Newegg Inserts Itself Into The Global Archery, LARPing.org Patent Tiff

from the good-guys dept

We've covered in the past how Newegg and its Chief Legal Officer, Lee Cheng, have been both vocal and active in the fight against patent trolls. Far from a lightweight in this arena, Newegg has gone on the offensive against the trolls, with Cheng even going as far as to state that he would never settle a case with a patent troll. Settlements are often times what these patent trolls are primarily interested in, milking money from legitimate businesses that simply don't want to bother with a lawsuit. Like most bullies, a little pushback is all that's required to get them to turn tail and run.

We also recently discussed a rather silly patent and trademark lawsuit initiated by Global Archery against an individual who helps run LARPing.org. That site sells foam arrows used for live-action role-playing, buying them from a German manufacturer and reselling them to hobbyists. Global Archery believes that the arrows infringe on a patent it has for foam arrows and decided to sue LARPing.org for infringement, rather than the German manufacturer. The trademark portion of the suit revolves around Google keywords LARPing.org bought, which include references to Global Archery, for advertising purposes. Those suits rarely go anywhere, making the patent aspect of the suit more key.

Well, Newegg has decided to lend a troll-busting hand to LARPing.org, now stating that it will be donating the profits from its anti-patent troll t-shirts to be used by LARPing.org to defend itself against Global Archery.

“After reviewing the facts and circumstances of Mr. Gwyther’s case, Newegg believes Global’s suit against him is an abusive overreach of intellectual property rights,” said Lee Cheng, Newegg’s Chief Legal Officer. “As a result, we intend to provide assistance to Mr. Gwyther, including the donation of profits from the sale of our anti-patent troll t-shirts to support his legal defense fund. We are also releasing three new t-shirt designs, including a limited edition design created in collaboration with Mr. Gwyther, to raise additional funds for his defense.”

Cheng added, “This case represents the same type of abuse of intellectual property rights Newegg has stood up to for years. Global Archery’s patents would likely not withstand an invalidity challenge, but they are leveraging them to demand settlement terms that would effectively force this enthusiast and entrepreneur out of business.”

What entirely too many of these patent trolls rely on in order to get monetary settlements is the size of their targets. If a business is small enough, say a tiny site used primarily by roleplaying enthusiasts, that site may not have the resources necessary to fend off a legal claim from a patent troll. Instead, that business will typically accept whatever settlement demands the troll has requested.

But suddenly the legal warchest for LARPing.org may be many times what it had originally been, with a company like Newegg getting behind it and lending its support. People occasionally ask what it will take to end abusive patent trolling. There are many possible answers, but one of those answers must include large and small entities banding together to collectively fend off a practice everyone knows is abusive. It's good to see a company like Newegg getting behind that kind of effort.

Filed Under: arrows, jordan gwyther, larp, larping, lee cheng, patent trolls, patents
Companies: global archery, newegg

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.

"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."

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.

"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.

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."

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.

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.

Filed Under: arrows, foam arrows, john jackson, jordan gwyther, larp, patents, trademark
Companies: global archery, idv engineering, larping.org