Wednesday, September 1, 2010

Foam Wars


If you follow the goings on in the hobby industry thru the blogosphere, you’re no doubt familiar with “Foam Wars”. Foam Wars, in short is the epic struggle of miniature transport tray and bag manufacture Battle Foam against it competitors for Intellectual Property infringement., specifically Outriders Hobbies and potentially Sabol Designs.
Sabol Designs has been around since 2000, and was basically the main stay for miniature transport and casing options outside of Games Workshops products here in the United States for some time. Sabol designs is also a monster terrain maker responsible for some of the epic display pieces such as the Red Orktober mothership seen around Adepticon/ Gen Con and what have you, check out www.sabolstudios.com. for more. Sabol Designs does not use laser cut foam, but the pluck style foam we’ve all seen for years.

Battle Foam’s LLC, says they were created in 2005, However being involved in this hobby since 2006, I can say they weren’t a blip on the radar until probably late 2007 or 2008 In the last 3 years the company has exploded with tons of slick and well made products and with uber aggressive marketing on hobby forums, events, podcasts, You Tube and even recently purchased the defunct 40K Radio. Battlefoam is currently the most visible, and assuming profitable company in the US for Trays and Bags. Battle Foam sells Laser Cut Foam that they say uses a proprietary technology, at this time they do not have a patent, but have filed a patent application. Under U.S. law "patent pending" does not protect an invention until the actual patent is published and/or issued.


Outriders Hobbies is a one man outfit that to the best of my knowledge, figured they could do the same thing Battlefoam does but without the overhead of big company, cheaper. They sell the same Laser Cut Foam Trays that Battlefoam does and for allot cheaper, This being the core source of the conflict.

Battlefoam filed suit against Outrider Hobbies of (Foam Corp, as they are also known) for trademark infringement early this year. The pertinent claim, among the many claims was "customer confusion" taking place in New Hampshire, so the suit was filed there.

This is an old legal tactic used by many the unscrupulous over the years, I know because it was done to me. In a trademark case over naming rights to a company I was involved in late 1990’s.

In this case -even thou both parties live and work in the state of Arizona. Battlefoam choose New Hampshire as the venue. This is usually done in order to financially strangle a less than affluent defendant with expensive travel and legal costs in order force an out of court settlement or to get them to comply with the Cease and Desist. Unfortunately in IP and trademark cases most of the time it comes down to, he with the deepest pockets wins. Fortunately for Outrider Hobbies, the proprietor has a legal background and was quite capable of defending himself., for free.

Since Battlefoam didn’t even file its claim of proprietary laser technology until 2009, Outrider should have been able to make and sell all the laser cut foam he wants until he’s legally unable. Given that having to travel to New Hampshire for a court appearance, and “Patent Pending” threats didn’t dissuade Outrider Hobbies (there were all other kinds of ludicrous claims in the suit including industrial espionage) Battlefoam pushed on with its “customer confusion angle” however the confused customer turned out to be a former associate of Mr Battlefoams previous company Diablo Bats. (a baseball bat manufacturer). Diablo Bats, has its own sorted history and conflicts with Major League Baseball, which if you look into doesn’t exactly shine a pretty light on Mr. Battlefoam. In the end the New Hampshire Judge dismissed Battlefoams suit as basically a waste of his time..scolded Battlefoam with extreme prejudice, basically accusing him of manufacturing evidence. Battlefoam was ordered to pay all of Outrider costs in the matter.

It does not end here, lets back track a little with Sabol designs.

The long standing rivalry and animosity between Sabol and Battlefoam begins immediately with Battlefoam entry into the marketplace. Battlefoam is manufacturing trays for Sabol and GW products and it doesn’t need their consent to do so. Battlefoam had/has videos on You Tube that were clearly claiming the other foam trays sold by those companies were inferior to Battlefoams. Competition for sponsorships attention and Ad and hall placement at last years Adepticon was the talk abuzz in the vendor hall. Make no bones about it. Battlefoam has made it clear. They intend to be the monopoly in this small industry if they have anything to say about it.

Just last month at Gen Con, Battlefoam employees apparently observed the WarStores booth. selling Sabol transport bags containing Outrider Hobbies foam trays. While has turned out to not be true (they were only displaying Outrider Products not selling them) The circumstantial damage was done and this dragged Sabol into the Laser Cut Foam Tray argument, that is still unfinished between Outrider and Battlefoam. Remember the New Hampshire judge just threw out Battlefoams case for not being pertinent to New Hampshire as a proper venue and for finding Battlefoams witness To be “not credible”- it never got to core trademark issues at hand.

(which again is- can outrider make and sell Laser Cut Foam Trays which are similar to Battlefoams, whether or not we know if the exact same method is used and Battlefoam has any legal right to this process is still unclear)

Early this week, Battlefoam sent out what amounts to a Cease and Desist Letter to both Sabol and Outrider. Sabol doesn't sell Laser Cut foam and they say they are somewhat confused and understandably annoyed by the letter. Outrider has now a made a public disclaimer that it is not affiliated with Sabol in anyway. After day of bad press on forums and blogs Battlefoam then issued a statement clarifying that this isn't a C&D letter but a just "friendly" warning that if you continue to work with Outrider you'll be as liable as they are in any future action concerning infringement on their supposed looming patent. The clarification is essentially nothing more than a carefully worded cease and desist/warning . As for Battlefoam- after the New Hampshire debacle They've hired a new very expensive lawyer, who is the former Chair of the Intellectual Property Section of the State Bar of Arizona. I get the feeling Mr Battlefoam spends his days scouring the Internet looking for people who are infringing on his potential patent and IP, If you look at the battlefoam website, they are now apparently makers of custom foam for Guns and medical equipment?, when/if this patent is approved do not be surprised if you see another round of lawsuits in other industries where IP infringement may be applicable for some other unsuspecting small business.

The reason I bring this all up is, in life we have a choice with who we do business with, despite all the people in hobby worldwide, it, in the grand scheme, is not that huge a sphere of influence. Is it right for Battlefoam to attempt to stifle any competition when they've essentially already cornered the market?. No one can say that Battlefoam do not make superior , well made products, it surely does, however they are not cheap. Is trying to destroy the cheaper competition thru legal shenanigans, threats, and intimidation in name of business ok to you? Is Battlefoam's quest for foam monopoly ok by any means?, where do you draw the line?. I've stopped myself from buying several Battlefoam products twice this year due to this Foam Wars nonsense The hobby sphere is quite big enough for multiple product manufactures of this kind. The fact that Battlefoam can not understand or control that and responds with these types of actions must make one seriously look at what products you buy and exactly where your money goes. Spend wisely my friends, life's too short.


Sources-
TGN
Living Dice

Read: Foam Wars Part Deux

19 comments:

The Inner Geek said...

I had no idea these kind of crazy things were going on in the foam wing of the hobby mansion. It's good to get the information out there, so I appreciate you blogging about it. Whether someone chooses to do business with company 'a' or 'b', they should at least be able to make an informed decision.

The LeadHead said...

Very interesting read - I knew some kind of brouhaha had been going on about this, but didn't know the particulars. I have happily used Sabol cases since a friend gave me one of his hand-me-downs, needless to say I will continue to do so!

Brainwashed said...

I hope the best for Outrider Hobbies. I find it ridiculous that Battle Foam thinks they can patent a laser cutting foam.

People around the world have been using laser cutters for over a decade cutting everything from balsa wood to engine gaskets. What makes using one on foam a patentable concept? It's like patenting a jig saw to cut a material for a niche market.

Romeo seems like a good egg, but those letters of intent are hard to misunderstand.

Anthony said...

The problem is that companies are doing this all over every industry. The idea that you can patent an idea without the need of a physical product has led to this. Just look at Apple/MS battles as a good example, or how the Telco's are always suing each other for IP.

Tim Kulinski said...

Well, since i live in the great sunstroke state of AZ I know all about this little fight. For the record, Romeo seems like a sleazy used car salesman.

A couple of years ago at GitD, Romeo wanted to talk to the GitD group after the awards. I was told that he was going to talk about his product and donate one of the bags as a prize.

Well he got up, did his spiel and then split! We were all stunned and did not know how to take it. He left and did not donate a bag, he just wanted to do his thing.

So after that I decided not to purchase anything from him, now after his attempt to put Outrider out of business, I have come to the conclusion that Battlefoam is not worth it.

BJ said...

I think the whole thing is just plain stupid. I personally don't care if Battle Foam is the better Product, they are too damn expensive and I will gladly pay less for a product that may be inferior but still gets the job done.

D'nyarak said...

thanks for the post john! I was looking into ordering some more foam from BF but will now rethink it with how they are acting.
@brainwashed the sad truth of patents is that they could very well get it patented since it is for a different use than other laser cut products and therefor potentiality a 'new and novel idea.'
I understand the need to protect your product but using dirty lawyer tacts is not the way to win customers

sonsoftaurus said...

Interesting breakdown. Sigh, more hobby drama. I'm happy to have something like battlefoam as an option, but they seem very delusional.

On a side note, black comment text over a charcoal background is very hard to read...

John@Plastic Legions said...

@ Son of Taurus..should be white on a charcoal background..I had some formatting issues earlier today, with some bad code in a post..let me know if keep on seeing black text..it should be white on charcoal on the main, black on white in the comments

The Inner Geek said...

@john

I've viewed the page in FireFox 3.6.8 and IE 8.0. Both show the main article and blog as a charcoal background. The blog is white letters, the comments are black letters. Now, if I click on 'comments' I go to the default blogger 'leave a comment' page, which is white background and black letters. The only time I see the comments as black on charcoal is when I link directly to the article and the comments are showing before I hit the comment button. Does this make sense?

John@Plastic Legions said...

Yup I do see that, I rarely look at the individual page and my screen is pretty bright so its not noticeably bad..the drag is my text is already set to white..and I can't find anywhere to make the comment text a different color...it default black like here, however the background is different on the main page, not sure there is anything I can do..thanks for clearing that up IG.

dzer0 said...

Great article, I think more people need to be aware of this situation. Most of my gaming group own storage systems from 2 – 3 different companies, mix and match harmoniously, and think nothing of it. I just took Sabol trays in my Battle Foam 432 case to Ard Boyz and squeezed some extra stuff within the empty space. I have BF trays cut for my GW hard cases that see the table less often than they should. My main forces are all housed within BF cases and BF trays because the quality is truly there.

I have spent a fortune in Battle Foam because it is the superior product; I believe their work should speak for itself without bringing a bunch of negative garbage into the arena. Agreeing with the common consensus, every hobby manufacturer should have a safe place to sell their wares. As we all know, healthy competition is good for the consumer by creating lower prices and better quality goods. The best-suited product for individual customers will prevail.

It is actually a shame because BF is so far in the lead that it seems absurd they even bother with trivial litigation. The bullying tactics used to corner a market they have already stolen with superior merchandise will only displease their current customer base and stop future customers from making the initial investment. Sadly, unless another company can create products of equal quality I fear BF will continue to whip out the tape measure and compare genital organs with any company that has anything remotely to do with little toy soldiers.

I guess what they say about business is true on more levels that one: Caveat emptor, Buyer Beware!

oni said...

Your concluding thought is completely ludacris. You admit BattleFoam has the superior product, but refuse to purchase it because you don't agree with the companies legal actions. I promise and guarantee that nearly EVERYTHING you own has been produced by a company that has had their hand in some form of distasteful market strategy, legal battle and/or poor business ethics. So if you truly want to apply your disposition towards BattleFoam and not be complete hypocrite, you should apply it to every thing you own and everything you purchase... You'll quickly find yourself living on the street with nothing.

John@Plastic Legions said...

@Oni.

you can't make informed decisions if you don't have the information.
Believe it or not, I am one of those ethically challenged people that tries to "walk the walk". There is whole laundry list of people I don't do business with and that certainly doesn't make life more convenient.
The Hobby is such a small microcosm of life, it's one thing we can all live without. So I dont think it unreasonable or hypocritical to make a choice on what I use to carry my toy soldiers
if I don't like a companies business practices.

John@Plastic Legions said...

@ Dzer

That's exactly it man, there is no need for this. BF has probably spent more in legal fees this year..than Outrider Hobbies, a company most of us never even would have heard of if BF was promoting it, took in sales all year. pointless.

Carl Woodrow said...

Informative read John, thanks for that. To be honest I wasn't aware of these goings on at all and was only aware of Battle Foam's custom laser cut trays really quite recently. I have used Sabol for years and as pretty much getting anything foam wise shipped to the UK is a bit of a pricey exercise, all this has really done is bring Outrider Hobbies onto my radar now.
In that respect I agree with what you are saying in that BF are probably now creating (from their perspective) the undesirable result of promoting their competitor.

it is one more piece of information to add into my pot when weighing up suppliers. Similar to John I also place a premium on ethics as well as cost and quality when choosing who to give my custom to, so I for one appreciate the scoop.

Muskie said...

Ah you crazy Americans... ;-)

You're a very litigious lot and litigious is tough to spell. :-D

I can't say I'd ever heard of Battlefoam until the last two years or more. I've made my own cases, I've ordered some pick and pluck Sabol foam for that purpose, I've used stuff from Canadian Tire and the Foam Shop, I even have a GW and a Charon Miniature Gaming case.

The Charon one is pretty nice, supposedly is legal for carry-on size yadda, yadda, yadda but it is a bit too big. I generally play 1500 points so I've been looking at Battlefoam onine and in real life as people own them, but I don't like this method of doing business...

Thanks for making this know.

MAAksel said...

BattleFoams somewhat frivolous lawsuits, Romeo's sleezebag attitude, or at least my impression of him has drove me away from battlefoam and to his competitor... simple because, he seems like a douchebag. (Don't sue me Romeo!)

I know I'm just one customer, but if I feel this way, I'm sure others do too. I anticipate spending maybe ~$500 in a lifetime on bags, with 1-2 bags, then trays to suit, but hey - thats $500 not going to a 'used car salesman' as others have so eloquently put it

MAAksel said...

BattleFoams somewhat frivolous lawsuits, Romeo's sleezebag attitude, or at least my impression of him has drove me away from battlefoam and to his competitor... simple because, he seems like a douchebag. (Don't sue me Romeo!)

I know I'm just one customer, but if I feel this way, I'm sure others do too. I anticipate spending maybe ~$500 in a lifetime on bags, with 1-2 bags, then trays to suit, but hey - thats $500 not going to a 'used car salesman' as others have so eloquently put it

 

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