*sigh* Here we go again. Another news story about the "Bethesda vs Mojang" trademark dispute, and suddenly people get all worked up with "Anti-Bethesda" hysteria and canceling preorders without even bothering to research trademark law or, heaven forbid, the actual trademarks related to this dispute. And once more, people seem to be blindly latching on to the concept that Notch and crew are somehow victims in this whole mess. Now before I go any further, how about we go over some facts about trademark law?
First of all, the way trademark law works is once you register a trademark, you have to defend it against any and all threats or risk losing it (and this has been mentioned several times now). This doesn't mean that one company gets to use that trademark exclusively though. Different companies can hold the same trademark (well, the same trademarked word at least) for different products. For example, you're probably familiar with Id Software's trademark on "Rage", but this trademark can co-exist with other "Rage" trademarks like the "Rage" trademark on motor-scooters and another "Rage" trademark on pesticides (fun fact: there's over 30 different trademarks on the word "Rage"). You see trademark disputes when a company owns a trademark and another company tries to register a similar trademark for the same product type (in this case it's computer games). That by itself isn't necessarily enough to pursue trademark infringement (unless you're Tim Langdell), you also have to establish a case for similarity. With "The Elder Scrolls" and "Scrolls" the similarities should be apparent to anyone who has actually looked up the two games. They're both fantasy themed and they both appear to have RPG-like elements to them. That right there is enough to establish trademark infringement for most legal courts, so Bethesda does have a fairly decent case. And again, as stated at the start of this paragraph, if Bethesda didn't take any legal action to this threat to their trademark, it could cause them to lose "The Elder Scrolls" later on.
*Please note that when I say that "Scrolls" and "The Elder Scrolls" have notable similarities, I'm talking about the kind of similarities that will determine the outcome of the case in court. Obviously "Scrolls" and "The Elder Scrolls" are two very different games and have few actual gameplay similarities. As gamers, we all know that, but we're talking about trademark similarities with a court of law, not a court of gamers. Tim Langdell got away with his whole "Edge" trademark trolling with far less, he didn't even have an argument for similarities other than they were games.*
Furthermore, it's important to consider that trademark disputes are not rare, in fact, they're fairly common. Although it must be admitted that most trademark disputes are not revealed to the public (or gather much media attention), much less announced on Twitter. Besides the Tim Langdell cases and this one, how many trademark disputes has anyone actually heard about? Not many, I'd gather. What is rather unique about this case is that it's actually going to court, as usually the two parties in a trademark dispute settle matters outside of the courtroom.
And, if you're still having doubts about the legitimacy of Bethesda's case, here's a quote from a legal expert interviewed by Wired.com last month.
" Attorney and game industry analyst Mark Methenitis told Wired.com that the publisher was just doing what any prudent trademark holder would normally do.
"The basic question here is whether the two trademarks are likely to be confused," Methenitis said in an e-mail. "There's a pretty well-established test for this under U.S. trademark law, and based on those factors, Bethesda has a reasonable argument." "
Finally, before you jump to take Notch's side in this issue, you should know the specifics of his "Scrolls" trademark. I took the liberty of looking it up on the Electronic Trademark Database and it's pretty surprising. It's not just a trademark on computer-games. Notch's trademark for the word "Scrolls" includes clothing (of all types, including t-shirts), hardware platforms, boardgames, toys, hand-helds, and traditional card games. This means that Bethesda's case against Mojang may not be the last court battle Notch will have to face over this, as his trademark clearly violates the trademarks of other companies (such as the Scrolls Clothing Company, which owns the trademark of "Scrolls" for t-shirts). The sheer broadness of Notch's "Scrolls" trademark is rather astounding, as most companies specify one thing for a trademark and make additional trademark registrations for additional products (for example, Bethesda has 6 separate trademarks on "The Elder Scrolls", covering everything from clothing to their forums, but each trademark covers only one thing). I imagine this is usually done in order to avoid large-scale trademark infringements.
Furthermore, just because you make a game doesn't mean you have to register a trademark for it! The vast majority of indie games DO NOT have trademarks! It's not a legal requirement in the slightest, and Notch could keep the name of his game as "Scrolls" if he dropped the trademark. Heck, I imagine there wouldn't be much of a legal issue if he had trademarked a full title like "Scrolls: The Card Game" or anything a little more complicated than just "Scrolls".
If you're interested in doing a bit of research on this subject, I encourage you to look up the trademarks that are involved. You can find Notch's trademark (and pretty much every other trademark ever registered) at this website: http://tess2.uspto.gov/
This is mostly a re-post of another reply I made in these Skyrim forums, but since people are still avoiding the facts, I feel this re-post is justified.
Yeah, I read the Wired article, and quite a bit of the background. I'm familiar with the "defend it or lose it" argument. Learned a lot about trademarks back when Despair got a trademark on the ":-(", even though he was only doing it for the laugh. And I know it's hard to still consider Notch an indie dev with the wild success of he's experienced thus far. Even with all that, I'd rather think my money was being put to better use than meaningless litigation.
Now I'll wander off down a distracted tangent: Elder Scrolls isn't even a featured part of the upcoming title...hell, until someone else mentioned it in another thread, I forgot "Oblivion" was actually "Elder Scrolls: Oblivion." None of my friends have been saying, "Are you going to buy 'The Elder Scrolls 5: Skyrim?'" They're just saying Skyrim. If Bethesda wants to protect the trademark, they should start by using a larger font.
There's also the tiny fact that Notch's "Scrolls" game also happens to be releasing on 11/11/11, the exact same date as "The Elder SCROLLS V." Nope...no coincidence at all, there.
I practice IP law. Patrick is pretty much right on the money with his analysis. What Zenimax is doing here is entirely appropriate and sound. The instant most people hear about a major studio suing an indie-developer, they immediately sympathize with the "little guy," but this person has clearly and deliberately pushed way too many explicit buttons for Zenimax NOT to take action here.
He's being a douche, and is basically daring them to defend their own trademark against his blatant infringements, and is playing the "oppressed martyr" card in the bargain.
(BTW, virtually every single major development studio is currently entangled in some type of trademark-defense lawsuit or another at any given time. This is simply the one that is soaking up a majority of the sensational headlines at the moment, but it's no bigger or smaller than the rest. If boycotting developers over routine injunctions is now a matter of principle for you, you're gonna run out of games to play pretty damn fast.)
this lawsuit is very valid. no, the gamer won't get the titles confused, but a parent or spouse buying a game as a gift certainly will. if they don't sue it will lead to a precedent that could bring about another near collapse of gaming, as happened in the early 80's, pre nes. back then, one good game would come out, then competing companies woul release 10 games with similar title and cover for a third of the price. but they wouldn't bother making them good games like what they were ripping-off. then a parent, or whom ever, would think it would be a better gift to buy 3 separate games instead of the one more expensive one. i'm sure you, any any gamer for that matter, know that 3 bad games < 1 good game.
its happened before; those who do not learn from history are doomed to repeat it
To bring up another, very related case involving sneaky trademark-piggybacking, Interplay deliberately attempted to deceive gamers when they released the "Fallout Trilogy" three-pack for PC a few years ago, right around the exact same time Bethesda's own "Fallout 3" hit the store shelves.
The other half of that whole lawsuit (which also dealt with the "Fallout" MMO) was Bethesda's concern that average-Joes off the street who'd heard about Bethesda's extremely well-reviewed "Fallout 3" would mistakenly buy the "Fallout 1/2/Tactics" three-pack instead.
Bethesda won that part of the case, since the courts saw right through Interplay's blatant use of weasel-wording on the packaging to ensnare the uninformed, though they still retain the Steam download-rights for those. In terms of how they went about marketing it, Interplay was certainly in the wrong, and used some extremely shady tactics.
And here again, we have yet another case of someone weasel-wording their own products' title(s) in an attempt to ride the coattails of another company's IP for their own profit.
Poor guy, his ideals force him not to play rage AND skyrim. I feel bad for this guy. U know there is a lot of pollution in the air, and taxes really suck. Im just gonna boycot breathing from now on, whos with me?
You could be giving your money to EA Sports like me, But with a 60 dollar purchase you get Skyrim. That will last you at least five years. All 15 EA sports games come out annually and are the same price. I think you need to rethink who the crooks are.
I though T. Zero was overreacting even before I read Patrick and Bandsaw's explanations.
Here's an example of a truly "frivolous" lawsuit: remember the woman who burned HERSELF with McDonald's coffee and sued the restaurant? Or the mother who sued Disneyland because the Mickey head fell off the costume (I supposed it could have looked like a decapitation to a child's mind) and caused "emotional damage" to her kids?
The McDonalds coffee case wasn't as frivolous as people think. I read about it on Wikipedia a while back. Turns out it was a legitimate case for two reasons: 1) McDonalds coffee at the time was intentionally made much hotter than is normal. 2) The woman burned her genitals to the point of surgery and permanent scarring.
Feel free to delete this Amazon. The woman requested that McDonald's pay her medical bills (88 grand) . The company refused. She sued and was awarded 2.4 million. Company got a retrial. Settlement now at 240,000 and I'm not certain, but I don't think that amount got paid out either. Here's the arguement in a court of law. What temperature is too hot? 164 is ok, but 171 is too much? What were we talking about?......oh yeah...........T. Zero. You are a loser especially posting the same lame comments in various forums. Go away.
"Elder Scrolls isn't even a featured part of the upcoming title..."
Oh yes it is -- look at the box art. The words "The Elder Scrolls" are clearly printed near the top of the picture.
"None of my friends have been saying, "Are you going to buy 'The Elder Scrolls 5: Skyrim?'" They're just saying Skyrim."
Well of course they are! The game's full title is quite a mouthful to say in its entirety during casual conversation! It's like having someone say, "Did you catch the Dodgers game last night?" No one is going to say, "Did you catch the Los Angeles Dodgers game last night?"
Everyone said San Andreas instead of Grand Theft Auto: San Andreas. That doesn't mean people weren't aware that the full title included the GTA part. Bethesda has been getting crap ever since the Interplay lawsuits. Interplay is in breach of their contract, that much is pretty obvious to anyone who's followed the lawsuits and bothers to look at what information has been released so far about Fallout Online (almost nothing). It's supposed to be ready by early 2012 and we have yet to see a trailer? There's no advertising, there's not beta announcement (sign-ups yes, 6 months ago... still not date set), there's nothing to indicate the Fallout Online will be ready anytime in the next year and a half. They didn't come through on their end of the agreement. The contract didn't say that Interplay could release the MMO anytime they wished. It said they could only release it within a set time period. Interplay is a shell of a company nowadays anyway.
I'm running on a tangent here I know, but people need to leave Bethesda alone. They make great games. I'm not a Bethesda fanboy by any means, I didn't even like Oblivion that much, though I did love Morrowind, Fallout 3, and New Vegas. It's just getting old. There are companies that do far worse things than Bethesda has ever done, and people still buy their products. One news story about a lawsuit that has nothing to do with anything other than a title to a game is hardly worth discussing. They could easily just rename the game, or as someone said NOT try to patent it. Silliness.
How about canceling your "Scrolls" preorder? Notch is the one stepping on toes and acting like a child suggesting they battle it out in Quake Deathmatch. He should man up and recognize that the same system that allowed him to become a millionaire is the same system with the trademark laws. He's going to get owned in court.
Read that Kotaku link if you're angry at bethesda. I enjoy notch's games as well, but he's trying to own the world Scrolls for basically every single product.. All Bethesda is trying to do is protect themselves so down the road they don't have to hand over tons of money to them or even take the chance of not being able to ship their games out.
I'm sure he'll lose this in court and not get the trademark or have to change it around.