Thursday, February 21, 2013

Space Marine - trade mark, or literary trope?

My recent posts, on  the term 'Space Marine' and Games Workshop's claim to have trade marked it, have generated a lively response, as I believe it has done on other blogs that have addressed the topic.  Having expressed my own views on the matter from the point of view as how an ordinary Joe or Jo might see it, I bethought myself that perhaps a little research would be in order.

This proved rather more interesting than I awaited.

To start with, I looked up the incident that led to the current furore.  This was Games Workshop issuing threats against one M.C.A. Hogarth, the author of e-books, including Spots the Space Marine, and Amazon the purveyor of said e-books.  It has to be said that GW noted that it was obliged to protect its trademark for 'space marine' or else risk losing its trademark status and the protections it afforded.  I'll come back to this.
Adeptus Astartes - there you are:
An easily recognisable  - iconic even -
GW Space Marine trademark.

So Amazon pulled the title, unwilling to defy the GW Company, and M.C.A. Hogarth also declined, unless she received a good deal of financial assistance from third parties, to enter lists.   The spirit was willing, for sure, but the pocketbook was weak.  As is the case for the little guy almost invariably when faced with threats and legal intimidation. (Incidentally, it gets worse.  People can come in as backers in a case like this, but if costs are awarded against their backee, they may find themselves liable to stump up for those in addition to moneys already pledged.  Apparently this happened in a libel case, and the right-wing loser's pals got badly stung.  Very well, but it makes it that much tougher for the ordinary Jo in this case).

As a result of Amazon's action, the ordure struck the rotors; several authors came in to the argument in defence of Ms Hogarth, and Amazon, I gather, has reversed its decision and reinstated the title.

Space Marine: 1936
A few things also came to light during the course of my (rather hasty) research.  For one thing, at least three SF writers are known to have used the expression space marine(s) in story, well antedating GW's use of it: the first being one Bob Olsen (Nov 1932) "Captain Brink and the Space Marines" Amazing Stories Vol 7 Nr 8, and (1936) "Space Marines and the Slavers" AS.  The much more well-remembered E.E. 'Doc' Smith used the term in his Lensman series from 1934 to 1959.  And I already knew that Robert Heinlein (1959) had also used the expression.  I don't doubt GW has acknowledged the prior authorship and coinage, but did they seek permission or licence to use it?  If not, why should GW require permission or licence from anyone else?

Further, a certain video game company (Blizzard) has been using 'Space Marine' or 'Space Marines' in their operations at least since 1993.   Did GW issue a challenge?  Indeed, it did.  Back in 1996 or thereabouts.  GW lost.  Where does it leave their claim in respect of Amazon and Ms Hogarth?  Looking bally rocky, it seems to me.

So what is a trademark?  It is, according to Wikipedia, "...a recognisable sign, design or expression that identifies [distiguishes] a product or service of a particular source from others.  The owner of the trademark can be an individual, business or any legal entity."   Clearly we haven't any quarrel with GW's trademark stylised double-headed eagle nor in the design of its figures.  They are legitimately GW's intellectual property (IP) and trademarkable (and copyrightable) according.

It seems to me this - qua image -
would be trademarkable.
It is the expression 'space marine' as such that is the sticking point.  For one thing, it is clearly a literary trope well and truly in the public domain after its first use in the 1930s.  No question of E.E. Smith or Robert Heinlein infringing copyright.  If it were a case of trademarking the image to the right of this part of my text (say), I don't think anyone would have any problem with that.  The expression 'Space Marine' pure and simple is too generic to be trademarkable.  Bear in mind, Ms Hogarth was not developing figures, but using the expression in precisely the same milieu as did Olsen, Smith and Heinlein: a Science Fiction story.  Having said that, it appears that GW is also entering the literary field.  A bit late in the day to start claiming trademark on account of a literary interest.

Consider:  Space is seen as much like an ocean lying between planetary 'landmasses'.  It is easy to see why, given human history, and just as easy to see why space vehicles are thought of as ships, or vessels, rather than as chariots or carriages.  And, given the presence of  soldiery customarily carried upon military ships of war to effect shore landings or for ship defence, usually called 'Marines', what would you have?  Probably the most famous would by the American variety: The US Marine Corps.  Since they operate in space - or in extraterrestrial environments - Space Marines.  It's a trope.

It has been pointed out that GW's claim to Space Marine characters in the context of their Warhammer 40000 AD game - i.e. in a space operatic setting of the year 40,000 AD or thereabouts - in effect claims an exclusive right for the expression in any other setting.  In other words, every time the word Space Marine is heard,  GW's Space Marine figures and designs must be inferred.

Here's a the implication.  I design a story: Science Fiction, set in the year 19,042 Anno Domini in which lobster-like interstellar space conquerors - call them Nippers -  invade the Solar star system, at last being brought to a standstill on Mars.  The Earth despatches space-going vessels, loaded with troops that are to effect a landing on Mars, recapture the Henderson Space Field (lying near a valley feature called Waddell Canal) from Nipper hands, and finally to drive the Nippers off the planet.

The Earth troopers - behaving in precisely the same manner as the USMC in an analogous situation - effect a landing, withstand heavy suicidal counterattacks, wrest the Henderson Field from the Nippers, and, after a prolonged campaign in which the Nippers continually attempt to reinforce the Mars garrison holding out in Waddell Canal, reconquer the planet.  The Nippers retreat to Jupiter, leaving isolated garrisons in the asteroid belt, intending hang on to as much of their solar conquests as they can.  The Space Marines  Starship troopers  United Space Marine Corps - nope, that's been done, too - MEXFORCE (Mars Expeditionary Force)  then undertake a campaign of planet hopping before finally threatening to overwhelm the Nipper Base of Operations somewhere in the Oort Cloud.
I found this image whilst trawling through others.
Whose (if anyone's) intellectual property is being stolen here?

I can't use the term 'Space Marines' in such a story?   Really?  I've made the analogy pretty damned obvious.   I'd have to use Space Marine, surely?  How could I write the story without it - as clearly the whole point is to retell the story of the US Marines' WW2 campaign in an exterrestrial setting?

It turns out that there is a difference between TM as trade mark and the Circled R, which means 'registered trade mark'.  The protections of the latter are rather the greater, though the former does indeed offer some protection against wrongful use of the owner's IP.  But registration does require an assessment by the registering authority as to whether a trademark is indeed registrable.  That really suggests that one operating a TM has to be very careful in enforcing what it sees as its rights.  If it transpires its TM isn't valid, or the claim is otherwise specious, the claimant might have a problem.  Imagine if the outfit that accidentally TM'ed the word Nazi (apparently it was a typo), thought they would try and make good on the TM.  Ye-e-es.  Ri-i-ight.

Well, Donald Trump did try to copyright 'You're fired!'  Just because you're a Fat Cat doesn't stop you from being a complete and utter clod.

I mentioned earlier that GW alluded to its obligation to defend its IP (and presumably its trademarks) in order to obviate their lapsing (see Games Workshop: Legal Page 4).  It is true that a failure to defend IP will lead to its entering the public domain after a period of time (I can see a fishhook in this, but that's for another time).   GW did not have to be so quick off the mark.  Not even close.  It might have been a smart plan to consider this more carefully, whether indeed Ms Hogarth's use would impact in any way upon their  own product; whether the thing was sufficiently serious to warrant a follow-up.  If it came to a question of the trademark lapsing, GW could always have argued that in the circumstances, they considered Ms Hogarth's use of the expression would not impact upon their product in any way (not in the same market, say).  That is a perfectly acceptable line to take (if they can persuade the judge).  The time to test the trademark would have been if some figure designer, using his (or, as it might be, her) own unique designs wholly dissimilar to the GW, but under the label Space Marine Millenium 20 (say), went into business selling figures.  Her (or maybe his) counter-claim in re restraint of trade might have had more traction...

As  final point, GW might well have painted themselves into a corner.  It seems that there is a protection (sort of) against the Fat Cattists heavying their slenderer brethren.   If the Fat Cattist fails to go through with the threat, that leaves friend Fat Cattist liable to a counter-action.  It is doubtful that Ms Hogarth or Amazon will take this up, but, if GW simply allows the matter to drop, then it can count itself lucky if they don't.

Some sources: TV Tropes M.C.A. Hogarth
Games Workshop: Legal Page 4.  Upon first reading it all sounds so reasonable, and most of it is. But... I seem to have seen something like this before.  I may get back to you on this...

Since I wrote this, I have discovered that Cadbury has successfully trademarked the colour purple.  I am not making this up.  The Cadbury company has already heavied a small UK choc making outfit who attempted to use the colour purple for its Christmas range - purple being associated with the Nativity.  This range, by the way, was being offered for charitable purposes.  It could be argued that they trademarked  the particular shade of purple that has been assocated with Cadbury for nigh on 100 years.  If the trademark authority bought that argument, they were clearly being short-sighted to the point of clinical blindness.  As for the Cadbury company, you can tell it is no longer owned by anyone associated with the Society of Friends, eh?

It wouldn't matter a hoot what shade of purple the small outfit was using.  Cadbury would argue that as the ordinary consumer is not likely to be all that skilled in discriminating between shades of a colour, this or that particular shade being associated with Cadbury, might suppose the small outfit's product was part of or endorsed by the Cadbury company.  It is a cast iron, brass bound, 100% guarantee that Cadbury has stolen from the Commonweal not only all shades of the colour purple, but I will bet the colour violet and darker shades of lilac as well.  

Just imagine what will happen if and when the Cadbury company discover a toilet cleanser that uses purple packaging... Good luck the Cadbury Company.

But I've known for a long, long time that the crazies have taken over the nuthouse....


  1. Archduke Piccolo,

    I have been following this news on a variety of different blogs and websites (including the BBC) and yours is the best coverage I have yet read. Thank you for making a case for the PROPER and APPROPRIATE use of copyright, trademarking, and IP rights ... and for showing why it should NOT be used to bully innocent people.

    All the best,


    1. Thanks for the encouraging feedback, Bob. It is a complex issue, not helped by rather loose legislation worldwide, by the look. There are protections for the small fry like us, but, man, they are not very accessible.

  2. Cadbury can say all they want about purple I am colour blind and I can argue that the colour I thought I was using was blue... would anyone care if I said that? seriously though trademarking a colour one which is very hard to make out if your colour blind sure red yes Ferrari red is an Iconic colour but Ferrari does not go around enforcing all car companies not to use the colour red, just their red.

    in the same way GW should only go around beating up people who try to sell a SIMILAR product that uses the name Space Marine if its a different scale and totally different in setting, background story and the like then they should leave the poor souls alone.

    as for colour blindness... this is why I restrain from using purple, especially if I have to mix it a nice uniform army would be anything but if I had to constantly mix shades of purple.

    1. You would think that if everyone got a fair suck of the sav then that's exactly how it would work. Your pals the Ferrari Company seem to be playing it by the book, and keeping to the terms of their copyright. Not everyone would.

  3. I would think that Cadbury would only be able to trademark the chemical components that make up the dye, not the color itself.

    1. Interesting point, though we might be entering the realms of patents. Much of what I've said in re trademarks is as applicable in the whole area of copyright and patents as well. Don't get me started on that!

  4. Interesting. Will Cadbury sue the entire body of the Western Christia Church, many of which use purple for their Advent and Lenten vestments and paraments? (that the decorations that change with the church seasons.) May as well copyright "blue" and sue the sky.
    Could I use "Special Naval Landing Force" for my troopers? No panache there, but it's very exacting.
    Maybe GW will sue the Royal Marines and the USMC for copyright infringement. Wouldn't THAT make for some interesting late night "visits"!

    1. Well, the Church of England (I believe) has appealed to Cadbury's better nature, on the assumption that Cadbury has one. But that was in the particular issue of the small choc-making outfit. In the end they had to switch to a scarlet coloured packaging, so I don't think Cadbury's better nature was touched...

  5. So a Bishop Cadbury- Head chaplain to the Space Marines is totally out of court then!!1

    1. Bishop Cadbury might be chaplain to the Ultramarines - if ultramarine is farther enough removed from the 'Cadbury' purple.

  6. The thing I dislike about much of the legal system is that - whilst professing equality before the law &c. - it effectively favours either the filthy rich, who can use their wealth to fight their corner, or the legally-aided, who can use my taxes to do so, when I dare not risk my savings, house &c. A rich bullies' charter.

    As commented above, those with financial backing but not a good case in law can bluff the impecunious into 'folding' just like in poker - "I'll see your Crown Court verdict, raise a QC and Court of Appeal.." "Too rich for me, I'm out."

    Why is English Law often - apparently - so unclear that two equally qualified 'experts' can give completely opposite advice? And why draft legislation with terms like 'reasonable', whose meaning in specific circumstances can only be determined by going to court, at enormous expense? ...To create work for lawyers, of course! And guess who are preferential creditors in bankruptcy cases?

    Almost makes one long for the days of duelling, when only a pistol - and some courage - was required...

    1. I reckon. Equality before the law is pretty much mythical now - dishonoured more in the breach than honoured in the observance. It reminds me also forms of poker that don't have the 'all-in' rule. All the guy with the biggest pile has to do to win the pot is bet one dollar more than anyone can match. Doesn't matter a hoot in a hurricane what he's holding. The others can't stay in the game, so they fold.

  7. Very trenchant and intelligent comment, Ion, as usual. All this debate has got me thinking about the history of the Tolkien estate's attempts to secure its copyright over the years. Gary Gygax was able to publish the game that became D&D in the 1970s with liberal borrowing from the LOTR books, as well as similarly liberal borrowings from other writers such as Fritz Leiber and Robert Howard. I think the only legal challenge from the Tolkien estate came over Gygax's use of the word "Hobbit", which became "Halfling" in the TSR publications. See In the miniatures wargaming world there were also borrowings and draftings. Minifigs came out with a line of Tokien inspired figures in the mid 1970s but they were named generically enough as to evade copyright infringement. In the print world there was the illegal publication of the LOTR books in the US by Ace, with an official series subsequently appearing from Ballantine.
    I'm not quite sure where I am going with this, except to say that this is not the first time the gaming and publishing industries have debated the issue of intellectual property. It would be interesting to do a survey and see if people felt that the Tolkien Estate and Games Workshops have the same right of ownership to words associated with their respective oeuvres. Obviously there are differences. Tolkien invented the word "hobbit" whereas, as you and others have noted, GW did not invent the words "space marine". My suspicion is that more gamers feel more affection for the Tolkien Estate than they do for GW, and might thus concede them greater rights of ownership. My other thought is that we're Gygax alive and trying to sell D&D today, the lawyers would stop him cold. In retrospect, the 1970s seem a more innocent time.

    1. Thanks for your remarks, Michael.

      I know Gary Gygax had at least one run-in with the Tolkien Estate. All he had to do was ask permission, and he might have got away with a simple acknowledgement of the source, and no royalty payments. After all, that acknowledgement alone would have benefited the Tolkien estate (publicity for the books and whatever associated merchandising), and benefited the TSR Company as well.

      My comment in re GW's legal position (Legal Page 4) reminded me somewhat of TSR Games attitude to modifications and local adaptations to the D&D game. I may do a posting on that, depending if I find anything significant to say about it. I just need to check.

  8. Great post. I agree that all of this legal posturing is a bluff to try and hold others hostage. Which reminds me, I better trademark Vacuum Rangers immediately.

    1. 'Vacuum Rangers' - I like it.

      Mind you, part of the 'defence' of copyright or trade mark is use and continued use of it in respect of a product or service. Quite what that means I'm not altogether certain. If Robert Heinlein's books are being reprinted, does that constitute 'continued use'? LotR books certainly are; and it is pretty certain the Peter Jackson or Warner Bros made sure they got permission from the Tolkien Estate for the filming. (An aside: Tolkien emphatically did not want Disney to handle it. My own view on this is that he might have been doing Disney an injustice, there.)

      Still, we can expand on this:
      Special Astral Service (SAS)- A United Korporations outfit)
      Ethereal Grenadiers
      Space Commandos (and variations thereof)
      Special Ethereal Assault Legion (SEAL)
      1st Spacial Forces Operations Detachment - Delta Quadrant
      2nd Spacial Forces Operations Detachment - Gamma Quadrant
      3rd Spacial Forces Operations Detachment - Beta Quadrant
      4th Spacial Forces Operations Detachment - Alpha Quadrant
      United Stars Astral Special Forces (Green Helmets)
      Mars Operations Command (MARSOC)
      IMI-6 - Interstellar Military Intelligence Dept 6.

      Have fun!

  9. Well-argued posts on this subject, and I agree (with your last line especially! well, the inmates with money anyway.). There does need to be some protection for copyrights and trademarks and "intellectual properties", but justice requires balance. There is no justice in being able to bully others into submission just because one has money or power or other resources. This is one example of the kind of thing that garners GW the epithet of "Evil Empire".

    I tend to think actual words, colors, etc., that exist independently in the wider world should not be copyrightable/trademark-able. There should be a tighter threshold in those cases. So, ok, a particular shade of purple could be trademark-able for a particular "realm" (in this case chocolate or even candy); or GW's particular version of space marines. Coined words, such as hobbit, would seem fairer game for trademarking or copyrighting as the case may be. Halfling, probably not so much, nor space marines as depicted by the aforementioned sci-fi authors, even if they had been written more recently rather than pre-GW.

    1. Your point about 'trademarking' a particular colour/shade/hue, in the context of a particular product sounds on the face of it reasonable. It is may well be that when Cadbury presented its case for trademarking its distinctive colour, it argued precisely that. If so, the judge, or whoever presides over thse sorts of hearings, bought it.

      If so, and if the details of that ruling was available to someone challenging Cadbury over a claim in respect of a slightly different shade or the colour - or the same shade, withal, but a different product - then the challenger might well win.

      But they might not, too, even if they had the money to take up the challenge. The point about ordinary consumers' not being over-concerned about fine variations of colour, quality concerns, misleading associations and what not might well prevail.

      In a way the battle has already been fought. The Nestle Company challenged Cadbury's right to trademark a colour at all. Whether they added any other argument in respect of where such a ruling might lead, I don't know, but they surely ought to have done. Nestle lost the argument.

      TSR Games, with which GW was closely associated in the latter's early days certainly did get taken to task over its theft of Tolkien's coinages, 'Balrog' being another.

  10. I'm afraid I'm with the rebel Jack Cade (Shakespear ) "Fiirst Kill all the lawyers" .
    We live in a world of bullies- it has always been such . Military power and money- in differing proprotions depending upon the age - is all that has ever counted...
    The Resitance Lives On ...
    Are you l;istening Dave or Barak...

  11. Yes. The way things are going you will see mothers frightening their kids into submissiveness - much the same way is they used to do with 'Boney will get you!' - by 'If you don't go to sleep RIGHT NOW, the drones will come along...'

    I don't believe, you know, that Barak Obama ever quite appreciated at the beginning of his tenure of the Presidency just what a wealth of goodwill the world had for him, and by extension he had brought for the USA as a whole. It was astonishing at the time, and I shared this feeling (though not unalloyed with a faint sense of unease). Well, most of that has gone, hasn't it?

    The pity of it, Iago...

    1. You would have thought the Nobel Peace Prize award would have told him something, eh? But I now hear that the French President is up for the Prize. I'm wondering if the Nobel Prize Panel (whatever it is called) is aware of what's going on in West Africa. Maybe they do.

      I'm wondering if we are beginning to see a pattern here. George Orwell was on the money, eh?