Reply To: GW Takes Ghamak To Court!

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I think we’re understanding the same issues here differently, so there’s not really much point in “arguing” further.
I don’t really understand “the law” because it’s not clear which law is being adhered to, and in which jurisdiction.

You cannot sell fake rolex watches or knock off nike t-shirts.

Absolutely not – although in places like Turkey, this is more of a “grey area” 😉

But generally, you cannot take a cheap watch and paint “Rolex” on it and sell it as if it is a Rolex.
You can make a cheap watch that looks similar to and has similar features to a Rolex.
Too similar – or include protected design elements (like a name/logo) – and you breach IP laws.
Similarly, you cannot put a well-recognised tick logo on a t-shirt and sell it as a Nike t-shirt.
You can put some other design on a t-shirt and sell it as a not-a-Nike t-shirt.
You cannot put some other design on a t-shirt and sell it as a Nike-t-shirt-with-a-design-you-just-don’t-know-about-yet.

The design you put on the t-shirt while selling it as not-a-Nike-t-shirt can get very, very close to a Nike tick logo.
Too close, and you get caught in copyright infringement. Different enough – as long as you’re not telling people it’s a Nike branded shirt – and there’s no problem.

But if Nike were to shut down t-shirt sellers who had very similar designs, not on copyright/IP infringement grounds, but “unfair competition” grounds, it would be concerning for all t-shirt sellers, who would effectively need “permission” from Nike in future, to sell their own designs.

Some of Ghamak’s designs are very close to GW IP. Some are different enough to fall outside of a copyright claim.
GW are not asking for offending designs to be removed (or for recompense for breaching copyright).
They are claiming “unfair competition”.

If :that guy over there: is selling his own action figures with a dude in a red and blue spandex suit, big white eyes and a covered in a web design – he’s clearly ripping off Spiderman (wow, you brought a lot of different examples to the table!). He might change the colours to orange and turquoise. It’s still close enough to be confused as possibly Spiderman. But black and yellow? – clearly not Spiderman. But Spiderman has other distinctive characteristics, not just a red-and-blue coloured suit.
So a superhero in a spandex costume, covered in webs and a spider on his chest – irrespective of colour – is clearly taking inspiration from Spiderman. If the seller takes the spider off the front (as Ghamak took the aquilla off the armour designs, for example) and you can see the inspiration and also clearly see it’s not Spiderman. If he called him “Arachnidman” he’s clearly taken inspiration from, but is different to Spiderman and, he’s not claiming that it is Spiderman.
Eventually the changes are enough that you can both see the blatant and obvious inspiration and recognise that one is not the other.

So if Marvel then raised a court case, saying that anyone who produces action figures of characters in spandex suits was creating “unfair competition” (not that they were ripping off specific designs) they would rightly be laughed out of court.

To be clear – Ghamak has ripped off some GW designs in the past – some were out-and-out copies of GW IP.
But he also has some designs that are different enough to have merit on their own right.
How different does “different” need to be to be acceptable?
Which is why it is wrong for GW to demand the entire operation be shut down for reasons of “unfair competition”.
Not for “passing off” or breaching copyright/IP laws.

Because if this sets a precedent, then large companies can shut down smaller competition on grounds not of “passing off” but simply “unfair competition” – and that is not a good thing in general, let alone in our own tiny corner of the nerd-world.

I agree completely with @onlyonepinman – it’s not about GW shutting down a guy who has clearly benefitted from people wanting to buy “knock off” proxies for GW miniatures – it’s the means they’re using to do it.
Because it’s opening the door for an abuse of power for them (and other large, cash-rich companies, who can finance such law suits) to shut down competition, simply by citing this case as “unfair competition” (and not shutting down specific cases of “passing off” for which they may have had an argument).

Has he created the model to take advantage of GW reputation and goodwill. Basically are people buying in direct replacement of the GW one ? Well yes very clearly that is the case.

This is not against the law. People buy Aldi’s cheaper Mars bar alternatives indirect replacement of the more expensive genuine article. It is not against the law to create a product similar to a competitor’s in order to encourage customers to buy “in direct replacement” of the original one. But GW’s argument of “unfair competition” is trying to make exactly this point.

Ghamak is not an entirely innocent party in all this.
But the way GW is going about things is entirely disingenuous and threatens future creators and smaller, independent miniature designers and sellers.