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The Courts Games

Bethesda Tells Minecraft Creator: Cease and Desist 200

Posted by Soulskill from the lawyers-being-lawyers dept.
dotarray writes with news that Notch, creator of Minecraft, has received a letter from Zenimax, parent company of Bethesda, demanding that he rename his company's new game, which is called Scrolls. They claim it bears too strong a resemblance to The Elder Scrolls. Notch said: "First of all, I love Bethesda. I assume this nonsense is partly just their lawyers being lawyers, and a result of trademark law being the way it is. ... I agree that the word 'Scrolls' is part of that trademark, but as a gamer, I have never ever considered that series of (very good) role playing games to be about scrolls in any way, nor was that ever the focal point of neither their marketing nor the public image. The implication that you could own the right to all individual words within a trademark is also a bit scary. We looked things up and realized they didn’t have much of a case, but we still took it seriously. Nothing about Scrolls is meant to in any way derive from or allude to their games."
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Bethesda Tells Minecraft Creator: Cease and Desist More

Bethesda Tells Minecraft Creator: Cease and Desist

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  • normally copyright single common words?

    • They aren't claiming copyright, so that's irrelevant.

    • Indeed you can't. However, this is a trademark dispute, different rules (although I still think it is the height of stupid as they don't own the trademark on 'Scrolls').

      • Isn't scrolls a quite common word making it untrademarkeable?
        Especially when it comes to role playing games, most of them use the word in the normal gameplay.
        That would make it pretty nonsensical to grant a trademark on that word for using it as the product's name.

        This is not even taking into account that they don't use their trademark enough for it being confused with the Mojang game.
        The official name of their Elder Scrolls series contains the word, but they are most commonly known and marketed by their su

        • I'd say Apple is more common than Scrolls, yet you know you can't use it.

          • Only if you want to sale computers, software or digital media under that name. Say I want to create a company called Apple that sales toasters.
        • more like Mojang actually registered it. But I would say use as a story element and game title were two very different things.
        • Comment removed based on user account deletion

          • Re: (Score:2)

            by _KiTA_ ( 241027 )

            Exactly! this is like Apple suing for someone who used the word 'case" because they sell a case for the iPod. Nobody calls it "Elder scrolls" and even in their own marketing it has been Oblivion, Morrowind, etc.

            While I hope the guy tells them where to jump sadly in this country justice is for the rich and they could crush the poor bastard like a bug by tying his ass up in court for a decade so he'll probably have to cave.

            More like Apple suing someone for using the word Apple, or the word Pod. Say what you will, someone selling an "Apple PC" or a "ePod Music Player" would probably be looked at with a raised eyebrow in the US.

    • copyright? no.
      trademark? yes - for example - windows

    • Firstly, this isn't copyright; it's a trademark. They're two entirely different things.

      Secondly, you can't trademark common words in the industry in which they're common usage. For instance, "Apple" as the name of a greengrocer probably wouldn't fly, but "Apple" as the name of a computer company, or a music label obviously does. Also, trademarks only apply to things within the same domain - which is why Apple music and Apple computers could co-exist, until Apple started making inroads into the music industr

    • You can trademark them. This is not the same as copyright.

    • No, but you can trademark them, when used in combination with a certain technology or application. Hence, I cannot name a CPU "Pentium" [wikipedia.org], I cannot call my chocolate "Kinder Chocolate" [wikipedia.org] (German for "Children Chocolate", a brand name, believe it or not, they trademarkt "children". It's not possible anymore in Germany to trademark common words, but Ferrero managed to slip through. They actually lost the case when trying to take over "kinder.de", owned by an online family portal, creating one of the most interest

    • Re: (Score:2)

      by Jonner ( 189691 )

      normally copyright single common words?

      You can't even copyright phrases. You can, however, secure a trademark on unique phrases and words. If it were possible to get a trademark on a single, common word, Microsoft would stop anyone else from using "word" in their names.

  • Billable hours (Score:3, Insightful)

    by Cruciform ( 42896 ) on Friday August 05, 2011 @06:07PM (#37001188) Homepage

    If this is how Zenimax's legal representation justifies their retainers they should be fired.

    • Why would you say that? ZeniMax has to defend their trademarks. Obviously, they would never take actual legal action against Notch for this, but they have to send a cease and desist in order to protect themselves during potential future litigation against companies that DO infringe upon their trademarks in a way that COULD harm ZeniMax. Why this is newsworthy beats me.

      • Why would you say that? ZeniMax has to defend their trademarks. Obviously, they would never take actual legal action against Notch for this, but they have to send a cease and desist in order to protect themselves during potential future litigation against companies that DO infringe upon their trademarks in a way that COULD harm ZeniMax. Why this is newsworthy beats me.

        There, fixed that for you.

        • Why would you say that? ZeniMax have to defend their trademarks. Obviously, they would never take actual legal action against Notch for this, but they have to send a cease and desist in order to protect themselves during potential future litigation against companies that DO infringe upon their trademarks in a way that COULD harm ZeniMax. Why this is newsworthy beats me.

          There, fixed that for you.

          If you're gonna be an egotistical jackass posting simply to correct my grammar, perhaps you should actually correct it. Way to fail.

          • Why would you say that? ZeniMax have to defend their trademarks. Obviously, they would never take actual legal action against Notch for this, but they have to send a cease and desist in order to protect themselves during potential future litigation against companies that DO infringe upon their trademarks in a way that COULD harm ZeniMax. Why this is newsworthy beats me.

            There, fixed that for you.

            If you're gonna be an egotistical jackass posting simply to correct my grammar, perhaps you should actually correct it. Way to fail.

            I wasn't correcting grammar at all, and never intended to do so... I was adding appropriate emphasis to make it absolutely positively crystal clear and without doubt that they really didn't have any good choice in the matter to let the issue slide.

      • Re: (Score:2)

        by Fritzed ( 634646 )
        "Obviously, they would never take actual legal action against Notch for this"

        From Notch's Blog:
        "Today, I got a 15 page letter from some Swedish lawyer firm, saying they demand us to stop using the name Scrolls, that they will sue us (and have already paid the fee to the Swedish court), and that they demand a pile of money up front before the legal process has even started."

        Directly threatening to sue and demanding a 'pile of money' sure sounds like actual legal action to me.

      • Re: (Score:3)

        by Tacvek ( 948259 )

        But you don't need to do that. You do need to actively protect your trademarks. However you only need to take actual action if likely confusion would result.

        Since Notch's game is very unlikely to cause confusion, a cease and desist is not only not warranted, but might even open up Bethesda to potential liability for one of several torts. (I've never heard of anybody successfully suing for an overzealous C&D letter, but that does not make it impossible.)

        What may been prudent is to send a letter remindin

        • Indeed, if the games are not causing confusion there is no place for a trademark infringement case.

          Example, let's said I make a racer game called Mario Ferrari. Like so Nintendo has a good case that I'm trying to make it seem like a version of Mario Kart. Even Ferrari, the car company, belonging to a completely different industry, has a case that I'm trying to make it seem as if they endorsed the car models in the game.

          BUT, if there was a very popular F-1 pilot named Mario Ferrari, and the game has licensed

      • They don't have a trademark on a common dictionary word. They have trademark on the phrase, the appearance, and it's branding.
        If you own Rock and Roll Racing you're not defending your trademark if you C&D the NASCAR Racing dev team. You're just being dicks.

        • You're absolutely correct about the first part, but your analogy doesn't apply. There's a difference between suing for the use of "Scrolls" and suing for the use of "Racing". "Racing" would be a general term that simply describes the game and nearly every racing game has "Racing" in the title so it couldn't be recognized to be trademarked by anybody. "Scrolls" is an important part of the game's title and in order for ZeniMax to ensure that they'll be able to defend their trademarks in the future against tho

          • Scrolls are a common way for documents to be presented and tales to be told in fantasy games.
            They narrow their usage of the term with "Elder Scrolls".
            Using Scrolls in the generic doesn't dilute and I'll bet you a donut this won't stand up to judicial scrutiny. I understand that they have to consistently protect trademarks from infringement to keep the trademark, but this is just bullying.

            • Using Scrolls in the generic doesn't dilute and I'll bet you a donut this won't stand up to judicial scrutiny.

              Of course it wouldn't. ZeniMax wouldn't in their right mind sue over this. All they did was send a C&D to cover their ass. This will become newsworthy when this becomes a lawsuit. Until then, it's just stupid sensationalism and blaming the company and making them out to be heartless bullies when all they want is to not be fucked by the stupid judicial system.

      • I understand that legally speaking, companies need to defend their trademarks. However, I'm not certain where this notion that sending a C&D letter without following it up counts as defending a trademark comes from, and I have seen it at least two times in this thread alone.

        If somebody is in court challenging a trademark because it wasn't defended, do you think the judge is going to respond favorably to "But we sent a C&D, we just never had any intention of making him cease or desist!?" Or "you'

  • Shit will hit the fan (Score:3, Interesting)

    by Hsien-Ko ( 1090623 ) on Friday August 05, 2011 @06:11PM (#37001238)
    once they act on the word "Arena" in relation to Zenimax-owned products Elder Scrolls: Arena and Quake III Arena...

  • Seriously, you can't even use PART of a trademark now? "The Elder Scrolls" is quite different from "Scrolls."

    That would be like saying you can't call a game "Blade" or "Mount" because of "Mount & Blade," or have a game called "Magic" because of "Might & Magic" ... or ...

    Maybe this is just because they have to be proactive about keeping their trademark or something. I don't know. Stupid. :)

  • makes sense.. (Score:2, Funny)

    by Anonymous Coward

    Elder Scrolls is just later in the series:

    Scrolls The Early Years.

    Scrolls.

    Elder Scrolls.

    • I thought the new sequel naming convention went:

      The Elder Scrolls

      2 Elder 2 Scroll

      Elder Scrolls

      Scrolls

  • Should we start making a list? (Score:3)

    by Daetrin ( 576516 ) on Friday August 05, 2011 @06:43PM (#37001610)
    Let's see, we can't use "Age" or "Edge" [slashdot.org], and now "Scrolls" is out as well.

    • Or the Word 'Final'.

      There was the game Final Fight. Then there's the series Final Fantasy. Actually Final Fight had several versions so it could be a 'series' too. So now, you have a Final Fight game and you have Final Fantasy. Both involve fighting. Confused which is which fellow gamers? Think not.

  • Elder than the Elder Scrolls (Score:3, Informative)

    by BitterKraut ( 820348 ) on Friday August 05, 2011 @06:58PM (#37001836)
    are Magnetic Scrolls: The Pawn, The Guild of Thieves, Jinxter, Corruption, Fish, Myth, Wonderland... loved these in the 80s/early 90s and still do. A 5,25" floppy disk, wrapped around a rolling pin, that's my earliest encounter with scrolls in video games.

  • Meanwhile... (Score:2, Insightful)

    by devphaeton ( 695736 )

    ....meanwhile, i have yet to see Notch get his panties in a bunch about Total Miner, the C- Minecraft knockoff coming to Xbocks Live in the near future. Yes I know the history of Minecraft, and I know that Notch borrowed a lot from Infiniminer. But this also goes to show that game 'concepts' aren't sacred.

    I can see if Notch named his new game "Alder Scrolls" or "Newer Scrolls" or "Minerfall: The Buggiest Scrolls Evar" or "Iron Scroll: Mining The Oblivion" or anything else that would directly allude to ano

  • hello lawyers, meet internet (Score:4, Interesting)

    by wfmcwalter ( 124904 ) on Friday August 05, 2011 @07:08PM (#37001932) Homepage

    Technology companies are pretty good about properly integrating their marketing and public relations efforts into the business proper. So if they need to do a safety recall the PR people are involved in the process; a decent PR guy can turn "the XYZ-5000 sprays customers with burning acid" recall into "XYZ really cares about its customers, and as a lovely fluffy precaution we're fixing all our XYZ-5000s, even though most of them are perfectly super and don't experience moderate thermal variances". Engineering, QA, customer relations, finance - every department doesn't get to communicate with the public (or do anything that's obviously going to end up being public) without someone in PR there to make sure the message is put out right.

    Legal departments, by dint of (often broken) corporate org-trees are a notable exception to this. When they see a problem, they fix it the lawyer way, and the rest of the company never knows until after the fact. In olden times of yore stuff like this was trivia between one legal office and another, and only the most nebbish of corporate historian ever know why a product changed its name or wasn't orange coloured any more. So the lawyers behaved as they always did, striking as quickly and as hard as they could, writing letters as outlandishly vitriolic and court pleadings as wildly exaggerated as they felt they could get away with, knowing that things would stay on the downlow and whatever happened only the outcome would matter to anyone.

    They didn't consider that, if you sent someone a demand letter, the first thing they'd do is tweet about it to their entire customer base (which turns out to be a big proportion of your customer base too), and post the letter (with all its wild and crazy claims) on the internet, for everyone to point and laugh at. If it's the all-too-common shot across the bows (rather than a serious attempt) you risk looking like a rather unhinged bully.

    Like it or not (and the lawyers don't like it, and decorate their broadsides with all kinds of "if you publish this letter we'll sue to for that too" stuff) everything anyone in the corporation does reflects on the whole outfit. The PR folks should be in on the ground floor with anything like this. They don't get to veto every lawsuit or every letter, but they can put a choke-hold on the stupid. Right now Zenimax's PR guy has his head in his hands; I'll bet the first thing he knew about the whole affair was when he read it online, and he'll spend next week fighting fires and soothing angry faces. Notch probably won't change the name, but if he does that's just another news cycle of bad PR for Zenimax.

  • The first place I'd heard about Skyrim and how cool it's going to be was from Notch himself, months ago.

    lawyers can go eat a poop sandwich.

  • Nothing to See Here. Move Along. (Score:4, Interesting)

    by skine ( 1524819 ) on Friday August 05, 2011 @07:25PM (#37002164)

    The first rule of having a trademark is "don't lose your trademark." This is done by defending it against every potential threat, no matter how tenuous the connection.

    Essentially, if you don't defend yourself, then your trademark is automatically weakened.

    For example, if your trademark is for a video game called "Elder Scrolls," and you allow a game called "Scrolls," to be published unchecked, then you've effectively stated that the word "Scrolls," and titles including that word, are all acceptable, and cannot be challenged by trademark.

    In the end, Zenimax either maintains their current position by forcing Notch to back down, or their trademark is more clearly defined, including restrictions on what Notch can call this and its sequels (if any).

    Thus the only losing move is not to play.

    • For example, if your trademark is for a video game called "Elder Scrolls," and you allow a game called "Scrolls," to be published unchecked, then you've effectively stated that the word "Scrolls," and titles including that word, are all acceptable, and cannot be challenged by trademark.

      Which is already the case - Bethseda has a trademark on "Elder Scrolls", not "all games with Scroll in the tite". They cannot legally veto other game titles simply because they have a word in common. All they can do is bluster and send threatening letters that would be blown away in court. "Scrolls" is not their trademark, they have no obligation to attack it, and it doesn't weaken "Elder Scrolls" in the slightest. Now, if they were threatening a game called "Eldest Scrolls", or "Ancient Scrolls" they migh

      • Not to mention most gamers also think of a name like Arena, Daggerfall, Morrowind, Oblivion or Skyrim when they refer to an Elder Scrolls title. Its called "The Elder Scrolls X : _____" where X is its Roman numeral marking its place in the sequence, and _____ is its name. Its not just called "Elder Scrolls". I don't see any case here. In fact, if I was a lawyer at Zenimax, I would just laugh at my colleagues for being such morons for even trying to bully Mojang into doing something pointless. Something tha

    • Re: (Score:2)

      by Jonner ( 189691 )

      The first rule of having a trademark is "don't lose your trademark." This is done by defending it against every potential threat, no matter how tenuous the connection.

      Essentially, if you don't defend yourself, then your trademark is automatically weakened.

      For example, if your trademark is for a video game called "Elder Scrolls," and you allow a game called "Scrolls," to be published unchecked, then you've effectively stated that the word "Scrolls," and titles including that word, are all acceptable, and cannot be challenged by trademark.

      In the end, Zenimax either maintains their current position by forcing Notch to back down, or their trademark is more clearly defined, including restrictions on what Notch can call this and its sequels (if any).

      Thus the only losing move is not to play.

      When I was a kid, I didn't understand why documentation with my Legos said "Please call them Lego bricks, not Legos." Now I know that's part of their trademark defense policy.

    • Good job being an apologist. Defending your trademark only extends to defending it when its possible that someone is in your industry using a trademark sufficiently close to your own such that it may confuse consumers. Scrolls != Elder Scrolls. Trademark violation is not happening with "Elder Scrolls V : Skyrim" vs. "Scrolls", so it is literally a moot point. In regard to Bethseda games, most people see "The Elder Scrolls XXX : YYYYYY", where XXX is the Roman numeral for where a particular game is placed in

    • That is possibly what the Zenimax's lawyers are thinking, but even if that would be true it would still be missing the big picture. Let me quote from little further down this conversation.

      "Bethesda is in my shit list now.

      I am putting any company that is letting itself run by lawyers instead of customer-oriented executives into that list. and bethesda just made that list. i am bored lately, and i was toying with the idea of playing an old school rpg franchise i havent played yet. and actually i stood over el

  • This will be retracted (Score:5, Interesting)

    by Tridus ( 79566 ) on Friday August 05, 2011 @07:29PM (#37002204) Homepage

    Every now and then we see lawyers for a company do silly things like this. Lawyers live in their own world, nearly wholly disconnected from ours. In their world, they send lots of letters on anything that even remotely might kind of sorta maybe be in the same ballpark as their trademark.

    In the real world, marketing sees the reaction to that. When it makes news (like this case), marketing goes to the CEO and says "hey legal is causing us grief." The CEO then tells legal to play nice in this case. Particularly since if they actually tried to challenge this in court they'd get laughed at.

    So, publicity will solve this one.

    • This is exactly why they need to have Marketing, Legal and other branches meet before making decisions like this. A simple hour meeting with upper management and heads of the departments would have solved this before it became an embarrassment.

  • More like no case (Score:3)

    by ewanm89 ( 1052822 ) on Friday August 05, 2011 @07:37PM (#37002262) Homepage
    It should also be pointed out that the several trademark registries allowed Mojang to register Scrolls months ago. Including US and Sweden (registering it as an EU trademark).

    • Re: (Score:3)

      by Jonner ( 189691 )

      It should also be pointed out that the several trademark registries allowed Mojang to register Scrolls months ago. Including US and Sweden (registering it as an EU trademark).

      If true, it's disturbing that it's possible to register a trademark for a single, common English word.

      • Re: (Score:2)

        by gl4ss ( 559668 )

        yep..
        I think next up: "Songs" "Tunes" "Motors" "Engines" "Legends" "Elders" etc..

        even if he would refer to it as scrolls himself.. it would be better to prefix it with something, even if it's just a word taken at random from some book(flip open a latin book, flip pages, point finger).

  • First, someone inform these tools that gamers aren't so retarded to not know the difference. We are computer gamers, not console gamers, we aren't playing Pogs, we aren't completely retarded. Secondly, the Minecraft guy is small potatoes, he's the little guy, the underdog, and busting his balls is a great publicity stunt to paint yourself as being a complete dick. I don't like buying games from people who act like dicks. Why? Because being a dick is a habit, and how long does it take for them to be dicks wi

  • I am putting any company that is letting itself run by lawyers instead of customer-oriented executives into that list. and bethesda just made that list. i am bored lately, and i was toying with the idea of playing an old school rpg franchise i havent played yet. and actually i stood over elder scrolls for some time in gamersgate. now i know which i wont be buying - elder scrolls.

    i have no tolerance for lawyery gimmicks and cutthroat capitalism in gaming. anyone who curbs my future potential fun - which u

  • "Today, I got a 15 page letter from some Swedish lawyer firm, saying they demand us to stop using the name Scrolls, that they will sue us (and have already paid the fee to the Swedish court), and that they demand a pile of money up front before the legal process has even started."

    Forgive me if I'm wrong, but isn't it a standard not-technically-a scam in the EU / UK for legal departments to file on behalf of customers they don't actually represent, requesting legal fees and the like? Something to do with how the courts (particularly the trademark system) works over there? I seem to remember many, many, MANY moons ago a discussion on Slashdot about some legal firm in Germany doing something similar.

  • I would have guessed that it would have been Blizzard going after him for using a word + "Craft"

  • Notch says "The implication that you could own the right to all individual words within a trademark is also a bit scary." Well Notch could be a little more creative than using a single dictionary word to name his game. I hope he isn't planning to assert any trademark on the word "Scrolls".

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