Definitely to one side or another...
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I can see that if GW win there will be lots of sly "I told you so" and not much else.
if CHS wins i see a lot more argument developing...
I'm not so sure there'll be anything sly about it...
When is a verdict supposed to be given? Im close to starting a pool or something. @_@
Quite true. It makes both their case more difficult to prove and their claims more difficult to substantiate. There is some there there - however, because many aspects arose out of a lack of something it is hard to prove how that would damage GW's Trademarks. It will be made more difficult as well once it gets in front of a jury, as certain abstract concepts like company goodwill are difficult for them to grasp...let alone specific values of intricate claimed marks within a company's catalog.
Should a GW claim be substantiated, I would be surprised if the specific award for each claim was more than a few thousand dollars. Legal fees would not likely be recouped at all - as the level for recouping those has been raised greatly since the Fogerty case. For specifically registered marks - GW can be awarded treble damages...but there are only a couple of those in question here.
There you are talking about patterns. It is similar to music in a sense. A shoulder pad and a mark is difficult to generate a pattern with. Again, it is covered in the case law.
The current court calender has the jury trial scheduled to start in early December. That isn't to say that they trial itself will start, but all the aspects which will be specific to that trial will begin then (jury selection, evidence which will be admissible will be argued...). The judge will make his rulings regarding the summary judgement between now and then of course - likely near the end of October or November based on past experience.
Assuming that GW doesn't off up a large settlement to make CHS to shut up and go away (the normal method which this sort of thing gets handled once it gets to this point) - the actual trial itself will probably start in February or March with a verdict a few weeks after that.
As a Jury trial we know CHS will win.
Will the average american side for a British company, or a US underdog....hmmmm.
Also how is a Chapter symbol not a Pattern? A shoulder pad by itself...maybe generic. But a pad, with a saw blade with a blood drop...how is that not a pattern?
This is what I thought, but ho hum, I'm off to create a sports team using a wheel, a wing and the colour red for my company logo
While I wouldn't be surprised if the country of origin factors into the backs of the minds of the jurors when we get to that point...a larger factor will be GW's use of superlatives in their claims. They make themselves out to be a huge corporation producing toy soldiers by the truck load (a true statement). Corporate backlash and the sentiment between them and the little guy will probably be a larger factor.
Regarding the more complex symbols - I was mainly speaking to the example which I gave (a chevron and a shoulder pad). The more complex and the more elements added to it...the more novelty a creation has. It ends up being something which the jury itself will make a determination on. In those cases, the judge will provide instructions to the jury on how to evaluate the marks based on the evidence presented and they may or may not determine that they are distinct. Other marks like the Salamander's shoulder pads are rather transformative (going from a 2D painted on symbol or decal to a 3D sculpted form).
The Flesh Tearers shoulder pads though is one which GW stands a better chance of winning on. They have used it in commerce, so the trademark will likely hold up. They should have some level of sales documentation to demonstrate how much it is worth. The big question will end up being where exactly the courts come down on things like the Design Right before hand and whether or not the evidence provided by GW is significant enough to prove their point in court.
Yeah I don't think this should be judged by Jury. As the comments in the various CHS vs GW threads show that 95% of the people even who those who KNOW the market are pretty useless in understanding things.
This should be judged by a judge, or even a panel of them who actually understand the deep complexity of the law.
Also if this is being tried under UK law, going to a US jury is going to be a bias as they won't believe that there is anything wrong by your laws