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68.

Re: Bethesda Sues Mojang Over Scrolls TM

Aug 7, 2011, 14:28

WaltC

DDI wrote on Aug 6, 2011, 22:24:
Uhm, are you guys familiar with the trademark lawsuit between Apple Corps and Apple Computers. It had been mostly settled but then flaired up because Apple Computers started selling electronic music which Apple Corps felt was an infringment on their mark.

Back when Apple Computer was strictly a computer company, the Beatles penned an agreement with Apple Computer allowing use of the word "Apple" in relation to their computer business, with the strict understanding that if Apple Computer ever at any time "entered the music business" (in any way, shape, or form) that Apple Computer would lose its trademark right to use the word "Apple" from then on. When Apple introduced the iPod & iTunes it "entered the music business" and broke the original agreement and the Beatles promptly sued. Apple paid the Beatles a cool $50M to continue use the word "Apple" from that point forward. Steve Jobs made his now-classic remark about how he meant only to "pay tribute" to the Beatles by ripping off their trademark...:D

You can claim you have superior logic but it's false. They are both video games with similar names, Bethesda is within their right to defend their mark. In fact, they must defend their mark or else they lose it. For example, Xerox brought back their trademark from the brink of oblivion; everyone says photocopy instead of xerox now due to their aggressive defense of their mark.

You guys can whine and moan about how you think its unfair that poor little rich indie guy who made one game you like is being picked on but Bethesda is required to defend their mark.

Unlike between Apple Computer and the Beatles, Mojang had no agreement with Bethesda allowing it to use the word "scrolls" until such time as Mojang used it in order to sell computer games...;) Indeed, the phrase "The Elder Scrolls" is what Bethesda has trademarked with respect to the title of some of its computer games. If Mojang wants to trademark "scrolls" with respect to the title of some of its computer games, and Bethesda disagrees, then Bethesda will have to prove to a judge that consumers are easily confused by a game title of "Scrolls" and a game title of "The Elder Scrolls," and that most consumers would believe when purchasing "Scrolls" by Mojang that they were instead buying "The Elder Scrolls" by Bethesda.

Yes, generally speaking a company is compelled to protect its trademarks by way of litigation when necessary. However, nowhere is it written or implied that fomenting a suit that is not likely to succeed is necessary for protecting one's trademark.

Should a judge rule that there is no reason to believe that consumers are likely to confuse "Scrolls" with "The Elder Scrolls," then the result is exactly the same for Bethesda that it would have been had Bethesda never sued Mojang: Bethesda retains a trademark for the phrase "The Elder Scrolls" as it pertains to the title of some of Bethesda's computer games, and Mojang retains a trademark for "Scrolls" as it pertains to the title of some of Mojang's computer games. Bethesda would have spared itself quite a bit of superfluous legal fees, too, while retaining its trademark, had it not sued Mojang in the first place.

Speaking of Apple, this reminds me of Apple suing Amazon over the phrase "App Store" in the larger phrase "Amazon App Store." Apple says that consumers will be confused by the Amazon trademark "Amazon App Store" and will think they are buying from Apple, instead of Amazon. The judge has already informed Apple that one of its so-far-unmet burdens of proof relative to a successful trademark infringement case against Amazon is proving that consumers are likely to confuse the "Apple App Store" with the "Amazon App Store". The judge has stated that Apple hasn't done this yet--at all.

If Apple cannot do that, and at this stage it appears Apple cannot, then Apple might as well not have bothered to sue Amazon in the first place, as having unsuccessfully sued another company for protection of your trademark has no effect on the mark at all, either pro or con. You have, however, wasted a lot of time and money on a superfluous, bogus effort, and accomplished little save for making some lawyers smile as they fattened their wallets. Nothing wrong with a company being prudent as to whom it sues and why, and taking a losing battle to court does nothing to strengthen your hold on the trademarks you already have.




It is well known that I do not make mistakes--so if you should happen across a mistake in anything I have written, be assured that I did not write it!

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