I just want to remind everyone, again, that Elestan actually does not know the law. Simple summaries of specific areas of a legal subject matter are not inclusive enough to give one anymore than an extremely basic, general understanding of broad concepts. Such summaries are *completely* useless when trying to apply the law to the specific facts of a real dispute.

Yawn. He says this over and over again. We should expect the real result when the cases proceed, and should expect to be surprised. The only unsurprising things are that he will say that he doesn't know, and you will say that he doesn't know, more rudely.


On the other hand, Huhlig… svs has not been making object-level predictions. This is a relevant distinction, so your 'you too' doesn't apply.

Thank you Death 999, for giving me that one point.

I actually don't know the outcome of any given issue in dispute, and I've stated that and tried my best to avoid making declaratory statements. What I do know is enough about IP law to know when someone is misstating simple concepts, a lot about the firm Stardock hired, the reputation of the lead counsel in this field, and that Brad likely has a lot more *personal* experience dealing with IP related litigation (and litigation, in general) than Fred and Paul. My intuitions are based on that knowledge. That said, I can't speak to the definitive outcome of a specific legal issue in this dispute because I either don't know the field well enough and/or have no way of knowing all of the pertinent facts.

The difference I am trying to get at with my posts is that an attorney is more likely to *know* and be cognizant of their lack of knowledge than an untrained keyboard warrior. An attorney is more likely to feel constrained from making incorrect statements of law and/or facts, or simply has the knowledge that his or her statements are likely incorrect. My honest belief is that Elestan's posts are deceptive and confusing to others. I don't think that is fair to the overall discussion here, or to Stardock/Brad. My opinion, and you can quibble with it if you wish, is that Brad honestly did idolize Fred and Paul and he did want to pick up the mantle they left on the side of the road. Somewhere along the way, that relationship was damaged.. but I still feel that Brad intends to make the best Star Control game he can. That is better than no Star Control game. I want that view fairly represented on this board.

As to the argument I should be debating the law with individuals who clearly don't even understand the most basic of concepts... no thank you. I have better uses of my time than to debate an extremely complicated topic, factually, with individuals who have no base of knowledge on the topic. I think that is one of Brad's major faults here, he should not be debating these types of issues on the forum. It doesn't help persuade anyone to his side, and it is too easy to be brought down "into the mud" by other posters who have no idea what they are talking about. Edit: In my mind, it is similar to arguing about tax policy with relatives of a different political viewpoint than your own over the holiday, why bother? No one truly knows enough to offer great insight, and even if they did.. there is no point one could make to convince someone to move away from their pre-existing position. The inevitable result is pointless, heated argument. Although, I guess that is why online message boards were invented.

Keep in mind, Stardock is operating as if the 1988 agreement has expired.

So, it seems like this makes the question raised by huhlig's observation significant:

Because consumers rely upon trademarks to identify products and as a representation of a product or service’s quality, the party who sells a trademark must ensure that the new owner upholds those expectations. This concept is known as assigning goodwill to the trademark, and the court must determine if the sale also transferred goodwill to the new owner. In many cases, the former owner must also transfer all assets used to create trademarked items to the new owner to guarantee that standards of quality and production don’t take consumers by surprise because of the transfer.
[also]
Assignment or transfer of a trademark must occur in conjunction with the transfer of goodwill represented by that mark. An assignment without transfer of goodwill is invalid. When an assignment occurs without goodwill, the trademark is in effect abandoned.

It seems (to my non-lawyer eye) that there's at least a plausible argument that Paul's IP was essential to "guarantee that standards of quality and production don’t take consumers by surprise" when purchasing new "Star Control" products.  If so, then Atari's lack of a license to that IP would make it unable to transfer the goodwill associated with the original products, meaning that the sale of the "naked" Star Control mark to Stardock was invalid.  The argument on the race names would be even stronger; if the "goodwill" on the Arilou derived from Paul's IP (and this seems likely to me, because the main way you interacted with the aliens was through Paul's dialogue), then trying to assign just the name would be invalid.

Unfortunately, you are misrepresenting what the law actually is on this subject based on a cursory summary you found. The danger of a non-attorney stepping into legal analysis is that said individual "doesn't know what they don't know." A little bit of legal knowledge can be a dangerous thing. Your posts are really no different than me stating, "I am not a doctor, but based on this summary I found online, <point 1> and <point 2>  means I believe you likely have cancer." I have no real basis for making that determination. You have no real basis for what you have been posting. Your sprinkling in of legal terminology is implying a degree of knowledge that you actually lack.

I just want to remind everyone, again, that Elestan actually does not know the law. Simple summaries of specific areas of a legal subject matter are not inclusive enough to give one anymore than an extremely basic, general understanding of broad concepts. Such summaries are *completely* useless when trying to apply the law to the specific facts of a real dispute.

[The understanding by most of those who remember Star Control what type of game it is and what to expect.]

I can't argue how valuable the particular Ur-Quan Conflict lore is to you.   I can only tell you how valuable it is to us which is to say, it is not without value but even if we had it, we would still have ultimately gone with a different universe in any event for much the same reason why Star Trek rebooted its series (Kelvin timeline) in a different universe.

I agree that lore is very important in an RPG.  But if I had to choose between lore and the Baldur's Gate trademark, I know which I would pick. 

In the case of Star Control: Origins, we've had four years to think about it.  We have a published book that includes the beginning of the backstory for the Lexites (https://amzn.to/2qnI3Q3).   It is something that we have been thinking of and building on for a very long time that we are very passionate about.  We have no more desire to use Paul and Fred's lore than we have to make a Star Trek or Star Wars game.

This was why we wanted Paul and Fred to continue their story.  Because a new game set in the Ur-Quan universe would satisfy those that wanted to learn more about those amazing characters.  But for us, the value was in the trademark, the brand recognition.  The understanding by most of those who remember Star Control what type of game it is and what to expect.

To your first paragraph: Fair enough! Admittedly "personal value" and "financial value" are certainly different enough things.

To your second paragraph: This is a bit dicey and a part of the core of my contention. I don't know if the you can really separate the value quite so cleanly between the lore and the trademark. The Baldur's Gate trademark has the value it has at least in part because of the experiences of the people who played those games doesn't it? If people didn't remember those games so fondly - largely because of the lore - then would the trademark still have any value?

Similarly, I wonder how much value the Star Control trademark would have without the fond memories of the prior experiences. Certainly less than it does. It would be a cool "name" even without the legacy of the experiences of those games, but would the trademark still have the value it currently has without it?

To your third paragraph: Please forgive me if I do not check your link. It isn't that I am not interested. Quite the opposite in fact. But for games that I have already decided to buy and play, I prefer to mostly keep myself in ignorance and go in with fresh eyes and no spoilers. It's a large reason why I am not active in more threads on your own forum. I like to learn just enough about an upcoming game to decide if I'm likely to enjoy it or not....and then stop learning anything more! I have high hopes that you and your team will come up with an entertaining and fun universe filled with interesting aliens and a gripping story. If I end up being disappointed, well, that's the price I pay for choosing to go into an experience with minimal knowledge. 

To your fourth paragraph: This I find the most interesting part of your post, most specifically the part I bolded but all of it in general too. This ties into my thoughts on your second paragraph, that it isn't so easy to separate the value of the trademark from the lore.

You're making the very reasonable argument that people associate the name "Star Control" with a specific kind of "gaming experience" and that's the core value of the trademark. I think this is a very good point and I don't dispute that I don't solely associate the trademark of Star Control just with the established lore. It is, in fact, largely your value pitch for Star Control Origins: "No, it won't have any of the races or history that you remember, but we're going to be creating a substantially similar gameplay experience with all the zaniness of exploration, new gaming races, an immersive story, etc." And believe me that's a great pitch!

But that also makes me wonder why you feel that future games need to have the specific gaming races you've registered trademarks for. Why bother having Spathi, Orz, Utwig, etc. in future games if they will need to be substantially dissimilar to pass legal muster? Why not just name them something else if they aren't going to be the same races people are familiar with?

I do apologize if I'm being obtuse on this point, but that's a genuinely confusing part to me.

To play devil's advocate, why do the aliens need to match SC2? The vast majority of the people who buy SCO will either 1) have never played SC1 or SC2 or 2) played SC2 but don't remember much if anything about the game. In either of those two situations, I doubt very many SCO players will go back and play the quarter-century old DOS games to catch up on the lore and the story.

I truly believe that it is very important to you, I doubt it is important to the vast majority who will buy SCO. I think you are in a very small minority on that front. Stardock's Star Control universe will be the one that players of today know and associate with the brand Star Control.

Food for thought.

If you cannot. You should STOP "acting" like you are some form of attorney. You are nothing but a troll throwing out garbage.

Frogboy said you have been on his forum for 11 years. Have you not been able to figure out what this type of outlet is used for?
engaging into a discussion about law while not being a lawyer is what public forums are generally used for. Similarly to talk radio people will talk about sports teams without actually being a professional athlete. They will talk about politics without being a politician, or  talk about cooking without being a chef. I wont go on but the parenting forums are mind numbing LOL. Certain forms of media like discussion forums are acceptable outlets for opinion and potentially false conjecture. Its implied that the poster may not have the knowledge or qualifications to offer advice, legal or otherwise. Users should be and usually are aware of this (with some exceptions of highly moderated forums with qualified employees being the only people responding) Not only is Elestans posts par for the course in this form of media, they are fairly expected. By definition your post demanding a different behavior is more of a troll job than anything Elestan has posted.

Fair enough, Elestan can discuss it. It doesn't mean that I can't discuss how Elestan doesn't have any basis in knowledge or facts for his conclusory statements.

Elestan doesn't actually know the relevant law at issue (it takes years of practicing in this field to have a decent grasp of the subject) and doesn't actually know the complete body of facts (at this point, no party has access to all the facts - much less a non-party to the dispute). Elestan's conclusions are mere conjecture. In my opinion, it is unfortunate that Elestan's statements are being given any weight by any person. I'd have no issue if Elestan discussed what is clearly his opinion on what he'd like to happen or should happen. My quibble is that Elestan makes statements that are conclusive as to the legal outcome of specific issues in dispute with just enough legal terminology thrown into his posts to make the reader think Elestan knows what he is talking about.

I think there will be a great many *shocked* individuals on this forum by the time this dispute is resolved if they rely on Elestan's judgments.

Yet you have not specified a single point where he IS wrong, e.g. by citing a relevant passage of law and how that contradicts his interpretation.
And you are a lawyer.

Sorry.

Straw man argument, sir. You ask me to prove a negative, vis-a-vie the fact that Elestan actually has no knowledge of the law. The fact I am not specifically addressing his argument does not infer any degree of accuracy in his opinion. He, and honestly you (no offense), have zero knowledge of the topic you are arguing. I don't mean this to sound insulting, but ti is accurate. Your opinion is so separated from fact as to be rendered meaningless.

Or maybe Cookie Crumbles

Season 1 Diamond Tiara is best pony

So, I think I need to point out a rhetorical issue in your last post.  You start out with the assertion:

There's no fair use argument here.

Clearly there is a fair use argument; the question is whether it succeeds or not.  And I was expecting you to speak to that, based on the reference you cited.  But instead, you drop the topic of fair use, and change the subject to trademark infringement in general:

Trademark infringement is unauthorized use of a trademark in in association with a product or service that is likely to cause consumer confusion.

...and then you go on to a point-by-point of why trademark infringement applies.

But whether trademark infringement applies or not is orthogonal to whether P&F's post falls under the fair use exception.  To answer the fair use question, the point-by-point you need has to come from the fair use criteria, showing why they do not apply.

FWIW, my not-a-lawyer guess, based on reading the fair use article, is that saying "The Creators of Star Control II are making a sequel" might well have qualified as fair use if they stopped there.  However, using the SC2 product imagery probably pushed it over the line because it used more of the product identity than was necessary to identify it, and saying 'true sequel' might also be a problem because it implies that Stardock's products might not be.

So right now, I suspect they stepped over the line...but not in a giant, aggressive way.  If I were to award damages just based on my own concept of fairness (with no regard to the legal rules for such calculations), I'd have them pay Stardock some money, but not a massive amount of money.

I want to be upfront in that I am copying my post from littletinyfrogs.com (Brad's blog). Elestan does *not* have any basis for his assumptions in law. I understand if you dislike Brad (I personally am not a fan of Brad's politics or how he handed GalCiv 3 off to someone else, and the quality of the game in his absence *cough*) but if you are relying on the opinion of anyone posting on this board as to the outcome of the dispute between Stardock and Paul and Fred, that is a mistake. Elestan does not know the law and he does not know the facts of this dispute. No one here does.

--------

As an actual attorney (transactional, corporate law), I do want to point out that you should be extremely wary of any individual interpreting the law and applying it to the facts of this dispute (e.g. Elestan), and stating their opinion of which party is in the wrong on any given issue.

There is an awful lot of armchair lawyering going on in the forums. IP law is notoriously one of the most difficult areas of the law to practice. Even the majority of attorneys have little-to-no knowledge of this area of the law. I note that I have not seen a *single* post citing *any* specific provisions from any of the sources of law. You cannot have a credible opinion on which party is at fault if you don't actually know the laws applicable to the issues in dispute. Even if there were numerous people on these forums who have spent their entire legal careers practicing IP and contract law, I'd be very wary of them rendering judgments considering that they also do not have access to the entire body of facts. I actually am an attorney, I have no definitive opinion on the eventual outcome of this dispute. I am suspicious of anyone who claims they do know what the outcome will be, and you should be as well. (FORTUNATELY NO ONE HAS DONE SO - D999)

In summary, I haven't seen a single post that looks like it was written by an actual lawyer who has any understanding of the applicable laws and I have read a whole lot of application of faulty knowledge of the law to facts that have been hand-selected by each of the respective parties.