Games Workshop and Intellectual Property: a case study

An examination of intellectual property and its importance for Games Workshop

One thing I see a lot in online discussion about Games Workshop as a business (and its perceived bad business practice) surrounds its use of intellectual property (IP) and the impact that has on other smaller producers in the wargames space.

Now, to be clear, I'm not an IP Attorney - and this article in no way represents intellectual property legal advice - but I do work in the IP industry. This topic is accordingly one that I have a very peculiarly niche and passionate interest in.

Let's take a look at what IP actually is, why it's important to Games Workshop, and what it means for the future of the hobby associated with it.

What actually is IP?

To quote the World Intellectual Property Organisation, Intellectual property (IP) refers to: "creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce." These creations are afforded legal protection by a number of forms of IP law, notably patents, trade marks, copyright and registered designs.

Holding IP provides a creator or inventor with a monopoly, legally safe from infringement by others who don't hold those rights. For example:

• to allow an inventor to bring a new invention, technology or process to market, in the case of patents; or

• to allow a company to promote and sell products under certain branding, protected by trade marks.

I'm sure GW hold a bunch of patents in relation to their various manufacturing processes and unique tools utilised at their factories. But generally, when we're talking about GW IP, what we're really focusing on is trade marks.

What is a trade mark, and what do you need to do to keep one?

To go back to our friends at the WIPO, a trade mark is "a registered legal right that distinguishes a particular product or service of one company from another". They're registered at an intellectual property office through a complicated application process.

To be successful, a trade mark application needs to demonstrate that it is:

• Distinctive: Perhaps the most difficult to define, but the most important part of procuring protection (more on that below). The mark needs to be unique, and the public need to be able to recognise it as having a specific origin.

• Non-descriptive: The mark itself cannot be descriptive of what the brand is. For example, a handbag brand can’t be x-handbags, or a jean manufacturer can’t be blank-jeans.

• Non-generic: The proposed mark isn’t already in use in common parlance to describe the product – think of the use of “hoover” to describe vacuum cleaners.

• Non-offensive: It can’t include any swear words word that might cause offense.

• Non-deceptive: The mark doesn’t include wording or suggestion that might mislead or deceive consumers as to  the nature or quality of its goods or service.s.

  
  

Let's highlight a few of those.

For a mark to be distinctive, it needs to be exactly that: distinct. It must be clear in the mind of the public that this is the only company or product that this particular name or image could refer to.

This is also a hidden issue for rights holders, as allowing copycat or similar brands to persist can actually weaken the case for their own trade mark by making its use less distinct in the eyes of the public.

Think about some of the third-party alternatives to GW available online - variants on various 40k archetypes. Yes, "elite armoured infantry" are different from space marines, but - in the eyes of the law at least - they might not always be distinct. That is important, and it might explain some of GW's stringent action towards third-party sellers (more on that in a bit).

In the case of non-descriptiveness, occassionally also referred to as being non-generic, it isn't possible to secure protection for a mark that just describes an object or product. You'll never get a brand for something called "sports shoes", for example, but Nike Dunks is absolutely viable. In the case of GW, this is likely the reason behind so much of their rebranding in the mid 2010s: Space Marines is generic, Adeptus Astartes isn't; you'll never be able to secure "High Elves", but Lumineth Realm-Lords is absolutely fine. It is also at least partly the reason that a certain recent attempt to trade mark "Warboot" - a term with a long history of public use - failed.

"Space Marines is generic, Adeptus Astartes isn't; you'll never be able to secure 'High Elves', but Lumineth Realm-Lords is absolutely fine."

The last two sort of go hand-in-hand. Non-offensiveness means the trade mark may not contain any swear words word that might cause offense; and non-deceptiveness means the mark can't include wording or suggestion that might mislead or deceive consumers as to the nature or quality of its goods or services. GW products are unlikely to fall into issues with either of those but third party actors providing a certain type of miniature alternative (various elves in skimpy costumes, I'm looking at you) might not be particularly welcome for GW's corporate bigwigs.

So - you've got your trade marks set up and protected as best you can by the law. But what do you do if someone tries to muscle in on your products? How do you make sure you - and only you - profit from your own intellectual property?

To understand that, we need to look at the most contentious aspect of GW's relationship with IP: enforcement.

Enforcements, takedowns, GW and third party sellers

Holding a trade mark is one thing - but how does trade mark protection actually get enforced in the real world? Predominately, this is managed through cease and desists letters and litigation.

Online e-commerce platforms (eBay, Etsy and the like) are a huge theatre for this, as smaller producers try to leverage the notability of other brands to create and sell products either associated with them, or that directly copy their success to hoodwink consumers.

What I expect is taking place is that GW are making use of large-scale TM watching services. Watching services, driven by algorithms, will be used to review huge amounts of Warhammer-adjacent smaller sellers, and flagging any that might infringe on their existing trade marks (Warhammer 40k, Adeptus Astartes etc) and to serve them cease and desist letters en masse.

Does this mean a few (read, a lot) of smaller business might be caught in the crossfire? Of course. But for GW, I doubt that really matters. It is much better, for them, to trawl across thousands of smaller stores that might be endangering your precious IP than to miss one, which could then weaken the overall protection of your brand.

"It is much better, for them, to trawl across thousands of smaller stores that might be endangering your precious IP than to miss one, which could then weaken the overall protection of your brand."

While this is well established legal practice, taking such a wide-ranging approach to combating infringement can nevertheless appear quite grubby. It (often rightly) irks consumers to see major brands going after the little guy, often for misguided or unfounded claims of infringement. But when the value of intellectual property is such an important aspect of a company's business, a scorched-earth approach to protection is legally advisable - even if unpopular.

Why does this matter? GW and Amazon

So why take this costly, unpopular and extensive approach to protecting its names and images being employed by GW? One word.

Licensing.

A cornerstone of IP strategy for major brands - particularly one in the position of GW - is finding ways to leverage the money-making potential of its existing intellectual property. And under the right conditions, the money-making potential of a firm's portfolio to boost revenue through licensing that IP for use in merchandise and content, can be vast. For GW - with its decades of stories, worlds and characters - the potential for its IP to generate profit for the firm is absolutely massive.

So important is this to their business model that I am increasingly of the opinion that the main facet of GW's business isn't miniature production: it's IP. The day-to-day practice of designing and creating models for customers to purchase is what the company does; but what it is is a repository of a grand portfolio of intellectual property, just waiting to be leveraged in a myriad of forms. Think of GW as a reverse Marvel: a company that began by creating games, and then organically developed compelling stories and settings as a result that they are now seeking to take further.

"The day-to-day practice of designing and creating models for customers to purchase is what the company does; but what it is is a repository of intellectual property, just waiting to be leveraged in a myriad of forms."

GW needs to maintain protection of their IP as an incredibly important facet of their business strategy. The monetary potential of their IP is vast - they're sitting on a veritable goldmine of stories, characters and settings that they have barely even begun to exploit. The success of Space Marine 2 as a game is likely huge for GW's future plans, proving to their top brass that products leveraged from their established settings and characters will be a huge part of their business model moving forward.

Now, in the run up to their monumental deal with Amazon, this is even more important. I'd expect GW to remain fiercely protective of their intellectual property portfolio during the development stage of their content output with Amazon. They can't allow for anything that might damage the sanctity of that portfolio at a critical point in the development cycle. Hence, an increasingly stringent approach to protecting their property, even in seemingly fringe cases, has become more commonplace.

Conclusions

From the outside, it doesn't seem fair, that the powerful corporation gets to clamp down on the hard work of smaller, sole traders coming up with exciting products or trying to improve the hobby they love.

And its exactly that. It isn't fair. It's business.

That may rankle many who enjoy GW's products, but at the end of the day, that's what they are: products. Products, sold by a major corporation for a considerable profit, for the sake of satisfying profit and loss margins and, crucially, their shareholders. The fact that the origin of many of GW's own worlds are born from decades of call-backs and references to existing works of sci-fi, fantasy and satire, unfortunately matters little. GW is not the same company it was in the 80s and 90s, and with the vast improvements in design and production quality represented by the modern company, comes a more savvy, shareholder-centric approach to business.

It is, perhaps, a disappointing conclusion. Yet it is also a fact of life everyone has to reckon with as members of society and consumers, not just of little plastic men, but of everything, in our modern world.

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Until next time,

Alex