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In the future, all space marines will be Warhammer 40K space marines

mcahogarth.org

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Re: In the future, all space marines will be Warhammer 40K space marines

#121

Post by anigbrowl »

bunderbunder wrote: post #32
njharman wrote: post #21

Earlier quoted context omitted.

Because lack of "prior art" is not a requirement for trademark, nor is uniqueness. "Coke" has other meanings http://en.wikipedia.org/wiki/Coke_(fuel) and yet is still trademarked.

That 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. Th…

That 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.

Re: In the future, all space marines will be Warhammer 40K space marines

#122

Post by aegirth »

redthrowaway wrote: post #80
illuminate wrote: post #70

Earlier quoted context omitted.

Legal wrangling aside, I don't see a problem with a lack of "innovation", the same WH40K I played as a kid would still be fun today, however it is certainly interesting to see how WoTC has attempted to innovate to sell new products. The main difference, of course, is that WH40K is wargaming min-maxy and specific troop-based versus D&D allowing a great deal of flexibility in the rules and creative content.

>it is certainly interesting to see how WoTC has attempted to innovate to sell new products. GW has no affiliation with WotC. Are you thinking of TSR, the makers of DnD?

TSR stopped existing in 1997. They are just a footnote in gaming history now.

Re: In the future, all space marines will be Warhammer 40K space marines

#123

Post by anthonyb »

hagios wrote: post #33
newbie12 wrote: post #5

Earlier quoted context omitted.

Here's the Games Workshop customer support email: CustServ@gwplc.com Can't hurt to let them know we aren't pleased.

Can't hurt, but I suspect it won't help. I wrote in, and it took less than two minutes to receive a response which basically said "write to legal, not to us." Here's to hoping I'm wrong and they listen to unhappy people.

legal@gwplc.com

(from http://www.games-workshop.com/gws/content/article.jsp?catId=...)

Re: In the future, all space marines will be Warhammer 40K space marines

#124

Post by cygx »

anigbrowl wrote: post #121
bunderbunder wrote: post #32

Earlier quoted context omitted.

That 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. Th…

That 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.

No. 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.

Re: In the future, all space marines will be Warhammer 40K space marines

#125

Post by bradleyjg »

ajross wrote: post #114
Retric wrote: post #76

Earlier quoted context omitted.

Sorry, but they did use "space marines" EX: "ALIENS SPACE MARINE LT.RIPLEY" http://www.amazon.com/ALIENS-SPACE-MARINE-LT-RIPLEY/dp/B0009...

Arrgh. AGAIN: it's not a patent! "Prior art" proves nothing. If this figure's manufacturer was not a going business venture in 1987 (or whenever GW filed that trademark) then GW was entirely within their rights to file such a trademark. And even if this was 100% contemporaneous, the party with standing to challenge that trademark would be the toy company, and not the linked post. The remedy would be to immunize the t…

The article says GW is claiming an implicit or common law trademark rather than a registered one. The rules for that are far more grounded in equity than the rule based statutory system.

Edit: that is to say the expansion into the book market is a common law extension. To be clear the mark was registered in the game market.

Re: In the future, all space marines will be Warhammer 40K space marines

#126

Post by DennisP »

anigbrowl wrote: post #120
bunderbunder wrote: post #8

According to Wikipedia[1], the first use of the term 'space marine' in literature was the 1932 short story Captain Brink of the Space Marines by Bob Olsen. That's a full 43 years before Games Workshop was founded, and 55 years before Warhammer 40K was introduced. And the prior usage of the term and concept kept coming strong throughout the intervening half-century. 1: http://en.wikipedia.org/wiki/Space_marine

That would be relevant in a patent case, but not to trademarks, which do not depend on prior use but on when a trade mark first enters the stream of commerce. I've said it before in other contexts: GW is not really being a villain here, they're just making a show of defending their trademark. If they don't, someone else could start using the mark and then say 'well you didn't defend it when those people were (arguabl…

Doesn't a book count as part of the stream of commerce?

Or maybe we should just look at games. Wiki says there was a game actually named "Space Marines" which entered the market in 1977, a decade before Warhammer 40K. http://en.wikipedia.org/wiki/Space_marine#Games

Re: In the future, all space marines will be Warhammer 40K space marines

#127

Post by pessimizer »

jiggy2011 wrote: post #107

Games Workshop must be scared shitless of 3d printing. Their rulebooks have been passed around on torrent sites and IRC networks for years but I assumed they never really gave a shit because the models are where the cash is.

http://www.3dfuture.com.au/2011/12/games-workshop-submits-dm...

Re: In the future, all space marines will be Warhammer 40K space marines

#128

Post by macchina »

anigbrowl wrote: post #120
bunderbunder wrote: post #8

According to Wikipedia[1], the first use of the term 'space marine' in literature was the 1932 short story Captain Brink of the Space Marines by Bob Olsen. That's a full 43 years before Games Workshop was founded, and 55 years before Warhammer 40K was introduced. And the prior usage of the term and concept kept coming strong throughout the intervening half-century. 1: http://en.wikipedia.org/wiki/Space_marine

That would be relevant in a patent case, but not to trademarks, which do not depend on prior use but on when a trade mark first enters the stream of commerce. I've said it before in other contexts: GW is not really being a villain here, they're just making a show of defending their trademark. If they don't, someone else could start using the mark and then say 'well you didn't defend it when those people were (arguabl…

Yes, but "Space Marine" is an extremely weak mark, and evidently it is only registered in one class of goods and services (in the US): "board games, parlor games, war games, hobby games, toy models and miniatures of buildings, scenery, figures, automobiles, vehicles, planes, trains and card games and paint, sold therewith." [1]

I don't think the claim is baseless, but I don't see how this is a must litigate scenario. I'm pretty sure they could offer a reasonable settlement and remain protected.

1.http://mcahogarth.org/?p=5075

Re: In the future, all space marines will be Warhammer 40K space marines

#129

Post by macchina »

DennisP wrote: post #126
anigbrowl wrote: post #120

Earlier quoted context omitted.

That would be relevant in a patent case, but not to trademarks, which do not depend on prior use but on when a trade mark first enters the stream of commerce. I've said it before in other contexts: GW is not really being a villain here, they're just making a show of defending their trademark. If they don't, someone else could start using the mark and then say 'well you didn't defend it when those people were (arguabl…

Doesn't a book count as part of the stream of commerce? Or maybe we should just look at games. Wiki says there was a game actually named "Space Marines" which entered the market in 1977, a decade before Warhammer 40K. http://en.wikipedia.org/wiki/Space_marine#Games

It has to be used in the stream of commerce as a trademark. Being used as a trademark means that the term is used to identify the source of the goods.

When GW registered "space marine," prior users of the mark still retained the right to use it within their own specific geographic area.

Re: In the future, all space marines will be Warhammer 40K space marines

#130

Post by chipotle_coyote »

ajross wrote: post #49
jasonkester wrote: post #46

Earlier quoted context omitted.

Aliens came out in 1986. I don't know how much more common you need to be than that. http://www.imdb.com/title/tt0090605/ I'd personally been using the term since growing up watching Star Blazers cartoons in the 70s.

As pointed out elsewhere, the grunts in Aliens were not "space marines". Once again: this is a trademark. GW doesn't have a monopoly on the idea of "Sci-Fi Marines". They have a trademark on the specific term "Space Marine" as used within their realms of business. That includes fiction, so the linked post was infringing. Sorry, but it was.

As other people have pointed out, in the United States, GW's trademark for "Space Marines" does not include fiction in their "realms of business." So this is extremely dubious on its face.

Furthermore, under UK law, a trademark can be invalidated on "absolute grounds" which "cover defects in the trade mark itself":

The most common absolute ground for invalidation is that the trade mark is descriptive of the registered goods and/or services, or that it is generic for those goods/services, or otherwise non-distinctive and should therefore be free for everyone to use.

http://www.ipo.gov.uk/invalidtm.pdf

And, actually, according to that law, anyone can apply to have the mark declared invalid on absolute grounds.

The underlying issue at hand -- and this applies to American law as well -- isn't precisely about "prior art." It's about whether the phrase "space marine" is already too generic for the trademark to hold, especially when applied to fiction. "Marine" certainly isn't a GW trademark; this whole claim is predicated on the notion that it becomes uniquely theirs when the word "space" is put in front of it.

...so the linked post was infringing. Sorry, but it was.

That's not the question, is it? The question is whether it should be infringing.

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