When Jordan Gwyther started Larping.org, a website that promotes his favorite hobby, he didn't expect it would lead to him being sued for patent infringement over foam arrows. And when he spoke out about the lawsuit, neither he nor his attorney saw what was coming next: the patent-owner filed papers in court last week asking for a temporary restraining order (TRO) that would keep Gwyther quiet.
Live-action role-playing (aka LARPing) is an increasingly popular pastime in which ordinary folks transform into medieval weekend warriors, donning armor and using foam weapons to duke it out in local fields and parks.
Gwyther founded Larping.org five years ago as a community hub where LARPers could talk to each other and find local events. Over time, he also started selling certain items useful to LARPers, like leather and metal armor, latex weapons, and foam arrows. "It's a hobby that grew into a side business," Gwyther told Ars in a phone interview this morning.
He doesn't make arrows; he simply buys them from a German company, imports them to the US, and sells them to LARPers. The arrows, sold through two websites, amount to a bit more than $2,000 per month, according to an affidavit—hardly enough to allow Gwyther, a father of two young kids, to quit his day job as a youth pastor at a Seattle church. But the sales apparently infuriated a competitor, Indiana-based Global Archery, which sells its own foam arrows under their trademarked brand name Archery Tag.In October, Global Archery sued Gwyther for patent and trademark infringement. At first, Gwyther tried to fight the lawsuit (PDF) on his own.
But when Global Archery's lawyer boasted to Gwyther's attorney that the company has a $150,000 budget for its litigation, Gwyther knew he'd need help. Global Archery's budget "will ensure their victory unless I can raise funds to defend myself," he said in a YouTube video published last week. "As you can guess, I don't have $150,000." Gwyther created a GoFundMe campaign called "Save LARP archery," and in a video, he laid out his view that the lawsuit could threaten LARP archers everywhere.
Global Archery has asked the judge overseeing the case to shut down Gwyther's plea for help. In a motion (PDF) filed last week, Global says Gwyther should be slapped with a temporary restraining order that would force him to "cease issuing any press releases, advertisements, letters, promotional materials, articles, and oral or other written statements including posts on social media sites such as Gofundme, YouTube, Facebook, and Twitter, that falsely... imply that this action was initiated and is being prosecuted to interfere with the general public’s ability to engage in live action role playing (LARP)."
The motion also demands Gwyther to cough up all the cash he's raised from GoFundMe, just over $4,600 so far (he's seeking $100,000 to fight the case.)
Global Archery's attempt to get a gag order has led the Electronic Frontier Foundation to file an amicus brief (PDF) in the case. "The First Amendment guarantees that even patent owners are subject to the slings and arrows of public criticism," writes EFF lawyer Daniel Nazer in a blog post explaining the EFF's decision to get involved.
Reached by telephone this morning, a Global Archery representative wouldn't comment on the EFF brief. "On the advice of legal counsel, we’re just not commenting on that," said the man, who identified himself as John but declined to give his full name. "That's good enough," he said before hanging up.
In a press release, Global Archery says it actively supports the LARP community and that Gwyther's statements "were specifically calculated to serve as a rallying call for the LARPing community to turn against Global." The release states:
The term 'Larp Arrows' used in Global's complaint was a term of art used to describe the specific arrows involved... and certainly was not used to include any and all arrows used by persons in the LARPing community...
One must ask what is the true intention behind the Gwyther Statements. Is it alerting the LARPing community about a megalomaniac corporation/ "Patent Troll" trying to crush an individual who is simply engaging in his "hobby"? Or is it about playing on the LARPing community's emotions so that Mr. Gwyther and his business can obtain a financial benefit at Global's expense? Global believes it is the later. [sic]
Gwyther stands by his belief that Global could be planning to launch more lawsuits and that the company's broad patent on foam arrows threatens the whole LARPing community.
"I didn't know a patent for something like that even existed," he told Ars. "Foam-tipped arrows have been used and sold in our hobby for a very long time."
“Ruin LARP as we know it”
Global Archery's lawsuit throws several claims at Gwyther, including allegations of patent and trademark infringement, tortious interference (for making sales calls to Global Archery customers), and false advertising (for buying Google ads claiming his arrows are "Better than Archery Tag!")
The earlier of Global's two patents on arrows, numbered 8,449,413 and 8,932,159, has a filing date of 2011—well after German arrow-maker iDV, Gwyther's supplier, started manufacturing its product.
On his GoFundMe page, Gwyther says that his use of the trademark "archery tag" to buy Google ads is perfectly legal. (Use of trademarked keywords in advertising has been heavily litigated over the years, and it's now a common practice.) As to the statements about his arrows being superior, "I also believe Coke is better than Pepsi," Gwyther writes. "This is a statement of opinion and is used all the time in marketing."
The lawsuit also accuses Gwyther of selling his arrows using the "Archery Tag" trademark on Amazon. Gwyther says those claims are straight-up wrong and based on screenshots of other sellers. He doesn't sell on Amazon at all, he said.
Gwyther says he gets calls from summer camps and other groups seeking to buy arrows for non-LARP purposes, and he's happy to fulfill their orders. They play games similar to laser tag, which they describe with terms like "archery tag," "foam tag," or "dodge bow," he says.
In his video, Gwyther says he's reaching out for help because the lawsuit could "ruin LARP in North America as we know it." If Global succeeds, the company "will have created a legal precedent to enforce his patent against other distributors and resellers of LARP arrows in North America... this would mean if we lose this case, archery in LARP in North America might end, and at the very least be changed forever."
Gwyther thinks he's been singled out as a small business person who could be overwhelmed in court before Global goes on to pursue larger targets.
“Reckless behavior”
Gwyther's plea for assistance has clearly gotten under the skin of Global Archery and its attorney. Two days after Gwyther's video went up, the company filed a motion (PDF) for a temporary restraining order and injunction that would force him to keep quiet about the case.
"Gwyther has deliberately mislead consumers regarding the nature and scope of this action" causing "irreparable damage to Global," the company's lawyer claims. The judge should issue a restraining order and injunction "preventing Gwyther from continuing this reckless behavior."
"Gwyther’s conduct has created havoc and confusion in the marketplace," Global's lawyer states. "This was not an 'accident' or an 'innocent' mistake, but rather, [it] was a calculated maneuver done by Gwyther to unfairly damage Global’s reputation, divert sales of Global’s products to Gwyther, and to dupe the general public into funding Gwyther’s defense of this action."
The company says it has been "inundated with hateful phone calls, e-mails, and posts on its social media site," including one expressing hope that people at Global are "brutally murdered."
Gwyther said the threats are "deplorable," and he hopes it wasn't LARPers that did it.
"It deeply saddens me that anyone has done that," he told Ars. "I don’t want that for them. In a hobby where we are often ridiculed and made fun of, we know what it's like for people to treat us poorly."
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