They Did It Again!

Why are lawyers like nuclear weapons? If one side has one, the other side has to get one. Once launched, they cannot be recalled. When they land, they screw up everything forever.

I’m a lawyer. Sometimes I say I became a lawyer to fight other lawyers, because they are the scum of the earth. To defeat heavyweight boxers you need to become one.

Above the ‘War Banner’ name and trademark. They announced this month that they will become Dark Peak Games. Reason:

On the 1st March 2019 Games Workshop Limited (GW) requested the withdrawal of our trademark WAR BANNER as in their opinion it bears significant similarity to GW’s registered trademark WARHAMMER with our registration being sought in relation to the same classification of goods which GW sells under WARHAMMER.

In their defence GW has used its trademark WARHAMMER to sell sculpted miniatures, publications and accessories for tabletop wargaming since the release of ‘Warhammer 1st Edition’ in 1983. Over the years, GW has amassed considerable goodwill and reputation in this mark through its widespread and consistent use.

After seeking legal advice Mark Farr and Andy Hobday decided to comply and have worked with GW to reach a satisfactory conclusion.

Above the ‘old’ logo’s. Below the new ‘Warhammer’ logo, revealed yesterday, April, 5th.

UK and European trade mark law states that

“a person infringes a registered trade mark if he uses in the course of trade a sign which is identical with the trade mark in relation to goods or services which are identical with those for which it is registered”.^[2] 

A person may also infringe a registered trade mark where the sign is similar and the goods or services are similar to those for which the mark is registered and there is a likelihood of confusion on the part of the public as a result.^[3]

A leading case is the European ‘Arthur’ vs ‘Arthur & Felicie’ case. Both were fashion trade marks. ‘Arthur’ was a handwritten word, Arthur & Felicie not. The European Court of Justice decided that in in the fashion industry the two trade marks were too similar, And to make a long story short, it all depends on the circumstances, will a common consumer confuse the two brands/ trade marks? ‘Arthur & Felicie’ lost the case against ‘Arthur’ in the end.

The true story

Let me give you the true story – money. It’s a big wallet vs small wallet-situation.

The original Warhammer logo, with colours, and the ‘Warhammer 40.000’ logo bore no resemblance to War Banner. Every IP lawyer would have a hard case to prove that ‘War Banner’, two separate words, are similar to ‘Warhammer’ or, ‘Warhammer 40.000’. But.

You see: the new WH logo is black and white. It might bear a passing resemblance to the black-and-white War Banner logo.

That could mean that dwarfish War Banner, just like Arthur, might have had a case against giant Games Workshop. Warhammer is the older brand, though. So the possible outcome of proceedings is not sure.

GW has the biggest wallet. War Banner/ Footsore Miniatures is a tiny company. I’m quite sure that the IP lawyers decided to nuke the War Banner trade mark to prevent legal claims or other IP difficulties with the new black and white logo. A pre-emptive strike, in nuclear war terms. And an easy victory, because tiny War Banner doesn’t have the money to pay IP proceedings, anyway, not to mention damages if they would lose the case.

So big money wins again.

That’s why I hate Games Workshop lawyers. Not because they are not good in what they do, but because big money wins small cases. Why is money king?

(PS: A company ‘Peak Games’ immediately objected so War Banner, who adapted the name ‘Dark Peak Games’, will continue as ‘Footsore Miniatures’, their trade name. Peak/Dark Peak is quite similar of course)