
What Happens When a Reasonable Developer Runs Into Aggressive Trademark Lawyers - grellas
http://www.techdirt.com/articles/20110805/17321115419/what-happens-when-reasonable-developer-runs-into-aggressive-trademark-lawyers.shtml
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dangero
What Happens When a Reasonable Developer* Runs Into Aggressive Trademark
Lawyers

* 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.

~~~
masklinn
Compared to Zenimax, I'm sure Mojang has very limited funds.

~~~
praptak
I hope that the idiocy of the claims offsets that imbalance. It would be very,
very sad if just having heaps money would let you win _any_ case.

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sehugg
Confusing things about that blog post:

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 :)

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praptak
_"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?"_

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.

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shaggyfrog
By responding continually in a reasonable manner, did notch inadvertently make
Bethesda's case easier, because now they can show that he somehow agrees with
their case?

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.

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BasDirks
He's also telling Bethesda to back off or get assraped by public opinion.

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shaggyfrog
By now, I think most consumers have learned that the shenanigans in the games
industry aren't easily stopped merely by a change public opinion. Just look at
how widespread DRM is these days, and how much worse it's getting for end-
users.

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Shenglong
Isn't Bethesda worried about their corporate brand? I can't imagine them
thinking this case would be worth pursuing, at the cost of their actual
products.

I originally was pretty excited for Skyrim, but this whole thing is turning me
off.

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sjwright
This would be like Valve complaining about a game called "Half", or Blizzard
complaining about a game called "Craft". Bonkers.

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starwed
If Warcraft & Starcraft had been the first games to use that naming
convention, it actually would be pretty reasonable for Blizzard to claim that
as a trademark.

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.

~~~
mcantor
_If Warcraft & Starcraft had been the first games to use that naming
convention..._

Weren't they?

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starwed
I think I've read somewhere of an earlier game with the same pattern?

It's a hard thing to search for on google, sadly.

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stevengg
notch also has a reasonable view on piracy and how it effects him
<http://notch.tumblr.com/post/1121596044/how-piracy-works>

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huckfinnaafb
I know brands tend to go after any and all cases where the IP is even remotely
related, but I wonder if this is a concentrated effort by Bethesda as they
view "Scrolls" an actual threat, or just a knee jerk reaction to a game they
might see as amateur. If the former, it will be interesting to watch the
community's reaction to a prolonged legal assault on Minecraft. I know it's
causing a big stink in some parts of the internet already.

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amurmann
Legal departments should always first check with the marketing department to
avoid harming their company like this. They are protecting their brand from
what they think might be a takeover by someone else, but are harming it to a
much higher degree than a game called "Scrolls" ever could

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cowboyhero
This story annoys me to no end, because it points once again to a seemingly
pervasive online and generational sense of entitlement when it comes to things
like trademarks and copyright.

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."

~~~
mquander
_It's entirely reasonable to think that the average consumer would be confused
at the titles._

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.

~~~
cowboyhero
Bethesda has multiple trademarks for the franchise. Each individual
installment is trademarked, eg "The Elder Scrolls V: Skyrim" and the entire
franchise is trademarked, eg "The Elder Scrolls."

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.

~~~
pbhjpbhj
> _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._

// 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.

