What Happens When a Reasonable Developer Runs Into Aggressive Trademark Lawyers
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* A Reasonable Developer with essentially unlimited funds. Notch acts reasonable because he can afford lawyers. Most of us would lose our little company if we were sued.
I actually aspire to Notch levels of sanguinity, as a software developer & community wrangler.
1. Is the action being pursued by Bethesda Softworks directly or by its parent, Zenimax? (Guessing Zenimax)
2. Are they 'suing' Mojang or is this just an aggressive ceast-and-desist action? (Judging from other updated news articles, I'd guess it's the latter.)
3. I appreciate that ZeniMax might be using a heavy touch here, and we hate lawsuits, and we like Minecraft, but does Notch's paraphrased claim "I don't like trademarks, but I let my lawyers do it anyway, and we almost had to enforce it but only once" really give the principled higher ground?
4. The trademark "Daggerfall" may have been cancelled in 2008, sounds like a perfect name for Notch's new game :)
Yes. There is a difference between honest attempts to avoid customer confusion and bullying competition just to cause them trouble (or show the "we're serious about protecting our IP" theatre to investors.) Obviously, some cases may be borderline, but here it is evident who's on which side of the division.
I'm not saying he does, at all. Just that when lawyers are involved, there's usually a good reason the first advice they give you is to keep your mouth shut.
FWIW, I never made the connection to the game "The Elder Scrolls" until it was made explicit. Shows you just what a weak case they have.
That said, there is lots you can say. This is my favorite example of a great smackdown response from a small cable manufacturer to Monster cable who claimed design infringement. Turns out the owner of the cable company was a retired lawyer. It's long - but educational. Here's a sample of what's inside:
"If you sue me, the case will go to judgment, and I will hold the court's attention upon the merits of your claims--or, to speak more precisely, the absence of merit from your claims--from start to finish. Not only am I unintimidated by litigation; I sometimes rather miss it."
http://www.audioholics.com/news/industry-news/blue-jeans-str...
That Bethesda has gone as far as to retain a Swedish law firm should point out that 1) they mean business and 2) they know that this is going to play out in mojang's court (literally I guess!).
I originally was pretty excited for Skyrim, but this whole thing is turning me off.
Certainly, when I first encountered some other game called <genre>craft, I initially assumed it was a Blizzard title. Maybe that was dumb of me, but I had such a strong association between Blizzard and that type of name. That's exactly what trademarks are all about -- preventing customer confusion.
Yes, but the problem is that the theoretical customer whose confusion the laws try to prevent is getting doormat dumb. This in turn turns the trademark space into an (artificially) limited resource. You cannot use the orange color in your palette nor can you use the word "scroll" and suddenly picking a discernible tag turns into an expensive lawyer-fest.
As a consumer who can indeed discern between "starcraft" and "craft" I am a bit concerned - after all whatever makes the business more costly is in fact limiting my choice.
Weren't they?
It's a hard thing to search for on google, sadly.
While C&D letters are never a nice surprise, Bethesda is right and Notch is wrong.
Given that these both involve computer games and computer games in the same or similar genre, it's entirely reasonable to think that the average consumer would be confused at the titles. (And I have trouble buying the line about the Google search. Even now, "Elder Scrolls" and a link to Bethesda's website shows up in the top 10 results, filter bubble be damned).
The article lacks detail in a way that reads as inaccurate. While it's true you have to protect marks from becoming generic, this involves defending them against all infringers, proving that you've done so, and also proving that you've used the mark in public within a certain amount of time. Which means that Bethesda is only doing what it's required to do to protect their franchise from this exact sort of situation.
While companies like Activision/Blizzard and Ubisoft do things that are of dubious benefit to their customers, I feel like in this case Notch is riling up a large fanbase and positioning this as big-corp versus the little-guy.
This is disingenuous on two levels. One, ignorance and entitlement aren't excuses (just ask Andy Baio and his $35,000 lesson in copyright fair use). Two, Notch is the public face of a company that, by all accounts, is worth millions of dollars.
It's time he started acting like it, educate himself, and put the babe-in-the-woods routine to rest.
PS: I'd also be very surprised if a trademark was granted on a generic dictionary word like "Scrolls."
Pepsi-Cola Company changed their name to PepsiCo to reflect their more diverse product line after their merger with Frito-Lay, not as a result of any trademark lawsuit. In the United States at least (though I believe this is the case elsewhere as well), "cola" is the generic term, though Pepsi doesn't use it in their packaging much anymore. See for instance RC Cola.
Serious question: Is "reasonable" being used as some legal term of art here? Because I think it's a totally ridiculous idea that the average consumer would be "confused" because one game is named, e.g. "The Elder Scrolls: Morrowind" and another is named "Scrolls." That doesn't even pass the laugh test.
I agree: I fail to see how these can be easily confused.
If you (in the collective sense, not you personally) know who Bethesda is and what games they've made in the past and know who Notch is, you're not the average consumer in this context.
I think there's a definite reason to think confusion could come into play when these titles are next to each other on the shelf, or show up in search results with little to no context, or are featured in Amazon's contextual results or on services like XBox Live or Steam.
Parents don't know Notch or gaming history. They know that little Timmy asked for a fantasy game with the word "scrolls" in the title. This situation, which I imagine would be pretty common at Christmas time, is part of why Bethesda is taking action.
The other part -- and this is the much more important part -- is that Bethesda has no choice. If they fail to take action and do their due diligence, and a competitor can later prove it (by citing this example with Notch) then they risk losing the mark entirely.
Which means then EA could conceivably come out with a game called "The Younger Scrolls: Obsession" and Bethesda would have no recourse.
That can all be done with a minimum of lawyering, and without getting courts involved at all.
// They would lose the rights to a trademark "scrolls" but they don't have that mark anyway.
You don't have to protect against people using similar marks unless they clearly are confusingly similar.
I really don't see there being much confusion.
"The Elder Scrolls" shows up in a google search for "Scrolls". That's great for Bethesda, but it isn't something that would cause Notch to avoid submitting his trademark for "Scrolls". The point remains that, "The Elder Scrolls" as a game title is not reasonably confusing with a game titled "Scrolls".
Unless Bethesda can show that the word "Scrolls" is often used to refer to their game as a short form rather than the acronym TES, I don't think they are in the right at all. And if "Scrolls" is what they use to refer to their game, they should have also trademarked it as such.
Yeah, like people get coca-cola and pepsi-cola confused all the time. Nobody is going to get the TES series confused with Scrolls. Nobody. TES has been around since forever and every game is marketed by it's subtitle (see: Morrowind, Oblivion, Skyrim, even the first one (Arena) was marketed by it's subtitle).
I agree that "scrolls" is a rather generic name that shouldn't receive a trademark, but for "scrolls" to be infringing on TES is just ridiculous. Does "elder" belong to bethesda, too?
The scrolls issue is completely orthogonal to whether coca-cola v. pepsi-cola actually bolsters OP's point.
Ones I've played, off the top of my head ;)
It happens all the time: Apple computers, Windows OS, Camel cigarettes, Ivory soap, Puffin books, the video game Doom...
From wikipedia:
"An arbitrary trademark is usually a common word which is used in a meaningless context (e.g. "Apple" for computers). Such marks consist of words or images which have some dictionary meaning before being adopted as trademarks, but which are used in connection with products or services unrelated to that dictionary meaning. Arbitrary marks are also immediately eligible for registration. Salty would be an arbitrary mark if it used in connection with e.g. telephones such as in Salty Telephones, as the term "salt" has no particular connection with such products."
Scrolls would certainly count.
I mean, scrolls are a major element in fantasy games, just like swords and wands and potions. If you could claim one of those words as a trademark, such that no one else could use it, I think it would do damage to the genre.
And to say that this displays a "generational sense of entitlement" -- I think you're missing the actual point of trademarks, which is to protect consumers. Companies don't own phrases in the English language, they just have the right to ensure that their products cannot be easily mistaken for products from other companies. Considering that scrolls have been an element of RPG video games basically forever, I hardly think that the word "Scrolls" when applied to a video game is something so uniquely Bethesda that consumers would confuse "Scrolls" with "The Elder Scrolls III: Morrowind.
The system of trademarks is the way that's accomplished!
It's not about individual words. This is a red herring on Notch's part. Bethesda never claimed they owned "scrolls." They don't.
It's about Notch releasing a product in the same commercial space with a very similar sounding name to a product that Bethesda already owns.
As I said elsewhere, Bethesda must take action. They have no choice.
He has a point here: It is notch who wants to trademark a very general term, or?
Reminds me of the Ferrero case who wanted to trademark the word "Kinder" (German word for child): http://www.allbusiness.com/legal/legal-services-litigation/5...