A patent and trademark lawsuit over foam arrows used in live-action role playing, or LARPing, has been thrown out because the Indiana federal judge overseeing the case ruled that he lacked jurisdiction. For defendant Jordan Gwyther, who owns the community website Larping.org and sells foam arrows as a side business, it's a victory, although a narrow one.

Global Archery, an Indiana company that licenses its own foam arrows for archery games, sued Gwyther back in October. Global Archery founder John Jackson said that the foam-tipped arrows sold by Gwyther violated a patent he owns, and that Gwyther's marketing on search engines infringes his trademark rights.

Earlier this year, Gwyther took his fight public with a fundraising campaign, and published a video in which he implored his customers and fans to "Save LARP Archery!" That led to Global Archery asking for a gag order to stop Gwyther from speaking about the case.

US District Judge Joseph Van Bokkelen didn't rule on that request, or make any ruling on the case's merits. Two weeks ago, Van Bokkelen issued a 7-page opinion (PDF) finding that Gwyther's ties to the state of Indiana were so minimal that his court didn't have jurisdiction over the case.

Moving on

"I'm glad that it's over," Gwyther told Ars, reached today by telephone. "The lawyer fees will stop adding up, and I can get back to creating great experiences for my customers. I hope Global Archery will do the same, and that we can have friendly competition."

He added that he hopes Global Archery sees the dismissal as an opportunity to "move on" and doesn't re-file the case or appeal the result. If they were to do so, Gwyther said he "will definitely be seeking fees."

After publicizing his case, Gwyther received some advice and financial assistance from Newegg. The company's chief legal officer Lee Cheng said he took on the case because he saw the lawsuit as an attempt "to drive a passionate entrepreneur out of business," and he was "appalled" by the attempt to impose a gag order.

"I'm extremely grateful to Lee Cheng and the legal team at Newegg," Gwyther said. "They are some of the most wonderful and generous humans I've had the pleasure of encountering. Without their help I would not have been able to see this through."

The Electronic Frontier Foundation also filed an amicus brief (PDF) in Gwyther's case, saying Global's request for a gag order should be rejected as "plainly unconstitutional."

Never been there

Shortly after Cheng offered Gwyther his assistance, Global Archery dropped the patent portion of its case. The company's founder, John Jackson, told Ars that he was convinced to drop the patent claims after seeing German prior art foam arrows. That prior art was brought up by Gwyther earlier in the case, but hadn't been properly translated, according to Jackson.

Nonetheless, Global pressed ahead with its trademark case, arguing that Gwyther shouldn't be allowed to use its name as a keyword in search engines, or target its customers to sell foam arrows. The issue of using competitors' trademarks as keywords for online search advertising has been brought up in courts many times, and it's now a generally accepted practice.

In asking for the case to be dismissed, Gwyther filed an affidavit explaining to the judge that his business was run from his home in Seattle. Gwyther has no employees or operations in Indiana, has never even been to the state, and he sold only "a handful of products" to Indiana residents.

In their response brief, Global Archery noted that the "handful" of products added up to $9,000 in sales. More importantly, Global Archery lawyers said that Gwyther had waived his right to bring up the whole jurisdiction issue because he didn't do it at the right time.

Judge Van Bokkelen didn't see it that way. Gwyther raised personal jurisdiction as a defense in his Answer, and he raised it again later in a court-ordered report on the case's progress. "Defendant was not testing the Court to see which way the wind blew," wrote Van Bokkelen. The jurisdiction issue was not only a valid one, but it was one that Global Archery scarcely contested, beyond the argument about a possible waiver.

Ars Technica's calls to Global Archery founder John Jackson and the company's outside attorney were not returned.