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Sony sues for 'Kevin Butler character' playing Mario Kart

Oct 05 // Jonathan Holmes
Sony Computer Entertainment America filed a lawsuit against Bridgestone and Wildcat Creek, Inc. on September 11. The claims are based on violations of the Lanham Act, misappropriation, breach of contract and tortious interference with a contractual relationship. We invested significant resources in bringing the Kevin Butler character to life and he’s become an iconic personality directly associated with PlayStation products over the years. Use of the Kevin Butler character to sell products other than those from PlayStation misappropriates Sony’s intellectual property, creates confusion in the market, and causes damage to Sony.
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Well, this is awkward
Art by LoveChin88 [Update: Here is a revised version of the commercial with Jerry Lambert removed.] Sony is in the process of suing Bridgestone and Wildcat Creek Inc over a recent TV commercial where a character pla...

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The No Doubt vs. Activision drama finally ends


Oct 04
// Chris Carter
Remember that one time when No Doubt accused Activision, and by proxy Band Hero, of misusing their likeness? It feels like that sort of thing happens every year, but now Activision has one less thing to worry about, as No Dou...
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Jimquisition: EA vs. Zynga - The Lesser of Two Evils


Aug 27
// Jim Sterling
Electronic Arts and Zynga duking it out is one of the biggest supervillain slap-fights in history. Both companies are reviled by gamers the world over, but as is our nature, we can't just sit back and watch the carnage. Peop...
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EA vs. Zynga: EA claims it's a game industry defender!


Aug 21
// Jim Sterling
Electronic Arts' delusions of grandeur have reached new heights this week, as the company continues to milk its lawsuit against Zynga for cheap applause and gamer cred. Its latest claim? The lawsuit positions Electronic Arts ...
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EA vs. Zynga: EA thanks gamers for support


Aug 07
// Jim Sterling
Electronic Arts couldn't have asked for a better enemy in Zynga. The social game kingpin is not only in financial trouble, it's also one of the most despised companies in the industry. EA must realize this, and has started su...
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EA vs. Zynga: Zynga hits back, says EA is a copycat too


Aug 06
// Jim Sterling
The supervillain slapfight of the century was initiated on Friday, with EA announcing that it would take Zynga to court for copying The Sims Social. Today, Zynga has fired its opening salvo in response, accusing EA of copying...
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Electronic Arts has announced that it will be twisting the knife into the beleaguered Zynga by taking it to court -- suing the trouble company over its new social game, The Ville. EA alleges that The Ville is a rip-off of The...

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Zynga shares plummet, lawsuit coming, gravy train crashes


Aug 01
// Jim Sterling
Farmville creator Zynga is ... buggered. After a few years of living large and sucking as much cash as it could from Facebook users, the proudly "evil" company's bottom is well and truly falling out. Share prices have been fa...
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Steam says you can't mass-sue Valve anymore


Aug 01
// Jim Sterling
Valve has become the latest company to try and avoid a lawsuit by making its users agree not to take it to court. Steam's newest terms of service include the same attempts to prohibit class action suits employed by Sony, Micr...
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EA gives up NCAA Football exclusivity


Jul 27
// Dale North
[Update: An EA representative confirmed settlement with GameSpot: "We made a business decision to settle this lawsuit and put the matter behind us. We look forward to continuing our partnerships with the NFL and NCAA."] Attor...
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German group threatens to sue over Diablo III's DRM


Jul 24
// Jim Sterling
A German advocacy group, the Federation of Consumer Organisations, is threatening legal action against Activision-Blizzard over the "always-on" DRM requirements in Diablo III.  The group demands that Diablo III's pa...
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Patent troll sues Mojang, EA, Square over copy protection


Jul 23
// Jim Sterling
Patent troll Uniloc is suing Minecraft developer Mojang, as well as EA and Square Enix, for infringing on a form of copy-protection it "owns." Uniloc's goal is to "Look at many ideas. Pick an outstanding one. Patent...
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West vs. Activision settlement reached over COD lawsuit


May 31
// Brett Zeidler
In one of the nastiest legal battles within the past couple years of the gaming industry, things were set to officially go to court tomorrow. It's now known that Activision has reached an agreement with Jason West and Vince Z...
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Justice for a Girl: No Doubt v Activision going to trial


May 31
// Kyle MacGregor
It's been nearly three years since No Doubt first filed against Activision for improper use of their likeness in 2009 Guitar Hero spin-off, Band Hero. Since then the evil publisher has counter-sued the band, claiming they wer...
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Epic victorious in drawn out suit from Silicon Knights


May 30
// Conrad Zimmerman
After a protracted legal battle lasting five years, a North Carolina court has closed the book on a suit brought forth by Silicon Knights against Epic Games, alleging that the developer of Unreal Engine 3 competed unfairly by...
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Gamers punish man suing Ubisoft with Amazon review-bombs


Apr 19
// Jim Sterling
The man who is trying to stop Assassin's Creed III's release has been introduced to the wrath of gamers, with his book being torn to pieces on Amazon. Link is a story about experiencing the life of a descendant through a virt...
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Ubisoft sued for 'ripping off' Assassin's Creed idea


Apr 18
// Jim Sterling
A science fiction author is suing Ubisoft after alleging that the premise of Assassin's Creed was stolen from his own novel, Link. John L. Beiswenger is a research engineer as well as a writer, and points to a number of ...
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Victory Mojang! Scrolls shall forevermore be Scrolls


Mar 10
// Tony Ponce
A few hours ago, a very excited Markus "Notch" Persson tweeted that Minecraft developer Mojang and Bethesda have settled their "Scrolls" dispute. As you might recall, Bethesda filed a lawsuit last year over a possible infring...
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Blizzard is suing Valve over DOTA trademark


Feb 10
// Jim Sterling
MMO leader Blizzard has filed against Valve in an attempt to stop it trademarking DOTA, claiming the name has been used in exclusive association with the Warcraft series for more than seven years. It was filed late last year ...
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California to pay ESA $950,000 for failed case legal fees


Jan 26
// Dale North
California tried to establish unconstitutional regulations on videogames and failed miserably. Brown v. ESA had the Court voting 7-2 to Alpha Counter a 2005 California law that would put an unlawful lock on game distribution....
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Interplay's Fallout MMO is done as Bethesda wins battle


Jan 09
// Jim Sterling
The long, bitter legal battle between Bethesda and Interplay has finally resolved today, with Bethesda emerging the victor. Interplay officially has no claim to the Fallout IP, and its plans to create a Fallout MMO are now th...
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EA using First Amendment to keep helicopters in BF3


Jan 09
// Jim Sterling
Electronic Arts has filed a preemptive lawsuit against aircraft manufacturer Textron, hoping to invoke First Amendment laws and justify the use of real-life helicopters in Battlefield 3.  Three helicopters appear in the ...
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Konami punishes woman for getting pregnant, gets sued


Dec 29
// Jim Sterling
Konami recently lost a lawsuit against a former employee after she was punished for taking maternity leave.  Yoko Sekiguchi took the six months of paid maternity leave that she was entitled to, only to discover upon her ...
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HAHAHA! Sony sued over no-sue clause in Terms of Service


Dec 20
// Dale North
Yep. The new PlayStation Network Terms of Service clause that basically says that users cannot sue Sony after agreeing to use the service has bit Sony in the ass. They're...being sued. A California man is suing Sony on behalf...
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The DTOID Show: EA lawsuits, NFL Blitz, & new releases


Nov 21
// Max Scoville
Hey gang! It's Monday again, so here's The Destructoid Show. (Seriously, I have completely run out of ways to introduce episodes.) Today, we talk about the week's releases, EA getting sued for being jerks again (serious...
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EA sued over lack of Battlefield 1943 in Battlefield 3


Nov 21
// Jim Sterling
Electronic Arts is being sued over its broken promise of extra content in the PS3 version of Battlefield 3. The publisher said that a digital copy of Battlefield 1943 would be included in the game but failed to deliver, inste...

Copyright infringement is alright with Angry Birds

Nov 04 // Brock Janikowski
Taking the stage at TechCrunch's Disrupt conference in Beijing last week, Vesterbacka presented a set of "Angry Birds" balloons to the crowd. I say "Angry Birds" in quotes as opposed to Angry Birds in italics because, as Vesterbacka pointed out, there seemed to be a lot of Angry Birds merchandise for sale in China, the vast majority of which was not licensed by Rovio. Yet Vesterbacka was sanguine on the topic of copyright infringement, stating that it showed a "proven demand" for Angry Birds in China. Instead of starting the arduous task of hunting down every street vendor and game pirate providing Angry Birds games and merchandise in China, Vesterbacka felt the copyright infringement was actually helping to build a market for the for the Angry Birds brand. Vesterbacka believed the rampant copyright infringement was building the popularity of Angry Birds and would eventually lead to Rovio's opening its first stores to capitalize on the demand. The approach is uncommon in a tech company, but Vesterbacka stated, "The way we look at it, of course we want to see the officially licensed, good-quality products, but at the same time, we have to be happy about the fact that the brand is so loved that it is the most copied brand in China." The game has already registered 50 million downloads in China, and Vesterbacka hopes to be at 100 million in the next year. Is it really possible that allowing copyright infringement could be a good thing? I think either intuitively or based on our own experience, we can probably imagine a time when copyright infringement or bending the law in the tech world seemed like a reasonable, even good, option. Have you ever downloaded music from a foreign country that you couldn't otherwise get your hands on? Have you ever imported a game outside of your region despite the fact that it wasn't meant for sale in your area? Sometimes, this sort of illegal activity acts to balance out a market that fails to provide a legal means for getting your hands on certain products. This doesn't make it any less illegal, but when laws get in the way of willing consumers, there might be a problem. Vesterbacka isn't faulting pirates and infringers in China because he understands his company isn't providing Chinese consumers with the products they want. Even in Rovio's absence, the Angry Birds brand can still grow due to the actions of fans and some enterprising "entrepreneurs." Seems like a decent compromise, doesn't it? Vesterbacka's comments fly in the face of the actions of many of our industry's other gaming giants. Whether it is forcing complex DRM measures into games, requiring persistent online connections for even single-player experiences, or region-locking consoles and games to stop people from importing them into other countries, the industry is rife with schemes to control game properties. These issues only amount to a hassle for those of us in tech-centric countries like Japan and the US, but it can be easy to forget that those who live outside of territories where the tech world is established may struggle to get their hands on properties we take for granted.  In countries like Brazil where tariffs on things like videogames are extremely high, videogames may be prohibitively expensive for many to legally obtain. Without videogame companies and publishers making an effort to bolster their presence in such countries to bring down the prices, a little piracy and copyright infringement might be the only real options for those interested in getting into videogames. China is similar -- with a government that heavily controls business practices and is not always welcoming to videogame companies, allowing copyright infringement to fill the gaps and provide people with the products they desire might help companies build mind share with the public, even if they can't be there themselves. I'm certainly not advocating that everyone go out and pirate games if they live outside videogame-inundated territories. If you live in a foreign country and have the means to get your games legally, you should do so. Still, Vesterbacka points out that even though Rovio isn't making money on Angry Birds in China, they are allowing others to help build the future of the brand. Isn't it better for companies to reach those who otherwise might never get to play their games, even if it means people won't be able to pay for them? Companies may be building fans who might be able to pay for those games in the future. Of course, there is always another side. Building a culture in which copyright infringement and piracy is the norm can create a standard of not paying for entertainment. That's not a tenable business model for our artists and creators. Infringement might also lead to others' creating low-quality products that give people a bad impression of a brand. Heck, isn't the iTunes AppStore already letting people do that? Copyright Law is at worst a necessary evil. It protects artists and creators from those who would freely distribute their work without care of the consequences. Yet, maybe Rovio's choice not to go after pirates and infringers makes sense if it means fulfilling a demand the company can't personally meet. If game companies don't allow their brands to flourish in other territories, even if it means piracy and copyright infringement, those territories might not get to experience just how amazing the world of gaming really is. Maybe worse, people in areas like China might start to think Angry Birds is the pinnacle of gaming.
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Most companies go out of their way to protect their intellectual property. The scenarios, stories, and characters found in famous gaming titles are the lifeblood of many companies; allowing others to take their creative works...

The art of copying a videogame

Oct 21 // Brock Janikowski
Before we go any further, let me clear up a bit of confusion about the difference between Copyright and Trademark Law.  Trademark Law is about protecting the identification of a product. If you buy a cup of coffee labelled Dunkin' Donuts or eat a burger from a McDonald's wrapper -- neither of which I would suggest -- you have a certain expectation that your product comes from that company. Company names, game titles, and other monikers that identify a product or its origin are all considered trademarks. Trademarks can last forever as long as they remain well known and well protected. The Notch vs. Bethesda debate is about trademark. Copyright Law, on the other hand, is a much broader right that offers protection to "original expression fixed in a tangible medium." That's a complicated way of saying that anyone who produces a creative work has a right to protect that work from people who would copy it without their permission. Just about every book, movie, song, and videogame you have ever enjoyed is protected by copyright. Theoretically, this protection only lasts as long as the author remains alive plus 70 years, but if Disney has its way and keeps pushing this date back every time its copyright comes up, it may prove to last forever.  So, while Gears of War 3 is protected by a trademark, the storyline and characters -- or lack thereof, as your opinion might have it -- are protected by copyright. Every game, big and small, has copyright protection automatically. Maybe, like me, you are sometimes surprised at the absolute lack of creativity that exists in so many games. After all, how many games can include a bald-headed space marine before someone shouts, "Hey! You're copying us!" Copyright only goes so far, though. You can't copyright an idea. The bald-headed space marine is too broad and generic for anyone to have a copyright of it. On the other hand, the Warhammer 40k Blood Raven or the Gears of War COG are variations of that general idea and are much more original by comparison. Anyone could easily get away with making small alterations and reworking these characters to make their own bald-headed space marine complete with their own copyright protection. That sort of broad interpretation of what it means for something to be "original" doesn't do much for creativity, but it does allow game makers to build upon the ideas of those who came before them. You still needs to put your own creative juices into a work such that it can be considered a new, original work. I can make as many games as I want about bald-headed space marines; they just can't be rote copies of something that has come prior. If others can prove that my game uses their space marine, or at least a nearly identical marine, I might quickly have lawyers breathing down my neck. How close is too close, though, and how much creativity needs to be put into a work for it to be considered original? At least in the case of our space marines, upon closer inspection, the characters actually have a lot of different details. It is easy to argue that while the general idea, they are each their own original work.  The creative bar is pretty low, in fact. With that understanding, it's easier to see why companies can get away with games like Jewel Craft (a Bejeweled ripoff) and StarFront (a StarCraft ripoff). Even minor changes to a general formula can be enough to protect these games. As long as there isn't any evidence that something has been directly copied, the companies are most likely okay.  Overall, I think that's a good thing. If developers and artists need to borrow and steal a few elements here and there from one another to make their ideas flourish, then that’s fine. Creativity is not always purely original, often deriving from building upon the work of another. If Gears of War needed to steal some ideas from Warhammer 40k in order to get off the ground, I think we would all agree, Relic Entertainment included, that the videogame industry is better for it. Still, there is definitely a line between not caring if your product is very original and violating someone's copyright. Unfortunately, there are some companies that seem to wholly disregard this distinction. Enter Attack Touch. Or was it Sound Attack? Or how about Audio Attack? Actually, come to think of it, the company seems to go by a lot of different names. Odd that all these company names lead back to the same website. Coincidence? Or is this publisher trying to obscure its identity by posing under a large number of pseudonyms? It is probably also a coincidence that all of Attack Touch's games happen to use similar or identical art assets, feature some sort of copyrighted property, and also attempt to obscure themselves through the use of the letter 'i' or exclamation points. Some of these great titles include Minecraft Jump!, Top DBZ Jump, Garfield Bounce!!, Hello Kitty Hop, Bratz Fly, 007 Spy Climb, and my personal favorite, pictured above, Ultimate iZelda Climb. They all also appear to be mechanically blatant copies of Doodle Jump. Before I say anything else, let me offer a disclaimer: I'm not an arbiter of the law, only a student of it. I can't make any definitive judgements about the legality or illegality of something, but this is my opinion based on my research. I'm typically not one to judge. My legal training has taught me to pause and contemplate all the facts before determining my opinion on an issue. In fact, while writing this article, I actively sought out some type of law that would immunize a company like Attack Touch from copyright infringement, because frankly, these games seemed too ridiculous to be true. I even attempted to contact the company through its many listings in order to get its side of the situation. Perhaps unsurprisingly, I have yet to hear anything back. Through all my research, I've yet to find a single factor that doesn't point to companies like this being anything but thieves preying on the young and ignorant in the hopes of making a quick buck. The wholesale theft of characters from properties that artists have taken the time to create and nurture is illegal, not to mention downright ethically wrong, and we as gamers should be furious. Unless these games are licensed by the creators of these characters -- and we all know Nintendo isn't putting its games on iOS anytime soon -- I just don't see how this is legal. The only other possibility that someone can get away with using another's copyright without permission is through an idea called "derivative fair use." You've probably heard the term "fair use" before in the context of using copyrighted music or video without paying for it, but it can apply to all copyrights. "Fair use" is actually pretty complicated. It essentially means that one doesn't have to pay to use someone's copyrighted materials because other more important rights trump the copyright. For example, this mustachioed Mona Lisa by the famous French artist Marcel Duchamp shows a good example of "fair use." Even though he didn't own the copyright to the famous work, Duchamp could make his own version of it without worrying about legal repercussions because he was exercising his right to freedom of expression. It was a parody of the original, as well as an artistic endeavor with a message rather than a commercial product. "Fair use" can be tricky because you only know you have a right to "fair use" after you go to court. The alternative, of course, is that a court might find you liable for copyright infringement. It's a rather big gamble. So, without a license from Nintendo, could Ultimate iZelda Climb be considered "derivative fair use"? Using Link in this setting may well be considered an original idea, but the issue is that they used Link at all. Nintendo is the owner of this character, and as such, it has the right to dictate how this character is used. Do Attack Touch's games have some deeper artistic message that I'm just missing, or is Ultimate iZelda Climb just trying to bank off the popularity of Nintendo's famous character? Maybe they should have put a mustache on Link just to be clear.  Moreover, these games point out a huge problem with the iTunes App Store. No doubt that buried deep within Apple's Terms of Service is a provision absolving Apple of all liability associated with publishers who make copyright-infringing software. That doesn't mean Apple shouldn't be more wary of what it allows into the App Store, as these apps should never have been allowed in the first place. If Apple is going to curate content, it needs to worry more about who might be breaking the law rather than who has put something potentially offensive in an app. Copyright Law exists not only to protect artists from those who would steal their work but also to protect artists who build on the work of others. I don't mean to single Apple out for blame here -- they aren't the ones creating copyright-infringing content after all. However, as market leader in the mobile gaming sphere, Apple does have something of an obligation to the artists who put their work in the App Store. Apple thrives on the work of artists in music, movies, and games, and it needs to protect these creators from leeches who would steal their copyrighted properties. Such issues hardly make iOS seem like a respectable development platform. But you can do something about this problem too! No matter how curious you are about Attack Touch's apps, DON'T DOWNLOAD THEM! While you're not breaking any laws, you're supporting some seriously questionable business practices, and that's just plain mean.
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It can be frustrating when the law seems to get in the way of videogames, and doubly so when lawsuits seem ridiculous. Regardless of how you feel about gaming lawsuits, there are times when the law should step in to protect d...

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Mojang can keep using Scrolls name ... for now


Oct 18
// Jim Sterling
In the latest chapter of Mojang vs. Bethesda, Minecraft developer Notch has announced that he's won an interim injunction allowing him to continue using the name Scrolls. While Bethesda/Zenimax can appeal the decision, it's s...

Just how evil is ZeniMax?

Oct 14 // Brock Janikowski
You've probably already read the first indications that there is more to the Notch vs. Bethesda debate than angry bloggers may have led folks to believe. Maybe it was a feeling of loyalty to Bethesda or a skepticism over what seemed like an arbitrary attack on Notch. Regardless of the reason, since the start of this debacle I've felt a need to dig deeper. After all, Bethesda Marketing VP Pete Hines' statement that, "Nobody here enjoys being forced into this," doesn't mean much unless there is actual justification.  So, putting my legal training to the test, I dove into researching Trademark Law in an effort to understand whether ZeniMax really was an evil corporation crushing the future of gaming under its uncaring heels, or if just maybe there could be another explanation. What I found was that an issue called Trademark Maintenance may indeed be forcing ZeniMax’s hand. Trademark Law is traditionally all about protecting consumers from being confused as to the origin or composition of a product. If a trademark holder takes the time to make a mark famous, others aren’t allowed to leech off that success. Therefore, if a court finds that consumers might be confused by the name of a new product, a court may find that the name infringes on the trademark holder’s mark and can therefore not be used. Once a trademark holder establishes its mark though, it has to maintain the mark. Part of Trademark Maintenance is the idea that a trademark holder must “police” its mark. If ZeniMax becomes aware another developer might be infringing upon its marks, it must address the issue, possibly by sending a letter and asking the developer to stop using the mark, or failing that, by taking the developer to court. If ZeniMax, or any corporation in this situation does nothing, a future court may find that a trademark has become “diluted” and is therefore not deserving of trademark protection. This tends to lead to some rather ridiculous cases for companies with famous trademarks; McDonalds for example has a long history of suing the "little guy" for using names that might be "confusingly similar." Just a few cases include a man named Norman McDonald who was forced to change the name of his restaurant, and another man by the name of McAllan who won a case brought against him for opening a restaurant under his name.  ZeniMax has stated that they believe consumers could potentially be confused by the similarity between The Elder Scrolls mark and Notch’s Scrolls. Is ZeniMax truly worried that people won’t be able to tell the difference? Possibly, but even if the company has little fear of such confusion, allowing Scrolls to slide by could create an unfortunate precedent should a larger, future trademark issue arise.  Keep in mind as well that Notch's offer to change or alter the Scrolls name doesn't count for much in this case. If Scrolls became Scrolls: Insert Sub-Title Here the potentially confusing word "scrolls" still exists. In fact, adding something to Scrolls might make is seem even more similar to The Elder Scrolls. The only thing that would truly end this case would be Notch dropping the Scrolls title altogether, an option Notch and Mojang have yet to offer. But Scrolls will most likely be a niche game with a niche audience, so then why spend all this time and money to litigate a case against a poor indie developer? It’s the reality of Trademark Law. If you don’t make efforts to maintain your mark, you may lose your mark. I believe that Bethesda and ZeinMax are taking very little joy in this litigation, but if they are worried about the long-term survivability of The Elder Scrolls mark, the companies may well feel they have no choice but to take Notch to court. Whether or not this is right, or whether Trademark Law should be revised to avoid “trademark maintenance” litigation are entirely relevant questions to ask, but this case won’t be addressing these issues. So is ZeniMax evil? I personally don’t think so, but that determination is up for debate. I think the company is following what is ultimately an unfortunate aspect of Trademark Law and Notch is suffering as a result. Maybe adherence to this flawed system still makes ZeniMax evil, but if it were a choice between potentially losing your ability to protect your famous trademark and suing an indie developer, what would you do?
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[Editor's note: Brock Janikowski is currently a law school student with an interesting take on the recent ZeniMax scandal. He will be contributing to Destructoid every once and a while with features focusing on the fascinatin...


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