Note: iOS 9 + Facebook users w/ trouble scrolling: #super sorry# we hope to fix it asap. In the meantime Chrome Mobile is a reach around
hot  /  reviews  /  videos  /  cblogs  /  qposts

Minecraft

Just how evil is ZeniMax?

4:00 PM on 10.14.2011 // Brock Janikowski

[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 fascinating role law plays in the world of videogames. Also, his name is Brock ... which is awesome. -Chad.]

What is in a name? If you ask indie developer darling Notch or publishing behemoth ZeniMax, they might say it means quite a lot. Mojang v. ZeniMax has kicked off, a trial that will decide the fate of the title for Notch’s upcoming game Scrolls, but many of us are still shaking our heads.

With seemingly so little to gain and so much much money to lose for the parties involved, is ZeniMax really just evil, or is there something more to the story?

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?



Brock Janikowski,
 Follow Blog + disclosure

This blog submitted to our editor via our Community Blogs, and then it made it to the home page! You can follow community members and vote up their blogs - support each other so we can promote a more diverse and deep content mix on our home page.





 Setup email comments

Unsavory comments? Please report harassment, spam, and hate speech to our community fisters, and flag the user (we will ban users dishing bad karma). Can't see comments? Apps like Avast or browser extensions can cause it. You can fix it by adding *.disqus.com to your whitelists.

destructoid's previous coverage:
Minecraft


View all:powered by:  MM.Elephant

Ads on destructoid may be purchased from:



Please contact Crave Online, thanks!


Summer Wars: The Video Gameā€¦.I mean Digimon: Cyber Sleuth

Gaming's Beautiful People #4: Valentine's Day Special OR Love Multi-Kills

Exist Archive: The Other Side Of The Sky Import Review

Stupid Teens Do Stupid Things: An Oxenfree Critique

A blog test. Brought to you by Buckner & Garcia

Cblogs of 2/11/16, 2/12/16 + Firethoughts

PS+ Games of the Month January 2016 - Feat. GajKnight and SolarPonyDjango

Your Opinions On Racing Games Are Stupid

The Nerds Have Won

Emily Wants To Play has come to mobile (and I wish it would go away again)

 Add your impressions

 Quickposts
Status updates from C-bloggers

Sir Shenanigans avatarSir Shenanigans
Mall haul today (plus I split a BEAUTIFUL Star Wars Slave I with my brother). Any thoughts on Haze? Wanted to play it back when it came out and I had no PS3. For a dollar you can't go wrong!
Dreamweaver avatarDreamweaver
I'm not gonna lie, I don't feel "good" about the upcoming "ignore" feature. Maybe it's just me, but I don't like the idea that people can mute other people because they don't agree with them. Spammers and trolls, sure, but not regular community members.
Gundy avatarGundy
Oh man. Those Next Gen transformations in Megadimension Neptunia are legit as fuck!
TysonOfTime avatarTysonOfTime
The first thing I do when I see clickbait is click on it and complain about clickbait.
LinkSlayer64 avatarLinkSlayer64
Wow, uh, after having a lovely time with Kirby Air Ride, I decided to try playing some melee, for old times sake... I pretty much disliked my whole time with it. More details in a comment if I get around to it.
Jiraya avatarJiraya
Help me gather games for a new blog series - "Worst Sequels Ever"
Niero Desu avatarNiero Desu
The backend code on the site so fun to read. Going through some of Julio's old stuff: if($vars["fappers"]){ $fappoids = 0; $_xt_loop_name = "fappers"; $vars["fappers_cnt"] = count($vars["fappers"]); reset($vars["fappers"]);
BaronVonSnakPak avatarBaronVonSnakPak
Watching the second Guyver Movie: Dark Hero, starring David -Solid Snake- Hayter. https://www.youtube.com/watch?v=-Roie47-Cuk
The Dyslexic Laywer avatarThe Dyslexic Laywer
You didn't think I forgot what day it is did you?
Nathan D avatarNathan D
Gonna retire the MOARgasmic avatar for awhile.
OrochiLeona avatarOrochiLeona
Will you be mine?
Pixie The Fairy avatarPixie The Fairy
Got out of Deadpool. It definitely was a movie with Deadpool in it. Some parents were shocked to learn it was also rated R for a reason.
Sarah Jane farron avatarSarah Jane farron
So... gender and biology. All I'll say here is please respect people and their identities and don't try to push assumptions as fact. It doesn't need to be said to most here but denying people their identities is pretty harmful and very unpleasant.
Niwannabe avatarNiwannabe
Any PS4 recommendations for a guy who can't afford PS+, since all I've got is Battlefront and there's next to nothing to do in that game?
Niero Desu avatarNiero Desu
if you were experiencing lag with the dev site today, can you please try again? I moved some js around and am loading smaller avatars for people. some quickpost photos are scaled from gigantic raw uploads so we are optimizing those next to zip things up
Terry 309 avatarTerry 309
It's happening people... they're gonna kill off my favourite character... but he's taking someone else with him *massive spoilers in video*
FakePlasticTree avatarFakePlasticTree
Can I just say that I really dig the intro music for Yakuza 5? It's pumping!
Fuzunga avatarFuzunga
Hmm... yeah, this seems right.
Dreamweaver avatarDreamweaver
Would anyone be willing to help out dear ol' Dreamweaver with Destiny? Need a partner to tackle 7+ matches of Crimson Doubles for that 320 Light Ghost Shell. Will have to work on Comments of the Week first, but will be on later. I suck at the game though.
CoilWhine avatarCoilWhine
I'm not digging Trine too much. It has really screwy controls.
more quickposts


Contest!


Seriously

Invert site colors

  Dark Theme
  Light Theme


Destructoid means family.
Living the dream, since 2006

Pssst. konami code + enter

modernmethod logo



Back to Top


We follow moms on   Facebook  and   Twitter
  Light Theme      Dark Theme
Pssst. Konami Code + Enter!
You may remix stuff our site under creative commons w/@
- Destructoid means family. Living the dream, since 2006 -