Bethesda Is Not The Problem And Notch Is Not Helping ...

Hm, Mojang is getting sued by Bethesda over trademark. This was publicly stated by Mojang chief Notch at his tumblr on friday.

As much as I sympathize with Notch and his crew and hope for the issue to be resolved fairly, Mojang displayed severe carelessness on this issue. As much as I understand the temptation to view this issue as the poor indie David getting viciously attacked by the Goliath lawyers, the uninformed reactionary bullshit treatment by the gaming community is just that? uninformed reactionary bullshit. As much as I find trademark laws to be worth of debating and changing? Bethesda is not the place to bitch about it.

Don?t hate the player. Hate the game!

I?m co-founder of a small social media entertainment and game company and we had to deal with naming our intellectual properties too. We assigned one guy (another co-founder), to do the research in his spare time and consulted with a trademark and patent expert? it took us about two weeks to find out what we can and can?t use. It?s not that hard or expensive to gather the necessary knowledge to understand which names would collide with already established trademarks.

The fact that Mojang?s title ?Scrolls? conflicts with Bethesda?s ?Elder Scrolls? trademark rights should come as no surprise to anyone who just spent some time with the issue. The laws are clear and the information to avoid conflicts is publicly available. You can check the database of the United States Patent and Trademark Office for example. And yes, when you trademark a name for you property which is composed of two or more words, the single words are trademarked too. There are exceptions to that rule (like descriptive words for example or parody and commentary) and it is debatable if this measure does more good than harm? but the matter of things is clear.

This is the reason why you can?t publish a superhero comic called Spider-Guy, why you can?t broadcast an animated series call Nickey Mouse and Ronald Duck. It?s why the WWE had to remove all references to ?Hulk Hogan? when he was still wrestling there and replace it with ?Hollywood Hogan?, due to trademark claims by Marvel comics regarding their character ?The Incredible Hulk?. And this is why Mojang can?t just go along and publish a fantasy RPG video game, when there is already one with the word ?Scrolls? in its name.

Legal rights, shmegal rights, can?t Bethesda just let this slip? No they can?t.

Registering a trademark does not only come with powers, it comes with liabilities also. The matter of the law is that, if Bethesda willingly ignore when their trademark appears to be violated, they can lose their trademark protection. You are required by law to enforce your registered trademarks or you weaken them and eventually lose them. Bethesda has no choice but file the lawsuit or they are in danger to lose the protection for their whole Elder Scrolls franchise.

I don?t want to have Mojang face damages as much as the next guy. But the problem doesn?t lie with Bethesda here. I understand the sentiment to bash Bethesda. The small creative indie studio that made it big is now attacked by guys in suits from one of the big players. Get over the narrative, folks and focus your anger on the actual target: Trademark laws. If you want things to change write your elected representatives, start a petition and educate yourself? but don?t waste your fucking time with stupid tweet bullshit like this:

?Am I the only one who thinks Bethesda is suing indie developers over trademark to try to scare them out of the RPG genre??

?Bethesda suing Notch over the word ?Scrolls?? That?s just wrong, stupid, and silly.?

?Absolutely shameful of @bethblog to be suing @notch for this (not the devs, but surely legal).?

Notch is not helping.

Notch published a written statement on the issue on his tumblr. Read it here. Well, I?m not his lawyer but he should keep his mouth shut until the issue is resolved? he is getting sued and is publicly giving testimony and not really in his favor. He makes an emotional appeal and voices his confusion, including plainly describing that Mojang just didn?t do their homework before going along with their ?Scrolls? game trademark. He is basically making the case for his opponents.

Let?s have a look at Notch?s official statement, quoting snippets from his full article:

A lot of people want more details about what is going on, so here is everything I know:

Okay, then we can assume that you did not leave out any important detail, can?t we?

First of all, I love Bethesda. I assume this nonsense is partly just their lawyers being lawyers, and a result of trademark law being the way it is.

Mkay, what are the other parts? When this ?nonsense? is just partly caused by laws and lawyers, what is the rest of it? This is just suggestive talk on Notch?s side, implying that there is more to the issue than plain legal matters. As if Bethesda is playing legal games or want to harm Mojang or whatever. The legal situation alone not only justifies but also explains Bethesda?s move here to the fullest.

? we also applied for ?Scrolls?, the new game we?re working on. We knew of no similarly named games, and we had even googled it to make sure.

You even googled it? YOU EVEN GOOGLED IT?!?! The internet is full of shit and full of holes? since when is google a way to be save on an issue? How about registered trademarks of properties that aren?t released yet? How about canned unicorn meat and reptoids? (seriously look up reptoids). I can?t believe that Notch actually just stated that their research on the matter did not go beyond google. If, that is true, Mojang had it coming for their ignorance. And he also defends Mojang by ?not knowing similar named games?. Honestly, how easy does he want to make it for Bethesda?s lawyers?

I?m not even sure if you CAN trademark individual words, like ?Scrolls?, but we sent in the application anyway.

Yeah, okay, we get it. You have no comprehensive knowledge about trademark laws, went ahead anyway and even now you haven?t bothered to make yourself smarter on the issue. You can?t just go around like ?We din?t know better?, when you register a trademark. You have to do your homework. I don?t know what you pay your legal team, Notch, but they don?t seem to give good legal advise. Man how can you first be so careless about your game trademark and than be so careless with your public statements about an ongoing lawsuit?

I really dig your work and your exploding success is a remarkable story and inspiration for many indie devs around the world. I?m glad you exist as a part of gaming culture. But I can?t side with you on that one.

Pitchforks And Torches

I understand how it can appear that Mojang is somewhat a victim in this situation, and how it seems appropriate to retaliate against the oppressive AAA publisher. But the case that Mojang chief Notch is making is quite damning for his studio. The trademark laws could lead to a judge ruling against Mojang and maybe rightfully so. And taking into account that Bethesda is not allowed to pick and choose where to enforce their trademarks and where not, there is little to no basis on which demonize Bethesda here.

I hope that everything plays out as fair and harmless as possible for both sides. And maybe next time before you guys get out your pitchforks and torches you use your brain first.
Disclaimer: nothing in this article is to be cosindered legal advise? get a lawyer to do that.

Tags: About Indie Games, Analysis And Commentary, WTF

This entry was posted on Sunday, August 7th, 2011 at 3:38 pm and is filed under Community. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

Source: http://howtonotsuckatgamedesign.com/?p=3327

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