Save Larp Archery in America!
*Please read the FAQ for further answers to common questions located at the bottom.
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.
For all that haven't heard the good news the lawsuit that I have been battling since October was thrown out! That's right, it's all over. You can read a great write up about the ending of the case by Joe Mullin on Ars Technica here: http://arstechnica.com/tech-policy/2016/06/trademark-lawsuit-over-larp-archery-gets-thrown-out-of-court/
That's the good news. The bad news is that even getting to have the case thrown out has left me with over $30,000 in legal fees. That's on top of the thousands I've already spent and the thousands donated by the New Egg Legal Team. Unnecessary legal battles, like this case, are extremely costly and detrimental to the unsuspecting victims that are dragged into them.
I've already taken drastic steps to be able to provide for my family while running my small business, including moving from our home in Seattle to living with my mother-in-law in St. Louis. But our efforts still leave us with hefty legal bills to pay off.
One last time I'll ask for your help. Any little bit will help us get back to the normal stuff of life like paying for preschool, taking some days off to enjoy the summer and getting back on our feet.
To those who have already donated $7,730 THANK YOU! I could not have done this without you.
Now, there are a handful of people I'd like to thank for their support throughout this process:
Lauren and the kids - Thank you. Hopefully the kids will be too little to remember the stress and long days of working, but Lauren, I know you'll never forget it and your support seen and unseen has had a profound effect on my life. You truly are a great partner to have in life. Thank you.
Adam Christiansen - Thank you for endless meetings talking through and praying for me in my times of insane stress. Your thoughtful responses, and candid care for me and my family is something I'll never forget and can never repay.
Mike Gortzig - Thanks for joining this adventure at the worst possible time and sticking it out to the end. Most people wouldn't move across the country, and put up with all of the insanity, but you've been generous with your time and talents. You're a damn good friend. #bestjobieverhad
Adam Lyons - Without your help, I wouldn't have made it through this last year. Not only has your advice been impeccable at every turn, but you helped me grow as a person and a business owner faster than I thought possible during one of the toughest times of my life. I'll never be able to repay you for the millions of text messages and the countless hours of phone calls. I'm blessed to call you my friend.
Mark Walters - Thanks for taking an outlandish phone call about foam tipped arrow patents. I couldn't have asked for a more understanding attorney.
Lee, Andrew, Jenn & The New Egg team - Your unexpected support was truly a godsend. I hope that you continue to battle patent trolls, and throw your support behind the little guys being sucked into this for a long time. I can't thank you enough for all the work you did.
Dave Funk - You've always got my back and your outlandish freak outs on my behalf were a source of humor much needed in my darkest times. Thanks man. #nukesornothing
Nick Serban - When we talked on the phone three years ago about a minidoc about larping in Canada who knew we'd end up here. Thanks for being a great friend and creating an unforgettable video.
Mom & Dad - Thanks for hosting my family in your house, helping us countless times and loving us even though we were difficult. I love you.
Robin - Thanks for taking care of us and letting us invade your home and your life. We are deeply grateful for your hospitality.
Ben Ryon - Your humor was perfect on all the Facebook posts. Thanks for helping Mike and I move like nine times. I hope New China Express is a good payment for all your help.
Adria, Otis, Jamie, Jonathan, Tina, Dylan, Chantal & The Voyage North Family - You folks are truly amazing. You all did so much, defended me all over the web, helped like crazy, pitched in places I couldn't get to and were awesome friends this whole year. August can't come soon enough.
Tom Miller - I appreciate your friendship and support through some of the hardest times. I truly appreciate all the work you did.
Larpers all over the world - When the video broke you came to my defense, challenged assumptions of the general populace, created videos, shared Facebook posts and gave generously. Truly, the best part of larping is the community that is formed around the activities. And it feels damn good to have friends and allies the world over.
Lastly, to Norbert & Rene thank you for your support throughout this process. You showed that you believe in your products and the companies that sell them and that shows true character. One day I'll get over to Europe to give a proper thanks.
I know I've missed tons of people who have helped along the way. Folks at Cross and Crown who listened to my story and cared and prayed. People all over the world who sent their money and encouragement in emails, tweets, and Facebook messages. Strangers at larps who would stop me and say, "Hey you're the arrow guy! Thanks for fighting the good fight!" You didn't know it, but you were encouraging.
Now, off to get back to doing what I really love doing: creating amazing experiences for people.
If you'd like to continue to follow me, foam arrows, larping, all of that is to follow Larping.org on Facebook: https://www.facebook.com/Larping.org/
Thanks again for the support.
Today I was hoping to send you an update that said, "Huzzah The Discovery Process Is Over!" alas, I cannot do that today. :(
The case is in a limbo state right now where we are waiting on a number of rulings to come down. Right now we're waiting on a jurisdiction ruling . So, until that happens, there is not much news on the lawsuit front. As soon as things start moving you'll be the first to know.
On a more personal level I wanted to let you all in on some of the ways a case like this affects someone in my position. A lot of times cases like this come across as "company X versus company Y are having a spat" and it won't really affect them in any meaningful way.
For me, that couldn't be farther from the truth. The amount of time and money I've had to spend/raise (thank you all again for your help) has been more than I could have ever imagined putting together in a short amount of time. And the stress has been nearly unbearable some days as I face tens of thousands of dollars in mounting legal bills.
Over the course of the last few months I've had to really hunker down and essentially work two full time jobs. I'd come home from my day job eat dinner with my family and then immediately begin working until late in the evening. With 2 small children under 5 at home this has been really hard on my family and on myself as I love being a dad.
In regards to my career I've had to make the very difficult choice of quitting my day job and focusing full time on running the business end of things in order to raise enough money to pay for the lawsuit. This was a very difficult decision because I loved my day job and the people I got to work with. They were all extremely understanding and helpful throughout this process and I owe them a large debt of gratitude.
However, I don't make nearly enough money to continue living in the very expensive city of Seattle working for my very young company. Therefore, I've had to make another difficult decision to relocate my family to somewhere more affordable. My wife's mother lives in St. Louis, and has offered us a free place to stay while we hunker down and work on paying for the lawsuit one step at a time.
This means that we'll be leaving all of our friends, and extended social network in Seattle behind in order to survive the process of being a very small business and fighting a lawsuit. And, while we've had an immense amount of support from friends and all the amazing people on the internet like you, who have supported us, it's been an extremely difficult process to work through.
In short, a lawsuit like this, that's aimed at a small company has a profound affect on the lives of the people it's leveled at.
Which is why having help from amazing people like yourself all the more amazing. From the bottom of my heart thank you so much. I'll never forget all the support.
If you're interested in continuing to support our efforts you can of course donate here to the Gofundme or you can buy a badass anti-patent troll t-shirt here: http://www.newegg.com/Product/Product.aspx?Item=N82E16800996291&cm_re=troll_shirt-_-00-996-291-_-Product
Thank you all so much for your incredible support these last two months. It's been a long and crazy journey, and we're not done yet, that has introduced me to so many people willing to help out someone in need!
Can you believe NewEgg is selling Troll T-shirts on my behalf!? It's insane. Insanely awesome.
Because of your support we've been able to raise a lot of money: first, $7,600 so far on the Gofundme and then another $10,000 from the pledged support of NewEgg. That's over $17,600! I am completely blown away and so thankful for all your help.
On that note get your Foam Arrow Patent Troll T-Shirt here: http://www.newegg.com/Product/Product.aspx?Item=N82E16800996292&cm_re=troll_shirt-_-00-996-292-_-Product
While that is a lot of money it's still only roughly half of the legal fees I've incurred so far. It's really weird to be in a situation where so many people have helped raise so much money, but the hill to climb is still really high.
On the case front there isn't much to report - we're waiting on a few decisions from the court and then we will proceed. As soon as those things come through I will let you know.
In the meantime there is a great article on Law360 about Lee Cheng, NewEgg's CLO, and his declaration on Patent Trolling. My case makes an appearance throughout the article and shows a bit of insight into why someone of Lee's prominence would help a case like mine. I think it show's his incredible character as well as the spurious claims against me in this case.
Check it out here: http://www.law360.com/articles/784539/how-newegg-s-lee-cheng-declared-war-on-patent-trolling-
Again, thank you all for your support. This journey hasn't been fun, but the support from all of you is something that has filled my heart with hope.
See the story here: http://arstechnica.com/tech-policy/2016/03/archery-company-drops-foam-arrow-patent-case-against-larper/
Purchase a New Egg Troll Hunter T-shirt here: http://www.newegg.com/Product/Product.aspx?Item=N82E16800996292&cm_re=troll_shirt-_-00-996-292-_-Product
Please continue spreading the word about the T-shirt's as we continue to mount a defense in this case!
Thank you all for your continued support!
Have you contacted iDV Arrows to seek financial aid in fighting a legal battle that centers on whether or not their product is legal to sell within Indiana and possibly all of the US? You should also make a point to contact US Based manufactures of foam tipped arrows. Being pro-active in gaining support of US based makers of foam tipped arrows should be a priority and will be vital in any effort to raise as much money as you need. Their patent case against is mostly baseless and I wish I could financially help you out. Hell, any of the round tipped arrows are blatantly excluded from their patents because they describe the arrow as being cylindrical while the rounded tips are spherical. However I am concerned that their are a lot of other chargers in that brief concerning trademark infringement and unfair advertising practices which do seem to be supported by their evidence which don't seem to touch on in your campaign. You probably should take some time talking about those issues too.
You should contact the Larp gaming groups that use modular arrows like Dagorhir, Belegarth, Amtgard. Also contact other foam manufacturers as well. Warlord sport, forged foam, etc. that make similar products. Many of these manufacturers have been in business for 20 or 30 years. Perhaps you could make this a class action defense. Dagorhir's claim on making modular arrows dates back to 1977 and many manufacturers are building according to the specifications of their rules.
Are you saying that counts III through VII have no basis? On the surface it seems like yes, this big company is coming after a little guy for an easy win, but reading the complaint it seems like the little guy may have tried to piggy-back on the big company's success. I would be elated to know that it is not the case. Could you please provide some insight for LARPers who have actually read and understand the complaint.
The patent is invalid, and if put under scrutiny through the court could result in it being revoked. I'm not sure as to the validity of some of their other claims, but it sounds like you took some of their business, and took affront to you insulting the quality of their product. Their case is a joke.
OK under US patent law The court may conclude that the patent claim is not valid if it is shown that the claimed invention was disclosed in a prior patent or patents, a book, a magazine, a newspaper, a television show or movie, a webpage or other published work before the date of the claimed invention. Also the court may conclude that the patent claim is not valid if it is shown that the claimed invention was offered for sale in this country or was disclosed to the public more than one year before the application for the patent was filed. In addition, the court could find the patent invalid because it does not meet other statutory requirements, such as a sufficient written description of the invention, or because it does not describe subject matter that is patent eligible. So IDV have been selling LARP arrows since about 2004 if any of those were sold in the USA prior to Dec 2010 then there is no case. Further more the information on how to create non lethat foam arrows has been on the internet for some time, these series of youtube clips were posted in 2009 https://www.youtube.com/watch?v=6XcLVbWpL78 And this comprehensive document comes from 2002 http://www.thealmightyguru.com/Boffer/Docs/Arrows-01.pdf some 9 years before the date of the patent. So you have 3 methods of proving that you are not guilty, indeed it could easily be argued that the patent should not have been granted since only the tip connector itself is unique in design, the rest having been in public domain for at least 9 years prior to the patent being granted.
I would think that it would be fairly easy to use excerpts from Dagorhir's book of war describing the manufacture of modular arrows. Dagorhir has been shooting foam arrows at one another since 1977. It is pretty simple to say hey we've been using these arrows for almost 40 years and along comes some jack ass from Germany claiming that he invented because he made a patent 2013.
his patent claim is ridiculous, in Denmark we have been playing combat archery since -94 (only without the protective masks) and if i am not mistaken, Easton have produce small batches of foam tipped arrows for some years. If the court goes against you. foam tipped arrows are not that hard to produce at home
FYI, I think some LARP archers should enter videos in this contest. They aren't *choosing* the winner. Instead they are giving the award to the one with the most "organic" views (see below). ----- We are looking for our next awesome Archery Tag® promo video! Take your best shot at winning $5,000 USD by submitting your incredible video that showcases our amazing combat sport in an exciting, creative, and fun way! On November 8, 2016 at 12PM (EST) we will launch the Competition through our website and social media pages. At that time you will use the hashtag #ArcheryTagVideo to search for your video. Make sure to tell your family and friends to LIKE and SHARE your video after it is posted; then tell them to KEEP SHARING it to increase your odds of exposure and LIKES! The video with the most organic views on December 30, 2016 at 12:00PM (EST) will become the winning entry! Visit our website for official rules and regulations.
Why not contact the other larger foam arrow distributors in the US and band together... This affects them also, so they have a vested interests in seeing you win.
"I'm a avid Amtgarder and have been following this since we first heard they were going to patent it. I wish we would have contested it before it got through." Bummer. I wish I had known about the patent application back in 2011. I would have done my best to contest it. How did Amtgard (and/or the larp community) know about the patent application?
I do love how this could go, the very way that GAP works with it's business model through stuff like Archery Tag is through licensing to the people and businesses that buy and rent out their products. It's their revenue stream that's supposed to be protected by the patents for their foam arrows. With the input by the German company, you can see that GAP is standing to lose their patents and thus protection over their exclusive market stream. Once all of this gets sorted out, the market for getting safety certified arrows shot around as a sport will be blasted open for everyone. It means that GAP will no longer have market dominance and will have to play ball like the rest of the free markets. My source: http://archerytag.com/faqs