Some questions for Rob

[Kaine]

Ok, so i've been using army builder (tm) for as long as i've know about it. Despite some people saying the product is un-necessary i find it very useful in wfb and 40k.

I generally keep my license up to date, and despite all the issues with the cease and desists letters etc i'll probably still renew it next time i need an update.

But i do have a few questions.

Firstly i understand why you feel the need to protect your trademark, although i've got no idea how something as generic as "army builder" was able to be trademarked, i guess at the time gaming was in its infancy i doubt a company would be able to trademark that today, but then i know very little about this stuff.

Anyway on with the questions

1. Why only give the site running a hordes/wm army builder only 72 hrs to comply ? If you really just enforcing the trademark surely giving them 10-14 days to carry out something that might well require re-coding a website would have been fairer, especially since its been allowed to carry out for so long, this to me just seems harsh.

2. I notice in your own forums there are sections for warhammer, and a number of other trademarked games, but cant see any disclaimer respecting those trademarks on either the forum page or the overall page ?

Surely if your going to ask others to respect your trademarks, dont you have to respect theres ?

I'm assuming some sort of agreement may exist between gw and yourselves, afterall you are hosting or providing access to their copyrighted material and despite them going after fan sites, they always seem to have left army builder alone.

3. If the game companies did demand you remove any reference to their material, wouldnt you just been left with a generic army builder, that didnt have any armies to build, and thus the whole product would cease to serve any use ?

 

[Mr_Rose]

IANAL, but I do have a partial answer to 2:
As I understand it, the takedown request was made to protect the term "Army Builder" from becoming generic - do you see any way that the use of the term "Warhammer" on these boards indicates a generic form? As in, is "Warhammer" or "Warmachine" or "Starship Troopers" or any other trademark being used to refer to miniature wargaming in principle, rather than specific miniature wargames?

It is entirely within the function of Trademarks to refer to products; that is, after all, the reason they exist in the first place.

As for 1 and 3:
1. Standard practice as I recall; the idea is not that the take down be completed within 72 hours, but that the receiving company acknowledge the request and either state that they intend to comply, or state that they do not and give their reasoning, within the 72 hour notice period.

3. They already did and do, yet it apparently sells quite well. Army Builder is already a generic tool, and Lone Wolf Development goes out of its way to ensure that it remains so. What other people do with that tool is up to them.

 

[rob]

Firstly i understand why you feel the need to protect your trademark, although i've got no idea how something as generic as "army builder" was able to be trademarked, i guess at the time gaming was in its infancy i doubt a company would be able to trademark that today, but then i know very little about this stuff.

Twelve years ago (1998), the term "Army Builder" was not in in wide use. It's possible that some folks used it in places, but it wasn't something either I nor our IP lawyer (an avid miniatures player for 20+ years) had seen. We selected the name for the product that year, and the current widespread use of the term is basically due to the success and pervasiveness of the Army Builder product. We obtained a registered trademark on the name back in 2003, at which time the USPTO agreed that the name was distinctive and not generic.

1. Why only give the site running a hordes/wm army builder only 72 hrs to comply ? If you really just enforcing the trademark surely giving them 10-14 days to carry out something that might well require re-coding a website would have been fairer, especially since its been allowed to carry out for so long, this to me just seems harsh.

The 72-hour timeframe is considered standard and customary for stuff like this. And we only wanted them to address infringing uses, for which there were only a small number. More importantly, Privateer replied to us within 24 hours and asked if we expected it all to be completed within 72 hours, given that there was a weekend during that interval. We specifically told them that they could take longer, and that all we really cared about what that the issue was noted and action would be taken.

2. I notice in your own forums there are sections for warhammer, and a number of other trademarked games, but cant see any disclaimer respecting those trademarks on either the forum page or the overall page ?

Good point, and this brings up a critical element of why we had a problem with the uses on the Privateer site versus why they don't have an issue with our use. On our site, the name Warmachine is only used in reference to Privateer's product. Similarly, Warhammer is only used in reference to Games Workshop's product. So the trademarks are being appropriately used for the products they apply to.

In contrast, on the Privateer site, the name Army Builder was being used for other competing tools. This was occurring within the names of tools, such as "XYZ Army Builder", as well as in a general manner referring to the category of tools, such as "I'm looking for an army builder for Warmachine". Both of these uses were problems. The former group were an infringement on the trademark and what we wanted corrected on the site. The latter group was something for which a prominent reminder post would have sufficed.

I'm assuming some sort of agreement may exist between gw and yourselves, afterall you are hosting or providing access to their copyrighted material and despite them going after fan sites, they always seem to have left army builder alone.

There is no formal agreement with GW. We've tried to establish one with them a few times, but they've always elected not to do so. That being said, the 40K data file team has worked directly with GW to establish some basic rules for what info does/doesn't go into the data files. For example, the 30-day waiting period after a new codex is released was something GW wanted, so that's why it's done that way. The net result is that GW is happy with how things are handled, so it's an amicable relationship.

3. If the game companies did demand you remove any reference to their material, wouldnt you just been left with a generic army builder, that didnt have any armies to build, and thus the whole product would cease to serve any use ?

That's correct. Army Builder is viewed as something that adds value to each game system that it supports. This is true for the players AND for the game publishers. Consider the following:

-AB lowers the barrier to entry for new players, which means more new customers (and sales).
-AB simplifies preparation so gamers can spend more time actually painting and players, which means higher sales and more deeply involved players.
-AB encourages players to experiment with new army ideas, which further immerses them into the hobby.
-AB facilitates tournaments and leagues, which further reinforces the enjoyment of large groups of players.
-Etc.

Every year, we talk to hundreds of retailers and they invariably tell us that AB is a sales tool for them. If it's a sales tool for the retailers, then, by extension, it's a sales tool for the game company as well. If game companies didn't view AB as a sales tool, they wouldn't allow the data files to continue. And they definitely wouldn't invest the effort to work out an agreement with the data file authors that established guidelines for how the data files should be handled.