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.