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What Happens When a Reasonable Developer Runs Into Aggressive Trademark Lawyers

105 points by grellas 15y ago

stevengg 15y ago
notch also has a reasonable view on piracy and how it effects him http://notch.tumblr.com/post/1121596044/how-piracy-works http://notch.tumblr.com/post/1121596044/how-piracy-works
sjwright 15y ago
This would be like Valve complaining about a game called "Half", or Blizzard complaining about a game called "Craft". Bonkers.
- starwed 15y ago
  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.
  - praptak 15y ago
    "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.
  - mcantor 15y ago
    If Warcraft & Starcraft had been the first games to use that naming convention... Weren't they?
    - starwed 15y ago
      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.
- deleted 15y ago
  [deleted]
Shenglong 15y ago
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.
huckfinnaafb 15y ago
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.
amurmann 15y ago
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
cowboyhero 15y ago
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."
- binarymax 15y ago
  I disagree. Coca-Cola, and Pepsi-Cola were both trademarked with the noun cola. Bethesda does not own the word "scrolls". The own the trademark "Elder scrolls". I do agree with your 'PS', since Scrolls probably wont get a trademark...but infringement? surely not.
  - jarin 15y ago
    I'm not 100% sure about this, but I believe Coca-Cola successfully protected "Cola" from being genericized by asserting that the generic term was "cola drink". Pepsi is now just known as Pepsi, and the company's name is now PepsiCo instead of Pepsi-Cola.
sehugg 15y ago
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 :)
- praptak 15y ago
  "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.
dangero 15y ago
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.
- knowtheory 15y ago
  That said, Notch is a pretty unflappable guy in the face of daily hordes of criticism and whining. I actually aspire to Notch levels of sanguinity, as a software developer & community wrangler.
- masklinn 15y ago
  Compared to Zenimax, I'm sure Mojang has very limited funds.
  - praptak 15y ago
    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.
shaggyfrog 15y ago
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.
- xinsight 15y ago
  I agree - it's best to not let your enemy frame the debate. And agreeing to points is certainly not going to help your case. 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-strikes-back http://www.audioholics.com/news/industry-news/blue-jeans-str...
- BasDirks 15y ago
  He's also telling Bethesda to back off or get assraped by public opinion.
  - shaggyfrog 15y ago
    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.
- eridius 15y ago
  He agreed that the word "scrolls" is contained within the trademark "the elder scrolls". I don't think he agreed to any other part of their position.

105 points by grellas 15y ago

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

sjwright 15y ago

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

starwed 15y ago
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.
- praptak 15y ago
  "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.
- mcantor 15y ago
  If Warcraft & Starcraft had been the first games to use that naming convention... Weren't they?
  - starwed 15y ago
    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.
deleted 15y ago
[deleted]

Shenglong 15y ago

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.

huckfinnaafb 15y ago

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.

amurmann 15y ago

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

cowboyhero 15y ago

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."

binarymax 15y ago
I disagree. Coca-Cola, and Pepsi-Cola were both trademarked with the noun cola. Bethesda does not own the word "scrolls". The own the trademark "Elder scrolls". I do agree with your 'PS', since Scrolls probably wont get a trademark...but infringement? surely not.
- jarin 15y ago
  I'm not 100% sure about this, but I believe Coca-Cola successfully protected "Cola" from being genericized by asserting that the generic term was "cola drink". Pepsi is now just known as Pepsi, and the company's name is now PepsiCo instead of Pepsi-Cola.

sehugg 15y ago

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 :)

praptak 15y ago
"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.

dangero 15y ago

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.

knowtheory 15y ago
That said, Notch is a pretty unflappable guy in the face of daily hordes of criticism and whining. I actually aspire to Notch levels of sanguinity, as a software developer & community wrangler.
masklinn 15y ago
Compared to Zenimax, I'm sure Mojang has very limited funds.
- praptak 15y ago
  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.

shaggyfrog 15y ago

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.

xinsight 15y ago
I agree - it's best to not let your enemy frame the debate. And agreeing to points is certainly not going to help your case. 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-strikes-back http://www.audioholics.com/news/industry-news/blue-jeans-str...
BasDirks 15y ago
He's also telling Bethesda to back off or get assraped by public opinion.
- shaggyfrog 15y ago
  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.
eridius 15y ago
He agreed that the word "scrolls" is contained within the trademark "the elder scrolls". I don't think he agreed to any other part of their position.