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Mojang to Fight Scrolls Battle in Court, if not Q3A

Ars Technica has word from Minecraft creator Markus "Notch" Persson that Mojang will indeed go to court, if necessary, to battle over Bethesda's legal action over the Scrolls name. "If we’re going to court, I will fight this for as long as it takes," he said. "It’s a bogus claim, and [Bethesda has] several one-word-named games that share a noun with other games that precede [its] games," noting that RAGE could be viewed as a conflict with Sega's Streets of Rage. He also wryly notes his his recent quirky Q3A challenge to settle this may be ill-advised, as: "If it came to a Quake III tournament, I have a feeling we just might have to change the name," Persson told Wired.com (as Bethesda owns the brand). "In retrospect, Quake III might have been a poor choice."

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51. Re: Mojang to Fight Scrolls Battle in Court, if not Q3A Aug 23, 2011, 18:24 JohnnyRotten
 
Jerykk wrote on Aug 21, 2011, 20:00:
The title at question here is
The Elder Scrolls

Notch's trademark is
Scrolls

Which is a clear violation, no subtitle , no unique title (in fact, you probably shouldn't be able to trademark the word "Scrolls" to begin with...)

That's not a clear violation. Zenimax didn't trademark the word "Scrolls." They trademarked "The Elder Scrolls." That's three words arranged in a specific order. If they trademarked "Scrolls" by itself, they'd have a legitimate case. But they didn't.


A bit late to the game, but if anyone is still listening:

It’s my opinion that there several people here have misunderstood the basics of what can/cannot be trademarked in general as well as what legally "protecting" a trademark is.

A good case for trademark can's/can'ts to look at is Windows vs. Lindows case. Ultimately Microsoft ran for cover on that one because the Linows’ lawyers made headway on convincing the judge that the word "Windows" is generic enough not to protected under trademark law. Scrolls is a very generic and widely used term, and it would be difficult to enforce in either direction (right of exclusive right, and derivative enforcement).

Trademark protection as it has been discussed here has centered around one aspect of protection – dilution. Trademark dilution falls under the Trademark Dilution Revision Act (2006). This is a reasonably new law (implementation is still being kicked around by lower courts), and changed the Lanham Act (1946) in several important ways.

One interesting change that I think applies in the 2006 law that deals with dilution is this: "Entitles an owner of a famous mark that is distinctive to an injunction against another person who commences use of a mark of trade name, after it has become famous, in commerce in a manner that is likely to cause dilution by blurring or tarnishment, regardless of the presence or absence of actual or likely confusion, competition, or actual economic injury. "

Couple of things I find interesting from this:

"...a famous mark that is distinctive". This might sink the battleship for any party trying claim "scrolls" as a trademark, or a dilution of an existing trademark. Distinctive is a legally loaded word in this context, and it would be interesting to see what turned up in an argument for or against distinctive.

"...is likely to cause dilution by blurring or tarnishment, regardless of the presence or absence of actual or likely confusion, competition, or actual economic injury." This is a big game changer - you don't have to prove dilution (as was required per USSC decision on Moseley v. V Secret Catalogue). Basically, if you can prove your mark is "famous" and "distinctive" you are pretty much home free.

 
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50. Re: Mojang to Fight Scrolls Battle in Court, if not Q3A Aug 22, 2011, 04:34 Jerykk
 
The problem with Zenimax's lawsuit is that they have no idea what kind of game Scrolls will be. They're suing solely on the basis of the trademark. These cases are primarily decided based on the similarities between the trademarks and any potential confusion they may cause. If Scrolls ends up being a 2D puzzle game, there won't be any confusion between it and the Elder Scrolls games. Zenimax should have waited until they actually learned something about the game before summoning their lawyers.  
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49. Re: Mojang to Fight Scrolls Battle in Court, if not Q3A Aug 22, 2011, 02:35 saluk
 
So fun to watch. I'm not sure what, if anything, the outcome will be. If Mojang wins, that could open it up for them to get a trademark on scrolls, which would be annoying. If they lose, it sets further precedent for stupid lawsuits, which is never a good thing. I feel like it could really go either way at this point - the lawsuit holds water, but is also ridiculous. Depends more on how the judge feels and how much the lawyers are paid then on any merit.  
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48. removed Aug 21, 2011, 21:32 her
 
* REMOVED *
This comment was deleted on Aug 21, 2011, 22:52.
 
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47. Re: Mojang to Fight Scrolls Battle in Court, if not Q3A Aug 21, 2011, 20:00 Jerykk
 
The title at question here is
The Elder Scrolls

Notch's trademark is
Scrolls

Which is a clear violation, no subtitle , no unique title (in fact, you probably shouldn't be able to trademark the word "Scrolls" to begin with...)

That's not a clear violation. Zenimax didn't trademark the word "Scrolls." They trademarked "The Elder Scrolls." That's three words arranged in a specific order. If they trademarked "Scrolls" by itself, they'd have a legitimate case. But they didn't.

So its trademark is Dungeons - The Dark Lord (which is acceptable and not diluting ;P)

Not sure what you're talking about. Go to the U.S. patent website and look for the trademark on DUNGEONS. You'll see that it belongs to John Hubbard and has no subtitle.

And for giggles, RAGE is not a word, its a full capitalization. The game isn't called Rage.. its called RAGE (which is a nice way to claim "unique trademark")

How about Edge? Shouldn't EA sue whoever made that game? After all, they own the trademark for Mirror's Edge. Actually, Namco owns the trademark for Soul Edge, so they should sue both EA and whoever made Edge. Shouldn't NCSoft sue the publisher of The Guild? Shouldn't 2K sue Zynga for Mafia Wars?
 
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46. Re: Mojang to Fight Scrolls Battle in Court, if not Q3A Aug 21, 2011, 17:40 Creston
 
Mead wrote on Aug 21, 2011, 15:38:
Creston wrote on Aug 21, 2011, 15:03:
Bhruic wrote on Aug 21, 2011, 02:29:
If you don't believe that it could happen, by all means, try and trademark a computer business called "Crazy Apple", and see how long it takes Apple to be sending you a letter.

Of course, if you own a company called iCloud (and have trademarked it), and then Apple names their cloud product iCloud, the courts will suddenly conveniently forget all about the precious trademarks, and will happily suck Steve Jobs' cock.

Trademarks only seem to protect the big guys with lots of lawyers on the payroll.

Creston
Hard to remember about 'the little guy's' trademark when they didn't apply for one in the first place.

Copyright is automatic, trademark is not.

Now back to your regularly scheduled hate-the-big-corp poopfest.

It turns out the company did indeed not trademark their name, but Apple is like to still settle the lawsuit.

STUPID LONG URLS

Creston
 
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45. Re: Mojang to Fight Scrolls Battle in Court, if not Q3A Aug 21, 2011, 17:37 Creston
 
Oh, I'm not saying they win ALL their cases, but the big boys tend to run roughshod over trademarks that are owned by the little guy, and get away with it because they know the little guy can't afford to be in court for five fucking years. And that's fucked up.

Apple stealing names that other companies have trademarked is just the tip of the iceberg.

Creston
 
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44. Re: Mojang to Fight Scrolls Battle in Court, if not Q3A Aug 21, 2011, 16:16 Cutter
 
Creston wrote on Aug 21, 2011, 15:03:
Bhruic wrote on Aug 21, 2011, 02:29:
If you don't believe that it could happen, by all means, try and trademark a computer business called "Crazy Apple", and see how long it takes Apple to be sending you a letter.

Of course, if you own a company called iCloud (and have trademarked it), and then Apple names their cloud product iCloud, the courts will suddenly conveniently forget all about the precious trademarks, and will happily suck Steve Jobs' cock.

Trademarks only seem to protect the big guys with lots of lawyers on the payroll.

Creston

Not true. The big guys lose quite regularly. Look at McDonalds who spent years an a lot of money trying to sue McSushi and they lost because court found there was no confusion that would lead to trademark dilution. Notch will just have to be a bit more specific like calling it Mojang's Scrolls or something.

 
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43. Re: Mojang to Fight Scrolls Battle in Court, if not Q3A Aug 21, 2011, 16:00 Teddy
 
eRe4s3r wrote on Aug 21, 2011, 09:10:
Also your list has 1 glaring error, the one absolute trademark violation in that list (Dungeons has a lengthy subtitle (The Dark Lord) probably to prevent exactly such lawsuit

So its trademark is Dungeons - The Dark Lord (which is acceptable and not diluting ;P)

To correct your own 'glaring error'. 'Dungeons - The Dark Lord' is a stand alone expansion. The original game is and has always been called 'Dungeons'. No lawsuits filed. No one cared.
 
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42. Re: Mojang to Fight Scrolls Battle in Court, if not Q3A Aug 21, 2011, 15:38 Mead
 
Creston wrote on Aug 21, 2011, 15:03:
Bhruic wrote on Aug 21, 2011, 02:29:
If you don't believe that it could happen, by all means, try and trademark a computer business called "Crazy Apple", and see how long it takes Apple to be sending you a letter.

Of course, if you own a company called iCloud (and have trademarked it), and then Apple names their cloud product iCloud, the courts will suddenly conveniently forget all about the precious trademarks, and will happily suck Steve Jobs' cock.

Trademarks only seem to protect the big guys with lots of lawyers on the payroll.

Creston
Hard to remember about 'the little guy's' trademark when they didn't apply for one in the first place.

Copyright is automatic, trademark is not.

Now back to your regularly scheduled hate-the-big-corp poopfest.
 
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41. Re: Mojang to Fight Scrolls Battle in Court, if not Q3A Aug 21, 2011, 15:03 Creston
 
Bhruic wrote on Aug 21, 2011, 02:29:
If you don't believe that it could happen, by all means, try and trademark a computer business called "Crazy Apple", and see how long it takes Apple to be sending you a letter.

Of course, if you own a company called iCloud (and have trademarked it), and then Apple names their cloud product iCloud, the courts will suddenly conveniently forget all about the precious trademarks, and will happily suck Steve Jobs' cock.

Trademarks only seem to protect the big guys with lots of lawyers on the payroll.

Creston
 
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40. Re: Mojang to Fight Scrolls Battle in Court, if not Q3A Aug 21, 2011, 10:29 Beamer
 
Exactly which threats did he manage to profit from?

Future Publishing, for one. Yes, he eventually got sued, but he licensed Edge to them in the 90s. That was nearly 20 years before he got sued. According to court records they paid him over $300k in that time.

The Edge movie, Marvel Comics and at least one game also paid him a licensing fee.
 
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39. Re: Mojang to Fight Scrolls Battle in Court, if not Q3A Aug 21, 2011, 09:10 eRe4s3r
 
You don't understand trademarks... the lawsuit about trademarks doesn't care about the games that stand behind it, but about the TRADEMARK itself.

And notch called his game Scrolls - not Dark Scrolls - Fancy Scrolls, or Epic Scrolls

Scrolls

Which makes this lawsuit not frivolous.

Also, i could spent now 2 hours DISMANTLING your list of games which you think infringe on Dungeons and Dragons... but i am just gonna say this, notice how none of them have Dungeons OR Dragons (in that spelling) at the beginning without a subtitle.

So your list of examples doesn't even apply.

The title at question here is
The Elder Scrolls

Notch's trademark is
Scrolls

Which is a clear violation, no subtitle , no unique title (in fact, you probably shouldn't be able to trademark the word "Scrolls" to begin with...)

My logic is clearly not flawed unless is misunderstand trademark laws. If you think you can come out and make a game called Dungeons or Dragons, with that exact spelling and without a subtitle you are my guest.

Also your list has 1 glaring error, the one absolute trademark violation in that list (Dungeons has a lengthy subtitle (The Dark Lord) probably to prevent exactly such lawsuit

So its trademark is Dungeons - The Dark Lord (which is acceptable and not diluting ;P)

And for giggles, RAGE is not a word, its a full capitalization. The game isn't called Rage.. its called RAGE (which is a nice way to claim "unique trademark")

But that said, i don't really care.. its a stupid lawsuit because someone stupid did something stupid (thats the law that says that you can trademark words from the dictionary )

Sadly that law exists, and Scrolls and Rage and "Tissues" and "Flowers" might even be valid trademarks, but those laws suck, THIS lawsuit however is as valid as they come.

This comment was edited on Aug 21, 2011, 10:53.
 
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38. Re: Mojang to Fight Scrolls Battle in Court, if not Q3A Aug 21, 2011, 09:07 Omni
 
The American way. Lawsuits over words and what not.

All the resources being spend on kindergarten problems maybe they
should grow up and contribute to society with something better.

Fucking pathetic bunch of idiots at zenimax/bethesda.

 
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37. Re: Mojang to Fight Scrolls Battle in Court, if not Q3A Aug 21, 2011, 07:07 Jerykk
 
You really need to go through this thread and re-read my arguments. I addressed all the points you just made but I guess I'll do it again.

Dungeons & Dragons is a hugely profitable and well-known franchise. Some guy just trademarked the title "Dungeons" for use in computer games. I haven't seen any reports of lawsuits by Wizards of the Coast. In fact, there have been countless games with either "dragon" or "dungeon" in the title, yet WotC hasn't sued them. Lo and behold, WotC is in no danger of trademark dilution and they definitely aren't losing their trademark anytime soon. According to your logic, WotC should have sued the creators of the following games:

- Dragon Age
- A Farewell to Dragons
- Dragonshard
- Dragonsoul
- Drake of the 99 Dragons
- Deathtrap Dungeon
- Dungeons
- Dungeon Lords
- Dungeon Blitz
- Dungeon Siege
- Dungeons of Dredmor
- Dungeon Hunter
- Dungeon Fighter Online
- Dungeon Defenders
- Dungeon Keeper
- Dungeon Runners

Since those are all fantasy computer games with either "dungeon" or "dragon" in the title, that must be a whole lot of trademark dilution, amirite? No, not really. If you use a generic and common word as part of your trademark, you can reasonably expect other people to use that word as well.

Same thing applies to The Elder Scrolls. With 14 games released under that trademark since 1994, the franchise is already highly established. If Notch trademarked "Scrolls" and then tried to sue Zenimax, he would lose, just like Langdell lost when he tried to sue Namco for using "edge" in "Soul Edge." Soul Edge wasn't even an established franchise at that point either. In fact, I don't think Langdell won a single lawsuit pertaining to his trademark of "edge." If I create a trademark and then release products under it on a regular basis for over a decade, then some guy trademarks one of the words in my trademark and releases one product, who will have the stronger case in court should the latter try to sue?

This is a frivolous lawsuit, plain and simple. Now, if Notch gets the trademark and then releases a game that's extremely similar to Skyrim, Zenimax would have sufficient reason to sue and the courts would decide in their favor. But that's not what's happening here.

This comment was edited on Aug 21, 2011, 07:16.
 
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36. Re: Mojang to Fight Scrolls Battle in Court, if not Q3A Aug 21, 2011, 06:23 eRe4s3r
 
As has been said thousands of times, a trademark dilution has to be fought - there is no "nice" or "good" or "evil" about it.

And all those titles you mentioned are not like this case at all. The correct comparison would be if a multi-billion $ franchise called "age of rage" existed, which has worldwide renown - and someone else would trademark RAGE

If that trademark went through he could sue Age of Rage out of existence (funnily, because it would really dilute both trademarks). That is why anyone with half a brain (or even anyone who can read) knows that

1) Notch is wrong, this lawsuit isn't bogus
2) A public company needs to sue against trademark dilution, its even obligated and required to do so (by investors - as in BANKS, mostly)
 
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35. Re: Mojang to Fight Scrolls Battle in Court, if not Q3A Aug 21, 2011, 05:07 Jerykk
 
Once again, he isn't trying to trademark "The Elder Scrolls," nor is he trying to sue people who use the word "Scrolls." He simply wants to name his game "Scrolls" and he wants to trademark that title. There's nothing inherently wrong with that. There are a lot of trademarked, single-word titles like Rage, Hitman, Quake, Doom, Fable, Fallout, Prey, Gothic, Risen, Tribes, Singularity, Thief, Homefront, Battlefield, Mafia, etc.

Now, if he manages to trademark it and then proceeds to threaten and/or sue everyone who uses the word in their title, then yes, that makes him a douchebag like Tim Langdell. But Bethesda is the one who filed this lawsuit, in spite of the fact that their trademark has not been violated and is no danger of being lost.
 
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34. Re: Mojang to Fight Scrolls Battle in Court, if not Q3A Aug 21, 2011, 03:28 eRe4s3r
 
The sad thing on this world is that theres people defending Notch even though his actions are the reason this lawsuit exists (or his lawyer just fracking sucks)

Beth doesn't even have a choice
 
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33. Re: Mojang to Fight Scrolls Battle in Court, if not Q3A Aug 21, 2011, 03:13 Jerykk
 
Why haven't they? Because it'd be foolish? Two trademarks having a word in common is not a valid complaint to make. But that's not the case here. The trademark that Notch is trying to apply for would be wholely contained in Zenimax's. Again, go trademark "Crazy Apple", the computer company. You might even get a full week in before Apple sued you.

I'm sure Apple would sue. Whether or not they'd win is another matter entirely. If Crazy Apple's logo and font looked very similar to Apple's and their products looked like Apple's products and used lower-case "i" in their names, Apple would probably win. But if Crazy Apple was dedicated to creating high-end gaming PCs with red paintjobs and neon LEDS, Apple would probably lose.

You only have trademark disputes when you have similar products. That's why, for example, Wizard's of the Coast has trademarked so many versions of Dungeons and Dragons (one for t-shirts, one for posters, one for the actual manuals, etc).

I'm pretty sure that "Scrolls" a computer game, and "Elder Scrolls" a computer game are considered similar products.

I think you need to re-read the description for that Dungeons trademark. It includes computer game programs. I'm pretty sure The Elder Scrolls games qualify as computer game programs. That aside, The Elder Scrolls is a highly-established franchise, with 14 games released since 1994. Nobody is going to confuse Skyrim with some low-budget indie game called Scrolls.

I'd hope the same would happen if Notch did get Scrolls. But I'd have to see a bunch more similar judgements before I'd concede that it couldn't happen. Judges often come to differing conclusions over relatively similar cases.

True, but I find it incredibly hard to believe that any judge would decide in favor of Notch. There are just too many factors that weigh in favor of Bethesda, just like Wizards of the Coast would have a rock-solid defense if John Hubbard tried to sue them for using the word "Dungeons."
 
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32. Re: Mojang to Fight Scrolls Battle in Court, if not Q3A Aug 21, 2011, 02:52 Bhruic
 
You're right about Kalypso not trademarking Dungeons, though. However, Wizards of the Coast recently renewed their trademark for D&D. If they're legally required to defend their trademark if they want to keep it, why haven't they sued the publishers of Dungeon Siege, Dungeon Lords, Dungeon Blitz, Dungeon Runners, Dungeon Fantasy Online, etc?

Why haven't they? Because it'd be foolish? Two trademarks having a word in common is not a valid complaint to make. But that's not the case here. The trademark that Notch is trying to apply for would be wholely contained in Zenimax's. Again, go trademark "Crazy Apple", the computer company. You might even get a full week in before Apple sued you.

In fact, they should have already sued John Hubbard because he recently registered "Dungeons" for "Computer game cartridges; Computer game cartridges and discs; Computer game programs."

You only have trademark disputes when you have similar products. That's why, for example, Wizard's of the Coast has trademarked so many versions of Dungeons and Dragons (one for t-shirts, one for posters, one for the actual manuals, etc).

I'm pretty sure that "Scrolls" a computer game, and "Elder Scrolls" a computer game are considered similar products.

Here are the results from the one he filed against Namco for using "Soul Edge" as a title: Link

I hadn't seen that one, and you're right, it's very relevant. Good find. You'll note, however, that while unsuccessful, it was not "laughed out of court". The court considered the case reasonably, and came to the (hopefully) correct conclusion that there wasn't enough similarity of names to confuse people.

I'd hope the same would happen if Notch did get Scrolls. But I'd have to see a bunch more similar judgements before I'd concede that it couldn't happen. Judges often come to differing conclusions over relatively similar cases.

 
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