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The Courts Games Your Rights Online

MMO Fan Site Removes Character Stats Over Trademark Claim 139

Posted by timothy
from the please-don't-repeat-this dept.
steveb3210 writes "EQ2Wire.com is a fan site for the MMO Everquest 2. One feature of their site is a searchable portal for all game-related stats such as characters, equipment, items, and mobs which they generate from an XML feed provided by the game's publisher. Recently, the owner of a trademark has been threatening them over the name of a character and in the face of possible legal bills, they were forced to remove the character's profile from their site. Adding further insult to injury, the character seems to have been created prior to the trademark in question."
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MMO Fan Site Removes Character Stats Over Trademark Claim

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  • by Anonymous Coward on Thursday July 25, 2013 @12:55PM (#44383467)

    I hereby trademark "Anonymous Coward". You are all infringing by reading what I say. Pay me $10.

  • Creation date (Score:1, Informative)

    by Anonymous Coward

    the character seems to have been created prior to the trademark in question
     
    Too bad there's not some 'first copyright use trumps filing of intent-to-use trademark application" doctrine to make that relevant.
     
    Sometimes it's hard to read the IP coverage here, really hard.

    • Re:Creation date (Score:5, Insightful)

      by tiberus (258517) on Thursday July 25, 2013 @01:57PM (#44384099)

      Too bad there's not some 'first copyright use trumps filing of intent-to-use trademark application" doctrine to make that relevant.

      Umm, there is but, in the case of the character name it's not being used in commerce (trade) so, I'm at a loss of how trademark law would apply. Had this been a valid trademark case, the person who owns the character could have filed to have the filing removed but, there are just too many buts in this case

      I handle trademark and some copyright stuff for a small non-profit. I've never had to threaten anyone and I've never pretended to be a lawyer, I just ask nice, explain and get good results. Had I come across a MMO character name that was the same as our trademark (which begs the question of how I found it, as I only look for infringement in places where infringement is likely to happen and cause harm), I at most would have been amused and can't imagine why I would contact anyone.

      In all my cases it's either been 1) I don't want people to think we are associated with you or 2) your use is likely to cause confusion of the brand. The case against the OP is sad and laughable.

      • Re:Creation date (Score:5, Insightful)

        by Charliemopps (1157495) on Thursday July 25, 2013 @02:02PM (#44384153)

        I know someone (I don't like this person) that works at a firm that enforces copyright as a service. It's very simple, they get a contract to find infringement. They have teams of people that use scripted software to find said infringement, then they GET PAID BASED ON HOW MUCH THEY FIND. They send their lists on to the legal department who gets it taken down. Then the client gets a bill... we found X number of infringements, we got Y taken down, Here are the ones you'll have to take to court, you owe us Z.

        All the ones that just take them down without a fight never even get to the content owner. They just pay a fee to not deal with them. Does it make more sense now?

        • by Anonymous Coward

          This.

          That's something I've noticed a lot of in the age of outsourcing and subcontracting. Payment to subcontractors is based on quantity, not quality. Instead of doing something reasonable like saying "We are going to hire you to perform this service for X amount of time for Y amount of dollars and your performance during X amount of time will determine renewal of the contract", companies will engage in the idiotic scheme you expertly described.

        • by tiberus (258517)

          I know someone (I don't like this person)

          Let's take a shot in the dark and guess it's a lot stronger than "don't like".

          GET PAID BASED ON HOW MUCH THEY FIND.
          Does it make more sense now?

          Nope, it doesn't make one damn bit of sense. Although, I do think it would be a hoot to get a notice from one of them.

        • by sjames (1099)

          That's why there should be a substantial fine involved when you send a nastygram that even a law student knows is invalid.

      • by shentino (1139071)

        As with most david vs goliath stories, the law applies however the side with the biggest legal budget says it does.

        • by Zordak (123132)

          As with most david vs goliath stories, the law applies however the side with the biggest legal budget says it does.

          So you're saying that Goliath's mistake was not having a big legal team in $1,500 tailored New York suits?

          • by Macgrrl (762836)

            I think he's implying that David's lawyers had $3,000 tailored Italian suits.

            • by Anonymous Coward

              Even worse. David probably had Jewish lawyers.

          • by Aighearach (97333)

            A $1500 tailored suit is rather moderate attire. Is your point that, for their income bracket, lawyers usually choose cheap suits?

      • " handle trademark and some copyright stuff for a small non-profit. I've never had to threaten anyone and I've never pretended to be a lawyer, I just ask nice, explain and get good results."

        As TFA mentions, as long as there is no confusion between the EQII character and whatever product or service "Malshandir" produces, his trademark claim is invalid.

        Second, according to international law, it isn't where somebody ACCESSES the internet that is of relevance to the law; it is where the information is sourced. Any other scheme is simply unworkable.

        So, if I have an online store in Tennessee, and you purchase something from your home in London, the transaction takes place under Tennessee (and

      • by sjames (1099)

        Sadly there is no bar whatsoever to suing someone and costing them a small fortune just to win against an obviously bogus lawsuit.

        Apologists will claim that you can counter sue for your legal costs but ignore that even in the obvious cases of abuse it's hard to get legal costs awarded, even harder to get the other party to actually fork over, practically never covers all of your costs (such as time spent), and you're going to have to front the legal fees until (hopefully) you actually collect those costs fr

      • by Anonymous Coward

        The likely reason is that Google search brings up the MMO character near the top of the rankings when searching for "Malshandir". This is all about getting a jump on the search engines.

    • Re:Creation date (Score:5, Insightful)

      by bfandreas (603438) on Thursday July 25, 2013 @02:28PM (#44384399)
      Nevertheless, the guy is a sleazebag. There are several pointers to this guy operating out of the basement of his mom's house and being a pure troll with no merit whatsoever to his claims:

      An Arcor email address. He doesn't have his own domain and uses a consumer-level ISP issued email service.
      A German owning an UK Ltd. smells. Smells of destitution. There are a couple of strings attached to a German GmbH. Prior businesses gone bust, outstanding claims and other doubts concerning his reliability will prevent him from forming one.


      This guy is all noise and no brawn to back it up. If I'd run a popular EQ2 site I would ask if one of the users was a lawyer and would be willing to represent this guy with a snarky lawyerese snail-mail letter containing substantial speculation about the insubstantial size of his male member. Pro bono(which is legalese for "for the lulz").
      • by Anonymous Coward
        They should have just told the guy to fuck off. Some idiot Kraut isn't going to be able to successfully file an international lawsuit against them anyhow. They should have called his bluff.
      • by Macgrrl (762836)

        Pro bono(which is legalese for "for the lulz").

        Thank you sir, I am truly tempted to change my sig file.

      • There are several pointers to this guy operating out of the basement of his mom's house and being a pure troll with no merit whatsoever to his claims:

        Also, the numerous spelling, grammatical, and punctuation errors peppered throughout the emails are pretty hard to miss.

    • by Anonymous Coward

      "Too bad there's not some 'first copyright use trumps filing of intent-to-use trademark application" doctrine"

      There kinda is. It's just called "being the first to use the trademark". You don't have to file any paperwork to have a trademark. So if you establish a trademark without filing and then someone else comes along and files to register that same trademark and will use it in the same industry then you can have their application thrown out.

      Had the character name actually been used as a trademark, then t

  • What? (Score:3, Insightful)

    by Desler (1608317) on Thursday July 25, 2013 @12:58PM (#44383493)

    This part was amusing:

    The misusage of a trademark is a crime and has serious consequence as civil case and criminal case.

    Haha what? Is there really a country that has criminalized the using of someone else's trademark? Or is the guy writing these letters really as stupid as he sounds?

    • Have you not heard? Everything is now a crime.
      • Re: (Score:2, Insightful)

        by Anonymous Coward
        And we're tracking everything you say and do. You have a criminal list that dates back to 2001. We just never got around to prosecuting you mostly because you didn't tick off the wrong folk.
      • by jxander (2605655)

        Complaining about the fact that everything is a crime will be viewed as a form of verbal littering, which is also a crime.

    • Re: (Score:2, Interesting)

      by Anonymous Coward

      Sounds like someone is trolling them, just like fake DMCA takedowns being sent to sites, illegal surly, but its still fairly common.

      • by Anonymous Coward

        There were so many typos in that that I don't think it was a real lawyer, just some guy who doesn't speak much English.

        I'm no lawyer, but isn't it that with trademarks you can only sue if its in the same kind of field. They are used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others.

        You can get a trademark for food products, but can't sue someone in electronics unless they also make food products or you are going to get into electron

        • Re: (Score:3, Informative)

          by Aerokii (1001189)
          The man who sent the email in question was no lawyer, since his later threats allude to having a lawyer start sending form letters and what not.

          As far as I can tell he doesn't have a case, but I'm quite far from being an international IP attorney, and between knowing when to hold and when to fold... well, a simple character name is definitely a fold, when you get into the costs of this sort of thing.

          Not to say it doesn't piss me right off. This person created the name before the bad-spelling-person eve
          • by TWiTfan (2887093)

            It doesn't matter whether the person suing you has a case or not, when you don't have the money to defend yourself. Unless you can find someone to agree to foot your legal bills in the event that you're sued, you're pretty much at the mercy of anyone who threatens to sue.

            • by Aerokii (1001189)
              Yes, I agree with that entirely- hence my suggestion that this is a "fold", meaning that it's not worth fighting. My reaction would not have been unlike what the original writer's was- especially when faced with a legal threat.

              But this points to a larger issue with society that's been argued on Slashdot n+1 times as is, and I can add little new to that conversation. Suffice to say it worries me tremendously that societies exist in which one can be silenced by spurious or outright invalid legal threats.
              • Re:What? (Score:5, Insightful)

                by Sperbels (1008585) on Thursday July 25, 2013 @02:54PM (#44384645)
                It's not worth fighting....it's worth totally ignoring. This kitty has a nasty meow, but no teeth or claws.
                • by Znork (31774)

                  This. Don't respond to crazies like this, if you're not forcing them to serve you a notice physically or at least via mail you're encouraging their crazy. Don't argue with them, don't cave to them, dont send any reply of any kind. If the guy is coherent enough and tenacious enough to actually engage in a valid serving then it might be worth either caving to or letting a lawyer take a look at it and reply to it, but in no way engage the asshat in an argument that you simply cannot in any way benefit from.

            • It is actually depressingly common in Germany for people to do this, they send letters in the hope that you will settle out of court for a small amount. I have never heard of them going after a website, it is usually individuals with downloads, but maybe since it was ruled unconstitutional here for ISPs to save the information of users that might have become more difficult. At least he is trying something new. German/European courts are quite fair, they also do not tolerate frivolous lawsuits. Private litig
          • This is a straight bluff, and not even very well done. If you fold to that you will lose your shirt everytime.

            The guy getting these stupid emails should have just trashed them and not responded instead of wasting his time treating it like a serious concern.

    • Re:What? (Score:5, Informative)

      by Baloroth (2370816) on Thursday July 25, 2013 @01:09PM (#44383587)

      The whole claim is spurious. First, it's a European registered (but expired, apparently) trademark, and therefore not enforceable against a US business (yes, trademarks are regional: you can have an unrelated "SodaPop Industries" in two different regions of one country, and neither infringes the other unless they expand into the others region). Second, the trademark is for a business, it doesn't cover video game account names. A username isn't a trademark at all: to be a trademark, it has to be actually doing trade. Unless someone is running a business under that name (and a business in a similar field as the complainant), there is no infringement. Finally, the indexing website isn't using the name to identify itself, it's a search portal. Even if it was a trademark, and an infringing one, the EQ2Wire.com wouldn't be infringing in any way by indexing it.

      • Re:What? (Score:5, Informative)

        by Dzimas (547818) on Thursday July 25, 2013 @01:24PM (#44383755)
        The trademark is valid until May 29, 2019. It covers various trade classes including Nice 41m which incorporates Betrieb von Online-Spiele, Foren-Rollenspiele (operation of online games and "play by post/email" games). So the complainant has a valid EU trademark that covers roll playing games. That said, it appears that the company registration has expired, which puts the ownership of the trademark into question. As far as the US site's position goes, the complainant would have to demonstrate that the American site is using the trademarked name for commerce within the EU. That would be hard to prove, especially since the product in question is a computer game owned and operated by Sony; the defendant is merely operating an online catalog of Sony's game characters. This case would therefore be akin to Disney seeking redress from a website that lists cartoon characters including trademarked properties such as Mickey Mouse, in a jurisdiction where Mickey Mouse is not a registered trademark of the Walt Disney Co.
        • Re:What? (Score:5, Insightful)

          by Baloroth (2370816) on Thursday July 25, 2013 @01:45PM (#44383961)

          Ah, I see the trademark now. Of course, it wasn't filed until 2009 (which really does matter: registered or not, using a trademark that is already in use elsewhere does not entitle you to force the other to take it down). However, and much more importantly, the Everquest name isn't being used to sell anything. It's frankly nothing like Disney seeking to take down trademarked content, because the mark isn't being used for trade. The point of trademarks is to reduce confusion among consumers: since nothing is being sold with or under the name (by either Sony, EQ2Wire, or the account holder, presumably) it's not a trademark and therefore can't infringe.

          If Sony had made a game with that name in it, he might have a point (although, even there, unless the character in it bears a resemblance to some character he is likewise selling, he probably has very little case), but the name was created by a user, not by Sony. It isn't even part of the product.

        • The trademark in question is registered to Herr Freyer, not to the (dissolved) Malshandir Ltd. So he owns it and it hasn't expired.
        • Sony does publish EQ2 in europe via a company called ProSieben..

        • by Tharkkun (2605613)

          The trademark is valid until May 29, 2019. It covers various trade classes including Nice 41m which incorporates Betrieb von Online-Spiele, Foren-Rollenspiele (operation of online games and "play by post/email" games). So the complainant has a valid EU trademark that covers roll playing games. That said, it appears that the company registration has expired, which puts the ownership of the trademark into question. As far as the US site's position goes, the complainant would have to demonstrate that the American site is using the trademarked name for commerce within the EU. That would be hard to prove, especially since the product in question is a computer game owned and operated by Sony; the defendant is merely operating an online catalog of Sony's game characters. This case would therefore be akin to Disney seeking redress from a website that lists cartoon characters including trademarked properties such as Mickey Mouse, in a jurisdiction where Mickey Mouse is not a registered trademark of the Walt Disney Co.

          You can't trademark a character in a game. You lose all rights and in most cases it's against the EULA to use a trademarked name in the first place. If I use any Lord of the Rings names I can be petitioned to force a change.

      • by Anonymous Coward

        It could be their business is "grinding mobs for loot to sell to other players". Then the MMO angle is there...

      • If this complaint is valid, then any Slashdot user name which contains a term that is trademarked anywhere on the planet would be subject to deletion (or at least forced renaming.)

        If I decided I didn't like a user here, I could attack them by trademarking the person's user name and then submitting a complaint!

    • The entire purpose of trademark protection is to prevent shady outfits from selling inferior or dangerous products under a competitor's brand. It is what allows you to confidently buy BrandX pharmaceutical and know that it wasn't prepared in a trailer home drug lab. So yes it is valuable to society to criminalize such activity.

      • by Desler (1608317)

        See this [slashdot.org]. The question was in response to the context at hand not in the context of producing and/or selling counterfeit goods.

  • wtf? (Score:3, Insightful)

    by Anonymous Coward on Thursday July 25, 2013 @01:06PM (#44383557)

    this company has a trademark to the name for use with game characters? trademarks are limited in scope, not all-encompassing-anything-with-the-name exclusivity. e.g. there can be a mcdonald's roofing, just like there's a mcdonald's restaurant.. but there can be only one mcdonald's restaurant... and that restaurant chain can't do a damn thing about mcdonald's roofing unless they start selling prepared food.

    they have no business demanding, or even asking, for its removal. period....

    • by Anonymous Coward

      You're right. If my name was Jim McDonald and I wanted to start a roofing company, McDonald's can bet their ASSES I'm going to call my company "McDonald's Roofing". They would lose. People should not give up their fights against evil corporations!

      • by dywolf (2673597)

        Don't be so sure. KFC sued Col Sanders and got him legally barred from using his own name and his own likeness to open up a new restruant chain after he left the company. The wording was broad enough that he couldnt use them in-any- business, let alone food oriented.

        • There is also this case: Nissan Motor vs Nissan Computer. http://www.digest.com/Big_Story.php [digest.com]
        • by Anonymous Coward

          I'm calling bullshit. [wikipedia.org] Googling "kfc col sanders suit" only returns items about KFC's President buying Sander's white suit. The only lawsuit mentioned in the wikipedia article is KFC suing him for slander -- and losing -- because he said their gravy tasted like "wallpaper paste" to which "sludge" was added.

          I wonder who modded you up before checking? Moderators, don't be so easily hoodwinked -- before you mod someone up, check their facts. If you're too lazy to do that, don't moderate at all, it isn't mandato

    • I don't know. McDonald's the restaurant might have something against the roofing company by the same name. After all they've been serving asphalt shingles disguised as burgers for decades now.

    • Even other McDonald's resturants exist. They tried to sue some chippie in Scotland with completely different trade dress a while back. The idea that a Scottish judge would stop a Scotsman from using his own very Scottish name was faintly hilarious. The golden arches lost and common sense prevailed.

      [citation needed]

    • by tlhIngan (30335)

      they have no business demanding, or even asking, for its removal. period....

      Technically, trademarks have to be enforced - otherwise you end up with escalators and the like.

      Basically, a trademark owner has to do two things - use it or lose it, and defend the mark. The first means you cannot register something you're not going to use - in fact, if you don't use it, you can lose it (it was one of the arguments Apple put up for iPhone - because Cisco wasn't actively using it - which forced Cisco to slap "Iphone

  • by RichMan (8097) on Thursday July 25, 2013 @01:20PM (#44383721)

    Trademarks apply within the Trade field of the company that registers the trademark.
    You can't do Nike sports wear. But Nike is not a gaming company. You can make a Nike game.

    The appropriate response to any trademark take down request is -
    a) send me a notarized copy of a trademark registration document for the trademark in question that is currently valid in the country you wish to assert your ownership.
    b) explain to me how the usage in this context infringes on your trademark. In your explaination cover
              i) physical locality of the usage you claim infringes and its relationship to region your trademark registration is in
              ii) a detailed description of how the usage in the claimed infringement conflicts with the registered usage.
    c) notice that failure to do a) b) will result in no action taken on my part. Insufficient detail and in particular legal grounding for the explanation provided in b) will result in delays and requests for more details. In particular a simple claim in b) that "they used our trademark" without any attempt at detailing domain of usage conflicts will result in the ignoring of your request as insufficiently documented.

    • by Rinikusu (28164)

      d) suck my balls.

      I realize english might not be the "attorney"'s first language, but his entire email exchange sounds like a shake down.

    • This is generally true, but believe that example was a bad one.

      There is a class of trademarks called a "famouse trademarks" [wikipedia.org]. I'm pretty sure that Nike is in this category and it expands trademarks outside of the usual geographic and trade limits.

      Note: IANAL!

  • Coz? (Score:5, Insightful)

    by Sperbels (1008585) on Thursday July 25, 2013 @01:24PM (#44383751)
    Not sure I would seriously consider legal threats from someone who uses the word "coz" in their email.
  • by Sponge Bath (413667) on Thursday July 25, 2013 @01:39PM (#44383899)
    Change the entry from Malshandir to Malshandork.
  • it's lame that the admin caved to the demands of one loudmouth guy with a misdirected claim.

    I am publishing information provided publicly by Sony Online Entertainment.

    this is the only part that matters. instead he bickers with the loudmouth and finally caves. he should have just responded with that and ignored all further correspondence.

  • by Malshandir (2996891) on Thursday July 25, 2013 @01:58PM (#44384113)
    Malshandir is the character name. I have no idea why the summary didn't post it. Kinda a cool name. When I get home, I'm gonna create a character/profile with that name in: Youtube Diablo 3 World of Warcraft Guild Wars Guild Wars 2 XBox Live Slashdot (oh wait, I already did that one). And anywhere else I can think of. But seriously, WTF?!?
  • IMHO, this seems to be a variation of what Prenda Law [wikipedia.org] is doing. I guarantee it won't stop until a handful of lawyer get convicted of perjury and serve some stiff sentences.
  • by organgtool (966989) on Thursday July 25, 2013 @02:05PM (#44384179)
    The original intent of trademarks was to prevent people from releasing products under the same corporate or product name. It was not intended to stifle free speech in order to provide corporations with a cash cow so that they can charge people for sharing information about products. Part of me would recommend standing up for yourself and refusing to take down the content since their claims are somewhat spurious. The other half of me would recommend replacing the content useful to the Everquest community with a notice that a greedy corporation has made overreaching trademark claims and the content is being taken down to prevent any beneficial side effects it might have generated for that company's intellectual property.
  • From TFA:

    > Even if you are not in the EU all countries have agreed
    > in merchant cases to accept the decision of the
    > wedish handelskammer in Stockholm.

    "Wedish handelskammer" would make a good name for a dwarf character.

  • Trademarks cover tradeable products and services, which are "are identical or 'colourfully' similar" to other products or services. It's right in the fucking name. TRADEmark.

    This claim would only have merit if EQ2Wire was selling the character account, and if Malshandir (the company) also was involved in the video game account... industry.
  • Did this Elf Bard also receive a C&D? http://www.domainofheroes.com/Avatar.aspx?chaid=82177 [domainofheroes.com]

  • No wonder he wants to defend his trademark: http://home.neopets.com/~Malshandir [neopets.com]

  • There should be a fund to help people fight these spurious claims. Maybe it could be run by a white hat IP firm. I bet there is at least one firm out there who would jump at the chance to have a tag line like "We hate patent/trademark trolls too. Lets do it the right way". I know I would give the fund a few bucks occasionally to keep it going. Another resource would be a site with links to all these great stories about what happened to the troll. I bet most trolls would back off pretty fast when faced with

  • This is ridiculous. I'm changing my Control Wizard's name in Neverwinter to "Pepsi" in protest.
  • Another guy caves because some generic dude on the Internet sent him some baseless but threatening letters. I'll play a sad song on my tiny violin.

    At least let the guy get sued before reporting it as actual news.

  • by Anonymous Coward

    i just hope the geek rage of /. users finds its way to him in the form of packets, pornados and all sorts of fun don't forget to say hi on mingle! :P

  • Just send the guy with the crooked nose to cut off a few fingers say the thumb and index finger on both hands. Tell him If I have to come back it is both arms and legs.

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