*sigh* Here we go again. Another news story about the "Bethesda vs Mojang" trademark dispute, and suddenly people get all worked up with "Anti-Bethesda" hysteria and saying they have no case without even bothering to research trademark law or, heaven forbid, the actual trademarks related to this dispute. And once more, people seem to be blindly latching on to the concept that Notch and crew are somehow victims in this whole mess. Now there's a lot more to this whole issue than the rather narrow-minded view that "Notch is right, Bethesda is wrong and being bullies" that a lot of people seem to have adopted of late. Like everything else in this world, this trademark dispute is hardly so black and white. Let's examine the facts of the issue in detail before passing judgement on either party.
First of all, the way trademark law works is once you register a trademark, you have to defend it against any and all threats or risk losing it (and this has been mentioned several times now). This doesn't mean that one company gets to use that trademark exclusively though. Different companies can hold the same trademark (well, the same trademarked word at least) for different products. For example, you're probably familiar with Id Software's trademark on "Rage", but this trademark can co-exist with other "Rage" trademarks like the "Rage" trademark on motor-scooters and another "Rage" trademark on pesticides (fun fact: there's over 30 different trademarks on the word "Rage"). You see trademark disputes when a company owns a trademark and another company tries to register a similar trademark for the same product type (in this case it's computer games). That by itself isn't necessarily enough to pursue trademark infringement (unless you're Tim Langdell), you also have to establish a case for similarity. With "The Elder Scrolls" and "Scrolls" the similarities should be apparent to anyone who has actually looked up the two games. They're both fantasy themed and they both appear to have RPG-like elements to them. That right there is enough to establish trademark infringement for most legal courts, so Bethesda does have a fairly decent case. And again, as stated at the start of this paragraph, if Bethesda didn't take any legal action to this threat to their trademark, it could cause them to lose "The Elder Scrolls" later on.
*Please note that when I say that "Scrolls" and "The Elder Scrolls" have notable similarities, I'm talking about the kind of similarities that will determine the outcome of the case in court. Obviously "Scrolls" and "The Elder Scrolls" are two very different games and have few actual gameplay similarities. As gamers, we all know that, but we're talking about trademark similarities with a court of law, not a court of gamers. Tim Langdell got away with his whole "Edge" trademark trolling with far less, he didn't even have an argument for similarities other than they were games.*
Furthermore, it's important to consider that trademark disputes are not rare, in fact, they're fairly common. Although it must be admitted that most trademark disputes are not revealed to the public (or gather much media attention), much less announced on Twitter. Besides the Tim Langdell cases and this one, how many trademark disputes has anyone actually heard about? Not many, I'd gather. What is rather unique about this case is that it's actually going to court, as usually the two parties in a trademark dispute settle matters outside of the courtroom.
And, if you're still having doubts about the legitimacy of Bethesda's case, here's a quote from a legal expert interviewed by Wired.com last month.
" Attorney and game industry analyst Mark Methenitis told Wired.com that the publisher was just doing what any prudent trademark holder would normally do.
"The basic question here is whether the two trademarks are likely to be confused," Methenitis said in an e-mail. "There's a pretty well-established test for this under U.S. trademark law, and based on those factors, Bethesda has a reasonable argument." "
Source: http://www.wired.com/gamelife/2011/08/minecraft-bethesda-lawsuit/
Finally, before you jump to take Notch's side in this issue, you should know the specifics of his "Scrolls" trademark. I took the liberty of looking it up on the Electronic Trademark Database and it's pretty surprising. It's not just a trademark on computer-games. Notch's trademark for the word "Scrolls" includes clothing (of all types, including t-shirts), hardware platforms, boardgames, toys, hand-helds, and traditional card games. This means that Bethesda's case against Mojang may not be the last court battle Notch will have to face over this, as his trademark clearly violates the trademarks of other companies (such as the Scrolls Clothing Company, which owns the trademark of "Scrolls" for t-shirts). The sheer broadness of Notch's "Scrolls" trademark is rather astounding, as most companies specify one thing for a trademark and make additional trademark registrations for additional products (for example, Bethesda has 6 separate trademarks on "The Elder Scrolls", covering everything from clothing to their forums, but each trademark covers only one thing). I imagine this is usually done in order to avoid large-scale trademark infringements.
Furthermore, just because you make a game doesn't mean you have to register a trademark for it! The vast majority of indie games DO NOT have trademarks! It's not a legal requirement in the slightest, and Notch could keep the name of his game as "Scrolls" if he dropped the trademark. Heck, I imagine there wouldn't be much of a legal issue if he had trademarked a full title like "Scrolls: The Card Game" or anything a little more complicated than just "Scrolls".
If you're interested in doing a bit of research on this subject, I encourage you to look up the trademarks that are involved. You can find Notch's trademark (and pretty much every other trademark ever registered) at this website: http://tess2.uspto.gov/
