Oregon Trail Creators Sue Zynga Over Trademark

[John Funk]

Oregon Trail Creators Sue Zynga Over Trademark

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Long-time edutainment software group The Learning Company thinks that Zynga's "Oregon Trail" missions for FrontierVille cross a line.

If you were a student at any point during the late 80s and early 90s, it's a safe bet that you played The Learning Company's frontier sim Oregon Trail. There, you learned the dangers of dysentery, fording deep rivers, and shooting dead 800 lbs of meat when you could only carry 50 back to the wagon.

Thanks to its role in the childhoods of now-adults, Oregon Trail has a certain place in pop culture - and Zynga is hoping to take advantage of that with an "Oregon Trail" themed mission pack in its wildly successful FrontierVille Facebook game. However, the original creators aren't down with this, and have filed a lawsuit in a Massachusetts district court accusing the Facebook game magnate of trademark infringement.

The complaint, which you can read in .PDF form here [http://images.universalhub.com/images/2011/zynga-complaint.pdf], says that The Learning Company (TLC) has been using "The Oregon Trail" since "at least 1974," and has had a userbase of over 65 million players. Zynga is deliberately trying to take advantage of the beloved Oregon Trail brand, alleges the suit.

What's more, reads the complaint, is that Zynga's FrontierVille pack offers many of the same activities found in the real Oregon Trail games, like "setting up a wagon, provisioning, hunting, fording rivers, and helping others." This is clearly intentional, argues the TLC suit, and amounts to "deliberate theft of the goodwill associated with the iconic The Oregon Trail Mark, which the company has spent millions of dollars promoting since 1971."

According to the suit, TLC approached Zynga in 2010 to discuss making an official Facebook version of the game, but talks fell through. Afterwards, TLC partnered with Blue Fang for the official release [http://www.facebook.com/oregontrail], though its 1.2 million players pale in comparison to the many millions Zynga sees per month.

I think that TLC definitely has a case here, though there's one possible snag. It's not out of the realm of possibility for the judge on the case to rule that "Oregon Trail" has become a generic trademark [http://en.wikipedia.org/wiki/Genericized_trademark], losing its legal protection. On the other hand, TLC could be bringing this suit against Zynga to specifically prevent such a thing - because if you don't defend your trademarks, you lose them.

(Via Gamasutra [http://www.gamasutra.com/view/news/34743/The_Learning_Company_Suing_Zynga_Over_Oregon_Trail_Trademark.php])

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[beema]

Hells yeah, I hope they sue Zynga back to the 19th century!

Oregon Trail was such an awesome game back in the day. It was actually pretty damn hard too, if memory serves. Probably one of the first (and only?) educational games that I actually enjoyed playing.

so I guess no one saw this?

<youtube=6N3RbKqIDjY>

so, you're saying the lawsuit here should be Zynga v Gameloft instead?

also WHAT THE FUCK that is the stupidest commercial ever

 

[Tartarga]

Really Zynga? Are you so out of ideas for your click the pretend cows and whatnot games that you have to rip off Oregon Trail? For shame Zynga, for shame.

 

[Braedan]

Why does it seem every time I hear the name Zynga it's about someone suing for infringement, or someone's death?

Seems like a little bit of a corrupt company to me...

 

[JDKJ]

However, the original creators aren't down with this, and have filed a lawsuit in a Massachusetts district court according the Facebook game magnate of copyright infringement.

Did you mean "accusing?" "According" isn't making much sense. And, either way (whether "accusing" or "according"), the complaint's got nothing to do with copyright infringement. It doesn't allege copyright infringement. It alleges trademark infringement.

It's not out of the realm of possibility for the judge on the case to rule that "Oregon Trail" has become a generic trademark, losing its legal protection.

It may not be out of the realm of possibility, but I can't see any basis for a court to rule that "Oregon Trail" has become a generic trademark, losing its legal protection. For a trademark to become genericized, it has to have become the generic description for an entire class of products. To the best of my knowledge, this isn't the case with "Oregon Trail" and video games as a product class. Is there any video game(s) to which use of the term "Oregon Trail" is popularly thought to refer other than to the original video game?

 

[Woodscare]

so I guess no one saw this?

<youtube=6N3RbKqIDjY>

I think I lost several brain cells watching this

 

[RheynbowDash]

I hope TLC sues Zynga into 3rd world poverty.

FOR THE LAST TIME, I DONT GIVE TWO SHITS ABOUT YOUR FARM!

 

[Hungry Donner]

This is the problem with an educational game based on a real world historical event: the more realistic your game is the easier people can copy it and claim they were just using the same source material.

 

[JDKJ]

This is the problem with an educational game based on a real world historical event: the more realistic your game is the easier people can copy it and claim they were just using the same source material.

This isn't a claim of copyright infringement (the OP misstates the nature of the case). It's a claim of trademark infringement. What's at issue isn't the content of the two games and any similarities between their content. What's at issue is the branding of the games and the fact that one's branded as "Oregon Trail" and the other is branded as "Oregon Trail."

 

[StellarViking]

The creators then failed to make their court appearance as they attempted to ford a river that was too deep, and lost a member of their legal team as well as three wagon tongues, an axle, five oxen, fifty pounds of food, and twenty boxes of bullets.

Zynga failed to show up because they were trying to level up their cows or something.

OT: I think Zynga's in the wrong here because they didn't ask or check first, but the company that made the first one had gone out of business and been bought out a few times, hadn't it? I'm sure someone holds a trademark somewhere, and I'm sure it isn't Zynga.

 

[JDKJ]

The creators then failed to make their court appearance as they attempted to ford a river that was too deep, and lost a member of their legal team as well as three wagon tongues, an axle, five oxen, fifty pounds of food, and twenty boxes of bullets.

Zynga failed to show up because they were trying to level up their cows or something.

OT: I think Zynga's in the wrong here because they didn't ask or check first, but the company that made the first one had gone out of business and been bought out a few times, hadn't it? I'm sure someone holds a trademark somewhere, and I'm sure it isn't Zynga.

The complaint alleges that the game was originally designed by Don Rawitsch and promoted by the Minnesota Educational Computing Consortium ("MECC"). Through a series of mergers and name changes in the 1990s, MECC became The Learning Company in 1996. The Learning Company was ultimately acquired by Riverdeep Group plc, a company which also acquired Houghton Mifflin Company and later adopted the name Houghton Mifflin Harcourt Publishing Company. The Learning Company now operates as an unincorporated division of Houghton Mifflin Harcourt. The Learning Company still owns the trademark to "Oregon Trail" and is therefore a proper party to file action for trademark infringement.

 

[Fr]anc[is]

On one hand, I'm happy for anything that can distract Zynga from making shitty games that harass you for money every 10 seconds. On the other hand, can you trademark a historical thing like that?

 

[JDKJ]

anc[is]On one hand, I'm happy for anything that can distract Zynga from making shitty games that harass you for money every 10 seconds. On the other hand, can you trademark a historical thing like that?

Sure you can. You're not trademarking a "historical thing." You're trademarking a product. If I make and sell paper clips and want to trademark them "The Signing of the Declaration of Independence," as long as no one's beat me to the Patent and Trademark Office and already used that trademark for their paper clips, there's no reason why I can't.

 

[Hungry Donner]

This isn't a claim of copyright infringement (the OP misstates the nature of the case). It's a claim of trademark infringement. What's at issue isn't the content of the two games and any similarities between their content. What's at issue is the branding of the games and the fact that one's branded as "Oregon Trail" and the other is branded as "Oregon Trail."

Ah, that makes more sense.

 

[Waif]

The article already stated the facts. You can't trademark history, any more than you can trade mark nature's cycle of life. I don't see where TLC thinks it has a footing here, general concepts such as farming, and life on the frontier. Oregon Trail is a well known facet of history as one of the most important migrations in American history. I think it's a tough call to say that you can trademark such a momentous occasion.

 

[JDKJ]

The article already stated the facts. You can't trademark history, any more than you can trade mark nature's cycle of life. I don't see where TLC thinks it has a footing here, general concepts such as farming, and life on the frontier. Oregon Trail is a well known facet of history as one of the most important migrations in American history. I think it's a tough call to say that you can trademark such a momentous occasion.

Sure you can. There's a publisher with two video games, one entitled "D-Day" and the other "1944: Battle of the Bulge" and both of which are trademarked by their titles. Both D-Day and the Battle of the Bulge are well-known facets of WWII history.

 

[Waif]

The article already stated the facts. You can't trademark history, any more than you can trade mark nature's cycle of life. I don't see where TLC thinks it has a footing here, general concepts such as farming, and life on the frontier. Oregon Trail is a well known facet of history as one of the most important migrations in American history. I think it's a tough call to say that you can trademark such a momentous occasion.

Sure you can. There's a publisher with two video games, one entitled "D-Day" and the other "1944: Battle of the Bulge" and both of which are trademarked by their titles. Both D-Day and the Battle of the Bulge are well-known facets of WWII history.

I question the logic of it more than the actuality. It's obvious that these things are trademarked, taken from the fact that TLC has an argument to begin with. It just doesn't make much rational sense to me. If that were the case, can there be a trademark on the Holocaust? Perhaps Stalin's Mad Purge? Maybe The Bohr War? It just feels wrong that someone can put trademarks on these things. Though this is my opinion on this matter. It doesn't change anything, however, it does give one pause for thought.

 

[Sylocat]

Oh, Zynga, always up to some wacky hijinks, aren't you?

(and by "wacky hijinks" I mean "business practices that would have gotten any REAL game company sued into oblivion years ago.")

 

[JDKJ]

The article already stated the facts. You can't trademark history, any more than you can trade mark nature's cycle of life. I don't see where TLC thinks it has a footing here, general concepts such as farming, and life on the frontier. Oregon Trail is a well known facet of history as one of the most important migrations in American history. I think it's a tough call to say that you can trademark such a momentous occasion.

Sure you can. There's a publisher with two video games, one entitled "D-Day" and the other "1944: Battle of the Bulge" and both of which are trademarked by their titles. Both D-Day and the Battle of the Bulge are well-known facets of WWII history.

I question the logic of it more than the actuality. It's obvious that these things are trademarked, taken from the fact that TLC has an argument to begin with. It just doesn't make much rational sense to me. If that were the case, can there be a trademark on the Holocaust? Perhaps Stalin's Mad Purge? Maybe The Bohr War? It just feels wrong that someone can put trademarks on these things. Though this is my opinion on this matter. It doesn't change anything, however, it does give one pause for thought.

I think you're missing what actually happens when someone receives a trademark. To take one of your examples, if I used the words "Jewish Holocaust" to trademark my brand of soda pop, I don't have a trademarked on the Jewish Holocaust as a historical event. What I do have is a trademark on my soda pop as a product. Do you see the difference?

Keep in mind that the purpose for a trademark and the reason that they are given legal protection is so that competing products in a market aren't confused with each other. I can call my product Dog Shit Pizza, if I want. What's important is that once I get a trademark in that name, no other pizza seller can call their product Dog Shit Pizza and the consumers of pizza won't be confused between my Dog Shit Pizza and some other guy's Dog Shit Pizza.