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Topic: My take on Stardock (Read 191979 times)
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Frogboy
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What IP are you thinking Paul has here? There is no IP of Paul and Fred in SCO. They don’t have any trademarks or copyrights that they could reasonable argue are being violated. Unless you’re going to argue that having an alien within SCO, one we have already filed a trademark on, but has the same name as an alien in an open source game that was released nearly 20 years ago and that this would somehow cause Paul irreparable harm.
If that’s your argument, just say so. I don’t want to be accused of misrepresenting your position.
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Talonious
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I really should have read a few more posts before making my last one. I note that the conversation continued in a direction I wasn't expecting.
I should know better than to not get fully caught up on posts before chiming in.
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Frogboy
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You can find your answers through Google. This isn't even remotely a complicated thing.
There's even YouTube videos that will walk you through the basics.
A small quibble with this if I may. This is twice you've suggested people use Google to find a legal answer sort of thing. This might be counterproductive to your not wanting people to pretend to be lawyers here or elsewhere. I certainly could use Google to look some legal stuff up...but even having done so I'd still be highly unqualified to come to any real conclusions with any real knowledge behind them. I could Google for certain statutes but there's no way to know if I was applying them correctly let alone if they agreed with common law case precedent. I mean, I could come up with some theories with some of my advanced Google-Fu Ninja Skills, but it would still be entirely possible what theories I (or someone else) might come up with would be either less convincing or more annoying and/or wrong than what, say, Elestan, has come up with to you given how completely out of my depth I'd be if I (or anyone else equally unqualified) would be if they tried from your POV. Or, put another way, I wouldn't advise people to Google legal stuff if I didn't want them to give potentially highly unqualified opinions on what they might find after doing so.
That’s fair.
I would say, making legal conclusions is what is annoying. Using legal terminology is annoying. Understanding what a trademark is and isn’t as well as what a copyright protects and doesn’t protect are things I think are worthwhile looking up.
I don’t know if Elestan is being intellectually honest or not. Sometimes he seems reasonable and sometimes he is, as I’ve said, frustratingly obtuse. I just can’t tell if he’s doing it on purpose or not. I just don’t understand how someone who shows so much interest in litigation is struggling so much on trademark vs. copyright when there’s lots of layperson articles on it.
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Frogboy
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Confusion, good will, association are all tied to trademarks exclusively. And what trademark, are the Yehat, for instance associated with?
This is why we have trademarks. To prevent confusion.
Edit:
Copyrights, by contrast, protect things like the unique visual expression, the original written work like histories, lore.
I’ve always wondered if the change of the Klingons from TOS to the movie’s/TNG has a story we don’t know about.
Not a lawyer but the Klingons in TOS and the Klingons in the movies/TNG only have the name in common. They didn’t just change the look. They changed their lore too.
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« Last Edit: April 14, 2018, 07:35:36 am by Frogboy »
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Talonious
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Ah I think I understand.
Your contention is that the Yehat race is automatically intrinsically tied to the Star Control trademark in the minds of anyone familiar with it. If someone knows wtf a "Yehat" is, then they instantly think "oh it's those bird like things that kinda resemble avian versions of honor bound, warrior race Klingons that are in that game Star Control".
And since you bought the Star Control trademark, anything that people automatically associate with Star Control also belongs to you so long as the specific version of Yehat that P&F came up with isn't used.
Edit: Ironically, I made this post and used the Klingon metaphor before I saw you use it in your edit.
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Elestan
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What IP are you thinking Paul has here? There is no IP of Paul and Fred in SCO. They don’t have any trademarks or copyrights that they could reasonable argue are being violated.
Unless you’re going to argue that having an alien within SCO, one we have already filed a trademark on, but has the same name as an alien in an open source game that was released nearly 20 years ago and that this would somehow cause Paul irreparable harm.
So, I have to note that while you've filed the trademark, an examiner hasn't even looked at it yet, so I don't think it has much legal significance.
But in any case, I see two separate questions here:
First, could P&F plausibly get an injunction against SC:O including their IP? This seems quite plausible to me; releasing a game with their IP in it would be irreparable harm, and (lacking other evidence from you) I think they are likely to prevail in finding that the 1988 agreement is terminated.
Second, does what Stardock is planning to put in SC:O count as infringing Paul's IP? Here, I'm not sure; I don't know where a court would draw the lines on what counts as "substantial similarity", and it's too subjective for me to guess at without an extended review of the case law. If you're confident that you're not stepping over the line, then you could just not bother contesting such a preliminary injunction, since it wouldn't have an effect on you.
In my own, legally-irrelevant opinion, you could have a flying-saucer piloting race of classic UFO-style Grays in your game - that's a standard SF trope. And you could have an alien race called the Ariliou - that's an uncopyrightable name. But when you put the two together, I think you're starting to make something that is undeniably derived from Paul's creative expression in SC2. The combination is not something that you would have ever come up with on your own, if you didn't have the creative content of the previous games to look at - you couldn't get it from just the parts that bear the trademark. And the more SC2-named races you add, the more it becomes clear that as a collection, you are creating a work that derives from Paul's. But like I said, this is just my view; I make no claim about how the law views it.
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Elestan
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I would say, making legal conclusions is what is annoying. Using legal terminology is annoying. Understanding what a trademark is and isn’t as well as what a copyright protects and doesn’t protect are things I think are worthwhile looking up.
I don’t know if Elestan is being intellectually honest or not. Sometimes he seems reasonable and sometimes he is, as I’ve said, frustratingly obtuse. I just can’t tell if he’s doing it on purpose or not. I just don’t understand how someone who shows so much interest in litigation is struggling so much on trademark vs. copyright when there’s lots of layperson articles on it.
I'm certainly trying to be as straightforward as possible. I presume that this is the section you were referring to?:
If nobody has a trademark, and you just put a random race called 'Yehat' in your game, that's one thing. But if you put 'Yehat' in your game, and say that it's an alternate universe/alternate history version of the 'Yehat' from SC2, haven't you just conceded that your "Yehat" is a derivative of the 'Yehat' from SC2, and therefore subject to Paul's copyright? You are mixing copyrights and trademarks. You can't copyright a word. Using a word doesn't convey automatic trademark. Only copyrights exist automatically. Using a word or phrase doesn't turn it into a common-law trademark either. You can't simply use a word in something you release and claim to own it. You are thinking of copyright.
I've looked over what you said, and I think you may have mis-read what I wrote, You seem to have gotten the impression that I was making a trademark argument. In fact, I was making a copyright argument. That's why I deliberately took any trademark considerations out of the equation by starting out saying "If nobody has a trademark,,,", and ending with "...subject to Paul's copyright".
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« Last Edit: April 14, 2018, 08:06:29 am by Elestan »
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Frogboy
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I understood you, Elestan.
You can’t copyright a word. Paul and Fred could conceivably own the artistic expression of the Yehat that is unique to it. They could own the lore, background, history, dialog. But names are expressly the realm of trademarks.
So while fans might expect the Yehat in new Star Control games, they would have to be a new expression. The Yehat can be a pterodactyl. But could it have green jeweled eyes, yellow skin, ? To be safe, I’d recommend the artists be careful in that.
By contrast, Paul and Fred could have a species with a different name but looks identical to the Yehat in SC2 if they own the copyright to it.
Edit: to add to the point I think you’re trying to make: If we say they’re the same Yehat species as SC2 that still doesn’t get into copyright. That’s not what derivative means in this case. By contrast, if we tried to continue the story of SC2, now you’re getting into characters and settings. That gets too murky for my small, non-lawyer brain.
Generally speaking, it’s better to be safe than sorry. Another reason to trademark the alien race names. It will eliminate doubt. And if Paul and Fred think they have trademarks rights to those names, there is a process for that.
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« Last Edit: April 14, 2018, 08:58:09 am by Frogboy »
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Elestan
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So while fans might expect the Yehat in new Star Control games, they would have to be a new expression. The Yehat can be a pterodactyl. But could it have green jeweled eyes, yellow skin, ? To be safe, I’d recommend the artists be careful in that.
That's one core question: How similar is too similar? Is even making them pterodactyls too close? Can you have the Umgah if they're green blobs instead of purple, or do they have to not be blobs at all? It seems like this could be subjective enough that every instance might have to be separately adjudicated.
A more specific question: Even though names themselves are not subject to copyright, if an SC:O race has 'some' similarity to an SC2 race, does the SC:O race become more vulnerable to claims of being derivative if it takes the same name as its SC2 counterpart? Or does it not matter at all?
...if we tried to continue the story of SC2, now you’re getting into characters and settings. That gets too murky for my small, non-lawyer brain.
The question I'd have here is whether, by claiming that your races share a past with the SC2 races, or that your universe is somehow connected to theirs, does that amount to an encroachment on Paul's setting rights?
I don't claim to know the answer to these, and I think they're too specific for general Googling to be helpful; they probably need case law research.
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« Last Edit: April 14, 2018, 09:32:53 am by Elestan »
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huhlig
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One additional thing to take into account is that Trademarks and Goodwill are technically separate assets. Goodwill is associated with a reputation of a service or goods NOT a name. A Trademark is a name that is associated with goodwill establishing a known source and by owning a trademark you prevent confusion within the market.
Assignment Without Goodwill Law and Legal Definition.
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. Additionally
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. And
"Use of the mark by the [trademark] assignee in connection with a different goodwill and different product would result in a fraud on the purchasing public who reasonably assume that the mark signifies the same thing… Therefore, if consumers are not to be misled from established associations with the mark, [the mark must] continue to be associated with the same or similar products after the assignment.” – Fifth Circuit Court of Appeals Anyone who would recognize the Star Control trademark directly would associate it with the art created by Fred and Paul. By depriving the trademark of the assets created by Fred and Paul and intellectual property they created you strip the trademark of its inherent value.
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kaminiwa
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What I mean is you can literally google on what grounds you can oppose a trademark and work it from there.
My own efforts at doing this:
Taking it as a given that the original Trademark was valid, and purchased by Stardock:
- The trademark could be argued to be diluted (but UQM is non-commercial use and doesn't count)
- [ ... a lot of obviously inapplicable reasons ... ]
- The mark has been abandoned (I have no clue how UQM's continued use of the mark affects this)
- The mark falsely suggests a connection with the opposer
- A trademark can be opposed if the mark or symbol [...] creates a false connection with an unrelated company
- 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.
P&F contest that you don't have a license to the assets, at which point it seems a lot more problematic.
And on the other hand, if "the former owner must also transfer all assets used to create trademarked items", then it seems really reasonable to assume that any sale of the trademark... had to actually include a license to the assets, otherwise it would be invalid. So Stardock had every reason to assume they DID own the assets. That doesn't that they were Atari's to sell in the first place, but it does explain why Stardock would feel comfortable taking it as a given.
If we take it as given that Stardock *did* acquire a license to the assets, then the only remaining reason seems to be "argue it was abandoned" (which seems dicey given the existence of the UQM continuing the use of that trademark). So, pretty clear cut indeed.
If we instead assume that P&F have exclusive rights to the assets, then... Google totally fails me when it comes to the question of how to handle it when the copyright and trademark are owned by different companies. Very much outside the range of "just Google it."
I personally think it's premature to assume that P&F are in the wrong here, but neither would I assert that they've got it correct. I can't imagine a conflict like this forming if both sides didn't genuinely think they were in the right.
Accolade knew of "The Ur-Quan Masters" use of "Yehat", and did not object, thereby forfeiting the Mark.
http://www.iusmentis.com/trademarks/crashcourse/limitations/#Noncommercialuseofatrademark seems pretty clear on non-commercial use not applying, unless it dilutes or parodies the trademark, neither of which applies here?
(I'm open to correction. Again, I'm not a lawyer - just following the invitation to work it out from Google  )
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« Last Edit: April 14, 2018, 02:28:58 pm by kaminiwa »
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Frogboy
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Keep in mind, Stardock is operating as if the 1988 agreement has expired. Otherwise, it would have included the SC2 ships and actual expressed versions of the aliens that Paul and Fred claim rights to. It’s just too risky to operate any other way.
Moreover, as I’ve said elsewhere, at this stage we don’t want to use any of Paul and Fred’s IP. There might be some value in the ships, But not enough to hassle with.
Imo, it’s better if Paul and Fred use their IP themselves, especially now that they seem motivated to do something with it. But none of that use can relate to Star Control trademarks without permission.
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« Last Edit: April 14, 2018, 02:56:23 pm by Frogboy »
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astkr5
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Keep in mind, Stardock is operating as if the 1988 agreement has expired. Otherwise, it would have included the SC2 ships and actual expressed versions of the aliens that Paul and Fred claim rights to. It’s just too risky to operate any other way.
Moreover, as I’ve said elsewhere, at this stage we don’t want to use any of Paul and Fred’s IP. There might be some value in the ships, But not enough to hassle with.
Imo, it’s better if Paul and Fred use their IP themselves, especially now that they seem motivated to do something with it. But none of that use can relate to Star Control trademarks without permission.
To clarify, are you saying that in your view FF and PR3 would be legally obligated to seek permission from Stardock not just if they wished to attach the actual Star Control name to their new game (Ghosts) but in principle to even use the names of the species which were in SC1 and SC2 (Yehat, Ur-Quan, Spathi, etc.) in Ghosts? That is, in your view they would have to rename the original aliens in order to proceed with the story in which those original aliens were presented, if they did not want to pay or otherwise compensate Stardock for the use of what you feel is your trademark?
Help me out here, I'm just really struggling to see how Stardock's actions (even if legally correct) don't amount to an attempt to place roadblocks/tolls in the way of the production of the game I'm most interested in seeing made.
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