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[tankconcept]

Hello all. Thanks for having me. I am a designer with some questions about IP and about what one can and can’t get away with in regards to dealing with a competitor’s IP.

The good news is that there is a real world case-and-point that explains my questions with some specificity, and if you could illuminate some legal points pertaining to this case that would be extremely helpful. It is important to note that this is just a case-and-point, and none of this pertains to me personally. The legalities involved here pertain to my situation closely. Kind of a "how close is TOO close" thing, from a design sense.




As many of you may be aware, there is a large community of gamers who assemble and paint wargames miniatures and then play strategy games with them using dice to determine outcomes. The most popular of these games is Games Workshop's "Warhammer 40 000" series. This is Company A.

A popular group of products that are made for these series of games are a range of sci-fi tanks, of a very specific size and all with very specific weapon combinations. Some of their designs are lacking and there is a good amount in which can be improved upon, so competitors have risen to fill this demand.... but when does a competitor stray TOO close?

Along comes Heavy Support, a small company from Germany, to fulfill this demand. They release a tank with a staggering similarity to GW. This is Company B.

Here is a picture comparison of the two tanks alongside each other.
http://i972.photobucket.com/albums/ae202/supconcept/ip1.jpg

Now... these two tanks look VERY similar, yet they do not share any exact detail. The size, silhouette and general aesthetic are certainly quite similar however.

As a layperson, I am very curious as to how similar or dis-similar a product must be when compared to what it was originally based upon? Are there any precautions one can take to make sure not to encroach on a competitors IP? Is there a way for the smaller company with their version of the same product to protect themselves?


Thanks for all your help in the matter. Any help is appreciated. Great forum BTW.

[MYK]

Just don't do this:
http://onastick.net/sitz/images/HK40K.jpg

[JimIvey]

Well, I'd say that, of all the types of IP, only copyright and design patents could be in play.  And, I'll eliminate design patents off the bat because design patents have virtually no scope (meaning only nearly identical designs infringe).  And, design patents are searchable, so it could be determined whether any actual design patents are at issue.

Now, turning to copyright (and you should probably repost in the Copyright forum):

A popular group of products that are made for these series of games are a range of sci-fi tanks, of a very specific size and all with very specific weapon combinations.

Note that copyright protects only artistic expression and not underlying ideas.  In addition, copyright only covers those expressive elements that are original (not copied from another).

So, you must remove the commonalities between the tanks that are dictated by the specs.  Both tanks have tank treads.  So what?  All tanks do.  Both tanks have a top gun turret.  Same.  Ignore all similarities required by the game(s).  Ignore all the similarities shared with other tanks.

Once you've done all that, you'll have some sense of the elements of tanks of Company A that are protectable.  Then, compare those elements to those of Company B.

Now, once you've done that, you'll see that things that, as a whole, seem very similar really aren't all that similar.  You might find that the tanks in the pics are quite different when external influences are removed from the comparison.

However, where exactly the line is in that context is really hard to say. 

I hope that helps.

Regards.

[tankconcept]

This is a huge help. Thanks very much Jim. It certainly narrows down the issue.

I am curious as to what 'artistic expression' entails however. Since most tanks do not use a 'side sponson' (the turrets on the sides of the tank) and Company A uses this feature prominently, does that fall under their artistic expression I wonder?

But then..... there were side sponsons on tanks during WW1... so would Company A's distinctive mashup of real-world ideas count as artistic expression then?

[JimIvey]

"Side sponsons" is far too abstract to be protectable by copyright.  However, how do their side sponsons look and how similar are those of Company B's?

In the pic you posted, I see a short, stubby barrel on the left, with a square cluster of things around the barrel.  On the right, I see 2 longer barrels with no clusters of stuff around them.  Other than the basic idea of a side sponson, I don't see much similarity at all.

Imagine you're an artist and someone asks you to design a side sponson for a tank in a video game.  There are aspects of a side sponson that you must adhere to -- otherwise it won't be a side sponson.  Those aspects are not "artistic expression".  There are other aspects that you are free, as an artist, to vary.  Those can be considered "artistic expression."

Really, the copyright forum would be better for this.  Or, you can search for "expression idea dichotomy" here or even in Google.

Regards.

[Oh, Crud]

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It's like sighting a unicorn or UFO.  Nobody's going to believe me...