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News: Paul & Fred have reached a settlement with Stardock!

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Author Topic: My take on Stardock  (Read 69861 times)
Frogboy
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Re: My take on Stardock
« Reply #360 on: April 07, 2018, 10:51:05 pm »

How much confusion was caused when Stardock announced that Paul and Fred were making a true sequel?
How much confusion was caused when Stardock doubled down by giving Paul and Fred their blessing in every interview and announcement?
How much confusion was caused when Stardock talked about a multiverse where Star Control 2 was a separate continuity, reserved for Paul and Fred's sequel?
How much confusion was caused when Stardock insisted that the only way you'd see the SC2 aliens again is if Paul and Fred were directly involved?
How much confusion was caused by over a decade of calling Paul and Fred the creators, who are planning and working on a sequel, without a challenge from Atari (let alone Stardock)?

It's not as cut and dry as other Trademark infringement cases. It's pretty rare that a plaintiff would openly use their Trademark to describe the defendant's work -- past, present, or future, let alone all of the above -- and then sue the defendant anyway. This is the only time I've ever heard of a company doing that. It's unprecedented.

For Paul and Fred's sake, I hope they don't try to use those arguments in court.  Those are appeals to emotion. Not law.
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Frogboy
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Re: My take on Stardock
« Reply #361 on: April 07, 2018, 10:54:42 pm »

When we acquired the trademark we...acquired the trademark.   I'm not sure what you are getting at.

As a fan of SC2/UQM, the worst thing I'm afraid of is that you shut down GotP's development if you win the lawsuit. And the fact that you are attempting to register trademarks associated with UQM hints that this is your intention. If I was sure that GotP is going to be developed by Fred & Paul and released no matter what, I wouldn't care one bit who won the lawsuit. Force F&P to apologize for infringing on your trademark, force them to pay whatever damages you think are due. As long as GotP still gets released, I would be content. So if F&P rebrand the classic games so that they no longer use the Star Control name (say, Famous Battles of the Ur-Quan Conflict, The Ur-Quan Masters, and Ur-Quan: Ghosts of the Precursors, the way you rebranded SC3 as The Kessari Quadrant), would you agree to leave these games alone? Would F&P be allowed to mention that the classic games were originally released as Star Control and Star Control II?

I can't imagine a scenario where GoTP, with that title, is developed. 

What I will say is that Stardock will be generous in licensing its marks, including ones to alien names it claims such as the Spathi, Orz, etc. if it helps get a follow-up to the UQM story made.

My personal preference would be something like Ur-Quan Masters II: <subtitle>.


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PRH
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Re: My take on Stardock
« Reply #362 on: April 07, 2018, 11:05:14 pm »

Quote
What I will say is that Stardock will be generous in licensing its marks, including ones to alien names it claims such as the Spathi, Orz, etc. if it helps get a follow-up to the UQM story made.

You just said that Fred and Paul hold the copyright to the story of SC1 and SC2, including all the characters and story elements they feature. That means that your attempt to trademark "Spathi", "Orz", "Arilou", etc. is infringing on F&P's copyright:

No. Trademarks do not include characters, stories, UI, themes, sounds, impressions.  

Copyright can cover some of these things, like characters, stories, music.  Stardock has no rights to the specific characters in Star Control II or the story or the music.

This is why  Star Control: Origins doesn't include any material from Star Control II that would fall under copyright.  The closest thing would be Riku's music except of course, Star Control: Origins music is composed by Riku.  

In that case, you can't talk about "being generous" in licensing marks you have no right to possess. I'm not talking about "Star Control", which you do legally possess, I'm talking about the race names.

As for GotP getting renamed, that would be unfortunate, but acceptable if things do come to that.
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Frogboy
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Re: My take on Stardock
« Reply #363 on: April 07, 2018, 11:15:10 pm »

Quote
What I will say is that Stardock will be generous in licensing its marks, including ones to alien names it claims such as the Spathi, Orz, etc. if it helps get a follow-up to the UQM story made.

You just said that Fred and Paul hold the copyright to the story of SC1 and SC2, including all the characters and story elements they feature. That means that your attempt to trademark "Spathi", "Orz", "Arilou", etc. is infringing on F&P's copyright:

No. Trademarks do not include characters, stories, UI, themes, sounds, impressions.  

Copyright can cover some of these things, like characters, stories, music.  Stardock has no rights to the specific characters in Star Control II or the story or the music.

This is why  Star Control: Origins doesn't include any material from Star Control II that would fall under copyright.  The closest thing would be Riku's music except of course, Star Control: Origins music is composed by Riku.  

In that case, you can't talk about "being generous" in licensing marks you have no right to possess. I'm not talking about "Star Control", which you do legally possess, I'm talking about the race names.

As for GotP getting renamed, that would be unfortunate, but acceptable if things do come to that.

I'm sorry but that's not how copyright works.

You can't copyright a name. That's what a trademark is.   

Here's a quickie guide that explains the difference:

http://smallbusiness.chron.com/differences-between-copyright-trademark-3218.html

Briefly:

Trademarks are for "words, names, symbols, sounds or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods."

Copyrights are for "opyright protects original works created in a fixed form including "literary, dramatic, musical, artistic, and certain other intellectual works."

There's also patents (for inventions) but they don't figure into here.

Example:

Stardock owns name "Spathi" as a name for an alien in computer game. 

Paul and Fred presumably own the artistic expression (visual and the lore) for this guy:



So if the person who made that art were to make a game and put him in there with the name Spathi he'd be arguably violating Stardock's trademark and Paul and Fred's copyright.  I don't know if there's like a trophy or anything for that.  But if there was somehow a patent involved and that was owned by a third party then it would have to be some sort of grand slam on IP infringement.

However, it's not quite as clear on the copyright because Paul and Fred released their UQM copyrights for non-commercial use so if that guy were to give away his game, it might fall under the copyright license Paul and Fred gave.
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rosepatel
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Re: My take on Stardock
« Reply #364 on: April 07, 2018, 11:22:53 pm »

How much confusion was caused when Stardock announced that Paul and Fred were making a true sequel?
How much confusion was caused when Stardock doubled down by giving Paul and Fred their blessing in every interview and announcement?
How much confusion was caused when Stardock talked about a multiverse where Star Control 2 was a separate continuity, reserved for Paul and Fred's sequel?
How much confusion was caused when Stardock insisted that the only way you'd see the SC2 aliens again is if Paul and Fred were directly involved?
How much confusion was caused by over a decade of calling Paul and Fred the creators, who are planning and working on a sequel, without a challenge from Atari (let alone Stardock)?

It's not as cut and dry as other Trademark infringement cases. It's pretty rare that a plaintiff would openly use their Trademark to describe the defendant's work -- past, present, or future, let alone all of the above -- and then sue the defendant anyway. This is the only time I've ever heard of a company doing that. It's unprecedented.

For Paul and Fred's sake, I hope they don't try to use those arguments in court.  Those are appeals to emotion. Not law.

I say this as dispassionately as possible, there's no law where you can be held liable for someone else's behavior.

If a fan said "Stardock is making a true sequel to Star Wars", it's not like Disney could sue Stardock. Even if journalists started picking up the story.

There's a ton of announcements from Stardock alone that link Paul and Fred to Star Control, let alone a handful that talk about GOTP as a sequel. Even if it doesn't totally throw liability into question, which it might, It's going to be a major factor in how damages are attributed / mitigated.
« Last Edit: April 07, 2018, 11:25:18 pm by rosepatel » Logged
Frogboy
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Re: My take on Stardock
« Reply #365 on: April 07, 2018, 11:38:11 pm »

They are welcome to try that argument. 

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PRH
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Re: My take on Stardock
« Reply #366 on: April 07, 2018, 11:50:30 pm »

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Stardock owns name "Spathi" as a name for an alien in computer game.  

Paul and Fred presumably own the artistic expression (visual and the lore) for this guy:

Did you acquire the rights to that name with the "Star Control" trademark? Or did you just try to acquire them when you filed for the "Spathi" trademark?

In the latter case (which is supported by you also attempting to trademark "The Ur-Quan Masters"), is that even possible? Because by that logic, you'd be able to trademark, say, "Twi'lek" (I've checked it, there's no trademark for it currently!). Wouldn't Disney be entitled to sue you over it if you tried? And in any case, why would you want to hold on to those trademarks in the first place? To be able to name your own aliens "Spathi", "Arilou" or whatever (talk about confusion if this is indeed what you plan to do!)?

And in the former case, well... that sucks. Because that would mean that in the worst-case scenario, you could force Fred and Paul to rename all of their aliens for the sequel (if not for the classic games).
« Last Edit: April 08, 2018, 12:03:44 am by PRH » Logged
Frogboy
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Re: My take on Stardock
« Reply #367 on: April 08, 2018, 12:04:28 am »

Short answer is that they will need to either license them or rename them.  I'd prefer a free license.
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Re: My take on Stardock
« Reply #368 on: April 08, 2018, 01:16:53 am »

How much confusion was caused when Stardock announced that Paul and Fred were making a true sequel?
How much confusion was caused when Stardock doubled down by giving Paul and Fred their blessing in every interview and announcement?
How much confusion was caused when Stardock talked about a multiverse where Star Control 2 was a separate continuity, reserved for Paul and Fred's sequel?
How much confusion was caused when Stardock insisted that the only way you'd see the SC2 aliens again is if Paul and Fred were directly involved?
How much confusion was caused by over a decade of calling Paul and Fred the creators, who are planning and working on a sequel, without a challenge from Atari (let alone Stardock)?

It's not as cut and dry as other Trademark infringement cases. It's pretty rare that a plaintiff would openly use their Trademark to describe the defendant's work -- past, present, or future, let alone all of the above -- and then sue the defendant anyway. This is the only time I've ever heard of a company doing that. It's unprecedented.

For Paul and Fred's sake, I hope they don't try to use those arguments in court.  Those are appeals to emotion. Not law.

My understanding of trademark law is that there is something of a "use it or lose it", I believe legally referred to as "laches" (but I Am Not A Lawyer)? And rather than meet their announcements with a take-down notice or a trademark complaint, you actually signal-boosted and endorsed their announcement. That seems like more than an appeal to emotion - that seems like a pretty reasonable appeal to the "use it or lose it" facet of trademark. You yourself are now partly responsible for the confusion, because you yourself were responsible for spreading that idea. I can literally quote you, the trademark holder, describing GotP as "a true sequel to Star Control II: The Ur-Quan Masters."

"I am pleased to inform campers everywhere that Paul and Fred have announced a canon follow-up to Star Control II" are not the words of someone defending their trademark.

Maybe I'm wrong about the legal principles here (again, I'm not a lawyer), but from an ethical and emotional  standpoint, it feels very confusing to see P&F being attacked for something you were previously PLEASED to stand behind. Even if you have the legal right to say "take-backsies", I think you do yourself a disservice by not being diplomatic about it. This continued focus on them "causing confusion and inflicting damages" seems especially strange when you yourself helped sow that confusion.
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Frogboy
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Re: My take on Stardock
« Reply #369 on: April 08, 2018, 02:09:29 am »

Laches usually refers to copyright.  Not trademark.  At least someone in this discussion is familiar with the concept.

Speaking for myself, I can say that when they announced Ghosts, I was pretty shocked that they so willfully infringed on our trademark.  They actually put an (R) around Star Control (which immediately kills the first test for fair use btw) without attribution.

However our options were:

1. Say nothing.
2. Correct them publicly.
3. Support them.

I chose option 3.  

We had very little time to react and we were, at the time, still believing that it could be a win-win scenario and that we would paper this over.   Our objective was to mitigate the damage as much as possible and then paper it over with an agreement  I think if they had followed our recommendations, most of the damage could have been mitigated.  Unfortunately, they chose not to work with us.

For example, since they wanted to associate with Star Control, we might have been open to having it be called Star Control: Ghosts of the Precursors provided that they worked with us. 

If a famous game designer announces they want to make a sequel to one of our IPs using their universe we are inclined to weigh the benefits of that provided that they work with us.  Our default position is to assume that since they've made the announcement that they aren't IP illiterate and understand such a game will fall under our umbrella. Once they make the announcement, the burden is on them, to work with us not the other way around.  If they refuse then they need to terminate the endeavor and compensate us for any damages that might have been done.  Paul and Fred chose to double down. 

But like I said, they can make whatever argument they want in court.
« Last Edit: April 08, 2018, 02:18:57 am by Frogboy » Logged
Elestan
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Re: My take on Stardock
« Reply #370 on: April 08, 2018, 05:42:51 am »

Trademarks are for "words, names, symbols, sounds or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods."
Copyrights are for "opyright protects original works created in a fixed form including "literary, dramatic, musical, artistic, and certain other intellectual works."
Example:
Stardock owns name "Spathi" as a name for an alien in computer game.  
Paul and Fred presumably own the artistic expression (visual and the lore) for this guy:
So if the person who made that art were to make a game and put him in there with the name Spathi he'd be arguably violating Stardock's trademark and Paul and Fred's copyright.

So, first off, thank you; this is the first time you've explained your reasoning clearly enough for me to follow it.

Second, a bit of research does at least tentatively confirm that race names are usually trademarked, not copyrighted.  

However, without the copyright (i.e. if you lose the 1988 agreement issue), it seems to me that using them in a creative context that is at all similar to Paul's copyrighted setting is going to put you into Substantial similarity territory, and run you afoul of the copyright.  Moreover, trademarking and using the SC2 race names when you're legally prohibited from making them similar to the SC2 races would be...well...a d*ck move, done purely to spite Paul and Fred, for no benefit at all to Stardock.  I hope that if that situation transpires, you'd respect Wheaton's Law.

Finally, I see one other problem with trying to claim trademark on those races:  Paul released UQM, using all of those alien race names, and Accolade didn't object.  That means that Accolade didn't defend whatever common-law trademarks it had in the race names, and therefore (as I understand trademark law) forfeited them.  And now that UQM has been using those names for years, I'm pretty sure you can't get a new trademark on a name that's already in use in the same product category.
« Last Edit: April 08, 2018, 08:15:58 am by Elestan » Logged
Elestan
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Re: My take on Stardock
« Reply #371 on: April 08, 2018, 06:10:13 am »

Speaking for myself, I can say that when they announced Ghosts, I was pretty shocked that they so willfully infringed on our trademark.  They actually put an (R) around Star Control (which immediately kills the first test for fair use btw) without attribution.

Which test for fair use was this?  I don't see one that seems to apply to putting the (R) in. 

I notice that they did add the attribution afterward, so I'd be inclined to suspect that their failure to put it in at first was an oversight.

Quote
Our objective was to mitigate the damage as much as possible and then paper it over with an agreement  I think if they had followed our recommendations, most of the damage could have been mitigated.  Unfortunately, they chose not to work with us.

So, I wish I could see the emails from this period, so that I could see exactly what your recommendations were.  But from the emails posted so far, it's pretty clear that at this point in time, you and they had different opinions on the 1988 agreement being live.  Until that issue was resolved, there was no way the two of you were ever going to agree on terms, since that makes the difference between Stardock's IP leverage being fairly modest and being massive.

Quote
If a famous game designer announces they want to make a sequel to one of our IPs using their universe we are inclined to weigh the benefits of that provided that they work with us.  Our default position is to assume that since they've made the announcement that they aren't IP illiterate and understand such a game will fall under our umbrella.

I don't see how you could reasonably make that assumption, given that they had just sent you emails saying that they did not want to work with you.  The much more plausible assumption, it seems to me, is that they were trying to skate around the edges of your trademark by utilizing fair use, etc., without actually infringing it in a legally consequential way.  As previously discussed, they may have mis-stepped there, but that seems far more likely than them actually intending that their game would "fall under your umbrella".
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Lakstoties
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Re: My take on Stardock
« Reply #372 on: April 08, 2018, 07:25:36 am »

So, let me get this straight...

Stardock is trying to supersede Fred and Paul's copyrighted material by trademarking unique names from their copyrighted material... to prevent them from using their copyrighted material without getting a license from Stardock to use their own work...

This is a MALICIOUS MISUSE of trademarks.  THIS IS NOT WHAT TRADEMARKS ARE FOR.  These trademarks have NEVER been NOR are presently being used to brand or label the source of any goods or services.  They are derived from copyrighted materials Stardock does not own.  And were FILED (Only one has even been assigned a trademark lawyer for review) after litigation was filed by Stardock.

This is trademark trolling as retaliatory action.

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Re: My take on Stardock
« Reply #373 on: April 08, 2018, 08:13:49 am »

^^^^^^^^

Agreed completely! Stardock's trademark grab in particular has been eating at me for weeks as unjustifiable horseshit, and you've summed it up better than I ever could.
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Re: My take on Stardock
« Reply #374 on: April 08, 2018, 08:32:55 am »

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:

Quote
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.
« Last Edit: April 13, 2018, 03:36:36 am by Death 999 » Logged
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