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News: Paul Reiche and Fred Ford want to continue the story they started when they created Star Control II — The Ur-Quan Masters. «Happy days and jubilation!» «But wait!» «There is something wrong here... something which makes my sheath retract and my talons ooze.» «Please, Captain, we need your help!»

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Author Topic: My take on Stardock  (Read 36651 times)
Frogboy
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Re: My take on Stardock
« Reply #555 on: April 16, 2018, 05:36:40 pm »

We only began to register the marks for the aliens, AFTER they started implying they may have some rights to Galactic Civilizations

Do you have any kind of direct quote from them with the implication you're suggesting? I'd like to understand the context. It certainly seems like a reach for them to be making any claim to Galactic Civilizations, outside of some kind of analogy. For example, them stating a view that your rights to use elements from SC1/SC2 is comparable to theirs to use elements from Galactic Civilizations -- no doubt you'd dispute that as well but it's materially different from an actual claim to the Galactic Civilizations material.

It's in their lawsuit including a quote from me about being inspired by Star Control 2 in the creation of the Precursors in the Galactic Civilizations games.  I suspect Elestan can find the various relevant bits.
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Re: My take on Stardock
« Reply #556 on: April 16, 2018, 06:14:52 pm »

To be clear: the suggestion to google was in response to the continued misunderstand so e people here have on what copyright is and isn’t.

The reason Elastan gets annoying isn’t that he’s onto something but because he is completely wrong on even the basics. As an example, he keeps implying that a word can be copyrighted. It can’t.  And then goes on into the realm of fantasy on how trademarks can’t be transferred based on some good will argument. And this in defense of someone who’s day job, right now, is literally working on a Re-master of Spyro the Dragon, something that only possible because of the same IP laws that some on this forum now lament.

I don’t think he’s intentionally being dishonest. I think he wants a certain legal outcome and is grasping at straws to make something that isn’t that complicated into it.

As a reminder, Paul and Fred had the opportunity to acquire the Star Control IP and declined. They got fortunate that the IP holder was, for years, willing to voluntarily not exploit that IP fully in deference to their wishes. But as I told Fred, if they are going to create a competitor and not cooperate with us then it makes sense for us to use all our IP rights which goes well beyond the trademark for just Star Control. 

We only began to register the marks for the aliens, AFTER they started implying they may have some rights to Galactic Civilizations, a game and universe I’ve spent my entire adult life on while simultaneously trying to cancel our Star Control trademark. It’s not about retaliating, it is about making very clear what our IP rights are and to eliminate confusion on who has what rights.

Btw, did you see this article? https://io9.gizmodo.com/star-trek-discoverys-version-of-the-enterprise-had-to-1825276401/amp It provides an example of what level of change it takes not to be “substantially similar” (not much).

You do realize that all Atari sold you was a name and a questionable right to distribute. Everything else would have reverted back to them based on the 1988 agreement by your own admission. Also they have "priority of use" on all of the non common names used in the canon as they have been using them in commerce since 1992 and gave an implied license to the open source community to use them long before your attempt at registration. Your lawyer should have made that quite clear to you.

I think you should talk to an actual IP attorney before making legal conclusions.

Well till I do so I will leave you a bit of reading. https://www.fr.com/news/prior-user-vs-federal-registrant-whose-mark-is-it-anyway1/
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Frogboy
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Re: My take on Stardock
« Reply #557 on: April 16, 2018, 06:33:11 pm »

Thanks for the link. I enjoy reading on this stuff even if it's not relevant to the situation.

Please understand that the IP legal firm we work with, and have worked with for many years (including in the famous "Rebellion" trademark case when we defended Sins of a Solar Empire: Rebellion) is very familiar with the subject at hand.  I am inclined to take their legal opinions over the opinions of strangers on Internet forums. Smiley
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Re: My take on Stardock
« Reply #558 on: April 16, 2018, 07:41:25 pm »

We only began to register the marks for the aliens, AFTER they started implying they may have some rights to Galactic Civilizations, a game and universe I’ve spent my entire adult life on while simultaneously trying to cancel our Star Control trademark. It’s not about retaliating, it is about making very clear what our IP rights are and to eliminate confusion on who has what rights.

74.

On December 3, 2015, Wardell emailed Reiche and Ford and asked if they would be interested in licensing the alien races from Reiche and Ford’s Star Control Games for another Stardock game called Galactic Civilizations III. Reiche and Ford later learned that Wardell had already “borrowed” heavily from Star Control II for the Galactic Civilizations game. Wardell previously described the back story for Galactic Civilizations as follows:

I must admit, I borrowed some concepts from Star Control 2. The Precursors were
not lifted from Babylon 5 or Stargate or whatever. They were inspired from Star
Control 2. I always dreamed that there’d be a SC3 that would expand on who these
Precursors and the extra-dimensional beings. I have no idea what they had in mind
but I thought it was a very cool concept.

He elsewhere admitted that “using the in-game custom race creator, I have also made the Ur-Quan (from Star Control) … .”

 - https://www.documentcloud.org/documents/4385486-2635-000-P-2018-02-22-17-Counterclaim.html
(page 15)

In fact, Wardell revealed previously that a ship from Reiche and Ford’s Star Control Games, the Earthling Cruiser, had already been constructed within Galactic Civilizations III. Reiche and Ford later learned that many ships and alien races from Reiche and Ford’s Star Control Games appeared in Galactic Civilizations.

- (same source, page 16)

Star Control: Origins also includes a ship-creator tool that allows players to easily recreate ships from Reiche and Ford’s Star Control Games and then share them with all other players, as Wardell and Stardock had previously done in its other game Galactic Civilizations.

- (same source, page 17)

I don't really see anything here that would be considered a huge attack on Stardock's rights to GalCiv, just an effort to establish that yes, Stardock has a history of "borrowing" from Star Control 2, and has outright admitted to using their custom modding tools for (presumably personal, non-commercial, and therefor legal?) copyright violation.

In particular, there is not any "cause for action" asking the courts to actually do anything in regards to the GalCiv points.

I'd also point out that if we want to dredge up petty legal claims, Stardock's own filing asserts that P&F are not the creators of Star Control, and in much stronger language than this "attack" on Gal Civ.

TL; DR: They only seem to be "attacking" GalCiv as a minor supporting point, and don't seem to be claiming any rights to it (except possibly the right to ensure their copyrighted material is not recreated using custom modding tools, but again, plenty of games have those so that seems pretty indefensible?)
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Elestan
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Re: My take on Stardock
« Reply #559 on: April 16, 2018, 07:55:05 pm »

[Elestan] keeps implying that a word can be copyrighted. It can’t.

I think I basically agreed that words can't be copyrighted over a week ago.  I've even started correcting people when they say otherwise.  I do still wonder if words such as names can be one factor in the similarity test of a broader copyright claim, and would be interested in any case law on that topic. 

Quote
And then goes on into the realm of fantasy on how trademarks can’t be transferred based on some good will argument.

There appears to be case law supporting this position (emphasis added):
Quote
Assignment-in-Gross Doctrine

This lesser-known legal principle instructs that all transfers of trademark ownership must include other related business assets and must be done in genuine goodwill. These business assets may include company shares, trade secrets, management or other financial assets. In turn, it is prohibited to execute a bare transfer during trademark assignment as a mark alone possess no discrete worth.  Any trademark transfer completed without adhering to this guideline will be considered an illegal trademark transfer under the Lanham Trademark Act, 15 U.S.C. §1060.

Understanding whether a trademark assignment was done under genuine goodwill is a more difficult matter to measure. One way that courts will most commonly assess this condition is through a substantial similarity test. This judicial test examines both the quality and description of the goods and services before and after the transfer. Uniformity in the description of goods and services prevents a trademark assignment from intentionally misleading or confusing consumers. The guidelines for consistent quality of goods and services, however, can be quite exacting at times. In fact, some courts have observed that even nuanced differences in quality can cause a mark to fail the substantial similarity test.  In the landmark 1920 Supreme Court case of Coca-Cola Co. v. Koke Co. of America, for instance, an assignee using a pepper-flavored beverage instead of the previous classic cola-flavored beverage of a mark was deemed to be misleading to consumers. Alternatively,  Bambu Sales, Inc. v. Sultana Crackers reached an opposite ruling when an assignee adopt thinner cigarette paper than used by the previous mark owner.

The conundrum here is that it looks like for the "Star Control" trademark assignment to be valid, it must include the transfer of all assets needed to produce a "substantially similar" product.  But without a license to Paul's IP in the previous game, making things "substantially similar" is exactly what Stardock cannot do.  It seems like this rule was designed to prevent the exact situation we're in right now, where someone buys a trademark, but isn't going to make their product similar enough to the original for the consumers of the original to feel that they are getting the same product that earned their goodwill.

Quote
And this in defense of someone who’s day job, right now, is literally working on a Re-master of Spyro the Dragon, something that only possible because of the same IP laws that some on this forum now lament.

My understanding is that Paul and Fred took a leave of absence from T4B, so their current day job is fighting their legal battle with you.  I'm not familiar with Spyro's IP lineage; are you saying that Activision does not own the copyrights to Spyro?

Quote
I think [Elestan] wants a certain legal outcome and is grasping at straws to make something that isn’t that complicated into it.

There are a few legal outcomes that I want, and I don't think I've tried to hide them:

  • I want the UQM project to be able to continue without any possible legal threat from Stardock, even if Brad were to be replaced as CEO by The Ultimate Evil.
  • I want Paul and Fred to be able to make a new game as a continuation of The Ur-Quan Masters, without interference from Stardock other than prohibiting the use of the phrase "Star Control" in ways not allowed by fair use.
  • I want Stardock to be able to make their new game as long as they don't use Paul's setting elements - but I do include the alien races and their names as 'setting elements'.

With that said, my primary concern is to try to study the case and provide the best information I can to nudge people into having at least some kind of plausible basis for the things they say, as well as toward maintaining basic civility.  On Reddit, I've often upvoted your informative comments and downvoted the baseless invectives that get hurled at you.

Quote
As a reminder, Paul and Fred had the opportunity to acquire the Star Control IP and declined.

And I credit you for making the offer.  However, it has since become apparent that you felt that the "Star Control IP" included the exclusive rights that he felt (with what appears to be good evidence) had already returned to him.  Given that, I can't fault him for refusing to meet your price.  I do wish that both of you had been a bit less terse in that exchange; a little better communication might have exposed the misunderstanding before so much was at stake.

Quote
They got fortunate that the IP holder was, for years, willing to voluntarily not exploit that IP fully in deference to their wishes.

Well, nobody had been exploiting that IP for over a decade prior to that, perhaps because the last time someone tried to use it without P&F's active involvement, it was a total flop.

Quote
But as I told Fred, if they are going to create a competitor and not cooperate with us then it makes sense for us to use all our IP rights which goes well beyond the trademark for just Star Control.

The emails you've posted so far indicate that your idea of cooperation involved them conceding that the 1988 agreement was still active, which would have essentially surrendered control over their IP to you (regardless of your stated willingness to license it back to them).  Had you proposed a different sort of "cooperation" at some point?

As for your IP rights, you're going to need to be more specific here; are you referring to the 1988 agreement again, or are you assuming the new trademarks you've filed for will be granted, or is there something else?

Quote
We only began to register the marks for the aliens, AFTER they started implying they may have some rights to Galactic Civilizations, a game and universe I’ve spent my entire adult life on while simultaneously trying to cancel our Star Control trademark. It’s not about retaliating, it is about making very clear what our IP rights are and to eliminate confusion on who has what rights.
It's in their lawsuit including a quote from me about being inspired by Star Control 2 in the creation of the Precursors in the Galactic Civilizations games.  I suspect Elestan can find the various relevant bits.

I can.  GalCiv was mentioned in their countercomplaint in #s 74, 75, and 96.  However, these consist mostly of factual statements quoting you saying that you drew inspiration from SC2 for some ships in GalCiv.  Based on what you've said about "substantial similarity", as long as you weren't shipping nearly exact clones of the SC2 ships, you shouldn't have had any reason for this to worry you.  So, I'm not currently able to follow your logic as to why these clauses justified retaliating by registering the SC2 races.  I'll also note that you filed to register "The Ur-Quan Masters" back in December, before their countersuit was filed.

Quote
Btw, did you see this article? https://io9.gizmodo.com/star-trek-discoverys-version-of-the-enterprise-had-to-1825276401/amp It provides an example of what level of change it takes not to be “substantially similar” (not much).

Thanks for that data point; I'm trying to read up on the case law for 'substantial similarity'.  Right now, it still seems like it's pretty subjective.
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Frogboy
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Re: My take on Stardock
« Reply #560 on: April 16, 2018, 08:47:58 pm »

@Kami

One big difference between the two suits was that one was designed to be released by a PR firm and one was not.  I do tend to agree that the creator statement should have been couched with regards to the creation of the product but it was intended to be read by lawyers not consumers.

By contrast,  my interpretation their counter claim was that they were implying that Galactic Civilizations itself was inspired by Star Control 2 and that the ship designer was added specifically so that players could turn GalCiv into Star Control which I found pretty insulting.  There are no Star Control ships in GalCiv.  There are countless fan mods out there for pretty much any ship you could imagine.  But the purpose of the ship designers are to (wait for it) design ships just like the purpose of Photoshop (originally) was to edit photos.

@Elestan, seriously dude, stop.   On the one hand, you aren't sure that there may be some back-door path to copyright a word but on the other hand you're citing case law?  Trademarks, copyrights, patents are constantly sold separately.  Even subset usages of those rights are split off constantly.   Good gravy.  It's like reading a forum where there's always this one guy who hears common symptoms and insists it's some obscure tropical disease.


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Elestan
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Re: My take on Stardock
« Reply #561 on: April 16, 2018, 09:23:02 pm »

my interpretation their counter claim was that they were implying that Galactic Civilizations itself was inspired by Star Control 2 and that the ship designer was added specifically so that players could turn GalCiv into Star Control which I found pretty insulting.

Given the "Creators" line of attack your own suit used, I think that a bit of acid should have only been expected in the reply.  Litigants should, IMHO, have a thick enough skin for that not to matter.  In any case, it seems to me that you could have easily countered their arguments without escalating the fight by trying to register the race names.  As you've noted in the past, taking inspiration from something is not the same as infringing its copyright.

Quote
On the one hand, you aren't sure that there may be some back-door path to copyright a word but on the other hand you're citing case law?

That's correct, but I don't see what the one has to do with the other.  Are you trying to imply that not knowing about one particular legal question means that a person can't talk about a different legal question?

Quote
Trademarks, copyrights, patents are constantly sold separately.  Even subset usages of those rights are split off constantly.

That 's true, but I don't think it addresses the particular case where the goodwill held by the trademark being sold depends on the presence of copyrighted material not owned by the seller.
« Last Edit: April 16, 2018, 09:54:54 pm by Elestan » Logged
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Re: My take on Stardock
« Reply #562 on: April 16, 2018, 11:04:10 pm »

@Elestan:

Fair enough.  But don't be surprised if the target of your acid decides not to continue to do you favors.
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Re: My take on Stardock
« Reply #563 on: April 17, 2018, 12:02:30 am »

Fair enough.  But don't be surprised if the target of your acid decides not to continue to do you favors.

In order for refraining from registering trademarks on the UQM races to be considered doing them favors, you'd have to have the rights to those names even before filing your recent applications, and I don't think that's been clearly established.  Are you saying that you believe you still held common-law trademark to them, despite them never having been denoted as trademarks™, and despite UQM having been the only source of their use for many years?
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Re: My take on Stardock
« Reply #564 on: April 17, 2018, 12:10:34 am »

I can assure you, we can.  And have.   We always could have.    But then again, we've only had IP lawyers looking at this for years. They're no match for your Internet  lawyering. Wink
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Re: My take on Stardock
« Reply #565 on: April 17, 2018, 12:25:21 am »

I can assure you, we can.  And have.   We always could have.

Thank you.  I believe that's the first time you've actually stated the basis on which you were making those claims.
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Re: My take on Stardock
« Reply #566 on: April 17, 2018, 01:25:44 am »

Quote from: Case Law
Assignment-in-Gross Doctrine

This lesser-known legal principle instructs that all transfers of trademark ownership must include other related business assets and must be done in genuine goodwill. These business assets may include company shares, trade secrets, management or other financial assets. In turn, it is prohibited to execute a bare transfer during trademark assignment as a mark alone possess no discrete worth.  Any trademark transfer completed without adhering to this guideline will be considered an illegal trademark transfer under the Lanham Trademark Act, 15 U.S.C. §1060.

Understanding whether a trademark assignment was done under genuine goodwill is a more difficult matter to measure. One way that courts will most commonly assess this condition is through a substantial similarity test. This judicial test examines both the quality and description of the goods and services before and after the transfer. Uniformity in the description of goods and services prevents a trademark assignment from intentionally misleading or confusing consumers. The guidelines for consistent quality of goods and services, however, can be quite exacting at times. In fact, some courts have observed that even nuanced differences in quality can cause a mark to fail the substantial similarity test.  In the landmark 1920 Supreme Court case of Coca-Cola Co. v. Koke Co. of America, for instance, an assignee using a pepper-flavored beverage instead of the previous classic cola-flavored beverage of a mark was deemed to be misleading to consumers. Alternatively,  Bambu Sales, Inc. v. Sultana Crackers reached an opposite ruling when an assignee adopt thinner cigarette paper than used by the previous mark owner.


The conundrum here is that it looks like for the "Star Control" trademark assignment to be valid, it must include the transfer of all assets needed to produce a "substantially similar" product.  But without a license to Paul's IP in the previous game, making things "substantially similar" is exactly what Stardock cannot do.  It seems like this rule was designed to prevent the exact situation we're in right now, where someone buys a trademark, but isn't going to make their product similar enough to the original for the consumers of the original to feel that they are getting the same product that earned their goodwill.

I wonder if that is why Stardock was so consistently interested in acquiring new and valid licenses to use the copyrighted appearances of the original aliens and ships for use in SCO. Without those they could not provide customers with a sufficiently similar Star Control experience as to ensure the validity of their acquired trademark(s).

So having not acquired this licensing, Stardock may need to walk a tight rope between being too similar and violating the now registered copyrighted materials of Paul and Fred or being too dissimilar and invalidating their Star Control trademark. This also explains the insistence on some kind of multiverse backstory and the odd Arilou concept graphics. These things may be attempts to reinforce the trademark without violating copyright (theoretically). So these may not be moves of spite but rather desperation as Stardock scrambles to maintain its hold on perhaps invalid trademark(s).
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Re: My take on Stardock
« Reply #567 on: April 17, 2018, 01:37:06 am »

You know what my personal take-away from all this is?

If you're like me, and love writing stories and hold them dear to your heart, don't get involved with any commercial deal that requires you to sign any IP rights over to anyone, regardless of how ironclad you think the resulting agreement might be.

Because somewhere down the line someone with more money, lawyers and time than you may want to claim rights to the stuff you created and use your creations without your permission or control.  Whether you're in the right or not is almost irrelevant, because in either case you'll still have to walk through fire and brimstone to try and protect what you thought was yours.

Oh, and trademark everything you possibly can.  Not sure how a small individual person trying to sell their stories is going to do that but it sounds like you'll need to do it anyway.

And here I thought I was making some progress on trusting to work with others without them interfering in the creative aspects of my work...

(@Frogboy, don't get me wrong, this isn't an indictment of you trying to protect what you believe to be your rights - real life rarely has an actual villain, just different people taking different approaches to what they believe to be right.  I'm just talking about how I could see something like this whole legal wrangle affecting me personally in the future)
« Last Edit: April 17, 2018, 01:53:52 am by Soul Reaver » Logged

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Re: My take on Stardock
« Reply #568 on: April 17, 2018, 05:14:22 am »

Frankly, I hope the courts will invalidate the trademark. With only a trademark, and without a license to use P&F's IP, they will basically be unable to produce a game that is as close to SC2 as the name 'Star Control' implies. That seems keeping with the spirit of trademark law as I read it. These latest moves to trademark names and risk copyright infringement smell like legal trickery to somehow legitimize their unsure footing. Poof, trademark out of the way? Both sides can go back to make their respective games. Let them fight it out there if they must, rather than in court. Now wouldn't that be nice?

(reworded by D999)
« Last Edit: April 18, 2018, 12:05:28 am by Death 999 » Logged
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Re: My take on Stardock
« Reply #569 on: April 17, 2018, 05:51:12 am »

Frankly, I hope the courts will invalidate the trademark. With only the trademark, and without a license to use P&F's IP, they will basically be unable to produce a game that is as close to SC2 as the name 'Star Control' implies. Now it seems they're willing to risk copyright infringement to give their game a sliver of authenticity.  Whatever is going on, it stinks of legal trickery. I feel bad for P&F who get drug through this mess. I feel bad for the game developers who have to worry about this. Speaking of which, if I was working at that game company I would be damn worried to have a chief that spent half his day on internet forums making himself out to be a victim and talking about how good his lawyers are.

I hope things work out for the best, but being a Negative Nancy is an option I guess.

It would be great if the whole thing were just called off.
P&F get to make Ghosts using a license so they can call it "Star Control", Origins can do whatever the hell it wants without interference from P&F, the fans collaborate to recreate UQM in Origins, happy times for all.

Time for some hippy-dippy shit, pour your positive energy into both P&F and Stardock.
Negativity only breeds negativity and I've seen myself become someone I genuinely hate because of all this.

(edited the quote - D999)
« Last Edit: April 18, 2018, 12:06:21 am by Death 999 » Logged

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