Arcade Kit Seller Applies for MAME Trademark [updated]

An anonymous reader submits "Zophar's Domain is reporting that the CEO of commerical multi-arcade kit seller UltraCade has applied to trademark the name and logo of the ubiquitous open-source multi-arcade emulator MAME and is planning to sue MAME's authors." Update: 02/21 13:26 GMT by T : UltraCade Technologies CEO David R. Foley contacted Slashdot with an emailed explanation of the filing, reproduced below at his request. Update: 02/21 18:16 GMT by T : Please note that Foley's email specifically states that "There have been no lawsuits filed against any of the M.A.M.E. authors, and there have been no claims towards the open source engine, nor will there be."

"Subject: I would hope that you post this to correct your misstated comments on slash dot
Date: Mon, 21 Feb 2005 01:27:43 -0800

Like most things that are spread by rumor, the facts about me, UltraCade Technologies, and the M.A.M.E. emulation system are quite distorted. I will try and educate anyone who cares to listen about the reality of our marketplace and what we are doing and what we are not. Simply put, we are making an effort to stamp out the commercial sales of M.A.M.E. based systems that advertise the ability to play thousands of games while relying on the customer to obtain the ROMs which can not legally be obtained. What we are not doing is trying to claim ownership of the M.A.M.E. open source emulator or sue its authors. We are concerned about the commercial marketplace, and not the readers of the many M.A.M.E. user groups and forums.

I have been working on emulation technology since the mid 80's when I did work on an emulation project in college. In 1994, while working on games for companies like Sega and Williams, we developed an emulation of the arcade games Joust, Defender and Robotron that ran on a Sega Genesis. In 1996, we started the Lucky 8 project which turned into the UltraCade project. In 1998 we were one of the first companies to acquire the rights to classic arcade games from various publishers. We have licensed games from several manufacturers including Capcom, Jaleco, Taito, Stern, Incredible Technologies, Midway, Atari and more. We have started several projects and built prototypes for companies like Sega, based on technology that was licensed from authors from the emulation community. We have licensed technology from many of the communities programmers, paying them to use their code in our products and demonstrations. We have been the leader of the retro arcade movement, and have invested millions of dollars creating a market for retro games. UltraCade was the first successful multi-game arcade machine combining many of the old classics. We further enhanced the market by creating Arcade Legends, our consumer version of the UltraCade product. We have also paid hundreds of thousands of dollars in licensing fees to have the right to sell our games.

In the past couple of years, there has been a huge wave of resellers competing with our UltraCade and Arcade Legends products. They build a similar style cabinet, install a PC in the machine, load M.A.M.E., and sell it for a very low price. Lower than we could ever offer our machines for sale. How? Quite Simple. They profit by stealing others work. If you look at the web sites, and read the eBay ads they offer machines that "Play over 4,000 Classic Arcade Games" They then try and skirt the law by pretending that they are not promoting piracy of these same 4,000 games with statements like "we don't load the ROMs" but of course, almost all of them do. The others that don't, they provide you with an instruction sheet with a link to several web sites where you can illegally download the ROMs, or provide you with the contact information for a CD/DVD duplication house that will sell you a set of ROMs for all 4,000 games for less than $200. Would anyone really buy this arcade machine if they knew that there was no legal way for them to run over 99% of the games that they were promised, I don't think so, and if you really look at this without emotion, I'm sure you would agree. These companies are simply selling the promise of thousands of games on a machine that can not possibly run them legally. I sometimes hear the argument, "well, I could go on eBay and buy up all of these games and then run it", and while plausible, it certainly would not be anywhere near cost effective, and again, if the customer knew that to legally operate these games, they have to spend thousands of dollars buying legal ROMs I seriously doubt that they would consider purchasing a M.A.M.E. machine. Anyone reading this email thread is an intelligent person, and if they put emotions aside, they will realize that what we are saying about selling M.A.M.E. machines and the promise of getting 4,000 games for the average consumer can't possibly happen. Unlike most of you reading this, the average consumer looking to buy a machine for their game room has no idea how emulation works, or what is legal and illegal to do. To them, they read an advertisement on a website or on eBay and compare our product with 50 games or an ad for a machine that promises thousands of games, with the promise of instructions about how to obtain those games. Of course, in this skewed environment the average consumer would gravitate towards the thousands of games machine, not realizing that the software and the games are unlicensed and illegal to play. Most consumers who are pointed at a web site selling a 7 DVD set of ROMs have no idea that this is an act of piracy, they were simply instructed to do this by the person selling them their arcade cabinet, and told this is how you get the games.

Now that we have attempted to take legal recourse to prevent illegal competition, the same people, who steal the work of the M.A.M.E. authors, and then profit by selling machines that have no value without the pirated games being made available, turn around and cry foul when we call them on their ways. They run to the M.A.M.E. discussion forums and spread rumors about UltraCade suing the authors of M.A.M.E. or stealing the M.A.M.E. engine. I'm amazed at the response of the community, a community that is being whipped into action by the same people who are stealing and profiting from them and they're efforts. Many people have reacted with hate mail without even considering to look at the facts of the situation, or to realize who is spreading the rumors. They are being spread by those who wish to profit by selling unlicensed games.

The simple fact is that we are attempting to stop the tide of illegal arcade machines, and the promotion of unlicensed games. The M.A.M.E. platform, while a technical marvel, consists of many violations of copyrights and trademarks. The authors have always stated in the documentation that it was not put into the public domain to steal from the game authors or publishers, and they have always been hands off about how to obtain the ROMs. They have also clearly stated that it is not to be used for commercial gains. A majority of the publishers who own the copyrighted material have not paid much attention to this marketplace, as until recently it has not had a huge commercial impact. But now, there are websites and eBay sellers selling machines that directly compete with legitimate publishers like us who publish games from Capcom, Taito, Midway, Atari and others, or publishers like Namco that publish Ms. Pac-Man/Galaga or the Donkey Kong/Mario Bros. machines.

Of the many thousands of games that M.A.M.E. supports, only a minute fraction of them can legally be played on a M.A.M.E. equipped machine, and many can not. There are many fallacies about the legality of owning ROMs and how you can play the game. Many people claim that they have a board set and therefore they can download as many ROMs as they like. The law is very strict. You can transfer the image from the actual original ROM chips, which you legally own, to another piece of hardware, provided that you actually transfer the code from the chips. Just having a board sitting around, and saying I have the right to play it is not the case. Many people point to StarROMs and say that they can then sell the games with the ROMs installed. This is not the case either. StarROMs license prohibits the resale of the game licenses, and only the end user can purchase these ROM images, resellers can not. Our market is further plagued by the rash of 4 in 1, 9 in 1, 24 in 1 39 in 1 and the new 300 in 1 "multicade" boards. These boards come from Taiwan and Hong Kong and contain illegal copies of the ROMs of several games.

This is a complex case amongst companies that are trying to make it about UltraCade stealing something from the M.A.M.E. team. That is not what this is about. This is simply UltraCade Technologies and other publishers doing whatever it takes to protect our commercial interests and prevent other companies from stealing our market by capitalizing on unlicensed games and selling products that only have value when coupled with illegally obtained games. Our application towards a trademark is to simply prevent anyone from commercially marketing an illegal product, nothing more. There have been no lawsuits filed against any of the M.A.M.E. authors, and there have been no claims towards the open source engine, nor will there be We are simply protecting our commercial market, and nothing more. We have no interest in the hobby community. We have no interest in the open source project. Our goal is to simply stop the rampant piracy in our marketplace, and we will use every means at our disposal to do so.

I welcome open discussions about this situation, and will respond to legitimate communications or questions.

-David R. Foley

---------------------------------------------------------------------------- ---------------------------------------------------------

David R. Foley
UltraCade Technologies"

Everything is in order here...

Everything looks in order here.

We have a lame idea that borrows heavily from a former but robust lame idea.

We have an opportunity to litigate for revenue as oppose to actually, well , you know, EARNING IT.

Yes, everything seems to be in order here. Hand me the rubber stamp.

Re:Everything is in order here...

that's the business plan I've been looking for! step 1 patent things others invented step 2 sue the people who invented it for not paying me step 3 business is booming!

Re:Everything is in order here...

His motivation for registering the trademark might not have as much to do with defrauding the MAME community as the Slashdot article speculates... this guy is well known for taking down eBay auctions for roms and MAME-supported hardware that compete with his. If he is awarded this trademark, this would give him even more leverage, since no one would be able use the official MAME logo on any auction site or web store, even if they were just selling their own homebrew arcade stick.

Re:Everything is in order here...

Wouldn't he then be defrauding the MAME community by saying, fraudulently, "I'm MAME"?

Re:Everything is in order here...

Wouldn't he then be defrauding the MAME community by saying, fraudulently, "I'm MAME"?

Very astute. This is effectively what UltraCade is doing by trying to trademark the term MAME.

Now, I am definitely not nearly as corporation-paranoid as even the average Slashdot member - I would usually take the company at face value in such statements. The problem here is that the stated goal has nothing to do with the stated action. Trademarking MAME will not help UltraCade bust competitors, for several reasons:

• The proper grounds for evicting illegal manufacturers is copyright infringement, not trademark infringement. And that's very easy to do, since the "official" channels of Internet policing (courts and ISPs) are very pro-copyright - a simple email to the site hosting the content is enough to get some hosting yanked. (In fact, this is exactly how the MAME community has policed commercial sales of MAME [with ROMs] on eBay - it's a routine occurrence, and the "cease-and-desist" notice is efficient and effective.) Why anyone thinks trademark infringement would provide more leverage than copyright infringement is something of a mystery.
• The MAME trademark will only be effective in the U.S. The world isn't nearly as unified about the enforcement of trademark law as they are for copyright (and patent) law. Even trying to enforce the trademark in Canada is likely to be difficult.
• Any illegal-software-sales company that wants to avoid a trademark claim for using MAME can simply... uh... not use the MAME name in its adverts. Most n00b-idiot purchasers of such hardware don't know what "MAME" is, anyway. Their attention latches onto "4,000 arcade games in cabinet for $200!" - they don't know the term "MAME" anyway.

For these reasons, I must doubt UltraCade's stated reason for seeking a trademark on the term MAME. So what's really going on here? More likely, and reading between the lines here, UltraCade wants to block anyone else from selling a cabinet bearing the word "MAME" - even if it's solely a cabinet (with no emulation software of any kind embedded.) This is their true "competition," and it has nothing to do with copyright. There's nothing illegal about selling a hunk of wood and circuitry... unless, of course, there's a trademark issue. This is likely their goal.

Hmm, a dodgy company looking to frustrate its own market for its own gain - could the emulation community be seeing the emergence of is own SCO?

As a final note, I'm curious whether this inaccurate attempt to monopolize a market by laying an inaccurate trademark claim might violate the Sherman Antitrust Act.

(IAAL, by the way - the "intellectual property" kind.)

- David Stein

Re:Everything is in order here...

The only person who has standing to bring a copyright violation claim is the copyright holder. UltraCade's lawyers must believe that, in order to be successful against those who are competing against it unfairly, they need standing to sue. Hence, registering the name makes a certain amount of sense.

Well, civil procedure issues are probably moot, because the alleged infringers are not interested in having the legality of their "businesses" resolved. Any "company" that vends cabinets loaded with MAME and 4,000 ROMs is probably not going to appear in court. (If it came to that, MAME would have standing - and much stronger grounds - due to infringement of its own copyright.)

This is strictly a police issue: how can we (the legitimate emulation community, including [for the moment] UltraCade) get their auctions canceled, their webspace yanked, their PayPal accounts closed, etc.? And this has nothing to do with trademark law. In fact, bringing in this unrelated body of law only confuses the issue.

The UltraCade lawyers aren't particularly sneaky or clever. They gambled that they couldn't be effective any other way, and apparently ignored the risk of community/market backlash.

This highlights a key point: If UltraCade legitimately wanted to use the MAME trademark as it alleges, why didn't they bring this up with MAME before now? If I wanted to be a guardian angel and spend resources protecting your rights, I think I might mention that plan to you at some point. The post-hoc nature of this justification severely limits its credibility.

- David Stein

Re:Everything is in order here...

Seems to me the application should indeed be refused on this basis, though expecting an examiner to work that out might be asking too much. The idea is that it's deceptively misdescriptive [uspto.gov] and therefore unregistrable. The only problem I see here is that I'm not sure that MAME is descriptive of the software that we know by that name- that MAME is indeed a mark, just not Foley's mark.

Re:Everything is in order here...

So before I sent a kneejerk reaction email based off this topic.. I went to the Ultracade site to see if they had any argument to offer. Sure enough they do. The link to it is here..

http://www.ultracade.com/mame.pdf [ultracade.com]

David Foley provides a reasoning at least for his actions. While it may not be the correct way of going about it, it is how he plans to fight his "competitors" who use illegal software and piracy methods. I'm not saying that I'm in total agreement with him but I do see his side of things. Perhaps there is another way to deal with it.....?

Re:Everything is in order here...

I hope there's another way to deal with it because what he's doing right now is filing a fraudulent trademark application. I appreciate that he's in a bind, but breaking one law to prevent others from breaking another is not generally going to fly. I mean, if you commit assault to prevent a murder, that's one thing, but committing trademark fraud to prevent others from committing copyright fraud? I don't think so.

And just in case it is less than clear, this -is- trademark fraud. To apply for a trademark, you have to fill out a form which includes statements to the effect of "we have no knowledge of anyone else using this trademark in the same field of business". In order to apply for this trademark, they have to lie on the form, which is fraud.

Keith

Re:Everything is in order here...

Unfortunately, the PDF is currently down, but I assume it says something similar to the email Foley sent to the Slashdot editors (which has been posted in the story since then). If this is true, then here is a summary of what he said:

1) Foley has licensed ROMs from many of the publishers.
2) Foley uses MAME and his licenses to offer gaming machines for sale.
3) Pirates do not have licensed ROMs from any of the publishers.
4) Pirates use MAME and the illegal ROMs to offer gaming machines for sale.
5) The Pirates' gaming machines are cheaper than Foley's and offer more games than Foley's.
6) To combat the Pirates' (illegal) competition, Foley is trademarking MAME.

While I can sympathize with Foley's concerns about Pirates freely distributing illegal ROMs, the simply fact of the matter is that he does NOT own MAME, has no affiliation to MAME, and has no right to take control of the MAME name, logo, or to trademark them. His application for the trademark is fraudulent. He indicates (in a vague fashion) that he does not intend to sue the creators of MAME, but then he goes on to say this:

This is simply UltraCade Technologies and other publishers doing whatever it takes to protect our commercial interests and prevent other companies from stealing our market by capitalizing on unlicensed games and selling products that only have value when coupled with illegally obtained games. (Bold emphasis mine.)

"... selling products that only have value when coupled with illegally obtained games." - Hold on there!!! So, if I want to sell a box loaded with MAME, you're going to come after me? Right now he seems to be targeting only those that provide "instructions" about how to get illegal ROMs. But as with everything else in the world ... the next thing you know he will be going after people who just want to create custom MAME cabinets and sell them.

Re:Everything is in order here...

What you really wanted was http://www.ultracade.com/openoffer.pdf [ultracade.com] which is a reaction to the reaction to your link.

Contents of the document follow:

February 21, 2005
An open offer to the M.A.M.E. community.

Our recent actions to protect our products have met with a lot of controversy. Many people have been quick to judge and make accusations about what we are attempting to do, and what we have already done. It is my understanding that the spirit of the M.A.M.E. community is ""M.A.M.E.'s purpose is to preserve these decades of videogame history." It is further my understanding that "Selling either is not allowed" with regards to M.A.M.E.

Given this understanding, we are willing to help promote these goals and work to provide the original authors with the protection they deserve. Our goal is to prevent the commercial offering of machines with illegally obtained ROMs. I believe our goals can work in parallel.

Furthermore, we have a long standing relationship with many publishers of many games, and we are constantly working to obtain more and more licenses for these games.

Our goal in filing the trademark for the name M.A.M.E. was simply to give us leverage against those companies that promote and sell machines with M.A.M.E. installed on it, and more importantly, provide their customers with the means to illegally obtain the ROMs. This doesn't help our sales of our products. This doesn't help the community in general.

We have no desire to use the M.A.M.E. name or logos; we simply wish to find ways to prevent illegal distribution of classic arcade games. We will be happy to cancel our application and work with the M.A.M.E. team to assign it to its rightful owners; however we do want to prevent it from being awarded to someone that intends to use it commercially.

I am available to work with the community to ensure that this happens, and to help get more games made available to the community at a reasonable price.

David R. Foley
CEO
UltraCade Technologies

So the whole problem could theoretically be solved by giving it to someone appropriate.

For those who are wondering about the MAME license [mame.net]:

II. Cost

MAME is free. Its source code is free. Selling either is not allowed.

Also interesting:

III. ROM Images

ROM images are copyrighted material. Most of them cannot be distributed
freely. Distribution of MAME on the same physical medium as illegal copies
of ROM images is strictly forbidden.
You are not allowed to distribute MAME in any form if you sell, advertise,
or publicize illegal CD-ROMs or other media containing ROM images. This
restriction applies even if you don't make money, directly or indirectly,
from those activities. You are allowed to make ROMs and MAME available for
download on the same website, but only if you warn users about the ROMs's
copyright status, and make it clear that users must not download ROMs unless
they are legally entitled to do so.

IV. Source Code Distribution

If you distribute the binary (compiled) version of MAME, you should also
distribute the source code. If you can't do that, you must provide a link
to a site where the source can be obtained.

Re:Everything is in order here...

that's the business plan I've been looking for! step 1 patent things others invented step 2 sue the people who invented it for not paying me step 3 business is booming!

Dude, this is /. You gotta know how to post these things:

1) Patent other peoples' inventions
2) Sue the inventor for not paying you.
3) ???
4) Profit!!!

Copyrighted

Ultracade's trademark application includes the copyrighted MAME logo. Even is MAME doesn't own their own trademark, which is upsurd, the logo is illegal to reproduce.

Isn't that enough reason to deny Ultracade the trademark? This is just like the guy that tried to steal the Linux trademark from Linus.

Re:Everything is in order here...

I thought Scott McNealy had the trademark on being an asshat. Someone should inform him of Ultracade infringing on his trademark.

Re:Uh... prior art?

The problem is that the Patent and Trademark Office takes the perspective that if the patent or trademark is wrong, it'll be sorted out in court, while the court takes the perspective that there must be some creedence to the patent or tradmark since the USPTO granted it.

This guy needs a blanket party, if you know what I mean.

Re:Mirrored Forum Posting from MAME.NET by David F

An interesting rebuttal to be sure.
Still, the crux of the issue is that you're landing a heavy boot square in the domain of the MAME authors.
You make allusion to them infringing on proprietary copyright and patents. And, in the great tradition of people quoting this, then fail to mention any of them. Please, if you can prove MAME is indeed infringing on Patent and Copyright, please inform us of your findings.
Downloading a ROM for free, yes, that is indeed copyright infringement (not stealing, as you represent your company, please be semantically correct).
But, it seems that, to prevent 'unfair' competition (people providing a harness that can play games on it, if someone purchases a ROM, for cheaper than you can provide), you then decide to put a claim on a name made by others.
While technically legal, you are, in spirit, no better than someone who infringes on other trademarks.
I've heard of MAME (stopped using it, as I couldn't find somewhere to legally purchase the ROMS, and no vendor seemed interested in that activity), but I've never heard of your products.
This absolutely reeks of a company with little market recognition seeking to acquire a name by subterfuge and bad practice.

I would say, if you have an issue with people selling these machines for less than you can produce legitimate ones, you should be working hand in hand with the MAME authors, and providing them with legal backup to chase the makers of these license infringing machines, giving them a stronger position, rather than trying to subvert the name and position.

Much as you may believe you're legally able to do this, I think your grasp of the aftereffects of doing this are lacking. Many emulation enthusiasts may avoid you on principle. I know I will.
I look upon you as a hypocrite. While justifying your move as one to prevent 'theft' of a piece of 'intellectual property' (name and code of a ROM), you 'steal' someone else's property (their name, which is the whole umbrella of their project, thus subverting the project itself).
Your 'plan' seems nothing more than "Someone's taking from what we want, so we'll take something from someone completely different.".

Work with the MAME group, and you may well get good results, if you treat them well.
Work against them, and one name change and a few months later, you'll have the same problem, with a massive PR problem on your hands.

Translation

I have a business problem. People are selling pirated ROMS for less then I can sell them legally. My problems would go away if I took legal control of your logo and trademark. Can't you see this is a good thing, for me?

Re:Mirrored Forum Posting from MAME.NET by David F

Yes or no. No spin. Are you or are you not attempting to gain MAME trademarks?

Re:Mirrored Forum Posting from MAME.NET by David F

Arcade game ROMs can be obtained legally:

Star ROMs [starroms.com]
Our classic arcade ROM database contains over 25 games at prices as low as $2 per title!

StarROMs was established to provide an inexpensive and legal source for classic video games. These are the original games exactly as you played them in the arcade. Now you can legally download the ROM and play the game at home, as often as you like, with your favorite emulator!

I don't know anything about Arcade game ROMs. I found this after Googling for about 5 seconds. I'm sure there are many more ways of getting ROMs legally. So this invalidates UltraCade's argument in that forum post. I wish parent had posted the link to the forum thread as, I'm sure, there would have been many replies to UltraCade's post, stating my point.

Re:Everything is in order here...

MAME on its own isn't illegal and isn't ripping off of any other's work. You can use it completely legally, either by ripping an arcade board you own, or by buying legal ROMs on Starroms or the Capcom ones that come for free with the gear from HanaHo. You can also use the couple of ROMs that are freely available on mame.net, courtesy of their own copyright owners.

So what you're refering to is piracy from MAME's users. Should the MAME devteam be punished because of what others do with their hard work? Don't think so.

There's a discussion here.

BYOAC Forum: http://forum.arcadecontrols.com/index.php/topic,32 339.0.html [arcadecontrols.com]

In other news...

The MAME project has changed its name to Ultracade and is planning to sue other companies using this name.

And here I thought Ultracade wasn't evil

For a long time I was happy that Ultracade was attempting to bring back artwork and designs long forgotten, threatening to disappear into the void. They're the last refuge for such games as Strider and Mercs, classics that shouldn't be allowed to disappear from the legal scene in this world. They are hardcore gamers who appreciate the art.

But filing for a trademark on MAME? The project that they got their idea from? That's just low. I could see them trying to sue MAME out of existence for being illegal, promoting piracy, and cutting into the profits of a corporation. But trademark?

Ultracade. Evil? Check.

Geez, what a toughie...

IF ONLY somebody could find some prior art to smack this down.

Re:Geez, what a toughie...

Prior Art is for Patent law. This is TM law. See my comment below for the MAME folks' protections.

Re:Still has to go under review.

Well, I sent the following email to the trademark office. I suggest others do the same (and No, I did not use my slashdot account name as the "From" identity, I used my real name, and my real jobtitle (CEO of services and software firm)

From:
Date: Feb 21, 2005 09:25 AM
To: [e-mail]
Cc: [e-mail], [e-mail]
Subject: Trademark Application 76627578

CC: Lee Hagelshaw, Attorney of Record, David Foley, Applicant

Dear sirs,

I write to you with respect to trademark application 76627578 - "MAME MULTIPLE ARCADE EMULATOR".

I would like to draw your attention to the fact that I am longstanding user of a product that goes by the same name, sporting the same logo. I can, however, assure you that as far as I am aware, there is no affiliation between the original authors of MAME, and the individual or organisation attempting to trademark this name and logo.

You may wish to note that the marque in question appears to have been designed by an unrelated individual, and appears to have been under copyright since 2003. I refer you to http://www.oscarcontrols.com/gallery01.htm Please note the following limited usage statement on the quoted page:

"THE ABOVE DOWNLOADABLE IMAGES ARE PROVIDED IN CONFIDENCE FOR THE LIMITED PURPOSE FOR PERSONAL PRINTING AND ARE NOT TO BE REPRODUCED NOR COPIED IN WHOLE OR IN PART NOR LOANED OR OTHERWISE COMMUNICATED TO ANY THIRD PARTY, NOR USED IN ANY MANNER WITHOUT PRIOR WRITTEN CONSENT FROM OSCAR CONTROLS."

Clearly, the quoted marque application seems to violate these terms of usage.

Furthermore, to the best of my knowledge, said logo has been in use, for many years, in a commercial manner in many forms. First of all, I would like to inform you that at http://www.mamemarquees.com/ the marque itself is for sale in the form of stick-on marquees. mamemarquees.com is one of many sites selling a similar service. Moreover, many sites, such as http://www.mameworld.com rely in part on the MAME marque for advertisement revenue. In other words, there is widespread - although low-level - commercial use of the MAME marque, in logo as well as text form.

In closing, I would like to inform you that MAME is a so-called "Open Source" project, meaning that the project, the work performed by this project, and any arts, intellectual properties, and other related results of productive work has mainly been performed by individuals on a volunteer basis. These people volunteer their time, skills, and knowledge out of passion for what they do, and make their core work - The MAME application suite - available free of charge, in source code form, for all to use.

This is very similar to making the work available within the public domain, but not exactly, since Open Source Software typically places some obligations onto the user in terms of under what circumstances the work may be re-distributed. This is to protect the work from being "stolen". More information about open source software is available at http://www.opensource.org/ The precise license terms of the MAME body of work can be found here: http://www.mame.net/readme.html

I trust to have given you plenty of information to assist in your handling of the stated application, and am sure that in the face of the information provided to you by myself, and no doubt others, that the said application will be duly rejected. Should you require any adittional information or comments, please don't hesitate to contact me.

Kind Regards,

Plenty of mails like this will remove any excuse they would have in actually granting the trademark. Please be sure to include both the lawyer as well as the applicant in the mail.

Re:Still has to go under review.

Well, I sent the following email to the trademark office. I suggest others do the same ...

There is a correct way to bring such things to the attention of the Trademark Office, and this is not it.

The constructive next step is to monitor the status of the application, and when it gets "published for opposition" then file an opposition [uspto.gov].

One convenient way to monitor the status of a pending US trademark application is by means of free software called Feathers [patents.com].

Re:Still has to go under review.

That is a very misleading post. The stuff you refer to is acutally a post-examination process, and what you want to do is get to the review during or before the review process. Which is what I did. There are numerous places where in the regulations that make this thing fall over, and this [uspto.gov] is a good a place to start as any. There are many others though.

Point is, that while the examiner can claim to grant the marque in good faith if he is unaware of any existance of any connection - the mail I (and by now many others) have sent makes it clear to the examiner that there is no basis in trademark regulation to allow this marque to be approved. This shifts the burden of proof back to the applicant, something he would be hard pressed to do.

Std. Knee-Jerk reaction comment...

This guy didn't previously work at SCO by any chance?

Wait a second

Doesn't one have to own the trademark before something is created in its name in order to sue the creators of the something? Otherwise I'd be able to trademark the word bittorrent, and sue the creator. Could someone explain just how this is going to work to me?

Re:Wait a second

Doesn't one have to own the trademark before something is created in its name in order to sue the creators of the something? Otherwise I'd be able to trademark the word bittorrent, and sue the creator. Could someone explain just how this is going to work to me?

Easy. Chewbacca is a wookie from the planet Kashyyyk. But Chewbacca lives on the planet Endor. Now think about that; that does not make sense. Why would a wookie, an 8 foot tall wookie, want to live on Endor with a bunch of two foot tall ewoks? That does not make sense! But more importantly, you have to ask yourself, 'what does that have to do with this case?' Nothing. Ladies and Gentlemen, it has nothing to do with this case. It does not make sense!

Re:Wait a second

I think Chewie lives on Endor because Ewok females are easy.

Backwards

Doesn't one have to own the trademark before something is created in its name in order to sue the creators of the something?

Actually, the way you establish ownership of a trademark is by using it. Registering it is just a way of documenting your claim that you own it. So the guy who invented Bittorrent can claim that he already owns the trademark, whether he's registered it or not.

Re:Wait a second : He will probably get a TM......

There is a big but in this. It should be noted that he will not be able to sue people unless they use the EXACT same image. And I mean EXACT.

Do you imagine you could put some huge golden arches up in front of a restaurant and not get sued because they were not the exact mathematical curve of the McCarpet ones?

Re:Wait a second : He will probably get a TM......

No. Under trademark law there is a concept known as `passing off'. If you market a product with a name / logo that is sufficiently similar to an existing trademark for there to be confusion between the two then you are regarded in law as attempting to pass off your product as being affiliated with the trademark owner and are liable for prosecution. If the owner of the trademark is aware of this and fails to prosecute then they may be unable to do so at a later date, because the trademark will have become a generic term.

Re:Wait a second : He will probably get a TM......

How's that so if they managed to force Lindows to change their name? Can you please enlighten me on this one? They started suing Lindows in country after country, and Lindows decided they didn't want to have to fight the case in every single nation on earth and gave up. Lindows won their case in the United States.

Defense fund?

Is there a fund set up yet where we can donate to their legal defense?

I'm sure I'm not the only one who apprecates (immensely!) the efforts of MAME.. god knows I spent enough time in arcades.

Re:Defense fund?

Is there a fund set up yet where we can donate to their legal defense?

There was -- but they took it down when it would only accept 0.25 at a time.

Uhh.

Wait a second. Doesn't US Copyright law take precedent here. Correct me if i'm wrong, but aren't all works copyrighted by default. Couldnt the obvious prior art holders sue ultracade for any usage of their name.

Re:Uhh.

This needs to be a FAQ on slashdot itself ;-). Trademark law, patent law, and copyright law are three different things, all often grouped together under the problematic term "intellectual property" (which is a loaded term, of course).

In this case, the topic is trademark law. Trademarks are lost if the holder allows the name to become a generic term (like kleenex, for example). I'm not sure if you have to be the first person to use a term in a particular domain to trademark it, but I imagine you do. (The concept of "prior art" refers to patents only.)

Copyright should apply

Even though this guy is applying for a Trademark, he's applying for a trademark on the logo. The logo artwork is copyright, and any inappropriate use if it would be a violation of the artist's copyright. Tradmarking artwork shouldn't trump Copyright. I'd expect that most people interested in getting a logo tradmarked would make sure that they had the copyrights locked down first.

In other words: if he succeeds in getting the trademark on Mame, he could end up with a registered logo that he's at risk of being sued for if he actually uses it in public.
(It'd almost be funny to see him being sued for using it in his first 'cease and decist' letter)

That having been said, sending the USPTO an email about this application with a well-chosen URL from the WayBack machine might torpedo this application (at least I hope so -- IANAL)
__________________

Btw: With SCOXE at risk of being delisted, Darl McBride may be looking for somewhere else to be a public puncing bag.

Re:Copyright should apply

MAME logo information [mame.net]... the logo's been around since at least 1999 (can't remember if it's been around even longer)... maybe Chemical and Exodus3D can do something directly. Additionally, there have been a large number of magazine articles about MAME since it first came out in 1997, so there is plenty of printed evidence, should it have to come to that.

Hmmm

Is there an online application for trademark applications? Openoffice.org, Mozilla. Firefox, KDE... so many projects so little time....

Oh, fuck them.

You know, the biggest problem with emulation nowadays is ego, and apparently the egos of the Ultracade creators got too big.

As a former ZD employee, I've seen this far too much in emulation, but it's never gone to this degree. This is a very evil way to get a point across, and I really hope, if this actually happens, that a few makers of these arcade games out and sue Ultracade for pulling this shit.

Why the hell would you take out the people who made your bread and butter? All that's going to happen is MAME is going to come out under a different name and be designed in such a way that it won't be compatible with Ultracade arcade boxes. You pull shit like this and alienate your users and fellow authors, you get burned. Ask Marat Fayzullin what I'm talking about.

David R Foley

I'd just like to point out his personal website [davidrfoley.com], which contains his resume [davidrfoley.com] with his email address ([e-mail] or [e-mail]) and phone number attached.

Don't be too mean. ;-)

Re:David R Foley

His address also happens to be

David R. Foley
1281 Wayne Avenue
San Jose, CA 95131
United States

And His Lawyer seems to be:
Lee Hagelshaw (Attorney of record)

LEE HAGELSHAW
LEE HAGELSHAW OF TECH LAW
350 TOWNSEND STREET SUITE 406
SAN FRANCISCO, CA 94107

Phone Number: [phone]
Fax Number: [phone]

Re:David R Foley

This guy really pisses me off. I think I'll trademark "Foley" and make him quit using my last name.

Die, you gravy sucking pig. Bastard.

Re:David R Foley

his poems [davidrfoley.com] are... *sniff* *sniff*... really touching...

TM Law

If MAME and it's logo has not been registered as a trademark, then Foley can apply to register it, regardless of how long it has been used by someone else. If he can slip this one past the TM Office, possibly by overwhelming the existing MAME folks with advertising and publicity, he will have the registered trademark for MAME.

HOWEVER, since the MAME folks have been using said name and logo for years, they will be protected BY LAW from being sued by Foley for their continued usage of the marks. This is one way that these particular intellectual property laws protect you from cretins like him :)

I am not a trademark attorney, but I do IT in an IP firm. This is not legal advice, blah, blah, blah. These laws apply at least in both US and Australia.

Some helpful information for the kids...

I'm sure if anyone has any queries about who this gentlemen is, the Us Patent Office [uspto.gov] has the relevant details:

1. Foley, David R.

Address:
Foley, David R.
1281 Wayne Avenue
San Jose, CA 95131
United States
Legal Entity Type: Individual
Country of Citizenship: United States

Wow.

Let's sue the creators of the simplest, cheapest, most functional, most popular means of playing retro video games ever.

What do they do for an encore, rape Donkey Kong Jr with an Atari controller?

The trade mark hasn't been approved yet.

One thing I think everyone is missing so far is that it hasn't been approved yet. If you follow the Link to the USPTO site it says it hasn't even been assigned to a case worker yet.
zyro out.

Is this a troll?

Do we have any more substantial information than a small blurb at the top of a emu website?

Even if it is real, he has no hope of winning. Trademarks need not be registered to be protected, [cornell.edu] and I think there is more than enough evidence out there to prove conclusively that the logo belongs to the MAME developers.

Copyright?

Whether MAME trademarked the acronym or not, the logo that Ultracade wants to use is a straight copy off the official MAME logo. Can't it at least be argued that the original MAME image was copyrighted, and Ultracade is infringing on that by attempting to trademark it?

False Declaration

To register the trademark, they had to sign this declaration, which is obviously false.

Declaration
The undersigned, being hereby warned that willful false statements and the like so made are punishable by fine or imprisonment, or both, under 18 U.S.C. 1001, and that such willful false statements may jeopardize the validity of the application or any resulting registration, declares that he/she is properly authorized to execute this application on behalf of the applicant; he/she believes the applicant to be the owner of the trademark/service mark sought to be registered, or, if the application is being filed under 15 U.S.C. 1051(b), he/she believes applicant to be entitled to use such mark in commerce; to the best of his/her knowledge and belief no other person, firm, corporation, or association has the right to use the mark in commerce, either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods/services of such other person, to cause confusion, or to cause mistake, or to deceive; and that all statements made of his/her own knowledge are true; and that all statements made on information and belief are believed to be true.

Re:double standard.....

The reason it's bad is because it kills the public domain. Since the Bono act, which made this automatic copyright thing happen, nothing is automatically entering the public domain. The public domain is actually dieing as a concept in America. Consider this: the point of copyright is to encourage the creation of new works. With the Bono Act the government extended the copyrights on hundreds of thousands of already published works. They were already published. How could increasing their protection time under copyright law possibly encourage the creation of new works? The creators of these works saw how long they were protected, agreed to it, and spent the resources to create the works. Going back and giving them a longer protection is a slap in the face to everyone. It is a direct subsidy to media companies worth billions.

Attempted theft. Registration NOT required.

This is absolute nonsense. In the U.S., you do not need to register a trademark to be the owner of it - just use the mark. [uspto.gov] Perhaps the MAME folks ought to register the name to prevent another clown from trying to steal their name. I've posted a trademark notice on my own site to keep away at least some of the predators [dwheeler.com]. I did that after learning of the problems of problems of Katie Jones [harvard.edu], owner of the katie.com domain. Linus Torvalds eventually had to register "Linux" everywhere because of a similar set of thefts.

Anyone remember the Linux trademark?

Linus Torvalds did not originally register a trademark for Linux. It was first registered by a con man named William R. Della Croce Jr. This slimy disgusting toad was trying to weasel 10% of the profits out of any books and journals that used Linux in the title. A groupd of Linux related companies had to fight this guy in court for a year to get the trademark assigned to Linus

What this shows us is that the fact that a product name exists and is in wide prior use makes absolutely no difference to the idiots at the USPTO. They can't be bothered to do real research. Their attitude is that they should approve everything and let things be sorted out in drawn out expensive court battles. The whole organization should be burned and razed.

One thing this reminded me of is that, in order to actually be assigned a trademark, you have to state under penalty of perjury that you are the owner and first user of the mark and that you are not aware of anyone else using this mark or name. The sleazy guy in this case (read his resume, which someone else linked to, the fact that he has worked in the music industry doesn't help his case much) appears to have submitted someone elses already copyrighted work in his submission. I'm wondering if he even had the intelligence to make his own copy of the image. Looking at the one on the page linked from this article, it's a bit hard to tell if he just yanked a mame image from somewhere and slapped a TM on it or just drew his own. Unfortunately, it looks like he did recreate it with colored pencil or markers and then scanned it. But maybe not. In any case, the original is obviously still copyright the original creator. If he submitted it and also claimed that he was not aware of anyone already using it, then he's perjured himself. Sadly, none of these sleezes seem to face criminal charges from that sort of thing anymore. It should make decent legal ammunition though if the USPTO does what I expect them to do and grants this trademark.

Re:Anyone remember the Linux trademark?

Their attitude is that they should approve everything and let things be sorted out in drawn out expensive court battles.

I have seen a quote to that effect. That is really sick. I doubt Congress would step in because most congressmen are or were lawyers. Lawyers like to stay employed like the rest of us, but they also have powerful people in their profession to back that up with IMO unethical considerations.

Well, it's perfectly obvious what he's attempting

He's trying to take away the legitimacy so that his company's product can be the only game in town.
People are starting to realize that he has a crap product that is exorbitantly expensive.
I have some strong ties in the arcade business (operation and distribution) as well as good friends in the emulation community.
When you can get a used DDR machine for less money than one of these things AND bring in more, why bother?

The Ultracade has been pushed on arcades by distributors because they get AMAZING deals on it and make LOTS of markup when they actually sell units to arcades. (A lot of distributors usually shy away from this sort of practice with most games because it's more profitable to "rent" a game out to an arcade and take a cut of the game intake. They do all the service of the machine (including coin emptying) so they can track an unmodified count and it's a good system. They can sell off old machines that aren't bringing in money and keep most of the money IN the business rather than moving through it.) The problem for the arcades is that they're pretty much grabbed by the balls. Their businesses are for the most part dying and old games still bring in enough draw to warrant keeping them around...but they can't devote all the space to multiple cabinets so they just get one of these puppies....

I wish our arcade industry was more like in Asia..where everyone gets the newest thing and you have multiple level/floor arcades and you just keep what brings in money. Times are tough over here though.

Anyway, this guy is just trying to solidify his business and since he has a crap business model, he's trying to bully out the competition while the opportunity to do so is still there. I hope people fight him tooth and nail and his company goes bankrupt.

it is a new application, file an opposition

On the USPTO webpage for this application (here) [uspto.gov] it says that its status is "Newly filed application, not yet assigned to an examining attorney." Anyone can file any trademark -- I could file one for the term "Microsoft" -- and it would get to this stage.

The key is getting your trademark application approved. The main impediment is from either already registed trademarks that are similar in name or from people that file oppositions. The process of filing an opposition is described on this USTPO page. [uspto.gov]

As someone who knows a little bit about trademarks I can say that the individual who filed this is really wasting their time -- the only way he could get and keep this trademark is if no one noticed he filed for it.

-ben houston
http://www.exocortex.org/ben [exocortex.org]

This is not a huge deal

It was pretty foolish for the Ultracade guys to have filed for the mark since they clearly knew there was a prior user.

Here's what will likely happen, assuming that neither side just gives up:

Eventually the mark will be published for opposition, unless the examiner at the PTO has a problem with it first. Since the PTO doesn't perform exhaustive searches (relying on the fact that people rarely invest the time and money to get a federal registration without themselves searching thoroughly and taking pains to avoid conflicts with others) it could easily get to this point. MAME will then have a brief window to file a notice of opposition, claiming that they were using the mark in commerce first, and that it is confusingly similar. This'll result in some discovery on both sides, and evidence and briefs being sumbitted to the TTAB, which will make a decision. I have a hard time seeing that MAME could lose this, but it costs money.

Meanwhile, the MAME folks should really be thinking about just getting a federal registration for their mark to make it easier to deter this sort of thing in the future, but again, it costs money for the initial registration, and for periodic affidavits and renewals that would need to be filed every so often for as long as they wanted to keep the federal registration.

Regarding the copyright issue, it's actually less clear. Ordinarily just because some piece of art is a logo, that doesn't make it uncopyrightable. However, you cannot copyright a name, and you cannot copyright mere variations of typography. Since the MAME logo is basically the stylized word 'MAME' it would have a tough time with copyright. A fancier logo would work better. Still, MAME could always try to register and see what happens. It also costs money, but not much.

As for people talking about prior art, that's patents. There's no such thing for trademark or copyright. Try again.

Read actual status of application

Here: Current Status: Newly filed application, not yet assigned to an examining attorney. [uspto.gov]

and copy paste this into an email to:
[e-mail]
--------
Regarding:

http://tarr.uspto.gov/servlet/tarr?regser=serial &e ntry=76627578

This person (David R Foley) is trying to trademark a copyrighted work. I cannot trademark the mona lisa, so I do not think I could copyright MAME, the name or the logo as they are copyright works of art (both the image and text).

For more information of the true owner, please visit:

http://www.mame.net/

Thank you
--------

Optionally include contact info:

David R. Foley
144 S. 3rd Street
Suite 626
San Jose, CA 95112
[phone]
[e-mail]

There may be fines for fraudulent applications that break copyright laws. (image)

Different address and attournee email

(this is sounding wierd, but I checked the page is on the uspto.gov site... almost too dumb to be true)

Here is Foley second address:

1. Foley, David R.
Address:
Foley, David R.
1281 Wayne Avenue
San Jose, CA 95131
United States
Legal Entity Type: Individual
Country of Citizenship: United States

Correspondent
Lee Hagelshaw (Attorney of record)
LEE HAGELSHAW
LEE HAGELSHAW OF TECH LAW
350 TOWNSEND STREET SUITE 406
SAN FRANCISCO, CA 94107
Phone Number: [phone]
Fax Number: [phone]

Some googling:

http://www.hagelshaw.com/

E-mail your questions or interest to [e-mail]
or call: Tel. [phone] . Fax. [phone].
Address: 350 Townsend Street, Suite 406, San Francisco, Ca 94107

Copy paste this email to

[e-mail]

Dear Mr Lee Hagelshaw,

Regarding a trademark application from a Mr David R Foley (see http://tarr.uspto.gov/servlet/tarr?regser=serial&e ntry=76627578 ) I would like to bring to your attention his breach of copyright laws. Please refer to www.mame.net for the original owners. I have asked all those who can vouch for this to contact you in kind so that this matter can be resolved.

Please let me know if you have any relationship with the aforementioned David R. Foley,

I trust that you will treat this matter with all the serious attention it deserves.

Warmest regards

How about a termination on trademark claim..

The academic free license [opensource.org] contains this clause:

10) Termination for Patent Action. This License shall terminate automatically and You may no longer exercise any of the rights granted to You by this License as of the date You commence an action, including a cross-claim or counterclaim, against Licensor or any licensee alleging that the Original Work infringes a patent. This termination provision shall not apply for an action alleging patent infringement by combinations of the Original Work with other software or hardware.

So why not try to extend this rule to termination on ANY action against an author or contributor of the work, where the item at issue is part of the Open Source software product, including litigation due to the name of the original?

Without the specific restriction of the issue being PATENT infringement. Someone shouldn't be able to legally take open source stuff, sue to SHUT DOWN the original project, or try to supplant them in name, but then continue to use the product on the original license.

It's a huge Betrayal of trust, and it SHOULD result in termination of the evil company's rights, as a reasonable penalty, right?

er..

I hate being the voice of reason around here on Slashdot, but this one hit Fark late last night, and no one that i've found with any story on it whatsoever has actually put any weight towards "going to sue anyone" with it.

Has anyone dropped this guy an email saying "hey, that looks like the MAME logo that you just filed a trademark application for. Whatcha gonna do with it?"

Get a grip, people.

This should be posted front page

http://www.hyperware.com/

The news item: Obviously he is intending to profit from these arcade games. MAME never did that.

So I think he is no better than someone selling bootleg DVD's.

Last time I checked many of these companies who wrote these games are still about. They probably have thier own MAME cabinets to show clients the good old days.

I have a feeling this guy is in for some stick.

What?

the CEO of commerical multi-arcade kit seller Ultracade has applied to trademark the name and logo of the ubiquitous open-source multi-arcade emulator MAME and is planning to sue MAME's authors.

I must, must, must go RTFM now. This seems just beyond reason - even here in the US where things like this do happen.

I have to admit that this is confusing to me ... so, by the same token, could I build a soapbox derby racer, slap on, say, a Datsun logo (assuming that it wasn't trademarked, of course), and then proceded to go after the original logo and concept designers??

Wow.

A Solution

Someone should start an e-mail campaign to tell these people that we won't stand for stupid asshole tactics like this.

They have an email address posted on their web site: mailto:[e-mail] [mailto]

Someone else has posted personal info on the author of the site: http://games.slashdot.org/comments.pl?sid=140128&c id=11733396 [slashdot.org]

Oh my God, his name appears next to an EA logo on a race car: http://www.davidrfoley.com/Personal%20Web%20Page_f iles/image003.jpg [davidrfoley.com]

Foley responded to my email

Granted he likely gave this same response to everyone else who wrote him (since my original email was basically a troll that deserved being sent to the recycling bin... hey i was angry :D ) but here it is for everyones reference

_____________

Like most things that are spread by rumor, the facts about me, UltraCade Technologies, and the M.A.M.E. emulation system are quite distorted. I will try and educate anyone who cares to listen about the reality of our marketplace and what we are doing and what we are not. Simply put, we are making an effort to stamp out the commercial sales of M.A.M.E. based systems that advertise the ability to play thousands of games while relying on the customer to obtain the ROMs which can not legally be obtained. What we are not doing is trying to claim ownership of the M.A.M.E. open source emulator or sue its authors. We are concerned about the commercial marketplace, and not the readers of the many M.A.M.E. user groups and forums.

I have been working on emulation technology since the mid 80's when I did work on an emulation project in college. In 1994, while working on games for companies like Sega and Williams, we developed an emulation of the arcade games Joust, Defender and Robotron that ran on a Sega Genesis. In 1996, we started the Lucky 8 project which turned into the UltraCade project. In 1998 we were one of the first companies to acquire the rights to classic arcade games from various publishers. We have licensed games from several manufacturers including Capcom, Jaleco, Taito, Stern, Incredible Technologies, Midway, Atari and more. We have started several projects and built prototypes for companies like Sega, based on technology that was licensed from authors from the emulation community. We have licensed technology from many of the communities programmers, paying them to use their code in our products and demonstrations. We have been the leader of the retro arcade movement, and have invested millions of dollars creating a market for retro games. UltraCade was the first successful multi-game arcade machine combining many of the old classics. We further enhanced the market by creating Arcade Legends, our consumer version of the UltraCade product. We have also paid hundreds of thousands of dollars in licensing fees to have the right to sell our games.

In the past couple of years, there has been a huge wave of resellers competing with our UltraCade and Arcade Legends products. They build a similar style cabinet, install a PC in the machine, load M.A.M.E., and sell it for a very low price. Lower than we could ever offer our machines for sale. How? Quite Simple. They profit by stealing others work. If you look at the web sites, and read the eBay ads they offer machines that "Play over 4,000 Classic Arcade Games" They then try and skirt the law by pretending that they are not promoting piracy of these same 4,000 games with statements like "we don't load the ROMs" but of course, almost all of them do. The others that don't, they provide you with an instruction sheet with a link to several web sites where you can illegally download the ROMs, or provide you with the contact information for a CD/DVD duplication house that will sell you a set of ROMs for all 4,000 games for less than $200. Would anyone really buy this arcade machine if they knew that there was no legal way for them to run over 99% of the games that they were promised, I don't think so, and if you really look at this without emotion, I'm sure you would agree. These companies are simply selling the promise of thousands of games on a machine that can not possibly run them legally. I sometimes hear the argument, "well, I could go on eBay and buy up all of these games and then run it", and while plausible, it certainly would not be anywhere near cost effective, and again, if the customer knew that to legally operate these games, they have to spend thousands of dollars buying legal ROMs I seriously doubt that they would consider purchasing a M.A.M.E. machine. Anyo

Re:Foley responded to my email

Many people point to StarROMs and say that they can then sell the games with the ROMs installed. This is not the case either. StarROMs license prohibits the resale of the game licenses, and only the end user can purchase these ROM images, resellers can not.

I guess he's never heard of the "Right of First Sale". I couldn't find the license agreement on StarROM's site, but unless they were extremely clever, such a clause would likely not be legally enforcable (although, IANAL).

This is simply UltraCade Technologies and other publishers doing whatever it takes to protect our commercial interests and prevent other companies from stealing our market...

I wonder what will happen if another company tries to start "legitimately" selling arcade machines? What guarantees do we have that UltraCade is only going to go after "bad nasty pirates"? What assurances do we have that this won't be used to create a monopoly? We have none. In fact, we have the opposite; if UltraCade succesfully trademarks MAME, then they MUST pursue any infringing use of that trademark, otherwise they risk loosing it. This means the authors of MAME will have to enter into some kind of legal agreement with UltraCade, or else stop using the MAME name.

Open Letter

I sent him this letter:

I read your comments at http://www.ultracade.com/mame.pdf. Respectfully sir, the trademark to MAME is not yours. Well reasoned good intentions do not change the basic fact that you are attempting to steal something as surely as the machine vendors you complain about.

If your goals are genuine, there is a right way and a wrong way to go about it. You already know the wrong way. The right way is to solicit a contract from the many authors of MAME that would enable you to hold the trademark in trust for the described purpose of taking action against lawbreaking commercial sellers as you describe.

Their side of the story

The ultracade front page has a link to a PDF file explaining their side of the story [ultracade.com]. A quick snippet from the first paragraph of the letter -

Simply put, we are making an effort to stamp out the commercial sales of M.A.M.E. based systems that advertise the ability to play thousands of games while relying on the customer to obtain the ROMs which can not be legally obtained. What we are not doing is trying to claim ownership of the M.A.M.E. open source emulator or sue its authors. We are concerned about the commercial marketplace, and not the readers of the many M.A.M.E. usergroups and forums.

Re:Their side of the story

He says they are not trying to claim ownership of MAME, and yet, by filing a trademark, he is quite clearly trying to claim ownership of the name "MAME." If he owns the rights to the games that are being pirated, he can sue on that basis. So as far as I can tell, the only good reason to register the name MAME as his trademark is to force the MAME folks to change to something else. This isn't about his IP rights, it's a form of competition-by-litigation. IANAL.

Frankly......IMHO...."steal away"

Almost all of these games were made in the 80's. They are cultural icons and history. They should ALL have been put in public domain by now and would have if copyright laws had been kept as intended by the framers.

So frankly, I really have very little sympathy. Although, I respect the guy for actually having endeavored to legally bring back many of the classics.

Re:Frankly......IMHO...."steal away"

Using your logic, many things -- such as the Coca-Cola bottle shape, or the distinctive sound of a Harley motorcycle -- would have been public domain a long, long time ago. But they're not.

You overlooked the original poster's "should" and "as intended by the framers" reference. When the United States was founded, IP concepts were only supposed to last for "limited times," originally about 21 years. Having copyright, trademarks, and patents last for indefinite periods of time was introduced roughly at the turn of the 20th Century as a side effect of the legal and economic fallout of the Industrial Revolution and the US Civil War. If the US was still treating IP as it was originally implemented, Disney, Coca-Cola, et al, would already be public domain.

The question at hand now (and is argued here at /. ad nauseum) is that if this indefinitely long "IP monopoly" state is really a good thing for a culture or not... One of the key reasons IP law was changed was to encourge R&D in companies since modern manufacturing and service expenses are dominated by large up-front fixed costs, as opposed to the older "artisan" system where labor and unit costs were a larger proportion of the equation. The debate is if this legal change has given large organizations (and their legal teams) too much power at the expense of smaller organizations and individuals.

Translation

I have translated Mr. Foley's comments into PlainSpeak(TM), if anyone is interested:

Like most things that are spread by rumor, the facts about me, UltraCade Technologies, and the M.A.M.E. emulation system are quite distorted.

STFU, morons.

I will try and educate anyone who cares to listen about the reality of our marketplace and what we are doing and what we are not.

I will now spin this story to put me in the most positive light without discussing what I'm really doing or why.

Simply put, we are making an effort to stamp out the commercial sales of M.A.M.E. based systems that advertise the ability to play thousands of games while relying on the customer to obtain the ROMs which can not legally be obtained.

We are trying to compete in the court room since we aren't doing so hot lately in the open market. And what do you expect? Our competitors are mean...and fat...and crooks. It's not fair!

What we are not doing is trying to claim ownership of the M.A.M.E. open source emulator or sue its authors.

These are not the droids you are looking for. Move along.

We are concerned about the commercial marketplace, and not the readers of the many M.A.M.E. user groups and forums.

We only care about how much money we can make. We couldn't care less about you bunch of losers sitting in your mothers' basements typing on your blogs and chatting with other adolescent dipshits.

I have been working on emulation technology since the mid 80's when I did work on an emulation project in college. In 1994, while working on games for companies like Sega and Williams, we developed an emulation of the arcade games Joust, Defender and Robotron that ran on a Sega Genesis. In 1996, we started the Lucky 8 project which turned into the UltraCade project. In 1998 we were one of the first companies to acquire the rights to classic arcade games from various publishers.

I am awesome.

We have licensed games from several manufacturers including Capcom, Jaleco, Taito, Stern, Incredible Technologies, Midway, Atari and more.

We can sell you a bunch of cool games! Sale ends soon! Buy today!

We have started several projects and built prototypes for companies like Sega, based on technology that was licensed from authors from the emulation community. We have licensed technology from many of the communities programmers, paying them to use their code in our products and demonstrations. We have been the leader of the retro arcade movement, and have invested millions of dollars creating a market for retro games. UltraCade was the first successful multi-game arcade machine combining many of the old classics. We further enhanced the market by creating Arcade Legends, our consumer version of the UltraCade product.

Did I mention I was awesome? Well, I am.

We have also paid hundreds of thousands of dollars in licensing fees to have the right to sell our games.

Even though I'm awesome, I'm also a bit of a sucker.

In the past couple of years, there has been a huge wave of resellers competing with our UltraCade and Arcade Legends products. They build a similar style cabinet, install a PC in the machine, load M.A.M.E., and sell it for a very low price. Lower than we could ever offer our machines for sale. How? Quite Simple. They profit by stealing others work.

No Fair! Other people didn't play by our rules and now we can't make as much money! It's not fair, I tell you! They're STEALING! (Well, not really stealing...more like...infringing copyrights...but, that just doesn't have that same ring to it.)

If you look at the web sites, and read the eBay ads they offer machines that "Play o

What a giant load of...

They then try and skirt the law by pretending that they are not promoting piracy of these same 4,000 games with statements like "we don't load the ROMs" but of course, almost all of them do.

And what exactly will stealing a logo and name do to stop them? He can't copyright the code, so these guys would simply remove all reference to "MAME" from their code and continue to sell it. Totally irrelevant.

I'm amazed at the response of the community, a community that is being whipped into action by the same people who are stealing and profiting from them and they're efforts.

Aside from the irritating use of "they're" (you wanted "their", buddy), what's whipping us into action (here we are, so easily lead astray. And I thought you said you were writing to an intelligent audience?) is the fact that you're trying to steal via copyright a work that has been used for years by another party. No chance this would hold up to a court challenge. Whether or not you plan to sue the authors of MAME is not the primary issue, as you would lose. The issue is theft.

As to the legality of ROMs (IANAL), according to the DMCA, I am entitled to own a backup copy of digital media that I own. If I am unable to create that backup for myself, I can have someone else generate it for me. So if you actually own the cart, then yes you can legally download a ROM image. True, not very cost-effective, but legal.

You can't solve your company's problems by misappropriating other people's property.

Completely Evaded the Subject

Is it just me, or did the response take a good two pages yet completely walk around the issue?

My questions are these.

Did they legally obtain the rights the the logo and name before filling?

What on earth does going after illegal competitors have to do with getting trademark for a name and logo you didn't create? Did I miss something?

He might want to actually clarify the issue at hand *before* getting on the high horse.

Suggestion: assign MAME trademark to non-profit

Whatever he is trying to do, if they get the trademark, they can either sue no-one, or sue everyone using the MAME name to point to the M.A.M.E. emulator. Therefore, there is potential for abuse.

I think he should either create a non-profit that is supported by M.A.M.E. programmers and community, or drop the idea. Also, I think that any other company making consoles will be succesful suing UltraCade for unfair business practices if UltraCade pretends to be the supplier of the M.A.M.E. emulator while it isn't.

Copyright office wants to help abandonware

This is quite topical once again.

The text of the Copyright Office post is here [pbp.net] - Why Slashdot keeps rejecting this, who knows.

Anyway, a lot of these MAME games are practically "orphan-ware" anyway, and they want to address the insane copyrights that tie these games up and out of the public domain.

Public comment period, folks... copyright changes *could* happen!

David's rebuttal distracts from MAME trademark...

I see his point in wanting to police the blatant piracy that goes on related to MAME. And he should continue with this, bless him.

But he does not own the MAME name, nor its trademark, and his attempt to secure it for his supposedly noble purpose of fighting piracy is not a good enough reason on its own.

Basically, Dave, fuck off.

Interesting comment...

What we are not doing is trying to claim ownership of the M.A.M.E. open source emulator or sue its authors. We are concerned about the commercial marketplace, and not the readers of the many M.A.M.E. user groups and forums.

It sounds to me as if the application for a trademark was submitted illegally. The part about believing you to be the creator, or something like that seems obviously false. The letter on the website shows without a doubt that you are aware of the existence of a program of the same name, yet you signed the trademark application anyway.

You also stated that you want to use the trademark just as leverage to sue those who are committing crimes. If you are truly interested in this, perhaps you should start collecting information about who is distributing these illegal copies of roms and turn it over to the law, or, *gasp* the actual developers of MAME. You can say that you don't want to make a profit off of the MAME name until youre blue in the face, but since you have other (legal) methods of achieving your goal, which you have not taken, then it makes you, the person who fraudulently submitted an application to USPTO, no better than the people who copy these roms.

Now IANAL, but doesn't the copyright on some of these games expire after a certain amount of time? Unlike Disney, some creators DO allow their creations to fall into the public domain after a while. What about playing these games on MAME?

Oh, wait about fair use laws? According to fair use law, I have the right to download a song off the internet if I already own the song in some comparable digital format. Where does the law state that owning a ROM chip doesn't give you the right to play the game? You say the law is strict, but don't quote it or even mention what the law DOES say.

David R. Foley's update

He may be doing this to protect the poor, uneducated consumers. Honestly, he really might. Of course, I don't really buy this at all, since the class of consumer he talks about isn't going to buy a MAME machine anyway. I'm sure if he surveyed his customer base he'd see that instantly. I'd go so far as to say that the vast majority of people who understand emulation enough to even think about looking for an arcade emulator like the ones he sells both already know about MAME, and know about the legal issues surrounding game ROMs.

Even if we assume that he is being altruistic, and even if we assume that his potential customers don't know about the legal issues involved, this is the wrong way to go about dealing with it.

To Mr. Foley:

Educate people. Let the copyright holders for the games your competition is distributing illegally know about the infringement going on. Attempt to handle things constructively in a manner that actually makes things better rather than just attempting to find a way to sue your competition out of business, because that's all you're doing.

Ultimately, pirates aren't stealing your work, so getting rid of them isn't your job. I don't care if you worked on an emulation project in college or not. This is about making more money for David Foley, and that's it.

By the way, cost effective for the consumer or not, competitors do have the right (AFAIK) to sell MAME systems without games. If they're being misleading about it, notify the appropriate authorities. If they're providing the games, once again, notify the copyright holders so they can take action (at their discretion, maybe they just don't care anymore, which is their right, and sucks for you for licensing from them).

Just because you don't intend to attempt to slap the MAME folks with a lawsuit (for now, at least; whether you could actually do such a thing is for those more qualified than myself to say), doesn't make you a "good guy". I hate to see IBM ("good") use bullshit legal tactics against Microsoft ("bad") only slightly less than I hate to see the reverse. Both cases generally end up hurting the consumer -- and costing me some of my tax dollars -- anyway.

How to be your own RIAA?

What I read into this is, these UltraCade guys decide to be the "defenders of good" and apply to own the trademark for MAME, thinking that somehow, MAME is synonymous with the UltraCade name/product. With their newly appointed power, they go out and sue everyone who is distributing illegal ROMs in the name of those people who own the original works. Were they at all elected/nominated/asked to do this on behalf of even one ROM owner? If approached, would any ROM owner actually want UltraCade to represent them (in essence, to be a middleman between the client and lawyers - with the appropriate fees, I'm sure). Do they plan on paying the original ROM owners any of the awards at all?

I'd certainly feel better about this if UltraCade were a non-profit organization or at least a representative body, and not just some company who's figured out an alternate revenue stream.

{sigh}

I don't know who's right or wrong in this case, and honestly I don't care all that much either way, but I just wish someone would come up with a better term than "rampant piracy". I really hate that phrase and I hear it way too often.

Foley: The market does not need hypocrites

Have you ever asked yourself why most people believe that copyrights and trademarks on information and media be assigned to the people who created it?

You did not:

1.) Create the MAME acronym or draw the logo.

2.) Do any work programming MAME.

Before crusading against those who break the law, maybe you should find a method which is more in line with the spirit of the law. Even if what you are trying to do is legal (there is legal precedence that suggests it is not), it does not sit very well with your customers (and potential customers). The sheer volume of comments this atricle has produced should be fairly convincing evidence that what you're doing is pissing a lot of people off. Some of those people are your cusomters / potential customers.

If you want to use the law to save your business, then I'd like to point out that there are already mechanisms in place through which you combat piracy. That's right. You go to the proper copyright holders and request that they protect their copyrights. Since you licence ROM's from many companies, you already have a few contacts to go to. Odds are that their ROM's are among those being pirated. Try explaining to them that the sales of those MAME machines hurts your business, and that you may no longer be able to pay for your licenses if it is allowed to continue.

But if it turns out that you can't find the copyright holders, then it means that they probably aren't being hurt by the sale of those games. And guess what? Copyright is intended to grant temporary monopolies (maybe not so temporary anymore) of reproduction to the creator of a work that they might profit from it. The copyright on the illegal ROMs was not meant to protect you or any business you have. I cannot feel too bad when someone who does not produce anything of their own get screwed by copyright infringement. Why don't you program your own ROM and let it get leaked into illegal circles? I may be more sympathetic then (but I probably won't. Not unless you do it with the intent of making and selling a ROM, not just as a legal tool.)

One more thing. Don't be a moron. Trademarking (Trademarking! Not even copyrighting!) MAME will not stop the sales of arcade cabinets with illegal ROMs on them. They will still be sold and people will still buy them, only it will be done in such a way that the four letters M-A-M-E never get mentioned during the transaction. If the four letters M-A-M-E become bad news for pirates, then they will simply stop using them. Do you really believe that a single trademark (TRADEMARK! not even copyright!) is not enough to stop an entire black market?

Black markets exist because people want things that they cannot get through legal means. If you trademark MAME, it will not change peoples' desires to have cheap, well-stocked arcade machines. They will get them, no matter how many trademarks you have. And if it turns out that by some miracle you actually can stop them from buying them (which would make you the first), what makes you think they will want to buy your higher-priced, less-stocked machines?

What do I suggest? Become a good capitalist. Either do one of the following:

1.) Advertise your plight. Educate people about the illegality of the machines they are buying. Appeal to the hearts and minds of your potential customers. Education can go a long way, and just as some people feel bad for pirating video games, movies and music, so too will some people feel bad for pirating old arcade games. Note that this route isn't likely to work unless you take the moral high ground.

Or (and this is my preference):

2.) Find a way to give people what they want. Make a low cost, well-stocked arcade machine for people to buy. If you can't lower the price or put any more ROM's on your machines, you will have to find some other way to become competitive.

Re:Good for him

The problem is that he's trying to make some cash from OTHER people's hard work. MAME has been around for 8 years now and this guy has ABSOLUTELY NOTHING TO DO WITH THE PROJECT.

Re:Easy ./ing

Even better is the 300k animated gif [ultracade.com] on their front page (which you can shift-reload to your heart's content).

Re:Wait a sec

Maybe the USPTO should have some sort of a public correspondence site where one could reference a TM or C or P by its number and e.g. point out that this same thing has been done for the past twenty years.

On the other hand, maybe with all the inevitable "M$ is t3H suX0r, dnut garnt n-A PATENTS 2 theys you a55hat!" comments isn't worth it.