Last October, Global Archery, (their website appears to be currently down) a company that produces foam tipped arrows and run Archery Tag, an archery based sport, sued Jordan Gwyther, the owner of LARPing.org (through which he sells LARP-safe archery equipment). Very recently, the judge in Indiana overseeing the case threw it out for the court’s lack of of jurisdiction, which possibly means the end of this whole thing (unless Global Archery successfully appeals the decision or brings another lawsuit in a different jurisdiction, namely Washington State.)
The story has popped up all over various online LARP discussions, and while the responses were somewhat divided, it seems that most LARPers are solidly behind Gwyther and LARPing.org. (For example, here’s a video LARPForge put out on the subject.) It was also covered by mainstream news. For those who haven’t been following it, here is a summary, along with a bunch of links to reports covering the lawsuit and other relevant bits of media, which you can peruse below. (Most, unsurprisingly, cast Gwyther’s side in a favorable light.)
Here is the text of the lawsuit. There are two primary complaints — one, Global Archery claimed Gwyther violated a patent he owned on the design of the arrows, and two, that Gwyther used marketing strategies that Global Archery considers illegal, including violating his trademark, using false advertising comparing the two brands, and contacting his customers.
I emailed a lawyer about it (who requested that their name not be shared.) They opined that the patent was invalid (or at least couldn’t be as broad as Global Archery asserted) under 35 USC 102 (you cannot patent something that was described in a publicly available document a year before the effective filing date of the patent.) A simple search on youtube reveals a number of video tutorials on how to construct extremely similar arrows. They predicted (correctly) this part of the lawsuit would be thrown out early on.
Regarding the trademark aspect of the lawsuit, the lawyer described this as “vague” and that the only likely legitimate claim was that Gwyther used Global Archery’s name in a google adword buy. According to at least one article, Gwyther did say he didn’t realize Archery Tag was a trademarked term. Ignorance is not a valid defense; however, in the US, plaintiffs who bring lawsuits over other companies using their trademarks in marketing often lose their cases.
The false advertising claims seemed weak, as the phrase “better than” seems like “puffery“. The FTC (Federal Trade Commission) expressly refuses to take enforcement actions in situations like this. Pizza Hutt brought a suit with a very similar complaint against Papa John’s a few years ago that was shut down.
When I asked why the lawsuit included the patent infringement claims if they were so obviously weak, the lawyer explained to me that patents are preemptively valid in court, the burden falls to the defense to prove invalidity. They guessed Global Archery might not have been able to prove invalidity. In his GoFundMe video, Gwyther says, “…[Global Archery] will have created a legal precedent to enforce his patent against other distributors and resellers of LARP and foam tipped arrows in America.” Meaning, according to Gwyther, the patent claims were likely a legal strategy — by winning a case against a small defendant who likely can’t afford a good legal defense, it might provide support for future lawsuits against larger archery equipment distributors. The lawyer’s opinion was that this was theoretically possible but unlikely, as it wouldn’t be a good strategy; the results of the hearing aren’t binding on other courts, and one cannot reach this point and settle out of court, which makes the result exponentially more expensive. It might work if there are dozens of other potential infringers, but the market for LARP arrows likely isn’t large enough to make this as a strategy worthwhile.
I noticed while reading various online comments from the plaintiff and defendant and the numerous articles written about the case that, at least initially, the plaintiff seemed largely focused on the false advertising and trademark infringement (the latter being the strongest of the complaints, according to the lawyer I consulted) while the defendant seemed primarily focused on the claim of patent infringement, which he claimed could spell the end of LARP archery in America, which Global Archery repeatedly denied. For example, in this statement, Global Archery says, “The patents-in-suit make up a very small amount of the issues that led up to Global filing the original lawsuit (only 2 of 9 counts).”
Indiana Intellectual Property Law News covered the lawsuit back in October.
In February, Global Archery filed a motion for a temporary restraining order to prevent Gwyther from speaking publicly about the lawsuit and “falsely imply this action was initiated to interfere with… live action roleplaying.”
Also in February, Epic Armory, another distributor of LARP gear, made a statement in support of Gwyther and LARPing.org on their Facebook page.
On February 19th, Ars Technica (an online publication devoted to technology catering to “alpha geeks,” technologists and IT professionals) wrote an article covering Global Archery’s motion for a gag order against Gwyther. It covered the Electronic Frontier Foundation’s decision to file an amicus brief (a statement offering information regarding a case from someone who is not involved in a lawsuit and has not been solicited by people involved in said lawsuit) supporting Gwyther.
Newsweek also covered the story back in February.
Ars Tecnica followed up on the story in March, describing a settlement offer Global Archery made to Gwyther. The settlement did not require Gwyther to pay them any damages, but would require him to cease various forms of marketing, including calling Global Archery’s customers and using Global Archery’s name in advertising, along with taking down the GoFundMe youtube video and ceasing public speech about the case. Gwyther rejected the offer.
Later in March, Ars Technica followed up again, this time talking about Newegg, an online retailer focusing on tech-enthusiast products, raising $10,000 by selling “patent troll” t-shirts to support Gwyther in his case. (They are still available for sale.) Techdirt also reported about Newegg’s assistance. And towards the end of March, Ars Technica reported that the complaints regarding their patent had been dropped. Newsweek also covered the patent complaints being dropped.
And now, Ars Technica is reporting that the lawsuit has been thrown out of court. I sent this link to another lawyer I know, who explained to me that the court has actually not said that the plaintiff is wrong on the merits of their case, nor that the court lacks jurisdiction based on lacking minimum contacts in Indiana, Rather “On May 13, 2016, ‘Plaintiff admitted the Court lacks personal jurisdiction over Defendant absent waiver: “If the Court concludes that the multitude of Mr. Gwyther’s actions did not waive Mr. Gwyther’s claims of lack of personal jurisdiction and improper venue, then this action should be dismissed.” (Pl.’s Reply Supp. Mot. Stay Disc., DE 48 at 4.)’ ” There’s nothing stopping the plaintiff from refiling the suit in Washington State (or possibly appealing based on ineffective counsel, but refiling in Washington is more likely.)
So while this might be the end of the case (here’s hoping), it may not be. Either way, it seems like a very good thing for Gwyther, LARPing.org, and their supporters.