Reply To: GW Takes Ghamak To Court!

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Maybe it’s because we’re so close to understanding the differences that make something NOT-GW (whereas a “muggle” might not be able to tell them apart) that makes this such an interesting case. But anyone buying STIL files for minis online isn’t a “muggle” who has accidentally stumbled into a confusing marketplace – they’ve actively gone looking for this sort of stuff, with an knowledge and understanding of what it is they are buying.

Here in the UK, Aldi has been involved in numerous cases of alleged “passing off”.

Some they won, some they lost.
In the UK, passing off has to be intentional (which is how Aldi get away with so many similar packaging/branding “clones”). There have been cases of claimed “post-sale confusion” but these are indecisive –  a famous case was the “Colin the Catapillar cake” case. (Despite settling out-of-court, Aldi continues to sell “Cuthbert the Catapillar” cakes).
Aldi’s defence rested on the argument that when people enter an Aldi store, they know they are presented with cheaper alternatives to the “real thing”. In which case, nobody buying from Aldi could accidentally believe they were buying a more expensive alternative (like an M&S cake) because they specifically entered what is well-known as a “budget brand store”.
(incidentally, Aldi lost the case against Thatchers Cider which was brought on similar grounds).

There’s a fair argument to say that if you visit a web store where a guy is selling STL files of his own sculpts, you already know that you’re not buying GW genuine models – even if they look remarkably similar. So the passing-off argument falls.
How this is resolved in Europe (as opposed to the US or UK) could well be different again.

Which leaves the IP/copyright argument.
And if the case goes to court and is held up because of this, it potentially threatens every independent miniature creator and puts a massive amount of power in GW’s hands to just shut down anyone who presents a commercial threat.

I’m not sure the case is as cut-and-dried as “if it looks the same, it’s a rip-off and the entire store needs to be shut down”.
When I see “Titan” chocolate bars in Aldi, I can see they are trying to be Mars bars.
They use the same style packaging, colours, the font is similar – they are making it very clear what they are supposed to be.
And I buy them because they are trying to be the thing I know and am familiar with.
That’s not reason enough to prevent Aldi from selling them. Because I know it’s not a real Mars bar. So “passing off” doesn’t apply (if they used the same name, packaging and colours, and I bought what I thought was a Mars bar, things would be very different).

Ghamak’s miniatures are not exact copies of GW minis and he’s not saying that’s what they are.
Anyone buying Ghamak’s minis know they are not buying GW minis (like the Aldi argument – because of where you’re buying the goods, you can’t be tricked into believing you’re buying the “genuine article”).

Ghamak’s Dark Angel model Nathaniel is clearly an alternative of the Sammael 40k model. But it is not trying to be “passed off” as the original GW one. You can’t buy GW STLs online. So nobody downloading an STL of Nathaniel can legitimately claim they thought they were buying the GW original Sammael.
(if someone printed Nathaniel and advertised it for sale as GW’s Sammael, this would be passing off – but it would be the printer/seller, not the original sculptor guilty of this).

So the GW argument is simply “this looks too much like our stuff, so he shouldn’t be allowed to  sell it”.
Which is a very dangerous precedent for a company (that literally built their lore over the last 40 years by copying existing fantasy IP) to be allowed to set, without – as Ghamak claims – identifying which distinguishing features they are objecting to, and just applying for a blanket ban.