6 ms·
So why is this not an open and shut case ?
by dkhenry 14y ago
So why is this not an open and shut case ?
- jthol 14y agoBecause lawyers.
- drakeandrews 14y agoBecause Games Workshop employs the kind of lawyers that consider petty things like the truth and other peoples IP to be inconveniences to be worked around.
- njharman 14y agoBecause lack of "prior art" is not a requirement for trademark, nor is uniqueness. "Coke" has other meanings http://en.wikipedia.org/wiki/Coke_(fuel) http://en.wikipedia.org/wiki/Coke_(fuel) and yet is still trademarked.
- bunderbunder 14y agoThat said, isn't it the case that one can't just take something that exists in common usage and trademark it as-is? For example, the basic structure of the fairy tale about Aladdin and the magic lamp had been around for a long time, and was clearly not originated by Disney. Consequently, Disney has no right to claim trademark or copyright control over the name Aladdin or or anything generally related to the story. They only get rights over their own work - additions they made to the story, characters' appearances, etc. Similarly, Games Workshop shouldn't be able to own the phrase 'space marines'. At most, all they should get to control is the use of the name Space Marines to describe the surgically-enhanced cybernetic super-soldiers that are peculiar to their franchise.
- ajross 14y agoWas "space marine" in common usage in 1987, though? The fact that it exists in a long out-of-print pulp novel doesn't mean that everyone understood its meaning. Again, this isn't a patent. All that's required is that, when the trademark was registered, GW's usage of the term was unique and relevant to their business.
- codingkevin 14y agoAlien came out in 1979. Aliens in 1986. I would say it was in common usage.
- stcredzero 14y agoWe're they "space marines" or "colonial marines?"
- codingkevin 14y agoI believe you're correct on the official name. I would make a case that most people thought of them as Space Marines though.
- cygx 14y agoApparently the term 'space marine' was never used in the movies, but the alien-themed toys by Kenner from 1992 do use it.
- regularfry 14y agoWould the fact that GW didn't enforce against that use be enough to invalidate their original 1987 claim?
- stcredzero 14y agoMaybe if we also dug up a whole library of other fiction and toys/games using the term as well.
- jasonkester 14y agoAliens came out in 1986. I don't know how much more common you need to be than that. http://www.imdb.com/title/tt0090605/ http://www.imdb.com/title/tt0090605/ I'd personally been using the term since growing up watching Star Blazers cartoons in the 70s.
- anigbrowl 14y agoThat said, isn't it the case that one can't just take something that exists in common usage and trademark it as-is? No. You can totally do that as long as nobody has trademarked it in a similar context.
- cygx 14y agoNo. You can totally do that as long as nobody has trademarked it in a similar context. Only as long as you pass the requirements of local trademark law, which space marine arguably doesn't in most jurisdictions when used with it's generic meaning: It's fine to call a pane of glass embedded into a wall a window, it's fine to call a certain kind of fruit an apple and it should be fine to call a marine serving on a space ship a space marine, regardless of any trademarks involving these terms.
- njharman 14y agoTrade | Service Marks are so different than Copyright that they should not be mentioned in same sentence. Aladdin seems to be a TM http://www.trademarkencyclopedia.com/aladdin/ http://www.trademarkencyclopedia.com/aladdin/ http://www.aladdinlamps.com/ViewPage.asp?PageID=5 http://www.aladdinlamps.com/ViewPage.asp?PageID=5 The most basic thing you and everyone reading this needs to take away is that "should" != "law". Beyond that learn what Registered Marks are, the rights and responsibilities of owning one. It's not hard to get a correct if layperson's understanding. (something 90+% of posting online lack)
- vacri 14y ago"Coke" has other meanings in a different industry. "Space Marine" has prior art in the same industry.
- fnordfnordfnord 14y agoBut can the Coca Cola Company enforce its "Coke" trade mark against purveyors of fossil fuel derived coke products? It's silly to think that Coca Cola would try; and nothing at all like GW trying to bogart parts of the common sci-fi vernacular.
- ominous_prime 14y agoIt may be, but an open and shut case still costs 10's of thousands of dollars, and that's if it doesn't go to court.
- bunderbunder 14y agoThis is where common law systems really bother me. When the legal system is set up in such a manner that defending oneself in civil court is more-or-less impossible for people who aren't wealthy enough to pay hundreds of dollars per hour for legal representation, the phrase "equal protection under the law" begins to sound like nothing more than a cruel joke.
- Semaphor 14y agoI guess someone needs to have the money to go to court over it.
- csense 14y agoBecause there's a nonzero risk the judge won't order Warhammer to pay the defendant's legal fees. Meaning that even if the author of the book "wins" in court, he might still lose a lot of money. And if he doesn't have a corp or LLC set up to sell the book, or hasn't jumped through all the bureaucratic hoops involved correctly, there's a nonzero risk that the Warhammer people could get a multi-million dollar judgment on him and take his house, cars, kid's college fund and most of his future salary. (The fact that he says he's using the proceeds from the book to pay for his daughter's schooling actually implies he doesn't have one of these legal structures set up.) That's how the US legal system works, unfortunately. Disclaimer: I am not a lawyer and this is not legal advice.