Court Shoots Down Bethesda's Scrolls Request

[Undead Dragon King]

What is the Swedish system of law based on? Is it closer to Roman or Common law, or is it a legal system all it's own?

I ask because Sweden was never conquered by the Romans, or by a country that was conquered by the Romans, or by the British, which was the primary means of spreading those legal systems.

 

[Jibblejab]

I wanted Bethesda to win, mostly because I have Notch with a fiery passion.

Why do you hate him so much?
I'm very curious about this...

Mostly because of some ignorant moves he pulls such as the way he talked about the lawsuit on his twitter saying things about how he doesnt know about copyright law (trying to pull the victim card) and he even mentioned how he did a google search for other games called scrolls.

In my eyes he is still expecting people to treat him as an indie dev when he is making about twice as much money as Belgium. Besides he hasnt even finished Minecraft and he's already developing Scrolls.

 

[Antari]

snip.

snip.

Actually no ... Mojang can't demand a trademark that was there before his company even existed be changed. It doesn't quite work that way.

This is an example of Bethesda taking a small up and coming company to court to bleed them dry. Nothing more, nothing less. I'm not concerned by what conclusions others have come to.

Don't be so sure:
http://www.falsegravity.com/?p=225

Let?s assume for a moment that Mojang knows that their trademark would give them leverage over Zenimax, and that they might actually be planning to take action by claiming trademark violation the next time Zenimax publishes a game containing the word ?scrolls? in the title. FYI, that would be this Holiday season, when The Elder Scrolls V: Skyrim hits store shelves and is expected to sell millions of copies. If the trademark is valid, Mojang would be able to claim infringement and potentially take Zenimax to court. They might not win, considering Zeni?s ownership of the trademark preceded Mojang?s, but Mojang could force Zenimax to settle or face an injunction which would keep all of those millions of copies of Skyrim off of store shelves and out of the hands of gamers, depriving Zeni of many, many millions of dollars in revenue. Seem unlikely? Think again. Companies do this all the time.

Mojang?s ?scrolls? application is similarly scattershot, attempting to cover TV shows, radio programs, movies, education materials, clothing of all kinds, videogame consoles, toys, playing cards, puzzles, stand-alone game cabinets in addition to the videogame. The application encompasses four separate trademarks over the course of its weighty 300 words. Zenimax?s ?Elder Scrolls? patent application, by contrast, is a single sentence: ?Pre-recorded CD?s and DVD?s featuring fantasy games.?

In a case of both titles appearing within a year or a few months of each other there is a possibility. But with the case of The Elder Scrolls having been around for nearly a decade before even Mojang existed let alone the claim to Scrolls. That idea wouldn't go anywhere in a court room.

 

[Ragsnstitches]

It is good to see the judge making an intelligent decision on the matter. I don't see myself confusing any of The Elder Scroll games with Scrolls from Mojang. A brain dead lawyer working for Zenimax however is a whole different story.

Ugh, It's been said a hundred times.
It's not the hardcore gaming crowd that is going to get confused.
It's the mothers, grandmothers and casual players that might get things crossed.

But that's not even the point.

The point of this whole issue is that Notch filed a trademark on the word scrolls, and when won, mean that HE would own the trademark of that word in any "Fantasy Based Video game" and not only that, but radio, tv-shows and even t-shirts as well.

This would mean that if Bethesda let this happen, Notch can effectively demand that they change their title.

Not only that, but even if Notch and Bethesda were to say "Eh, I know you won't screw us, and you know we won't screw you. So lets ignore this.", then that would mean that other companies would use that as a legal example and thus could Trademark "The Elder Browls" Because Bethesda is okay with such things.

Actually no ... Mojang can't demand a trademark that was there before his company even existed be changed. It doesn't quite work that way.

This is an example of Bethesda taking a small up and coming company to court to bleed them dry. Nothing more, nothing less. I'm not concerned by what conclusions others have come to.

No you are both wrong... and I couldn't be arsed to say why.

Actually fuck it, I argued until my fingers were raw with some other misguided armchair lawyer before, what's one or 2 more.

Read this (point 1 if you prefer some brevity to an argument):

http://phillipsgivenslaw.blogspot.com/2008/10/how-does-one-lose-their-trademark.html

and why not this too, jump to point 9.

http://www.ramseylawgroup.com/viewarticle.php?id=21

Heck I'll even quote it for you:

1. Failure to prosecute infringers. I can not tell you how important it is to prosecute (prevent) trademark infringers from unlawfully using your trademark. If you do not, your trademark is considered weak. Furthermore, if you take no action to prevent infringers and their use of your trademark is overwhelming, you can lose your trademark rights. Essentially, your trademark will lose its uniqueness to your product or service.

+

9. Police Your Mark
When you discover that others are infringing or misusing your mark, you need to take action to halt such misuse. Here, too, experienced intellectual property counsel can help you. If you do not act to halt such infringement, you may jeopardize your rights to your mark.

Despite how petty it seems, it was a "potential" risk to their Trademark that they pulled up this case. Notches ignorance to how these things work is not a virtue.

Also. Notch is not the risk here... he couldn't harm bethesda/zenimax even if he tried (the fans will do that for him). What's at risk is FUTURE titles for The Elder Scroll series and consequently Bethesdas number 1 seller.

Was this Case necessary? Yes. Was Zeni in the wrong? No. Will they win? I doubt it, if common sense prevails. Is the Law a haven for common sense? No.

EDIT: There is no good/bad in this case, prosecutor and a Defender, yes but the entities are entirely different. Zeni have a right to defend their trademark, Notch has right to contest their claims. There is no wrong doing in this case... apart from greedy ass legal fees.

 

[Baldr]

Ah people already delighted at this kind of amuses me considering that Zenimax more or less had to sue for copyright laws reasons or it could lose the copyright. Just because people and companies do this doesn't mean that they always want to do it.

Yeah, copyright laws are horrible in this regard. There should be some legal review that allows a company in Zenimax's position to "defend their copyright" without taking it entirely to court. The fact that Zenimax could potentially have their "Elder Scrolls" copyright declared undefended because they didn't go after "Scrolls" is ridiculous.

As for injunctions, it isn't uncommon for a company to win their case, but then lose an injunction when it's appealed. If it's difficult to get an injunction with a court victory under your belt it's even less likely to get one at the beginning. But as Notch said at the very beginning of this, this is really just lawyers being lawyers. . . I just wish he had shut up about acknowledging that fact. I love Minecraft, I love Mojang, but Notch is really starting to bother me.

This has absolutely nothing to do with Copyright. Trademark cases are a lot different and govern by a set of different laws. The International Trademark Law Treaty of 1994 is pretty straight forward. Because of the similar names, most of the ruling is going to come down to the content of the games, if they are to similar, then Mojang could be forced to change. None of this would have happen if Mojang had not applied to have Scrolls trademark in the first place.

 

[Antari]

It is good to see the judge making an intelligent decision on the matter. I don't see myself confusing any of The Elder Scroll games with Scrolls from Mojang. A brain dead lawyer working for Zenimax however is a whole different story.

Ugh, It's been said a hundred times.
It's not the hardcore gaming crowd that is going to get confused.
It's the mothers, grandmothers and casual players that might get things crossed.

But that's not even the point.

The point of this whole issue is that Notch filed a trademark on the word scrolls, and when won, mean that HE would own the trademark of that word in any "Fantasy Based Video game" and not only that, but radio, tv-shows and even t-shirts as well.

This would mean that if Bethesda let this happen, Notch can effectively demand that they change their title.

Not only that, but even if Notch and Bethesda were to say "Eh, I know you won't screw us, and you know we won't screw you. So lets ignore this.", then that would mean that other companies would use that as a legal example and thus could Trademark "The Elder Browls" Because Bethesda is okay with such things.

Actually no ... Mojang can't demand a trademark that was there before his company even existed be changed. It doesn't quite work that way.

This is an example of Bethesda taking a small up and coming company to court to bleed them dry. Nothing more, nothing less. I'm not concerned by what conclusions others have come to.

No you are both wrong... and I couldn't be arsed to say why.

Actually fuck it, I argued until my fingers were raw with some other misguided armchair lawyer before, what's one or 2 more.

Read this (point 1 if you prefer some brevity to an argument):

http://phillipsgivenslaw.blogspot.com/2008/10/how-does-one-lose-their-trademark.html

and why not this too, jump to point 9.

http://www.ramseylawgroup.com/viewarticle.php?id=21

Heck I'll even quote it for you:

1. Failure to prosecute infringers. I can not tell you how important it is to prosecute (prevent) trademark infringers from unlawfully using your trademark. If you do not, your trademark is considered weak. Furthermore, if you take no action to prevent infringers and their use of your trademark is overwhelming, you can lose your trademark rights. Essentially, your trademark will lose its uniqueness to your product or service.

+

9. Police Your Mark
When you discover that others are infringing or misusing your mark, you need to take action to halt such misuse. Here, too, experienced intellectual property counsel can help you. If you do not act to halt such infringement, you may jeopardize your rights to your mark.

Despite how petty it seems, it was a "potential" risk to their Trademark that they pulled up this case. Notches ignorance to how these things work is not a virtue.

Also. Notch is not the risk here... he couldn't harm bethesda/zenimax even if he tried (the fans will do that for him). What's at risk is FUTURE titles for The Elder Scroll series and consequently Bethesdas number 1 seller.

Was this Case necessary? Yes. Was Zeni in the wrong? No. Will they win? I doubt it, if common sense prevails. Is the Law a haven for common sense? No.

The Elder Scrolls has an established timeline. Scrolls does not. Scrolls could not claim change on The Elder Scrolls franchise. Its a completely valid point that would make a case under those circumstances rather moot.

 

[Kushan101]

Ah people already delighted at this kind of amuses me considering that Zenimax more or less had to sue for copyright laws reasons or it could lose the copyright. Just because people and companies do this doesn't mean that they always want to do it.

Well said, Beth HAVE to take them to court otherwise they will lose their rights to the Elder Scrolls intellectual property. IP is a tricky bugger to defend - if your company is seen to be NOT defending its brand names and then at some later date you decide someone has taken your IP for all its worth, you cannot take them to court. It'll be thrown out on the grounds that you didn't defend it at all before so you cannot suddenly start doing so now.

 

[Something Amyss]

Ah people already delighted at this kind of amuses me considering that Zenimax more or less had to sue for copyright laws reasons or it could lose the copyright. Just because people and companies do this doesn't mean that they always want to do it.

You don't have to sue to maintain copyright. Of course, this isn't about copyright.

Additionally, parties DO have other recourse than simply to sue to maintain trademark. They can lose their trademark if they do NOTHING, but that's not the same as "they can lose their trademark if they don't sue."

Anyway, if I were Mojang, I'd be far less worried about the injunction than about the long-term battle.

 

[Bek359]

Here's the thing: Bethesda doesn't actually CARE if they win or lose this case. They just have to actively defend their trademark or they lose it. That's how copyright law works in this country. It's weird and it sucks, but there you go.

 

[Chelsea O'shea]

so the maker of a shit game won and a great series will suffer for it,titles in the elder scrolls series will likely not be allowed to carry "the elder scrolls" title cause now shit-head mojang owns the word scrolls.

 

[freaper]

I wanted Bethesda to win, mostly because I have Notch with a fiery passion.

I thought Notch was already engaged/married? How come you have him with a fiery passion?

OT: I'm very much indifferent to the whole pre-judicial situation, I'm only interested in the final verdict.

 

[The Funslinger]

Ah people already delighted at this kind of amuses me considering that Zenimax more or less had to sue for copyright laws reasons or it could lose the copyright. Just because people and companies do this doesn't mean that they always want to do it.

Yeah. They were probably hoping for this result. Mojang gets scrolls, the Elder Scrolls IP is safe for another day. Everybody wins!

 

[Ragsnstitches]

The Elder Scrolls has an established timeline. Scrolls does not. Scrolls could not claim change on The Elder Scrolls franchise. Its a completely valid point that would make a case under those circumstances rather moot.

You miss the point... Scrolls will not damage/alter Elder Scrolls. Mojang will not outdo Bethesda. There will be fuck all confusion.

BUT...

If Zenimax did not pursue this, it COULD dilute their trademark which COULD leave their Trademark vulnerable.

For example, take a dickshit like the guy from the "Edge" case... suppose someone with good knowledge of Trademark laws and no moral fiber whatsoever, decided to exploit this and other weaknesses likely missed by zenimax. Of course he couldn't steal the franchise from under them, but he could cause problems for future instalments of the franchise. He COULD do a lot more damage, but it is highly unlikely.

There is enough of a similarity between Scrolls and Elder Scrolls to warrant caution but not enough to win a case in my opinion. Regardless, it's not about winning cases... Zeni MUST do this or risk consequences from other sources later.

 

[JasonKaotic]

I did a disturbing cackle when I saw the topic.
One point for non-doucheness!

 

[Baresark]

snip

You seem like a reasonable and informed kind of guy/girl. I have a question for you, something that is bothering me. Maybe you covered it in your post already, and if you have, I apologize. Does the company who loses the case have to change their trademark?

So, if Bethesda/Zenimax loses, do they lose the right to use "The Elder Scrolls" in future games? Or if Mojang loses, do they lose the right to use "Scrolls"? I'm not a lawyer but to me it seems like their has to be something at stake in order for their to be a legal case about it.

Or does Mojang simply have to prove that there is not any confusion and then both get to keep moving forward with there respective trademarks, which would be recognized as not similar enough to matter?

It seems to me this matter that Bethesda/Zenimax, "must sue in order to protect", would be voided altogether unless Bethesda/Zenimax felt that there would be other aspects of the game that would be similar. Feel free to correct me if I'm wrong.

Thanks

 

[Shamanic Rhythm]

Mojang?s ?scrolls? application is similarly scattershot, attempting to cover TV shows, radio programs, movies, education materials, clothing of all kinds, videogame consoles, toys, playing cards, puzzles, stand-alone game cabinets in addition to the videogame. The application encompasses four separate trademarks over the course of its weighty 300 words. Zenimax?s ?Elder Scrolls? patent application, by contrast, is a single sentence: ?Pre-recorded CD?s and DVD?s featuring fantasy games.?

As for the bold part.
That's just like saying, I already made up my mind, no matter what other (valid) arguments you might have that I don't, I'm not going to listen. lalalalala I can't hear you, lalala.

I'm getting pretty sick of seeing this part about the breadth of the Scrolls trademark application thrown around without any discussion of the context, as if simply its breadth alone is proof that Notch wants to control the entire usage of the word in every possible instance and erase it from the language.

Let's break this down. Scrolls, as I understand it, is a video game centred around fantasy themed playing cards. So first of all, they'd nail down videogames.

Second, if the game was a hit, it would make sense to release an actual physical card game to tie in with it, so they would want to lock down playing cards. For good measure, it makes sense to also extend the trademark to toys, puzzles, and the like, in case someone potentially wants to profit from their success by making a card game but marketing it as puzzle or board game. Bear in mind someone already made a minecraft clone for IOS called 'Minecraft', which was the catalyst for them registering Scrolls.

Third, if you make a videogame, these days there's always the chance someone will decide it's oddly worth making a movie about (Dead Island being the latest to have been snapped up by Hollywood), so you'd better trademark the name for movies, otherwise you could run into some trouble with an IP squatter. It makes sense to include television and radio programs at this point - after all, it wouldn't be the first card game to have its own TV series.

Fourth, Microsoft regularly likes to bring out limited edition Xbox consoles with game decals all over them. The chances of Scrolls being the kind of game that is wildly popular enough to warrant this are slim, but if they didn't have the trademark, they would be cut out of the revenue. It makes sense to keep all bases covered.

Finally, t-shirts for games and game related publishings are everywhere these days. Right now there is an add for Zero Punctuation t-shirts on this very website as I type this. If you're going to sell t shirts, you have to nail down the trademark, because t shirts are so cheap to produce that otherwise any munchkin can start undercutting your official merchandise. Remember that Mojang is holding 'Minecon' in Vegas, so people will probably be keen to by Mojang themed t-shirts at the event as memorabilia, including Scrolls.

Australian trademark law encourages that when you apply for a trademark, you make sure it covers all the goods and services which you anticipate it will fall under. I don't know how similar Swedish trademark law is, but I think you should get the point by now. Nothing in this application cannot be justified. If he really was out to dominate all use of the term 'Scrolls', there would be lots of frivolous items in there like fridge magnets or number plates.

 

[SnakeoilSage]

If I were a judge, I'd look at the fact that "The Elder Scrolls" is almost used as a subtitle for its games - Morrowind, Oblivion, those are the titles most people know them by.

Of course a judge probably doesn't play video games, so that fact probably slips right by them.

 

[kouriichi]

Id hate to break it to Zenimax, but even the "Elder Scrolls" themselves are rarely mentioned. The Elder Scrolls has almost NOTHING to do with Scrolls to begin with! xD

Dont you only ever interact with the Elder Scrolls once in the entire TES line? Perhaps it should be The Elder Scrolls that gets a name change. ((Due note, i am a HARDCORE fan of TES, and have sunk a % of my life into it.))

 

[Etteparg]

/spit on Bethesda. The Infantile Scrolls patent trolling saga continues.

Infantile Notch fanboy. Bethesda hope you guys win in the end.

 

[Xanadu84]

So can Zenimax now say that they protected their trademark under the bullshit trademark law? Have they been forced into acting enough like a dick that they can't be screwed over by people who want to steal from them? If so, then I say all is forgiven, assuming the drop this frivolous lawsuit the moment they are able. There is your opportunity to drop out of this mess gracefully. Please Zenimax, take it. And thank you legal system for informing me of what a joke trademark law is.