Miniature Market/Battle Foam update

By tgn_admin
In News
Aug 26th, 2011
80 Comments
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An update on a recent news item about Miniature Market no longer being able to sell Battle Foam products.

According to Battle Foam, Miniature Market was in violation of their trade terms and were selling Battle Foam products at a discount higher than stipulated in the trade terms. As well, according to Battle Foam, Miniature Market were also selling product via eBay which is also against their trade terms.

Romeo at Battle Foam stated that these restrictions are part of the trade terms to help protect brick and mortar stores that also sell their product and that they had numerous emails with Miniature Market asking them to conform to the trade terms they agreed with.

I’ve attempted to contact Miniature Market regarding this issue but they haven’t responded to emails yet.

  • Robert

    Interesting to hear more on this story. I, however, in my quest for more cases (I’ve largely been in the pistol case/GW case camp) decided to vote with my dollars against the public stance of Battlefoam and order three KR Multicases from Miniature Market – who have always offered me excellent customer service.

    The cases arrived in 4 days and while I haven’t had the opportunity to put minis in them, they appear to be a very solid value just from my initial examination.

  • Tre Manor

    Something to bear in mind Robert, is that discounters REALLY hurt the manufacturer. Speaking only from my own experience there is a very big investment made up front by teh manufacturer to get product to market. There is a very narrow margin of profit involved in sellign to re-sellers and if any of them discount the product eventually so will others, and before you know it your product is devalued and you end up droppign re-sellers all together, lowering your prices ( which can lead to…. ) or go out of buisness.

    • Zac

      There is also your sales chain to look out for as well. Some stores might not be able to afford the deeper discounts and if you want to keep those stores selling your product you need to make sure it is profitable for them.

    • Robert

      I am all for supporting my FLGS. Two of them in fact. However the long tail reality is that they can’t carry everything – and really, they don’t try. There is a need to have specialists who can stock things in virtual inventory.

      The argument about internet stores, discounts, brick and mortars, et al was not my point. The public actions/declarations of Battlefoam have soured me on their buisness. Even if they have good products, I won’t support them, and actively vote with my dollars.

      • Zac

        There is a need to have specialists who can stock things in virtual inventory.

        That might be true but there are clearly B&M stores that carry his products and he needs to make sure they can continue to sell them.

        • KelRiever

          Well, ‘need,’ I think is a relative term here. Do we ‘need’ brick and mortars? I am inclined to say yes, but frankly, I find many of them hardly live up to the value of charging more for product I can buy right then and there, and for playing miniature games.

          It is hard on B&M’s and they (like almost any other product retailer I can think of) have to adjust from it simply being okay just to sell something, to providing something more than just the product. Space for gaming, a decent atmosphere, well, ANY reason to pay the higher price of buying at a B&M (and that generally is higher including overnight shipping these days).

          Good luck to the B&M’s. I WANT to believe they can keep up. I prefer buying stuff at a B&M, but the competition is stiff. And personally, I think it is becoming less and less that the problem of protection from the internet retailers is the product provider’s. If this hobby is going to continue existing in stores, and not end up universally in basements with internet retailers, B&Ms need to get better (overall, I know there are some good ones) at providing value themselves.

          • Mooniac

            The best stores create value and sell enough volume to make it. The worst are just a drag. Normally, I would ask, “What about the 80% in between?”. Unfortunately the bottom in gaming is like 40%.

            At any rate, the problem for B&M’s is monetizing their value. They are all looking for ways to do that which allow them to keep their customers happy without providing the same value to the Internet retailers’ customers.

  • papasmrf667

    Either way without miniature market I would not be able to afford anything on my measly college student salary..

  • thetang22

    While I understand it is hard to pass up the lowest price available, in a situation like this, I’d have to side with Battle Foam, if for no other reason than Miniature Market was in breach of their agreement. To go further, it sounds as though they ignored multiple requests to rectify the situation.

    I’ve used Miniature Market before and have been happy with the experience, but situations like this don’t do well for their reputation.

  • KelRiever

    I think if customers just go ahead and buy the cases they want based on the value they believe they are getting, everything will work out just fine. Personally, I don’t like that a number of miniature companies are putting their name on ‘exclusive’ bags and it happens to drive me away more than endear me to the miniature company (particularly in the case with the Infinity bag and the special edition figure), but a) if it is good for business, I can’t blame Battlefoam, and b) I probably wouldn’t have bought a BF bag anyway because the cost, worth it as it may be to some, is way out of the reasonable range for me. I could buy a BF bag, but I’m already into Sabol for expensive foam stuff, and really I just spend my money on other things than foam these days. The rest of the business drama, beyond what I mentioned, just is more entertainment than anything else. There is a sick pleasure I get out of hearing the petty battles waged over packaging material for our beautiful toy soldiers. But the rest of the drama serves as little input to whether buying a bag of foam is worth it or not to me.

  • Sejanus

    Battlefoam has the right to protect their product. However they should have known full well what Miniature Market would do given how they sell every product the same way…deeply discounted and online.

    I agree that any move to keep bricks and mortar stores happy is a good one…for the most part. We as gamers do have limited and finite resources and can only spend so much.

    Having said that, I do like the Battlefoam products alot, but also find value in other case products and also Blu Foam trays.

  • PanzerKraken

    GW and Battlefront do the same, also a reason why several retailers have apparently dropped Flames of War products because of the restrictions placed upon them and not allowing them to discount heavily to outsell the B&M market.

  • Azgamer

    I assume that this story was sent in by battlefaom, In AZ Romeo is known for not being able to keep his stories straight. This is not the explanation he has given on Battle Foam’s face book page is very different

    Ray Bailey
    Why has Battlefoam stopped selling foam to Miniature Market?
    Tuesday at 12:16pm

    Battle Foam, LLC Miniature Market requested to have their account closed.
    Wednesday at 11:24am

    http://www.facebook.com/pages/Battle-Foam-LLC/162879796485

    We’ll see if the post stays up there.

    People who know Romeo know that if you talk to him three times you will get three different stories. One of the stories may be true.

    • Zac

      I assume that this story was sent in by battlefaom

      It was not. If it was a submitted news item it would have the same structure as all the other submitted news items. Its often better to ask questions instead of making assumptions.

      This news item is based on my emails to both parties asking them about the situation. Battle Foam responded but Miniature Market has not done so yet.

      Battle Foam, LLC Miniature Market requested to have their account closed.

      From my understanding this is correct and is part of the fuller story. It could just be that Battle Foam didn’t want to get involved in a larger discussion about the issue.

      To be honest when I first read the announcement on Miniature Market I assumed that this was an issue related to trade terms.

      • Twisted Victor

        No its further proof that Romeo is in FACT a liar. As he has done in the past he continues to do to this day. And you can remark all you like that past issues should not be brought up here but they are VERY relevant to the issue. Romeo is a terrible business person, treats the miniatures community like crap(much like GW) and expects people to not stand up to him for doing so. The man is morally bankrupt and I hope others will join me in making an effort to ensure that his company is bankrupt soon, as well!

  • ScoutII

    I for one would not be disappointed much at all to see Battlefoam go the way of the dodo.

    This isn’t the first bit of shenanigans that they have done, and if they feel that their product is worth more…they should charge higher wholesale rates. If Miniature Market can survive on 20 or 10% margins – let them work under that business model (and IIRC, they are a B&M as well now).

    For those who have forgotten about it – Google “Battlefoam v Outrider Hobbies” Won’t go into details, but suffice it to say…[personal comment deleted]. I bought my first laser cut foam tray back in 1998…long before they even existed, but they are looking to put their patent on it and ignore such things as prior art at the expense of both competition and their customers.

    • Zac

      Lets keep the personal comments out of the discussion please. Even if it is a rather harmless one.

      but they are looking to put their patent on it and ignore such things as prior art at the expense of both competition and their customers.

      Unless you have read the full patent application and are familiar with patent law and the industry then I am not sure how you can actually make this statement. It is why I always suggest that people leave legal opinions to lawyers. You’re invariably wrong as the legal issues are not always based on common sense and the opinion of a non-lawyer in these situations isn’t really worth anything.

      If you want to discuss your reaction to a company based on their legal efforts then do so but keep the legal discussion to people who know the issues.

  • ScoutII

    Oh yah – and don’t forget the harrasment that they attempted of Sabol after the Judge told them to bugger off in their suit against Outrider.

    http://www.tabletopgamingnews.com/2010/08/31/38889/comment-page-1/#comment-54545

    • Zac

      Sending someone a letter isn’t harassment.

      Can we discuss the issue without the hyperbole please?

  • ScoutII

    A quick Google and a perfect example of the Prior Art…

    http://www.sawmillcreek.org/showthread.php?58006-Cutting-Foam-with-a-laser

    Thread about cutting foam storage trays with a laser a year before Battle Foam decided to file their patent.

    Anywho, enough from me about them…suffice it to say that they can take a long walk off a short pier.

    • Zac

      Thread about cutting foam storage trays with a laser a year before Battle Foam decided to file their patent.

      Have you read the full patent? If not then perhaps bringing up “prior art” isn’t really a good idea unless you are familiar with what process the patent is describing.

  • Why any one does business with Battle Foam is beyond me.

    • wittdooley

      Because they offer the best quality product on the market with great customer service. I honestly think a lot of the people here making the huge compliants haven’t dealth with Romeo or Battlefoam, and are basing their opinions purely on the internet.

      • I have had to have conversations with Romeo. Most have simply gone unanswered. Several were for charity work. I am not insulted that he wasn’t interested in providing anything for it, but more that he simply didn’t acknowledge my email or call what so ever.

        But that has no bearing on this topic. His product is solid, I can’t deny that. His prices strike me as $300 hammers. Needlessly high.

        • wittdooley

          I’m sure it was the first time someone looking for a donation was ignored by the potential donor.

          In terms of being “needlessly high:” How much does a high quality piece of luggage cost? More than a BF bag. And those are empty. BattleFoam is, essentially, high quality luggage, and if looked at as such, the price is actually a steal!

          • Romeo appears to have lied in court and used fraudulent legal cases to try to stop a competitor. I’d dump my figures in an empty Samsonite first.

      • Twisted Victor

        Because they offer the best quality
        product on the market with great
        customer service. I honestly think a
        lot of the people here making the huge
        compliants haven’t dealth with Romeo
        or Battlefoam, and are basing their
        opinions purely on the internet.

        Actually they don’t. They provide a product that some people prefer and most others do not. Their product is far more expensive and the cost benefit analysis is just not there especially when you consider future realignment and customization of tray designs. Not to mention that unless you plan on having your trays all custom made(which from some reports takes along time to have done, if it ever gets done at all) you can’t build most Wargame products in none standard poses. Pluck foam is far superior in almost every way, plus it is far cheaper and available from other fine retailers that don’t treat people the way those at Battlefoam do.

    • Zac

      I suspect that they like his products. Why see would they 🙂

    • Having a Battlefoam bag is a status symbol. It’s no different than designer clothing. I don’t know if was intended this way from the beginning but it happened.

      People walk into a shop with a new Battlefoam and get treated like they have a new car. Everyone wants to look at it and touch it.

      Is “slightly firmer” foam, really worth the expense?

      • Zac

        I don’t think anyone is suggesting that all they off is different foam.

  • Zac

    Lets keep comments germaine to the news item please. There isn’t any reason to start dragging in year old stories into this.

    • ScoutII

      While it might not seem as much at first blush, past acts are relevant. For better or worse, this is the court of public opinion. Actions by both parties involved both currently and in the past are used to formulate opinions by us, the consumers and the jurors on the issue at hand.

      That issue of course being whether or not Battle Foam or Miniature Market are the bigger doofuses. If it were simply a matter of Miniature Market deciding to no longer carry Battle Foam because they wanted to stream line their inventory…or Battle Foam deciding not to sell to Miniature Market because of a logistical issue – it would be a wash…no fault on either party.

      However, you have people who are supporting Battle Foam and others who are supporting Miniature Market. The cause in this case is that Battle Foam thinks their product should not be sold on eBay or at deeper discounts.

      Whether or not that actually violates the trade terms – that does remain a question (as well as whether or not the trade terms would be binding).

      • Zac

        While it might not seem as much at first blush, past acts are relevant.

        I just don’t want people to be using this as an excuse to start rehashing a patent debate that should have died a year ago.

        Looks like I failed 🙂

      • Zac

        Whether or not that actually violates the trade terms – that does remain a question (as well as whether or not the trade terms would be binding).

        We’ve had this issue pop up before and it would certainly be interesting to have an article done up on it. I am going to see if I can find anyone familiar with the legal aspects to discuss it.

        • ScoutII

          http://www.waylandgames.co.uk/images/uploads/dist/BATTLEFOAM_TRADE_TERMS_231109-V2.1.pdf

          While it isn’t specifically Battle Foam’s trade terms…it is Battle Foam’s EU distributor’s trade terms.

          Of note:

          You are free to set any price you wish for selling Battlefoam products.

          • Zac

            This issue involves a US based company and a US based online retailer though.

            IIRC when there was an issue with Battlefront and some UK based stores that the consensus was that setting prices limits was illegal in the EU.

  • I think it was mentioned, but Miniature Market does have and run a brick and mortar store.

    • Zac

      Not really relevant though, If Battle Foam is correct then they signed to terms and then didn’t follow them. Their owning of a B&M store isn’t the issue.

      • Nalik

        I would take issue if I knew someone sold something cheaper in store than online. If the terms allowed them to sell something at a stated discount in store then my expectation as a consumer is that any purchase made thru that retailer would honor the lowest price they can offer even if the purchase was made online or over the phone. I shouldn’t have to physically walk into a store to receive my lowest price.

  • One of the areas that has always bugged me about the sorts of terms that Battle Foam is claiming breech on is something that I don’t know is really that ethical in the first place. Whether brick and mortar or online seller, why is it a manufacturer can tell people how to run their business. Only x% off or no ebay sales is just Romeo trying to keep a premium name for his vastly overpriced items. I know the owner of Miniature Market. He is a shrewd business man as well. That isn’t necessarily bad.

    Romeo is also shrewd. To the point of being underhanded. Miniature Market wouldn’t voluntarily sever their business relationship with Battlefoam if it was a bad business decision. From the sounds of this, Battle Foam is the one that doesn’t want the business even though Miniature Market has a proven track record of moving the product both online and in their B&M storefront.

    -Ray Bailey

    • Zac

      If it isn’t ethical then people shouldn’t sign the trade terms. If you sign an agreement with someone and then breach it then that is just as unethical.

      • Good point. My point of view comes down to 1 question. Is this a form of price fixing by Battle Foam? I am not an economist in any sense of the word, that’s why I ask.

        • Zac

          I am not aware of the legality of it and it would really depend on the jurisdiction since I am sure that recent US Supreme Court rulings have made it a much different issue in the US than it would be in the EU.

          I’ve always wondered about the legality of them myself but that issue aside you still shouldn’t enter into a legal agreement with someone and then not expect them to try to enforce it.

        • antenociti

          It is hard to tell and would differ from country to country, or political block to political block i.e. EU/ USA.

          One assumes that if terms include illegal portions then the terms are unenforceable and there is neither a legal nor ethical question about breaking them.

          It is illegal to apply fixed discount percentages as part of a trade agreement? In the EU it could be, in the USA? No idea.

          Superficially though Battlefield have every right to supply who they wish on their terms, or so one would assume, certainly in the EU this isnt strictly the case and you could be compelled to supply somebody you did not want to as part of competition laws.

          It sounds mad, but Laws often are.

          At the same time it is an open competitive market (Ha! Is it really?!) so why should stores be proscribed from selling items at whatever price they want to?
          If a company wants to sell Battlefoam bags as a loss-leader isnt that their own business? They are the ones taking the financial hit, not Battlefoam. How does it devalue an item? They haven’t altered the item at all, simply the price… how that devalues the items is not obvious to me.

          And they purchase the bags at the same trade price as everybody else does, so Battlefoam see the same profit from Company A or B regardless of the sale price that A&B set on their items, regardless of the profit, or loss, that A or B take.

          It is far from clear in both legal and ethical terms as to who holds the highground here. Fundamentally though I think Battlefoam are copping heat undeservedly based on past events. It may be vaguely relevant, but not entirely pertinent, or fair, to this situation:

          If Battlefoam have reasonably asked in their terms that companies do not discount beyond X and do not sell on eBay, then surely it is reasonable to sever business ties with companies that flout those requests?

          Battlefoam are unfairly copping flak is my gut, personal, judgement.

          • Zac

            In the EU it could be, in the USA? No idea.

            If I understand it correctly the US Supreme Court did rule last year that companies can set and enforce this type of pricing.

  • ScoutII

    Unless you have read the full patent application and are familiar with patent law and the industry then I am not sure how you can actually make this statement.

    I have…and I am. My wife was a patent lawyer for the USPTO who managed patent reviews for several years and I was her study partner throughout law school and beyond. You can read the patent application yourself if you like:

    http://maxcdn.livingdice.com/wp-content/uploads/2010/08/battlefoam_patent_application.pdf

    One thing that people do not understand is that filing for a patent (and even being granted one) do not mean much. Very often, companies will file for patents with the intention of stifling competition even when they do not actually have the right to the patent (in this case…prior art).

    • Zac

      I have…and I am

      The sad part of the internet is that no-one knows if you are a dog or a patent lawyer.

      You can read the patent application yourself if you like

      I did when it first came out. I didn’t really understand the issues it dealt with though so I can’t really say whether it has any merit or not.

      The IP lawyers I talked to were divided on the issue but that is what the courts in the US are there to decide.

      One thing that people do not understand is that filing for a patent (and even being granted one) do not mean much.

      I think anyone who uses a computer now is fully aware of that 🙂

      • antenociti

        I think anyone who uses a computer now is fully aware of that 🙂

        Really? Crikey Zac, you’ve more faith in people than me.

        Somebody once said something like:

        “The internet is great at passing on information, but terrible at creating knowledge.”

        There is no doubt in my mind that they were correct.

  • ScoutII

    The sad part of the internet is that no-one knows if you are a dog or a patent lawyer.

    True, though I am pretty sure I am neither.

    Not to get too far off topic (in your words) – I didn’t see a news article ever discussing the conclusion of last years Battle Foam drama.

    http://nh.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20100629_0000557.DNH.htm/qx

    Some highlights of the judges decision:

    While the complaint is replete with seeming hyperbole, including allegations of industrial espionage, unauthorized access to Battle Foam’s manufacturing facility, and theft of trade secrets, it contains relatively few concrete factual assertions.

    and:

    To be sure, Battle Foam has submitted what it claims is evidence of consumer confusion between the parties’ respective marks. But, as discussed below, that evidence is of questionable authenticity.

    and finally:

    As currently developed, the record in this case contains some suggestion that Battle Foam’s evidence of consumer confusion regarding the parties’ respective marks may be suspect. And, there is a reasonable basis to question why this suit was filed in this forum. At a minimum, a bit of sober reflection by Battle Foam and its counsel would seem to be in order.

    Although it doesn’t get into the nuts and bolts of things – the judge does effectively scold Battle Foam (Romeo…and the schyster he has file C&D letters for him). Since they didn’t bother to refile in Arizona, I am pretty comfortable in concluding that it was as it appeared to be.

    Given that evidence, and nothing but great service from Miniature Market over the years (and years…and years) – it would seem clear.

    • Zac

      That case didn’t actually discuss the merits of the patent and IIRC the original charges did not touch on the patent issue. Romeo filed primarily about trademark issues.

    • Ghost

      I agree, it is clear and I thank you for providing some measure of clarity on this site. It’s pleasing to see a meaningful contribution which shows research.

  • Brillant arguments…

    but is a bag that has foam trays with shapes in it to carry plastic toys…

    in a nutshell who actually cares??

    Battlefoam might claim to be the “best in the business” but so do GW with there finecast and we all know how we feel about that! If you’ve got the cash to buy a battlefoam bag then fair enough your choice, personally I think its over priced for what it actually is…

    • wittdooley

      Congrats on your sweeping generalizations! I’ve had plenty of luck with all of my Finecast products. And, IMO, they are the best available, both for their pricing and their detail. There are better detailed products, but most of them are metal. There are also more affordable ones, but the detail isn’t as high.

      The same goes for Battlefoam, except there aren’t any better looking ones. There are worse looking ones for cheaper. There are also cheaper ones that aren’t as durable.

    • Zac

      Battlefoam might claim to be the “best in the business”

      Do they?

      but so do GW with there finecast and we all know how we feel about that!

      That is a generalization. I’ve been quite happy with the limited number of Finecast figures I bought. I would have liked to see them cheaper though

  • Ghost

    Is Battle Foam a sponsor of TGN?

    • Zac

      They were in the past. They aren’t now. Miniature Market also used to be an advertiser as well.

  • TheOldMan

    I have bought Battlefoam bags and foam and I have to say that, while expensive, I do like them and I’m sure I’ll buy more. From a personal standpoint though I don’t care for the company very much. They seem to be “in the news” a little too much with stories like this one and quite frankly I don’t care for the owner. I don’t think that a lot of other people do either. I think he would be better off staying behind the scenes and letting someone else be the face of the company.

    While I do like their products it does seem like there is always something I’d like to change. The pluck foam is nice BUT the squares are really big and the glue doesn’t keep the foam down very well. The Warmachine pre-cut trays are nice BUT a lot of the models don’t fit well. So, you end up having to put smaller models in bigger foam slots than what they should actually need. The faction specific trays are nice for full units with a unit attachment BUT what if you want to bring two minimum units. It’s hard to make a perfect product I realize but just the same those are my thoughts on what is out there now.

    Those KR cases that MM is selling now though look pretty crappy to me. They look like they weigh a ton and the foam doesn’t look very good. Zero interest in those from me. Eventhough Battlefoam may not be perfect I think it’s still the best option out there for what I need.

    • ScoutII

      Eventhough Battlefoam may not be perfect I think it’s still the best option out there for what I need.

      Might I point out http://www.foamcorps.com/main.sc

      Voting with your dollars is the only way to express displeasure with a retailer or manufacturer.

      For me – it is none of the above. My days of traveling to game have long since passed. The furthest they travel is from their display shelves to the table.

      • Isn’t that how far every miniature travels anyway? From their “display” location to the table?

        In reality, I know you are saying they don’t leave your home. You don’t have an LGS, live somewhere remote like I do, or have some grievance against playing beyond your walls.

        Either way, there is a need to for a lot of people to find an economical and safe way to travel with miniatures. Everyone has different needs and different price points. What Miniature Market did, was allow those of us on limited incomes buy a little more, or buy some of the more expensive products. Enough people have purchased Battle Foam as the company keeps making different brand specific trays and models, so there is definitely a market.

        Definitely, not my taste, though. I wish the best to both companies in regards to helping our hobby with the items we need and/or want.

    • antenociti

      Those KR cases that MM is selling now
      though look pretty crappy to me. They
      look like they weigh a ton and the
      foam doesn’t look very good.

      I’m at a loss as to how you can deduce that from a photo.

      FWIW you are entirely incorrect.

  • TheOldMan

    …and before anyone brings it up yes I know you can order custom foam if you’re willing to take the time to map out each tray and wait for the foam to be made. I may do that at some point with exceptionally difficult models but otherwise it feels like a lot of trouble.

  • Sejanus

    One thing that gets lost in discussion though is this.

    It is when manufacturers start thinking about MSRP as being what they can always get for it.

    As a producer of an item you have a cost associated, then you have a price you decide is viable to sell to second parties or “distributors or retailers”. If this margin is acceptable you do it. If not….you don’t. It is a similar mindset that GW has slid into where it is not enough to just make wholesale, they want to make full bore MSRP.

    If BF was making his rate on sales to MM then fine. If MM paid their bills on time..also fine. What really becomes the issue here is if BF has the right to put a resale MSRP clause into an agreement restrircting discounts.

    That one is for the lawyers to consider…although when it comes down to it…its not really alot of product we are talking about here and I can’t imagine the courts really giving much of a care. Besides…MM said on their website they are moving on to another product.

    If you like the stuff, buy it…if not…don’t. People who like it will and if it is enough business…well then BF continues. As for the personal attacks in here…kinda not needed. We should have a tad more class than that. We are afterall talking about a hobby we are supposed to love which brings people together around a table for fun.

    • Zac

      What really becomes the issue here is if BF has the right to put a resale MSRP clause into an agreement restrircting discounts.

      As mentioned elsewhere, IIRC they clearly do in the US. The EU is a different matter as evidenced by the PDF sales agreement linked in the comments.

      • ScoutII

        As mentioned elsewhere, IIRC they clearly do in the US.

        Not exactly that simple. Retail Price Maintenance is still technically illegal, however the Supreme Court has determined that not all Retail Price Maintenance actually falls under the jurisdiction of the particular law in question. The result of the case was that they found, in that particular instance it did not fall under the statute. However, they also stated in their decision that each case of Retail Price Maintenance must be evaluated on a case by case basis to determine if it actually violates the law.

        http://www.supremecourt.gov/opinions/06pdf/06-480.pdf

        Not an exciting read, but there are several areas that would make me consider that in fact Battle Foam is not allowed to install a vertical pricing clause into their trade terms. However, the only way to find out would be to have a judge rule on the matter (since the current law does not allow for simple yes/no answers…rather a more involved evaluation of the effects of allowing or not allowing discount pricing on the consumer market).

        • Zac

          Interesting. The articles I read on the ruling made it sound more concrete but then they weren’t legal reviews but news magazines.

          • ScoutII

            About the only place worse to get news from than news magazines are news shows. 😉

            My wife still gets Landslide and the ABA Journal – let me tell you, if you ever have trouble sleeping…those are my go to rags.

            In this case though, the factors that I would be interested in seeing addressed are market share of Battle Foam as well as the number (and type) of competitors. In the evaluation process, companies with large market shares and fewer competitors are judged more harshly in regards to vertical pricing.

            Considering that there are only a handful of companies that make miniature cases at all…and even fewer that cut the foam to fit – that will work against Battle Foam. Considering the market share, I am not too sure. I know I have yet to see a single Battle Foam case either in stores or being used by someone. However, considering the various relationships that they have with companies for “official” cases as well as their gaming saloon – I would guess that they are not doing that poorly in terms of revenue (definitely a higher sales volume than a few case manufacturers who do their work after they get home from their day job).

            Here is crossing my fingers that someone will decide to challenge the trade terms. Makes for interesting dinner conversation with the wife.

  • dburton

    I’m gonna be all over the place with my reply. Maybe someone can enlighten me with some answers.

    “Something to bear in mind Robert, is that discounters REALLY hurt the manufacturer. Speaking only from my own experience there is a very big investment made up front by teh manufacturer to get product to market. There is a very narrow margin of profit involved in sellign to re-sellers and if any of them discount the product eventually so will others, and before you know it your product is devalued and you end up droppign re-sellers all together, lowering your prices ( which can lead to…. ) or go out of buisness.”

    Is there any kind of concrete documentation of this? Why is it that there are a LOT of companies that sell to resellers who then discount stuff heavily (by this I mean 20-25% off). I find it hard to believe there is actually a segment of the population that says, gee, I won’t play that game or buy that product because its too cheap. Heck, our local B&M will give 20% off on ALL preorders. For myself there is a magic price point for items. $19.99 or less for a bluray disc or it doesnt get purchased, $35 or less for a game rulebook or it doesnt get purchased. I find walking into a game store (or even certain other stores) and being willing to take a plunge and purchase $100-$150 worth of stuff in one go and negotiating at least 20% off is highly doable. Even Best Buy will negotiate prices with you. This isnt to say I won’t buy something at full retail. Sometimes items come out and you say, gee thats not that bad of a price and you dont bother trying for discounts. I just don’t see how discounting devalues a product. It values it at what its worth, not at what someone arbitrarily says “this is what it should be worth”.

    In the case of the patent issue. Was this ever resolved? I sent that patent case out to quite a few foam laser cutting manufacturers (that were doing this years before battlefoam was a twinkle in someones eye) so they were aware of what Battlefoam was trying to do (the kind of manufacturers that use the same kind of laser and techniques but to cut custom gun or tool cases). I didnt know if that issue was ever resolved.

    On a related note, I have to think that within the decade its going to be a moot point anyway. Laser cutters are starting to make it into the home hobbyist market, on the high end, and I can honestly see this being viable in 5-10 years tops with a more economical home system being introduced.

    Relating to the topic, if MM did break their contract (however silly the contract was) then theres really no defending it. I still have no idea why people dont set up ebay shops under a different account than their own and simply sell products products there.

    • Zac

      Why is it that there are a LOT of companies that sell to resellers who then discount stuff heavily

      You’d have to ask them. But if customers see that they can get a product regularly for 30% off then that establishes the price for the product. For example, I never shop at the Bay or Sears here in Canada at regular price as I know that the products are going to go on sale at some point in the future. They have destroyed their own ability to sell to me at full markup.

      Online discounting does the same thing but usually since it is for smaller priced items, in our hobby, it isn’t that big of an issue.

      In the case of the patent issue. Was this ever resolved?

      It has never been challenged in court and I don’t think that it has been brought out as part of a suit so no.

    • Tre Manor

      Well I can tell you from first hand knowledge that YES, even one discounter can very very seriously hurt your overall buisness. There a Chinese recaster selling several of my figures for $5 a pop on ebay last year. For the duration that he was in buisness I saw a very noticable drop in my own direct and distribution sales of all of the figures he had selling. Further there have been other regular discounters who have caused waves in my distribution chain that were difficult to ride out.

      Then again late last year a major E-tailer decided that since I did not want to play ball their way they did not want to carry my line any longer so I then suffered through a MASSIVE reduction in sales across my entire line for more than a month while they sold through their remaining stock at 40% off!

      I do nto knwo what Romeo's margisn are exactly, btu in my own personal experience the margin of profit is razor thin until a certain level o fsales is reached. Further the less a particular item sells the less of a margin of profit there is as the entirety of the production investment is paid up front. When a reseller discounts they reduce the flow of product through out the chain. This means it takes longer to reach the break even point, and if you are selling direct the situation is even more difficult as you lose direct sales ( which is where about 80% of my profit comes from ) which further lengthens the time it takes to break even.

      So in short, YES it REALLY hurts buisness when a re-seller discounts regularly.

      • ScoutII

        To be fair – a recaster is not the same as a discounter. You sell nothing to a recaster…so you will definitely see a drop in sales volume of potentially one figure for everyone that he sells.

        However, if you are dealing with a discounter – you will sell him one miniature for each one that he sells. You may very well see reduced profits (wholesale sales margins as opposed to direct sales margins) – but you can not make a fair comparison between a discounter and a recaster.

        How you handle the margins though…that is really sort of an issue for you. I know some manufacturers who actually offer wholesale (or close to it) prices to consumers. They do supply retailers as well, but they do not offer a substantial discount over their normal retail price.

        It isn’t much of an incentive for retailers to carry their products – but it does keep their model under control without intruding on the business models of their retailers.

        • Zac

          To be fair – a recaster is not the same as a discounter. You sell nothing to a recaster…so you will definitely see a drop in sales volume of potentially one figure for everyone that he sells.

          I think you’ve missed his point. Recasters work as a way to reduce the perceived price/value of a given product.

          • antenociti

            Actually Zac, he is right, you’re missing the point: a recaster passes nothing to the manufacturer and doesnt care about quality.

            A reseller retains the sales chain to the manufacturer and the quality is dictated by the manufacturer, not the retailer. They always pay the IP source.

            Recasters are both manufacturer AND retailer and can reduce cost because they pay nothing to the IP source.

            Totally different things.

            If you dont want retailers to discount your products, then dont sell them anything and only sell directly. If a retialer ahs a 50% sale and makes a loss, the manufacturer and IP source still got their trade-value sales. You cant have it all ways, but relating it to a recaster is nonsence.

          • Tre Manor

            HAH! Zac DOES get it! The recaster bit was meant as an illustration of how one discounter can choke the entire chain. recastign was not the original problem addressed int he statement it was the prices he was charging ( I am NOT excusing or dismissign the damage done by teh simple act of recasting. ).

            I stated that durign the tiem the recaster was in operation I saw a significant drop in ALL sales of those items he carried, both direct AND distribution sales. Discounters dissaude other retailers from carryign the product line for fear of not beign able to compete eithotu also offering the same discount.

            So what winds up happening is either you sell at a further discounted wholesale price to resellers so that they are then encouraged to carry your product line, which may very well lead to further discounting OR you stop sellign to resellers at all and go full-bore direct.

          • ScoutII

            The recaster bit was meant as an illustration of how one discounter can choke the entire chain.

            But not a valid one.

            Recasters fall completely outside of normal manufacturing dynamics. They do not pay the manufacturer for products that they sell, they are not selling your product (in terms of a product you create directly) so you have no quality control over what is being sent to the customer.

            You will loose sales when recasters are operating, and there is a good chance that the consumer may end up having a reduced perception of the quality of your products (the whole copy or a copy thing).

            A discounter however is selling your product. The quality of the product is still directly controlled by you. The discounter still pays you everytime they place an order.

            Now, whether or not a single discounter can actually impact how many other retailers will carry your products…or whether or not the retailers who do carry it will see reduced sales is a different issue. I know I have and do pay more for certain items because I like the company producing them…so I order directly from them (Hasslefree for example). This comes at a greater expense to me – as well as an inconvenience since the turn around is generally longer (either because of time constraints on them or distance…or both).

            If a retailer actually provided service to make the added cost worth while, then they would get my money. If they do not…they do not. If the retailer has to depend solely on price constraints to make sales (either as a discounter or as a B&M store that can’t compete with discounters) they really should consider finding a different line of work.

            If a manufacturer can not afford to offer wholesale terms – they should not. That is fine too, and there are a lot of companies I buy from who only offer direct sales.

          • Zac

            But not a valid one.

            You’re telling a manufacturer what is or isn’t a valid example of his own point? 🙂

  • Mahrdol

    Game stores need to change their business model. If you can’t compete monetarily then you need to bring people into your shop and get them to spend money in other ways. Maybe offer discount subscription to products, demos, painting instruction, tournaments, food or whatever. Just having a store with a few tables and a very limited amount of product is not enough anymore. Miniature market probably works 10 times harder to make their money then the average game store. Sometimes I wonder why I bother preordering anything from my local store. They get the product weeks later, it costs 25% more and the discount stores offer no sales tax and have free or very cheap shipping. Should I give my allegiance to a game store that does nothing more then have a few tables setup?

    What battlefoam is doing would be similar to a company like Wotc getting mad at Amazon for selling their Dungeons and Dragon books 30% off. No doubt Amazon has taken tons of business away from hobby stores.

    In the end I think Miniature market will be fine because they have no problem working hard to make their money. The loser is in all this is battlefoam. They are supporting the failing business model and probably hurt themselves. The people who bought their product from miniature market will probably buy whatever miniature market offers discounted so all they did was cut their nose off in spite of their face by giving a bunch of sales to a competitor.

    • Zac

      Game stores need to change their business model.

      I really find this sort of pronouncement grossly insensitive.

      If you can’t compete monetarily …

      It isn’t fair competition. I really don’t see how anyone thinks that a B&M store can afford to sell product at 20-30% off retail.

      Just having a store with a few tables and a very limited amount of product is not enough anymore.

      It never was. I can’t recall a single store like this. None of the stores I have ever seen have been like this.

      Should I give my allegiance to a game store that does nothing more then have a few tables setup?

      Should we bother with these sort of artificial and narrowly defined arguments? You construct an indefeasible situation and then use that to further your side of a debate. its not constructive and doesn’t lead to an actual debate. If you want to discuss the issue then please do so in a way that will actually lead to a debate and not the discussion of an entirely artificial debating point.

      No doubt Amazon has taken tons of business away from hobby stores.

      And it is why some smaller companies don’t sell through Amazon (to protect the stores that help build their games) and why you don’t see Amazon ads here on TGN.

      The people who bought their product from miniature market will probably buy whatever miniature market offers discounted

      So what exactly is Battle Foam losing here then? The opportunity to have their products sold at a discount by an online retailer? How does this hurt Battle Foam?

      • Mahrdol

        How many brick and mortar stores is a miniature market worth? 100? 50? Hypothetically lets say miniature market bought 100 battle foam cases from them. Next year Instead of buying a 100 battlefoam cases they are going to buy 100 KR cases. You don’t think they lost sales?

        • Zac

          In the long run I don’t. In the short term it may cost them some sales from Miniature Market. I think it is clear though that this isn’t the type of market that they want to participate in.

          Someone selling your product cheaply just lowers the overall price for your goods.

          In the long term it then makes it more difficult to sell goods at the MSRP.

          I think most companies are better suited by having a perceived worth for their goods. Especially if the manufacturer is trying to market themselves as a more select product. People can get more inexpensive figure cases if they just want an inexpensive case. But how does it ultimately serve the manufacturers long term interest to have the price of their goods seen in stores to be “too expensive”?

  • Miniature Market is my home store. I have several other stores within the same distance of where I live. Should I walk into any of those other stores it will not be an option to purchase Battlefoam. Period. They dont carry it. The profit margins are very low for such an investment (fact).

    I would love to have a Battlefoam bag, they look great, but 150.00 on a bag or 150.00 on new minis… that has always been an easy choice for me, especially considering I have Army Transport trays that I can reuse.