In the future, all space marines will be Warhammer 40K space marines | Hacker News Reader

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

mcahogarth.org

270 pointsValentineC146 comments

I knew this was going to happen some day. Games Workshop is essentially two separate companies, the raving legal department/copyright trolls (A couple of years ago they regularly put full page colour adverts in all the British wargaming magazines warning that they would enforce their IP with the full power afforded to them by the law, it was generally considered a bad joke by most.) and the (for a lack of a better term) hobbyists who make most of the miniatures and write most of the rules. And it seems like they take turns running the company. For ages, there'll be lots of player-friendly new things and shiny new figures and the terrible quota-driven managers at the shops will be replaced with the people who are there because they love their hobby. And then everything'll change and they'll start enforcing stupid dictats on IP, change the rules of the games to excessively favour those with bigger wallets, bump up the prices of everything and fire those people that sacrifice short term gains for cultivating a long term base of customers and fans.

I find it really sad, I grew up near their HQ in Nottingham. A number of my dad's friends work for them. And I'd love for this to be the push that means that all the other wargaming companies (who in the past couple of years have really progressed in professionalism and quality) will find even more traction. (Although they all still suffer from a lack of space to sell things, there is a GW in almost every town in the UK. They've all but squeezed out the independent hobby shops.) But a lot of people just won't care. And an equal number of people are too locked in, they've spent a lot of money on the GW armies. All their friends have GW armies. You can't just splurge two, three hundred pounds on warmahordes unless all your friends do the same.

All I can hope is that GW gets their arse handed to them and the hobbyists get put back in charge.

Are there alternate rulesets that happen to be playable with the same minis? Could there legally be such things?

I know several of the staff at GWHQ in Nottingham had what was basically their own separate ruleset cobbled together from what they considered the best parts of the games over the prior 25 years. Most clubs had enough house rules that they were basically playing separate games. Although with the current player-unfriendly stance any ruleset distributed as "for GW figures" would find its self on the wrong side of a legal team.

And then a lot of players have very, very irrational attitudes towards proxy figures. I couldn't turn up with a Warmachine army sheet and my Imperial Guard army and play, or vice versa. In fact, that'd get you kicked out of a lot of hobby shops.

There are generic wargame rulesets out there that you can play with basically any minis. For instance:

http://15mm.co.uk/USE_ME_15mm_Sci-fi_wargame_rules.htm

About the favouring those with deeper wallets: there's a great history of players making their own miniatures. I think provided they are reasonably near the dimensions of the 'original' piece - the homemade pieces are accepted and encouraged, allowing those without the financial means to use their own.

The official line has always been fuzzy. A lot of the more quota-led managers would bring out the "no-proxy" rules a lot. But then there is a very blurred line between a "converted" figure and a plain old handmade one. In this regard, HQ was much more lenient than other stores.

Anecdote: Many many stores proudly display 'proxy' models in the windows, presumably made by the staff. I know of very specific rules for tournaments but I can't see casual gamers enforcing them.

"the homemade pieces are accepted and encouraged"

It's not like they can do much about cardboard cut-outs and stand-ins.

or even these - the proud owner states they've been used in actual tournaments with permission[0]:

https://twitpic.com/show/iphone/bcbymh

https://twitpic.com/show/iphone/bcbyvf

[0] http://warhammer.org.uk/phpBB/viewtopic.php?f=3&t=108484

Thanks, those are gorgeous one-offs!

My Battletech set even comes with cardboard mechs, made to be replaced later with metal. I always thought that was pretty neat.

Some models don't even exist, so you have to make your own.

I'm working towards an all female Dark Eldar force (why? because!) and Lady Malys has no model.

This is unfortunate but not unexpected.

I used to run a fairly large 40K website (Tau Online, now defunct).

I'd regularly receive letters and e-mails from the Games Workshop legal team.

I remember one time, someone had made a simple post on our forums saying they were thinking of selling a short story they'd written based around the 40K World. He hadn't named the story. It wasn't for sale. He was just thinking out loud.

Anywhoo, the GW lawyers contacted me: they asked me to delete the whole thread, ban the user and provide them with the poster's IP address, name and contact information. Which, y'know, is a bit overkill. (And possibly not legal? We didn't have their name nor contact information, but I would have assumed I couldn't just hand this information out to any random lawyer).

As in this case, the Games Workshop legal team regularly throw around threats - often with no legal basis.

I hope the blog poster is able to garner enough support to move forward with this. Unfortunately I fear that GW's baseless threats will beat back hobbyists, yet again..

At least Warhammer 40K is their actual product. As comments in TFA and here indicate the expression has been in scifi since 1932: http://en.wikipedia.org/wiki/Space_marine

There were Space Marines in the 007 movie Moonraker.

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

So why is this not an open and shut case ?

Because lawyers.

Because 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.

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. 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.

Was "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.

Alien came out in 1979. Aliens in 1986.

I would say it was in common usage.

We're they "space marines" or "colonial marines?"

I believe you're correct on the official name. I would make a case that most people thought of them as Space Marines though.

Apparently the term 'space marine' was never used in the movies, but the alien-themed toys by Kenner from 1992 do use it.

Would the fact that GW didn't enforce against that use be enough to invalidate their original 1987 claim?

Maybe if we also dug up a whole library of other fiction and toys/games using the term as well.

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.

Sorry, but they did use "space marines"

EX: "ALIENS SPACE MARINE LT.RIPLEY" http://www.amazon.com/ALIENS-SPACE-MARINE-LT-RIPLEY/dp/B0009...

When was that figure made? Ripley wasn't even a marine, of any sort, in the movies.

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 toy company from GW, or perhaps to award them damages due to GW's mark causing loss of sales.

He's not claiming that their trademark is invalid because of "prior art", he is saying that they should not have a trademark on the term in the same way that Tropicana should not be permitted to have a trademark on "orange juice".

That is to say, "space marine" and "orange juice" are both clearly descriptive marks. That "space marine" is a descriptive mark is evidenced by it's long history of usage.

http://en.wikipedia.org/wiki/Trademark_distinctiveness

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.

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.

Not just obscure pulp. Heinlein, for example, is one of the notable users of the term.

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.

Trade | 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.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)

"Coke" has other meanings in a different industry. "Space Marine" has prior art in the same industry.

But 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.

It 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.

This 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.

I guess someone needs to have the money to go to court over it.

Because 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.

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 (arguably) infringing on it, so I assumed you had abandoned the mark,' and get away with it. If you're a trademark owner, you have to go through the motions of defending your mark against all possible infringers - a use-it-or-lose-it situation, as it were.

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.

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

They don't have to litigate; they can read a reply from the publisher and say 'oh all right then.' But if a trademark holder doesn't bother to raise the issue with someone else who employs the mark, then their lack of interest can be attacked in court as constructive abandonment. I don't think any money needs to or should change hands.

As an example, I put out a book featuring space marines, nothing happens. I put out some novelty children's outfits featuring space marines, nothing happens. I put out a game involving space marines, GW (reasonably) objects that I'm infringing upon their trademark. I say in response that I put out two other space marine themed products and they didn't care, so I assumed they'd lost interest.

I wouldn't want to be seen as carrying a torch for GW here, I actually have an intense dislike of the company and its history of monopolistic tactics at consumer expense. It was cool firm until about 1984 when the MBAs took over the firsm and adopted a scorched-earth approach to all other firms in the space.

That makes sense.

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.

Yeah they're pretty boned. They'd be mad not to accept the inevitable embrace the tech and re-gear their business model around that.

Given how hard they've worked to squeeze their fanbase for as much cash as possible, it kinda seems like they're toast.

A beloved brand can survive a technological shift that invalidates their current business model, but a reviled brand is done.

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

As a huge science fiction nerd and Games Workshop customer, this feels like rank betrayal. I expect this kind of legal bullying from big companies, but from a company that makes minifigs and other gaming accessories I expect better behavior.

Do what I did and stop being their customer. I stopped when they outlawed online sales of their products then jacked the price 200-500% over the course of a year or so. There are lots of other quality gaming systems that are not Games Workshop ( here is my current favorite [0])

0. http://privateerpress.com/warmachine/

GW has previous form, they issued a bunch of C&Ds recently to many websites.

And they're a pretty big company. They're a PLC trading on London Stock Exchange. (http://www.londonstockexchange.com/exchange/prices-and-marke...)

If they're public, they're subject to shareholder reaction.

Perhaps making large shareholders aware of the PR damage the company is about to take is a viable path.

They were using this sort of legal bullying as a tactic when I was a kid. They've seen more than their share of "PR damage" in the past and it doesn't put them off.

GW is a large company. And it is the behemoth in it's industry. They do not innovate, just rehash same properties. They are the incumbent, "monopoly", content holder who (attempts to) destroy little guys.

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?

I'm observing the difference between one approach to RPGs and another. WoTC is the current maker of D&D. Granted, they're competing more against World of Warcraft than other pen & papers these days, but it's still very interesting to see how they've tried to change their model. GW still seems very reliant on pewter miniatures for survival, which will not last as something like this http://www.kickstarter.com/projects/formlabs/form-1-an-affor... gets down to the $500 + cost of resin price level.

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

None of the stuff you had as a kid would be playable. The rules have changed, the figures replaced, old ones out classed, etc. GW rehashes so you have to buy new stuff constantly. They don't innovate (besides marketing/sales innovations).

Hasbro (wotc is subsidary) also rehashes, maybe more so. They're only innovations are sales and marketing based. They recent innovations online portal, 4ed and gamma world have flopped hard.

Games Workshop is worse than Disney when it comes to protecting their IP. Just search google for games workshop lawsuit.

Ditto. Still have fond memories of GW from my pre-teens. That they'd do this really offends my adult (sci-fi reading) self.

As much as I dislike it, I can understand their course of action. If they were to stop enforcing whatever trademark, or copyright they may hold, another judge at another point in time could potentially use that against them.

That said, it's still not pretty.

Games Workshop have been betraying their customers for ages...

This is par for the course, sadly. If you're not aware of this side of GW, well, you just haven't heard.

Cred: I have two Warhammer tattoos on my forearms.

There's some interesting discussion on Scalzi's blog, too. Here's a bit of information I found rather interesting and potentially useful (from the comments section):

The mark was registered for US Class 22 – games and such – and is most specifically not the class(es) for printed books or ebooks.

Here's the link to the comment in question:

http://whatever.scalzi.com/2013/02/06/space-marines-and-the-...

It appears you are correct.

Oldest "Space Marine" trademark record in full:

1. Registration Number 2100767 (http://tess2.uspto.gov/bin/showfield?f=doc&state=4004:vp...) here:

<quote>

Word Mark SPACE MARINE

Goods and Services IC 028. US 022. G & S: 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. FIRST USE: 19870900. FIRST USE IN COMMERCE: 19871000

Mark Drawing Code (1) TYPED DRAWING

Serial Number 74186534

Filing Date July 19, 1991

Current Basis 1A

Original Filing Basis 1A

Published for Opposition November 23, 1993

Registration Number 1922180

Registration Date September 26, 1995

Owner (REGISTRANT) GAMES WORKSHOP LIMITED CORPORATION UNITED KINGDOM Willow Road, Lenton Eastwood Nottingham NG7 2W5 UNITED KINGDOM

Attorney of Record Naresh Kilaru

Type of Mark TRADEMARK

Affidavit Text SECT 15. SECT 8 (6-YR). SECTION 8(10-YR) 20051125.

Renewal 1ST RENEWAL 20051125

Live/Dead Indicator LIVE

</quote>

2. Games Workshop Limited also owns "Space Marine" Registration Number 1922180 (http://tess2.uspto.gov/bin/showfield?f=doc&state=4004:vp...):

"Goods and Services: IC 009. US 021 023 026 036 038. G & S: video computer games; computer software for playing games"

That is ... incredibly stupid.

I'm no 40K fan (at all), but I realize it's huge. On the other hand, the concept of "marines, but in space" really is a genre trope as pointed out in the article. It feels wrong for a single company to own that generic term.

I've read if not shelf-meters then certainly shelf-decimeters of SF with plenty of marines in them, none being of the Warhammer variety.

I'm looking forward (not) for the chilling effects to make authors invent new wordings to avoid infringement.

They only "own" it because they're taking it. Space marines were used in science fiction before they did it. They're taking something that doesn't belong to them, by being much bigger than their opponent. The word for that is bullying.

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=...)

>I've read if not shelf-meters then certainly shelf-decimeters of SF with plenty of marines in them, none being of the Warhammer variety.

I've read at least a shelf-meter of books involving 40K space marines. As the article alludes, 40K space marines are called Adeptus Astartes or simply Astartes.

This is one of things that makes this such a jackass move. Their own, licensed writing would seem to acknowledge "space marine" as generic.

Anyone who read 2000 A.D. in the early 80s knows where the guts of Warhammer 40K was stolen from. (And Ridley Scott would like his Tyrannids back, please.)

Be pure. Be vigilant. Behave.

Google's Ngram Viewer shows that the term "Space Marine" was in use for quite a while before W40K's 1987 release but there was a big increase after 1987. At a glance, the trend seems to be similar to trends for other related terms such as "powered armor" but doesn't match the trend for "Warhammer".

http://books.google.com/ngrams/graph?content=space+marine%2C...

Amazon itself sells a few books with the term. Why doesn't the author ask Amazon to take down the other non-Warhammer titles or reinstate his? http://www.amazon.com/s/ref=sr_pg_9?rh=n%3A283155%2Ck%3A%22s...

I only saw one entry on the first page of those results that had the term and wasn't a GW license.

The solution to this is to not support Games Workshop any more. They are no good for anyone including your FLGS. Stop giving them the attention and money that allows them to continue to punish their customers and competitors

The G&S description for their mark is 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.

The mark has been registered for more than five years so it is "incontestable"(with caveats). But, even if the registration is valid, they have an issue with the class and g&s for their mark in terms of enforcing it against your goods and services.

GW has the printed material trademark in Europe. They complained to Amazon UK, which caused Amazon to remove it from everything.

http://mcahogarth.org/?p=9999

This strikes me as more of an issue with Amazon than anything else, because they should have only removed the book from the markets where it the complaint was raised, instead of everywhere.

That's really too bad.

I've enjoyed many 40K novels, love the Dawn of War games and even own some table top material, but I wasn't aware of GW's taste for lawsuits until now.

GW just lost a customer.

Thankfully, Dan Abnett isn't afraid to write original novels and Relic has other franchises.

We might be watching a company eat itself here. Considering the amount of engineering types in the market for minifigs, plus the impending ubiquitization of 3D printers, customer good-will should be the most valuable asset of Gamer's Workshop.

I doubt it. This is not a new development. It's well known and well-established that GW are anal with regard to their IP. This should come as no surprise to anyone who has spent any time involved with the GW community.

No amount of good-will is going to prevent GW's business model from being seriously affected by consumer-level 3d printers.

Thankfully for them, we're still a few years away from this being a concern. My guess? 3-4 or whenever the UV resin-baseds take off. The Repraps and higher-quality extruders still aren't ready for your average consumer in price, time, and finish.

Sure, a loved and respected brand could pivot to selling printer schematics and printing materials/paints that are tested and guaranteed to work well together. Set up local branches that have printers so you can go into the store, buy some schematics and print them off (at a markup) there in the store directly.

You eliminate all your manufacturing and packaging costs and get to keep your fanbase engaged. You could really go for the gold and offer a subscription that gets you recurring access to new schematics, and then you can pivot the business towards designing new units and since you no longer have a manufacturing concern to maintain, you can churn out tons more units.

I wish there was a Kickstarter like non-profit organization whose focus was finding and defending worthy cases like this. People/organizations submit their situation and do the work of raising awareness and collecting pledges, the organization uses the money to oversee the actual legal case and pay the attorneys, ideally a network of folks who would be willing to consider defending said cases at a reduced or pro-bono rate when possible. Might even out the David-and-Goliath odds of corporation vs. small business/individual.

This sounds suspiciously like the EFF but exclusively/more for IP focused issues.

This was my initial reaction. Is there any reason why you couldn't create a kickstarter campaign around this?

> Prohibited uses:

> No charity or cause funding. [0]

Indiegogo would probably allow it though. See for example [1]

[0] http://www.kickstarter.com/help/guidelines

[1] http://www.indiegogo.com/bearlovegood

Rather than approaching it as a cause, could it be understood as gaining IP clearance and the the last step in the production of the novel; I mean, legitimately one of the last steps in making the specific novel a reality, not just a general cause.

The problem is that when you pay the legal fees for a party, you can be exposed to liability in certain cases. It's actually happened quite a few times.

http://www.popehat.com/2013/02/06/the-popehat-signal-help-an...

They weren't exactly the nicest company in the 80's and 90's (ask a lot of old game store owners), so I guess it comes as no surprise that they took the lesson they learned from Blizzard this way.

They also have a trademark on Eldar, a term for a race of Elves in Lord of the Rings.

I rather hope that this will be one of those situations where overstepping the mark leads to their being pulled up on all of their unreasonable trademarks and copyright assertions.

He missed the chance to title this post with 'In the grim darkness of the far future...'

... there is only litigation.

"Forget the power of technology and science, for so much has been forgotten, never to be relearned."

Legally, where does that leave StarCraft, especially the soon to be released Heart of the Swarm (all have units called Space Marines)?

If GW don't (and never did) enforce their trademark against Blizzard, do they have any say against a book author that wants to push the topic in front of a court?

AFAIK, Blizzard didn't license the term.

It's pretty funny, Warcraft and Starcraft are both blatant ripoffs of GW's Warhammer and WH40k. I even recall reading somewhere the original Warcraft RTS was to be an officially licensed Warhammer game. But gee whiz, I wonder why we don't see legal action brought against Blizzard?

Starcraft rips off both WH40k and Aliens, but I think it rips of Aliens more. Plus, Aliens was released 1 year before WH40k, so it has precedence. And Aliens ripped off Starship Troopers (the book), and Starship Troopers (the movie) rips off Aliens. It's complicated.

WH original and Warcaft are both simpler - they both rip off LOTR.

Which, in terms of trademark, is very irrelevant :).

This is a weak trademark, it has no secondary meaning that I can discern. You have marines. They're in space. Thus, "space marines." That would seem to fall under the weaker classes of trademark protection[1] and even though I have long known about Warhammer 40K, the words "space marines" do not make me (or most other people I know) think of Warhammer 40K. Personally, that term makes me think of the Aliens movie and Starcraft. They're nowhere near as famous.

Of course, the problem here is that they have more lawyers and wherewithal to contest this than most. Your average person does not have the resources to make a federal case out of this and their lawyers have a perverse incentive to be assholes when trying to prop up a weak trademark claim.

[1] http://www.bitlaw.com/trademark/degrees.html

This is all true and the interesting part of the story. My point is that just crying "prior art" doesn't work in trademark. Observations like yours do.

So, putting "Space Marine" in a title might a bad idea, but having marines in space (with or without mechanized body suits) should be fine. To reduce legal risks, you might want to call them "Space Core Maines" or "Space Marine Core".

Blizzard was obviously "parodying" the Colonial Marines from Aliens. If you click on them enough, they'll even quote Aliens (as will the Dropship). A little bit of comedy makes almost everything legal (in the US).

Early Blizzard employees have given at least one interview where they said that Warcraft and Starcraft were inspired by their love of the Warhammer and Warhammer 40k universes.

I may be wrong but I think that the Starcraft unit is always called 'Marine' and not 'Space Marine'

I actually thought the same and it seems to be true in the english version, but for example not in the german one:

http://eu.battle.net/sc2/de/game/unit/marine

And blizzard (nor anyone else) should have to license the term from GW. According to wikipedia:

The earliest known use of the term "space marine" was by Bob Olsen in his short story "Captain Brink of the Space Marines" (Amazing Stories, Volume 7, Number 8, November 1932)

There is no need for lack of prior art in trademark law, as multiple people have stated in this thread.

Does it have to be 'space marine'? Can he change it to 'galactic' or 'interstallar' or something else that would be less infringing?

I know it's disheartening but this isn't the battle he wants to fight. Someone with deeper pockets will fight it someday. It's enough to spread the word about GW's legal bullying and let us all make our own decisions on whether we want to purchase their products.

The really unfortunate part of the situation is that they are generally required to defend their trademark or else it goes away. Even when they know something is "fair use" or whatever.

"Unlike patents and copyrights, which in theory are granted for one-off fixed terms, trademarks remain valid as long as the owner actively uses and defends them and maintains their registrations with the competent authorities. This often involves payment of a periodic renewal fee." http://en.wikipedia.org/wiki/Trademark#Comparison_with_paten...

Of course I still think that there is no effing way that they should have gotten a trademark on "Space Marine." Totally bogus. I want to start selling a product called "Legal" and trademark it and use that trademark to shut down every company that offers legal services.

They are not required to sue every person to defend their trade mark. They could simply ask Hogarth to enter a license agreement.

In the future, all "space marines" will simply be "marines." In any plausible scenario in which we have "space marines," having a dedicated corpus of naval marines would be unnecessary.

Ergo, the solution is simply to let Games Workshop keep the silly moniker and just call your future super-soldiers what they would properly be called.

Wouldn't they really be called something else entirely?

The term marine implies a soldier who specialises in sea based warfare or deploying from sea.

The sci fi tradition of calling a fleet of combat starships a "navy" leads to the soldiers who deploy from those ships being called "marines". It makes a certain kind of sense.

Humans rarely use new words when old words will do. When we were looking for a word to use for "thing that keeps us alive in space", "ship" was the obvious one since we already had a word for "thing that keeps us alive on the ocean".

When we are looking for a word for "soldiers that accompany ships in space", "marines" is almost certainly the word that is going to be used.

They're "like" Marines, first to drop, only in space.

Google trends search: https://www.google.com/trends/explore#q=%22space%20marines%2...

All ten related searches are for GW items.

But, of the A through G points on the 2004 to present graph, only two items are for GW.

Once the USMC, which has for the past few decades used Starship Troopers as an inspiration for how it should be organized, actually commences near-Earth-orbit operations, I'm sure they'd have an opinion about this mark and this sort of lawsuit.

The suckiest aspect of what they're doing is the target.

GW are sending their nastygrams to a novelist. And not a best-seller, but a low-budget self-published author who's been donating a chunk of the proceeds to veterans' charities: someone without a sufficiently deep pocket to fund a legal defense.

If GW's lawyers really had the power of their convictions they'd have started by targeting James Cameron over "Avatar". After all, which infringement is more damaging to their brand -- an obscure self-pub serial with maybe a couple of thousand readers, or a big budget movie franchise that cost a billion dollars to make and presumably (Hollywood accounting practices aside) made the backers a profit?

However, there is prior art for "Avatar" in hinduism.

Prior art is applicable to patent law, not trademarks (at least, not in the context of invalidating them).

If the author kickstarted or otherwise crowd funded the legal defense for this, I'll give $100. Trademarking "Space Marine" is pretty much like trademarking "Amphibious Car." It's not exactly a mainstream term, but still everyone immediately knows what it means without explanation, and it's been in common use within its niche for almost a century.

It would be one thing if GW had sent the nastygram and came to some kind of token settlement, that should be enough to cover their interests, but to get the book taken down instead seems wrong.

Stupid trademarks are another form of IP pollution. $100 from me!

It's a shame, warhammer40k has an interesting plot (including horus heresy) but this kind of corporate bullying plus the ridicule pricing are making fans to leave the lore.

How about a "Save the Space Marines" kickstarter to pay for legal costs on your case and future cases involving obsurd legal allegations stifling science fiction writers?

How about to kickstarter to buy the company and open source the game, like people building their own armies with 3-d printers!!!

Popehat is trying to find a trade mark attorney to help out Hogarth. If you know a lawyer who does this, see if they'll help.

http://www.popehat.com/2013/02/06/the-popehat-signal-help-an...

Certainly in the UK, it's a defence to use a trade mark in good faith in a descriptive manner. I think this would be a solid defence in this case as the usage is merely describing the character (I assume).

Of course the problem is internet intermediaries who are not interested in the nuances of trade mark law.

In the first instance, I would look to appeal the Amazon decision on the basis of good faith descriptive usage. I'm not sure how much mileage there would be on this due to the general lack of interest mentioned above but worth a try all the same. If it is indeed Amazon UK where the complaint has been lodged I'd be happy to look into the matter further.

In terms of an obligation to defend a trade mark, this is a narrower obligation than is being cast elsewhere in the thread. My understanding is that if you do not enforce in relation to a specific use, you will be deemed to have acquiesced in that specific usage.

It is not the case that failing to take action against all allegedly infringing uses will result in revocation of the mark. You just may not be able to take action in the future against the same offender or offenders within the same bracket.

> Certainly in the UK, it's a defence to use a trade mark in good faith in a descriptive manner.

Using it in a descriptive manner is something like:

"I have here for sale two boxes of Kleenex tissues and one box of Band-Aid bandages and one Warhammer 40K rulebook."

You are not infringing any trademarks, even though you are using the trademark in commerce, because you do in fact have those things (as created by the original maker, and resold by you). You are using the trademark to describe goods, not to indicate that you are the original producer of said goods.

The usage here is entirely different. She is not claiming anything about any actual Warhammer 40K merchandise. You're right that the trademark claim is crap, but not for this reason.

I would argue that in the UK, s11(2)(b) of the Trade Mark Act could be used to make my argument. The book features a marine who is in space aka a space marine. The usage is necessary to describe the product. Admittedly this may be a tricky one to run.

Your point is more about exhaustion of right where goods have been put on the market with the owner's consents. In the UK, this would be covered under s.12 of the above act.

Irony alert. Games Workshop railing against strict copyright enforcement in 1978: http://sphotos-e.ak.fbcdn.net/hphotos-ak-prn1/67991_55608864...

Colonial Marine, Galactic Marine, Star Marine, Void Marine, Interplanetary Marine. I could come up with many more, why not just pick one of these instead.

Space Marine sounds familiar for a reason. I've got to side with GW on this one.

But that's not the point - it sounds familiar because it is a catch call term that has been broadly used in science fiction literature.

This isn't trademarking the term, "lightsaber." This is trademarking the term, "laser sword."

I don't really have an opinion one way or another about this, but I wonder if there's the same sort of anger about the fact that Lucas has (and defends) a trademark on "droid".

Since the generic term is "robot" or "android", it seems valid to me.

Sounds awfully like "I'm only gonna do this if I get enough publicity out of it".

That's not the case here. It's just that an independent artist and novelist working in a niche market who recently had to take on a regular job again to pay for family expenses doesn't have money to burn on spurious lawsuites just for the heck of it.

I've been following her blog feed for a few years now - I started paying attention because of her free web serials, but the slice-of-life and business related postings are what kept me reading (on-and-off again, admittedly).

You should not be able to take down a book, a song or an album, a drawing over intellectual property.

Once it's a piece of art it should be immune to all and every trademark or copyright (if, of course, the art in question is not a strict copy of another copyrighted piece of art).

That's the only way.

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