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I’m reaching out to you today with something that has the potential to ruin larp in North America as we know it, specifically in regards to larp archery.
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.
Until now, I’ve attempted to do this on my own, however, the person who is taking me to court, Global Archery products, aka Archery Tag, has told my lawyer (through its lawyer) that they have a budget for this case of $150,000. This will ensure their victory unless I can raise funds to for my defense.
Why does this matter to you? If he succeeds he will have created a legal precedent to enforce his patent against other distributors and resellers of larp and foam tipped arrows in America. He has made it clear that he wishes for his foam tipped arrow to be used only for the purpose of Archery Tag which he claims to have invented along with the foam tipped arrow.
This would mean that if we lose this case, archery in larp, within North America, might end. I suspect, that the reason he is currently only taking me to court, as a small distributor of these arrows, is because he knows that we will struggle through a lengthy legal battle compared to some of the larger distributors of the arrows. And if he wins his first court case it will be significantly easier for him to win subsequent cases against the larger distributors and resellers.
This is where I need your help. Financially, I know I don’t have the means to contest this alone. And, even though legally he doesn’t appear to have a case, if he can drag it out long enough so that I can’t afford to continue contesting the case, he will win.
This is why I’m asking the larp community, specifically, you watching this video for help. Very few people in the larp community have a substantial income. I, myself, have a day job and sell these arrows (and other larp equipment) as a part time hobby which doesn’t generate a great deal of income. However, right now, the state of the entire larp hobby is at risk.
On this page you will find an easy way to donate towards helping me fight this in court. Median litigation costs (including attorney's fees and expenses) to defend a case for patent infringement worth $1,000,000 or less through a trial, were $700,000 in 2013 according to a survey conducted by the American Intellectual Property Law Association. I’m hoping to raise $100,000 so my total resources can be at least equal to those of my opponent’s. I don’t want to generate any money for myself from this campaign and, so, any additional funds raised beyond what is needed to defend this case in court will be donated to the charity with the most votes that I am asking for people to submit along with their donation.
I was hoping to deal with this myself and asked for the case to be dropped at the very beginning, however, it appears clear that he has no intention of doing that. We are seeking some relief from the court to expedite the case in order to save money, but it is unclear whether the court will grant our request. Please donate whatever you can.
I genuinely believe that this is one of the biggest threats to our hobby in recent times and I cannot defend this threat without your help.
Simply, click the link to donate and just as importantly, share this. Put it on forums, on blogs, share with your local larp groups, on social media and think about it every time you fire a larp bow or any time you think about how much you enjoy your hobby.
Thank you in advance. I will be adding more details to this page about the case as things develop.
Thank you from the volunteer team and staff at Larping.org.
I've received a number of questions and concerns regarding the case as best I can while also making it clear that I can't comment on anything that hasn't been made publicly available.
What makes you think that this suit has malicious intent towards larp archery?
Because they are specifically suing me for selling items called "larp arrows" this is a direct quote from the case: "Upon information and belief, Larping has infringed one or more claims of the `413 Patent pursuant to 35 U.S.C. § 271(a) by making, using, offering to sell, and/or selling in the United States, products referred to as the Larp Arrows. "
I'm not selling Archery Tag arrows, or a knock off of them. I'm selling arrows specifically made for larp, iDV Arrows from www.idv-engineering.de and being sued for it. I didn't create the arrow. These have been around and sold in this country for a long time.
If he stops me from selling them, what's stopping him from stopping anyone else from selling larp arrows? There are accounts of companies having conflict with this company you can read one account here: http://www.archersarena.com/blog/archery-tag-openletter
How is this ruining larp?
I believe that one company having control over a product, or attempting to assert control over a product, by enforcing a patent that covers something that has been around for a long time has the potential to have a large impact on the hobby of larp. You may not use arrows, the larp you attend may not use foam tipped arrows, but countless games do and are better for it. I believe that this would have an impact on the work that the larp community has been doing for the last 40 years.
The patent is for one kind of arrow -- not all foam tipped arrows.
We do not sell the kind of arrow that he has patented. Yet, he is using that patent to attempt to stop me from selling "larp arrows". That's why we believe it's a threat to all larp archery.
What about the marketing and trademark claims?
Trademark claims come down to trying to confuse others into thinking that you are that company. I have never done this. I have never used their trademark on any website, nor have I claimed to be them in any advertisements, nor have I claimed to sell their product.
You said your arrows are better than Archery Tag!
Yes, like I also believe Coke is better than Pepsi. Like how T Mobile claimed to be better than Verizon during Super Bowl commercials, and vice versa. This is a statement of opinion and it is used all the time in marketing.
You used their trademark in Google Adwords!
It is not illegal to use a trademark in Online Advertising. Please see this link: http://www.inta.org/TrademarkBasics/FactSheets/Pages/OnlineAdvertisingandUseofOthersMarksFactSheet.aspx
In it you will see this quote, "Can I use someone else's trademark in online advertising without the trademark owner's permission?
In certain circumstances, yes. Following are examples of fair use.
Nominative Use Nominative use of a mark occurs when one person uses another’s mark to refer to the mark owner or its goods or services. In the United States, if you are using the mark in truthful, comparative advertising or in a way that truthfully identifies the products or services in a manner that does not mislead or confuse consumers as to the mark owner’s affiliation, sponsorship or endorsement of your products or services and that does not use more of the mark than necessary, generally you may use the mark in online advertising without the mark owner’s permission. Nominative use of another’s mark often occurs in comparative advertising, but it may also occur when a distributor or retailer indicates what goods it offers for sale. "
Why have you made this public?
The case is public knowledge and I've tried to raise awareness to it because this could have an impact across the larp community. The patented control of foam tipped arrows by one distributor in America could have an impact on games that use them by making them unavailable.
Why didn't you give all the details in the video?
The video was created to draw attention to the concern that affected the larp community. I mentioned in the video that there were more details to the case and I put those on the page. I drew awareness to the biggest threat to the community the patent issue.
I have a long history of helping the larp community, through Larping.org which have included a lot of work that has been free and for the community, and I have no intention of defrauding or lying to anyone at such a critical moment. There are many factors that have led me to believe this that I am not able to publicly talk about due to this being a legal case. However, there is the possibility that the legal precedent set by us losing and not being able to sell our foam tipped arrows could be used to stop others in the future. That is our fear and something we want to avoid. Additionally, larpers, SCAdians and other reenactors have been using these type of arrows in this country for decades - we do not want to see this be stopped. We want foam tipped arrows that are made by trusted manufacturers so that everyone can use them in their games in a safe and controlled manner.
Why don't you just contact the manufacturers, etc?
The manufacturer, and distributors of these arrows know about the case, some have donated to the Gofundme, and have been very helpful in supplying information that is helpful with the case.
The creator the iDV Arrow, Norbert Fleck, has left a comment as a statement. He says, "Hi, this is IDV engineering, Germany: At first: The GAP (Global Archery Products Inc.) Patent covers some specific padded arrows but is pretty wide in its primary claim. Second: The GAP Patent is virtually invalid due to prior art, while the IDV Patent (Germany) and the US marketing since 2007 are the strongest (and best proven) prior arts. Third: Of course we support Jordan Gwynther with information and donations. Fourth: If Jordan gets the funds he needs, it's just a formality to get the GAP Patent deleted."
Why didn't you settle this out of court?
There was no attempt made to contact us before the complaint was filed. We are open and hope that an out of court settlement can happen as soon as possible.
The profit of the arrows has been very little compared to the damages they are seeking.
This left me with only two options: do nothing and accept my fate or fight it. I chose to fight it on behalf of myself, and what I believe is a real threat to our hobby.
Who are you anyways...?
Well, for starters my name is Jordan Gwyther and a few years ago I started Larping.org with a few friends to create a place where information, photos, videos, etc. could be collected as a hub for the larp community. We've created a bunch of content and resources, such as the Larp List and Map, to help expand this awesome hobby. From there, Tom Miller and I have started a few other websites and trips that all have to do with Larping in one way or another including: www.thevoyagenorth.com, www.larptents.com and www.upshotarrows.com.
How will the money be used?
The money for this Gofundme will be used exclusively to fight this case. Any remainder will be donated to charity. Fighting the case will include attorney's fees and expenses related to the case.
How soon do you need the funds?
I need donations today! The case is already moving along, as of today (2/8/16) we have already accumulated quite a bit of attorney's fees and we are approaching busier and busier portions of the case where fees will rack up very quickly.
I dont use these type of arrows at my game - why should I care?
I think the main point here is that someone is threatening a portion of your hobby, of the nerd community, is being attacked and will change for the forseeable future. As a community, as a hobby, this is important and we should defend it together so that our hobby can grow and expand instead of being reduced due to greed.
Can I see the complaint filed against you?
Absolutely, here is a link to PDF. We have nothing to hide. In the complaint you will see many claims against me. Some of which are completely untrue, while others are "junk" that is trying to be passed off as breaking the law when in fact we have done nothing wrong.
How do you plan to win this case?
We believe the fact that the foam tipped arrows patented by iDV Engineering in Germany, were sold in the United States prior to the creation of the patent that is in question. This should prove that the case is invalid. Feel free to see the German patent here.
- James Schlachter
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