Company Cries Patent/Trademark Infringement After LARPer Guy Sells Some Foam Arrows He Didn't Make
from the incredulity-roll dept
It's often claimed that patent and trademark litigation is chiefly employed as a measure to simply lock out otherwise fair competition. That said, the folks making those claims typically like to hide that truth from the general public. The founder of Global Archery, John Jackson, on the other hand, appears perfectly willing to come out and describe his motivation for filing a patent and trademark infringement suit against a LARPing hobbyist that sells some non-lethal foam arrows on the side.
But first some background. LARP stands for live action role play, for those of you who didn't know that already. To aid in the roleplaying of battles, LARPers will use non-lethal "weapons", such as foam swords and arrows, and the like. Larping.org is a hobby site for LARPers, featuring interviews, how-to videos, etc. In their shop, they also sell LARPing gear, all of which I believe is resold from third party manufacturers. Now, Global Archery has patents on specific foam-arrow designs, which chiefly revolve around the way the foam arrowhead is secured to the shaft. One half of the company's claim against Larping.org is for infringement on those patents.
Except, as I mentioned, the staff for the site isn't making the arrows; they're simply reselling them to hobbyists after importing them. From a GoFundMe page that Larping.org co-founder Jordan Gwyther setup to combat the suit (more on that in a moment), he details where the arrows come from.
Over the past few months I've become stuck in a legal battle with someone who claims to own the patent on foam tipped arrows, the kind we use in larp, and is attempting to stop me from selling the iDV Arrows I import from the creators in Germany.iDV Engineering in Germany makes the arrows and features them prominently on its website. Larping.org doesn't make them at all and only resells them upon importing the foam arrows. Given that iDV Engineering is the one selling into the American market, if there is any validity to the patent infringement claim, I would wonder why Global Archery isn't taking it up with iDV instead of Larping.org. Except, of course, that Larping.org is a tiny hobby site, and more easily bullied than a German corporation. Now, it is true that under patent law, you can go after those who are merely "selling" allegedly infringing products, but in this case, it still appears to be pure bullying tactics.
And then there's the trademark infringement claim. To get to this claim, Jackson is going back to the really dumb Google Ad-Words well, even though it almost never works.
He also thinks Gwyther shouldn't be allowed to buy Google ads based on his company's name. The practice of buying trademarked keywords in search engines has been litigated for more than a decade now, and trademark owners who take Jackson's position—that purchasing ads based on competitors' names is "infringement"—nearly always lose, a pattern documented exhaustively by Santa Clara Law Prof. Eric Goldman. Still, Jackson believes it shouldn't be allowed.Except, as the Ars post notes, that claim is almost always a loser in court, assuming the defendant has enough money to fight. And, from Jackson's other responses in the post, it's clear that bullying out the competition through a legal battle is exactly what this action is all about.
"He's targeting our customers, and targeting our brand," said Jackson. "He's using [our name] as keywords for his advertising. That's not right."
"We started getting contacted by our licensees," Jackson said. "They were saying, 'Who's Larping.org? He's contacting us and trying to sell us arrows.' Well, that didn't set too well with us," Jackson said.Why do you have to contact buyers of foam arrows when you sell foam arrows? Because that's the very definition of competition. In fact, Jackson is so aware of the combination of his company's tenuous claims and the public reaction to his bullying that he attempted to settle with Gwyther for no money, but burdened the settlement offer with all kinds of restrictions, including: a promise to never contact or sell to a Global Archery customer, to cease all public conversation about the case and about Global Archery, to cease using the Google Ad-words that include Global Archery trademarks, and to remove Gwyther's GoFundMe page.
Jackson doesn't believe that Gwyther should be allowed to speak to his customers and tell them he has a better product.
"When you're a commercial enterprise, and you say our product is better than yours, that is false and misleading," said Jackson. "You can't do that in commercial advertising. That would be like me selling tennis shoes by saying they're better than Nike."
When I asked Jackson how that wasn't simply legitimate business competition, he said that claiming one's product is better than a competitor's, "without proof," is false advertising.
"If he's in the Larp community, why does he need to go after my customers?" asked Jackson. "These are people who have already got a business relationship with us."
That last one, by the way, is especially revealing of just how much Global Archery is feeling the public backlash. And not just for the lawsuit. After Gwyther put the page up in the first place, Global Archery reacted to it by trying to slap him with a court gag order.
That led Global Archery to ask the judge for a "gag order" that would prevent Gwyther from talking about the case. At that point, the Electronic Frontier Foundation stepped in, filing an amicus brief stating the group's position that Gwyther has a First Amendment right to talk about the litigation, as well as to ask for help.It's like the company can't help but bully with every single step it takes in this dispute. Here's hoping Gwyther continues on the fight, because anti-competitive lawsuits like this need a good smacking around.
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Filed Under: arrows, foam arrows, john jackson, jordan gwyther, larp, patents, trademark
Companies: global archery, idv engineering, larping.org
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It appears that the Danish/Germany company holds patents that Globals arrows might be infringing. It sure was nice of Global to include patent claims in the filing so motions to invalidate the patents are on the table.
It appears that there is a very good chance that there is prior art to the method Global is using which would hurt its entire business.
Speaking of business Global wasn't in the business of offering arrows for general sale (IIRC this recently changed) instead they offer a 'franchise' like agreement where they get paid fees based on the equipment that Global rents them and the super unique game they made where you shoot arrows at each other. There have been complaints about lack of support & varying requirements that made some people stop participating in that program. Imagine if they could buy their own foam arrows & gear and not have to pay a continuing fee...
We all know of my deep seated love of lawyers... and it continues with the lawyer for Global who didn't think this case through (which seems to be a theme... something something publicly reprimanded by the disciple board for multiple violations of them duties & ethics things).
The trademark claims are a nonstarter, the patent claims could result in invalidation, and the company has managed to hurt their reputation further. (I mean if they are no longer "franchisees" why list that on your map of legit locations unless your trying to shame them or pressure them into stop letting people play games with foam arrows as you think you own that whole concept too).
Also I learned people outside of SCA and LARPing actually shoot foam arrows at each other for fun...
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Huh?
How the hell many ways are there to do that which aren't totally obvious to anyone with a bit of foam, a stick and an adhesive of some kind???
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With an intelligence score that low, I'm surprised he can even talk.
Appraisal (D&D's catch all for selling/buying) roll: Critical fail
Knowledge local (which covers law) roll: Crit fail
Bluff roll: Crit fail
Intimidate roll: Crit fail
Diplomacy roll: Crit fail
I'm expecting something spectacularly bad to happen to Jackson with those piss poor rolls. Like roll up a new character bad. :p
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Re: Huh?
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Why is this guy even in business? Most Entrepreneurs should hire a manager, and then listen to her.
Does this company know nothing about being different and better? Or how to shave price for volume and use actual business skills to beat the competition? Oh, right, that requires effort. Now he can delegate all the 'work' to the lawyers and just has to keep 'worry over the outcome' under control. Except there is the underlying shame of his inability to compete screwing up that vision.
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Re: Huh?
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Re: Why is this guy even in business? Most Entrepreneurs should hire a manager, and then listen to her.
Global sells a 'experience'. A site pays them a fee based on numbers of players you can support for their 'unique' game of shooting each other with foam arrows.
LARPing sells foam arrows to customers who mainly use them for live action playing in a fantasy setting. There is no long term contract involving the arrows only being rented.
If a group went to a sanctioned Global franchisee and decided they liked it, but didn't like the price they might search the web to acquire their own equipment sets. If a franchisee was unhappy with the arrangement they have to return all of Globals equipment.
LARPing bought some adwords, this offends Global because those paying them might decide to acquire non-sanctioned equipment and run their own similar events but not using the trademarked name for the event.
Global claimed that LARPing was responsible for sales on Amazon, where LARPing has said they do not operate.
This was a lawsuit driven by someone offended that their 'lock' on a market was challenged. Seeking every cent LARPing has earned since they began makes it clear this is about destroying that business, and making it clear they are willing to pursue those who sell foam arrows. This looks like it was meant as a first small case to show Global wasn't to be challenged.
Plus now we have the added bonus of seeing how many patents have been issued on foam tipped arrows, and you thought they weren't that many ways to make them.
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Re:
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Re: With an intelligence score that low, I'm surprised he can even talk.
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Re: Re: Why is this guy even in business? Most Entrepreneurs should hire a manager, and then listen to her.
Sometimes it is easy to manage through the franchisee, sometimes it is not. Sometimes it is the ability of the manager that determines the ease. Careful screening and selection of the franchisee is most important. Having a strong franchise agreement, along with training, operations, administration, and marketing support are also paramount. But in the end the whole point of a franchise is to sell more hamburgers...erm, foam arrows.
Not knowing a whole lot about Global, their franchisee's or the quality of their efforts, I would say that there was not sufficient excitement created in the marketing of the 'experience' through the franchisee's. Sufficient excitement, more arrows purchased (or whatever equipment). This could be an issue with the quality of the franchisee and their execution or the quality of the program offered to the franchisee. Both of those are Global fault.
That they are now complaining about competing arrows and not competing 'experiences' says a whole lot about the confusion about what business they think they are in, and how to execute it.
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Re:
They have many many sources, even sometimes their readers. Chances are good that what we send them they have already seen. Deciding what should be presented for discussion seems to be more important to them than when. Sometimes they don't get many comments on their stories. Sometimes they get many. I am not sure if that is a major factor in their decision making efforts, though I think generating some discussion of their posts is part and parcel of their goal.
Sometimes they write up a story but other things take precedent and that story gets pushed back. I have even heard talk about stories that were in the queue but never made it to publishing, for whatever reason.
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Re: Re: Re: Why is this guy even in business? Most Entrepreneurs should hire a manager, and then listen to her.
There has been talk about some franchisee's being unhappy with the lack of support they get & enforcement of rules that don't appear to be evenly applied.
If you were tired of spending X per month for each 2 player setup (and dealing with having to try and get replacements for broken equipment send out from the mothership) and someone else said oh hey I sell these arrows and for what your paying you can get enough for more setups without a monthly fee....
Global is stuck in that whole we own the trademark on playing tag with foam arrows and patents on our foam arrows so no one else can do anything with foam arrows without cutting us in.
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Disingenious
Boy is this disingenuous. If "our product is better than theirs" advertisements were illegal, every single ad agency writer would be in jail.
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Re: Re:
Yup. This.
Chances are good that what we send them they have already seen. Deciding what should be presented for discussion seems to be more important to them than when.
And this.
Sometimes they write up a story but other things take precedent and that story gets pushed back. I have even heard talk about stories that were in the queue but never made it to publishing, for whatever reason.
Also true.
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Don't like what is going on but
When you start using monopoly agreements like patents there is a legitimate reason for holding importers liable for infringement.
That is to prevent a company from setting up a subsidiary (or contract it out to a company) in a location where the patent hasn't been issued (seeing that there is no world wide patent, i think excepting for the EU you need to get those a per country basis) then importing whatever is patent protected.
Unless you tell the importer to halt the imports there is no way for the holder of the patent to stop the producer seeing that where the producer is there is no infringement. So generally the laws that set up patent monopolies also put in language to prevent people from bypassing it this way.
The thing is this can be abused. Normally we laugh about the idiocy when Samsung and Apple bash each others head in using this tactic.
But it can also be abused as Global Archery is doing now when they clearly used it to try and intimidate Gwyther. The reason they want to shutdown the GoFundMe page is that they told Gwyther they have already reserved $100k (which I doubt they were ever expecting to have to use other then for intimidation purposes) just to take him down with the express knowledge that Gwyther had to at least match that if he'd want to defend himself in court. And GA doesn't want to go to court since there is a good chance their patent will get invalidated while having to spend money they didn't really want to spend.
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Re: you're a dumbass
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Re: Re: Huh?
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Re:
Would you like a medal or a chest to pin it on?
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Re: Re: Re: Huh?
Was poorly made padded arrow & some insane draw on the bow.
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Re: Don't like what is going on but
This was someone being butthurt over their precious trademarks being used in ad-word buys.
They went to a lawyer & filed documents accusing Gwyther doing horrible things on Amazon seeking money for damages he caused there (except he isn't selling on Amazon).
They threw in patent claims because IP is a hot button issue.
They then claim he was stealing their customers, but I think offering someone a better deal isn't theft.
They clearly did no research on the lawyer they hired, a reprimand from the oversight board they insisted be published in the big book of rulings. Got drunk, got caught driving, didn't inform body, got sweetheart deal, got busted for public drunk & disorderly while on that probation, did the whole rehab & I'm a better man now thing.
(paraphrased from memory cause I don't feel like going and finding the damn ruling again first ars thread on the topic I linked it)
This is trying to crush a little guy who pissed them off, and possibly a plan to keep taking out smaller sellers so they could be the dominate supplier of arrows and pick up the business LARPing was doing.
Problem is they went legal in the worst possible ways, and have put themselves in danger of losing their patents (and gee if you own infringing materials you are profiting off of gotta think ICE will show up and take it like they did for those nice hoverboard people.)
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Re: Re: Don't like what is going on but
http://www.in.gov/judiciary/files/order-discipline-2014-49s00-1305-di-344.pdf
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Re: Why is this guy even in business? Most Entrepreneurs should hire a manager, and then listen to her.
I would suggest that pride and a lack of business/customer care will be the pitfall of their company going forward. I will no longer be a licencee
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Re: Re: Re: Why is this guy even in business? Most Entrepreneurs should hire a manager, and then listen to her.
You'll notice the that the Archery Tag operators are not allowed to use their business name as "Archery Tag" this is because legally, given its not a franchise they cannot condone such, furthermore, they list on their website that they will sell unlimited licencees in any given area and that you should work together. They have absolutely no sense of business, they think that more operators means it's better for everyone; however, we have found that more operators yes whilst it creates interest, it spreads the interest amongst multiple operators.
It's very dissapointing that they forced us to advertise their Archery Tag name at our events, telling us that customers will use their website to find and book us, guess what? every single customer is also asked the question "Become an operator?" so... my customers that I'm advertising for locally are all asked by Archery Tag HQ, do you want to become an operator so you can make money too??
Why would I advertise directly to produce local competitors? Their strategy is a short game money pincher, no long game sustenance.
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I finally paid more than a cursory glance at the filing... OMFG
The offered "evidence" of sales on Amazon... beyond involving the word larp in the title it looks like multiple people were offering a kit like their Archery Tag thing. So I am guessing they thought perhaps little guy owns the whole word larping.
Also in their prayer for relief when you get to N...
They want the court to make little guy pay Global damages for Globals bad acts damaging the business. Yes, make him pay because we harmed our own business.... at least thats what they wrote.
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