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