct information is available, has been discussed, and the misinformation has been corrected more than once. There has been a ton of misinformation about this case over the years spread around on these boards in particular, mostly because people just jump in and say things, predominantly fueled by pro-GW bias. All the while there have been folks spending their time attempting to keep people properly informed as to the facts.
If you were in a Tyranid thread posting that Mycetic Spore Pods were in the new Tyranid codex I daresay some responses would be a touch uncivil.
In any case, the appeal issue is very simple. Both parties have the same amount of time in which to file a notice of appeal. Chapterhouse Studios filed its notice on the last day to do so. GW filed no notice on that day, ergo, if CHS had not filed its notice, GW would have also not filed one and there would have been no possible appeal.
However, once a party does file an appeal, the opposing party then has a new length of time in which to file a cross appeal.
Incidentally, here are two relevant posts that came before Mystery's post in a two page thread:
The Federal Rules of Civil Procedure have strict deadlines to file any appeal. If Chapterhouse waited for GW to appeal, it may have been too late to also appeal. As for who appeals, first it doesn't matter. You can cross-appeal within a few days of another party appealing. I expect GW to Cross-Appeal Chapterhouse's appeal.
As for why, I would say the terms of the Permanent Injunction are sufficient grounds. The order pretty much clamps down on a lot of Chapterhouse's arguments including a determination that Chapterhouse waived a few key arguments. Legally, it wouldn't be too good to let that pass by unchallenged.
However we won't know exactly what issues they are appealing until the briefs are filed.
Most likely the 7th Cir will just uphold the jury verdict unless some key issue of law prior to trial wasn't applied correctly by the Trial Judge.
I think it is interesting to note that GW has not appealed. GW can still cross-appeal, but if CHS had not filed a notice of appeal, GW would have by now lost its opportunity to appeal.
Remember that the jury found that Chapterhouse's 'compatible with' trademark use fell within fair use, e.g. "Space Marine Compatible Bits" and "Specializing in Custom Bits and Sculpts for Warhammer 40,000 and Fantasy." Did GW not want to appeal findings like this?
Psychosplodge
01-10-2014, 09:25 AM
Not being funny Weeble, but how is Mystery supposed to know your statement is anymore accurate than anyone elses? He only asked about previous statements regarding appeals made elsewhere on the forum, which you've probably also read before as well...
Mr Mystery
01-10-2014, 10:27 AM
Yup.
That's the damnedest thing about questions. They aren't statements of fact. They're, you know, questions. Intended to request information to better inform the person doing the asking, in the hope that those better versed/more knowledgable will provide.
Rather than becoming a screaming ego queen and deriding someone for not being particularly knowledgable in an area that they really have no experience in on account they have followed a different career path.
If I acted like you when assisting my mentees or the consumer, I'd be rightfully fired.
weeble1000
01-10-2014, 10:57 AM
Not being funny Weeble, but how is Mystery supposed to know your statement is anymore accurate than anyone elses? He only asked about previous statements regarding appeals made elsewhere on the forum, which you've probably also read before as well...
I think at this point it is fair to say that regarding the GW v CHS case, I have a very reliable record of providing accurate information with respect to what documents and filings are uploaded to the electronic docket as well as a comparatively decent handle on the legal process in general. So there's that.
If you don't want to take my word for it, the electronic docket is freely accessible to the public. You can think of it as my "rumors" about new rules being codex-in-hand quality. I have a PACER account and a Law 360 email notification set up to ding me when a new file is uploaded to the docket.
If I am providing bad information, it would only take a minute of one's time to figure it out, so there's no point in it.
And for making these sorts of efforts I have been the recipient of more than a little vitriol on the BOLS Lounge. Some of it by Mystery himself. In fact, so much so that I don't post on these forums at all except when it comes to the facts of the GW v CHS case, because I have the crazy notion that with a case so incredibly significant to the wargamining industry as a whole, regardless of how my posting gets treated, it is nevertheless better for people to have easy access to correct information.
So yea, when I post on BOLS I am always particularly sensitive and I have a tendency to be a bit snippy. But of all of the places I post updates about the GW v CHS on, BOLS wins the prize for the most inaccurate information, the most jump-to-conclusions assumptions, and the most pointless and ignorant negativity. I could take the high road, turn the other cheek, live first by example and all that, but I am only human and posters like Mystery wear me down.
So, if you want me to keep posting accurate, up to date information, if you want me to provide explanations for questions about procedure, statutes, precedents, and so forth, I am happy to keep doing that though it will probably come across with a bit of a snide tone because try as I might, it slips through. The environment on these boards encourages that kind of tone because the posts are lousy with it.
You will note that for all of his righteous indignation about one sentence of snippy attitude, Mystery's question did get answered. It got answered fully and accurately.
DarkLink
01-10-2014, 12:23 PM
In addition to being 'a little bit snippy', he's got a really, really tall horse, too. But he does seem to know a lot more about the legal system than most people do.
Psychosplodge
01-10-2014, 02:25 PM
Do you remember the other thread? I can't keep track of everyones names :D
I keep telling myself not to come in these threads but its like picking a scab :rolleyes:
So as I asked, why was it too late for GW to appeal, but not for CHS?
weeble1000
01-10-2014, 03:25 PM
Do you remember the other thread? I can't keep track of everyones names :D
I keep telling myself not to come in these threads but its like picking a scab :rolleyes:
So as I asked, why was it too late for GW to appeal, but not for CHS?
As I answered:
In any case, the appeal issue is very simple. Both parties have the same amount of time in which to file a notice of appeal. Chapterhouse Studios filed its notice on the last day to do so. GW filed no notice on that day, ergo, if CHS had not filed its notice, GW would have also not filed one and there would have been no possible appeal.
However, once a party does file an appeal, the opposing party then has a new length of time in which to file a cross appeal.
Denzark
01-10-2014, 06:10 PM
Is Weeby up to his usual tricks? He adds nothing to the BoLS community beyond giving CHS a zealot cheerleader and sprouting pseudo-law. Ever since I put him on ignore it has been blissful.
Well I hope for the hobby that GW loses about all their original claims.
The more companies produce bitz, the better for the players.
GW shot themself a good chunk out of their foot when they discontinued their bitz service.
Thanks for the update.
Chalji
01-11-2014, 04:01 PM
Is Weeby up to his usual tricks? He adds nothing to the BoLS community beyond giving CHS a zealot cheerleader and sprouting pseudo-law. Ever since I put him on ignore it has been blissful.
I can' speak for him, but as for myself to answer the question about time to appeal we look at the Federal Rules of Appellate Procedure.
RULE 4. APPEAL AS OF RIGHT—WHEN TAKEN
(a) Appeal in a Civil Case.
(1) Time for Filing a Notice of Appeal.
(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or order appealed from.
So, both sides, following entry of a final judgment, have 30 days to appeal. In this case, Chapterhouse filed their appeal on the 30th day. GW made no filing. Thus, logically, if Chapterhouse had not filed an appeal, chances are GW would not have, and the case would be done and final. GW would have ran out of time to appeal.
However, once an appeal has been filed, any other party may file a notice of appeal as well, also known as a cross-appeal.
(3) Multiple Appeals. If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.
Thus in this situation, since Chapterhouse filed an appeal, GW has 14 days from that filing date to file their own notice of appeal. We will see if they do so.
DarkLink
01-12-2014, 01:41 AM
Is Weeby up to his usual tricks? He adds nothing to the BoLS community beyond giving CHS a zealot cheerleader and sprouting pseudo-law. Ever since I put him on ignore it has been blissful.
I made the mistake of telling him 'hey, you're kind of being kinda condescending', and he wrote like a five page essay on how I was a terrible person and a hypocrite and that, no, in fact, he wasn't condescending. It was actually kind of funny.
weeble1000
01-12-2014, 09:13 AM
Thanks Chalji. Sometimes you have to hammer it in pretty hard around here. It has been explained simply. It has been explained in layman's terms. And now the federal rules of procedure have been quoted.
lattd
01-12-2014, 12:17 PM
Can someone just explain to me why people want GW to lose? really please someone help me out? Most people who play enjoy the background the most, so now that background the look and feel of the army has been established at a large expense to GW, you want them to loose their rights to protect the 3D designs developed from all the hard work? which will just lead to them distancing themselves from the hobby side more because GW have now become a company that no matter what it does for the hobby everyone wwants it to fail and is never happy?.
Back on topic, I would expect GW to cross appeal, I think they were playing the waiting game, they now how more time so can spend more time preparing for the appeal.
Mr Mystery
01-12-2014, 12:51 PM
Honestly? Seems 'MURICA!!! is the common reason.
I want GW to lose because of two reasons:
1) So companies can produce bitz to use with GW miniatures. The more the merrier. :)
2) Some of GW claims are silly and they need someone to tell them.
Psychosplodge
01-12-2014, 01:32 PM
As I answered:
thanks, missed it as assumed it was all a rant at mystery. But yeah that'd make sense if that was the last day.
lattd
01-12-2014, 01:38 PM
Buts some of CHS claims are even worse, and there's plenty of third party companies out there, the main issue was the names used not the designs themselves.
Can anyone remember when CHS use to advertise on this forum? I remember telling them to not use mymerea(whatever the Forgeworld craft world was) and malanti both names that had only ever existed because of GW for copyright and their response was 'nah they haven't copyrighted them so they don't own in so I'm not going to listen'
Psychosplodge
01-12-2014, 01:45 PM
you mean like when they used something labelled cyclone missile launcher and when it was pointed out changed it about a day later?
phoenix01
01-12-2014, 03:35 PM
I want GW to lose because of two reasons:
1) So companies can produce bitz to use with GW miniatures. The more the merrier. :)
2) Some of GW claims are silly and they need someone to tell them.
1. There are quite a few bitz companies out there, many of whom make bitz compatible with 40K/WFB. Oddly, none of them got sued by GW like CHS, probably because they didn't call their product by a name created by GW.
2. So when you come up with an idea, copyright that idea, and someone else comes along and starts selling a knock off of your idea, you won't complain? No? Then, let me know your ideas, 'cause I'd love to make a fast buck off you.
Mr Mystery
01-12-2014, 03:42 PM
Yup.
Plus, a fair amount of CH's stuff looks bloody awful.
The jetbike that looks more like a jet Lambretta.
The lopsided jump packs which ripped off GW's original design.
Their Tervigon conversion kit.
@phoenix01
1. There can´t be enough different bitz companies out there. And we don´t know about C&D letters any company might have received or not. A trial is a very costy thing to do and CHS would probably not excist anymore if they wouldn´t have received free legal counsulting and tried a trial.
2. If GW doesn´t want some one to produce something, they could produce it themselves, should be a lot cheaper than this lawsuit.
There are whole side industries producing parts for products of other companies. Just take a look at coffee machines and cars.
@Mr. Mystery
The designquality is subjective, so no one can say it´s good or not.
I like and dislike a lot of GW´s and Chapterhouse´s products, as it´s the case with almost any other manufacturer.
lattd
01-13-2014, 02:18 AM
No ones saying after market companies like scibor puppet wars etc are bad and there really are loads of them, we are saying if you use copyright material then stick your fingers in your ears saying lalala, I can't hear you when people tell you your infringing copyright then you deserve to be sued. Remember the old adage don't buy the hand that feeds.
I wonder how much CHS lawyers pushed for appeal, I mean pro bono looks good for the company when you win, but here it wasn't really a win, they have to pay up so none of the pro bono teams can charge GW and reliably get paid, so they have nothing to lose from appealing.
Psychosplodge
01-13-2014, 02:41 AM
lols
An American lecturing on the use of English :D *cough* maths *cough*
Coffee machines and cars are both machinery you're entitled to buy spares for in order for them to remain functional...
Mr Mystery
01-13-2014, 07:34 AM
So is this the common track?
One side waits until the last possible moment to appeal, with the other side waiting for the same thing. Like a sort of game of legal chicken?
Because I see the sense in allowing a further 14 day window for whichever party didn't appeal, otherwise it just becomes brinkmanship.
And if the answer could just be the answer please. No snidey comments or grandstanding.
weeble1000
01-13-2014, 08:01 AM
So is this the common track?
One side waits until the last possible moment to appeal, with the other side waiting for the same thing. Like a sort of game of legal chicken?
Because I see the sense in allowing a further 14 day window for whichever party didn't appeal, otherwise it just becomes brinkmanship.
And if the answer could just be the answer please. No snidey comments or grandstanding.
It is pretty standard to file on the last day. Virtually ALL filings in this case have been on the last day of a deadline. That way the opposing party has to make decisions without knowing what you are doing.
Mr Mystery
01-13-2014, 08:04 AM
Which isn't what I asked now, is it?
It was a general process question, rather than one relating to this specific case.
weeble1000
01-13-2014, 10:41 AM
It is pretty standard to file on the last day. Virtually ALL filings in this case have been on the last day of a deadline. That way the opposing party has to make decisions without knowing what you are doing.
There you go Mystery. Right at the top.
A common issue around here seems to be the assumption that if someone quotes another member's post it means that everything written in the post is therefore expressly framed as a response specifically to the quoted member.
God forbid that someone should have a related thought or reply generally to several prior posts without quoting everyone and writing a laborious line by line response. I'll fix my post just for you Mystery.
Chalji
01-13-2014, 12:08 PM
So is this the common track?
One side waits until the last possible moment to appeal, with the other side waiting for the same thing. Like a sort of game of legal chicken?
Because I see the sense in allowing a further 14 day window for whichever party didn't appeal, otherwise it just becomes brinkmanship.
And if the answer could just be the answer please. No snidey comments or grandstanding.
Parties usually wait until the last moment to prevent the other side from having any additional time to respond.
As an example. If you have 14 days to file a written brief, you may have it ready to file on day 2, but you will file it on day 14 so as not to give the other side an extra 12 days to respond.
As an additional factor with appeals, a ton of deadlines start accruing once the appeal is filed, such as generating the record on appeal, filing docketing statements, getting briefs on file etc. It makes sense then to buy yourself extra time by waiting to file the notice of appeal. An extra few weeks can make all the difference.
weeble1000
01-13-2014, 12:22 PM
In addition to not wanting to extend time to reply, you also don't want to give the opposing party an opportunity to modify their own concurrent filing, if there is one, knowing what your arguments are. Even though they are not necessarily related, you don't want to let opposing counsel know more than you have to.
Delaying filing time, especially on an appeal does increase the risk of error. I have seen appeals denied on procedural ground because a filing deadline was missed by a day. That's a little harsh, but some judges are strict about deadlines. Making a mistake like that is also a great way to piss off your client.
lattd
01-14-2014, 10:59 AM
Yep filing last minute is pretty standard not just for tactical reasons but just minimises errors as you can double check typos, have more time to confirm everything is correct in terms of what's been said etc. first thing we got taught in civil litigation is use the deadlines to their fullest.
Side note I have an American law trivial pursuit I should really play at some point.
weeble1000
01-14-2014, 11:40 AM
Yep filing last minute is pretty standard not just for tactical reasons but just minimises errors as you can double check typos, have more time to confirm everything is correct in terms of what's been said etc. first thing we got taught in civil litigation is use the deadlines to their fullest.
Side note I have an American law trivial pursuit I should really play at some point.
Is it called "Disorderly Conduct?"
One feels very nerdy playing that game, but it is very fun...if you find the law interesting that is...
lattd
01-14-2014, 12:26 PM
Yes it is actually, well its a legal game where it will be an even playing field between me and my friends, where as had it be english law I don't think anyone would play against me.
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