Reply To: GW Takes Ghamak To Court!

[onlyonepinman 18113xp 0]

The general consensus in the Chapter House case is that Chapter House won.  Sure, GW won on SOME of their claims but the majority of the findings went in Chapter House’s favour – not half, it was about 2/3 of the claims.  It still remains a pyhrric victory that ultimately led to the closure of the company, but the result is generally seen as a loss for GW, not least because it led to significant changes in company policy in the wake of the ruling over naming conventions and not creating rules for models they don’t actually make.

The term “passing off” means deliberately misrepresnting a product as being that of someone else’s (for example selling fake branded clothing).  So whilst I agree that Ghamak’s models are very similar indeed to GW’s, I do not believe that he is “passing them off” them as official 40k miniatures.  He does not brand them using 40k imagery nor does he make any claim that they are for 40k.  In fact, he is very careful not to mention 40k at all and he markets them as being for One Page Rules’ “Grimdark Future” system.  I don’t think anyone can claim that he is misrepresenting them as warhammer models because he makes no claim that they are .  I think he can certainly be accused of copying their designs, which may constitute immitation and which is covered under the relevant Italian law, but I do not think he is misrepresenting his products.  In fact, I think he relies on the fact that anyone buying from him already knows exactly what they are looking for – i.e. people already know what 40k is, what the units are and as such they know which models to select as proxies without him having to specifically state that.  Therefore they implicitly know that it is not an official GW miniature.  Anyone with no prior knowledge of 40k would not learn anything about 40k as a resultof looking at Ghamak’s range. So I don’t think there is any merit to the claim he is passing his models off as 40k miniatures.

The “imitation” clause of the Unfair Competition law is where they may be a claim;  but imitation is not the same as passing off.  Imitation only requires that one product resembles another to a greater or lesser extent.  However, proving whether one design copies another design has, historically, proven to be a rather difficult subject to deal with because aesthetics are very hard to quantify and any assessment is always going to be subjective.  So, while I certainly wouldn’t want to be in Ghamak’s position trying to defend this, because the outcome is highly uncertain, I don’t think it’s a slam dunk for GW by any stretch, assuming that they are going to pursue him for imitating their products and not, as Ghamak states, for making something that is compatible with 40k (which I honestly can’t bring myself to believe is true).