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

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Author Topic: My take on Stardock  (Read 72208 times)
Frogboy
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Re: My take on Stardock
« Reply #525 on: April 14, 2018, 03:38:48 pm »

They would need our permission. Just as we’d we’d need their permission to use their IP.

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tingkagol
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Re: My take on Stardock
« Reply #526 on: April 14, 2018, 06:08:43 pm »

Probably a lost cause now, but why are you doing this?

To paraphrase, how does applying trademarks for all the Sc1-2 races protect Origins? The litigation's sole purpose was to protect the SC trademark and Origins, correct?
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huhlig
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Re: My take on Stardock
« Reply #527 on: April 14, 2018, 06:09:48 pm »

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.  


If you are operating under the assumption that the 1988 agreement has expired. I am curious, when do you think it expired?
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CelticMinstrel
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Re: My take on Stardock
« Reply #528 on: April 14, 2018, 06:30:09 pm »

To me this discussion just sounds like a shining example of how broken trademark law is. If Stardock gets the trademarks to the race names, that basically means that they've trademarked names used in P&F's work, interfering with their ability to make a derivative of said work. That's not right. Trademarking a name used in an existing work, even if it wasn't a common-law trademark, should not be allowed.
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huhlig
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Re: My take on Stardock
« Reply #529 on: April 14, 2018, 06:51:36 pm »

To me this discussion just sounds like a shining example of how broken trademark law is. If Stardock gets the trademarks to the race names, that basically means that they've trademarked names used in P&F's work, interfering with their ability to make a derivative of said work. That's not right. Trademarking a name used in an existing work, even if it wasn't a common-law trademark, should not be allowed.

The funniest part is that Atari had no ability to transfer the goodwill associated with the Trademark due to lack of Intellectual Property. I am very curious as to the accounting associated with the transfer. Given that Brad bought the Trademark at a bankruptcy auction. The entire valuation of the auction was 400k, however some of that valuation should have been for the goodwill of a trademark vs the trademark itself. There is actual accounting required for the value of intangible transfer of goodwill.
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Elestan
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Re: My take on Stardock
« Reply #530 on: April 14, 2018, 07:03:34 pm »

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.

I'm not sure I agree on this; I think that it would still be Stardock's lawyers' responsibility to verify that they were getting all of the assets to the Star Control franchise, including all of the IP rights needed to use them in a product consistent with the goodwill present in the prior products.  It seems like what might have happened is that Atari signed some blanket paperwork to transfer everything that it had, but Stardock's lawyers didn't do the due diligence to fully trace the provenance of the IP rights.  This seems analogous to the responsibility to do a title search when you buy property, to make sure that the person who is selling it actually has the right to sell what you think you're buying.

Quote
Quote from: Elestan
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 Smiley)

Sure, and thanks for the research!

So, it seems like there are two questions here:  

First, does non-commercial use trigger an obligation to defend?   Here, based on what you found, I'd agree that the answer is probably no.

Second, if there is a non-commercial user of the unregistered marks, and the commercial user stops using them, such that for an extended period of time, the only user of those marks has been the non-commercial one, can the original commercial user still step back in and try to register those marks?  Would the original marks be considered abandoned?  If so, would the presence of the non-commercial user preclude a new registration of those marks in the same field?

I have no idea about the answer to these.
« Last Edit: April 14, 2018, 07:42:52 pm by Elestan » Logged
Elestan
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Re: My take on Stardock
« Reply #531 on: April 14, 2018, 07:03:56 pm »

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:

Quote
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.

« Last Edit: April 14, 2018, 08:05:28 pm by Elestan » Logged
astkr5
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Re: My take on Stardock
« Reply #532 on: April 14, 2018, 07:07:44 pm »

They would need our permission. Just as we’d we’d need their permission to use their IP.

Okay then. So while we can run around this in circles about what the favourability of your legal position might be (and I'm not trying to suggest anyone shouldn't be discussing that as well), as far as I can tell you are making a choice to contest FF and PR3's ability to make a game based on the creative work they originally did and lore that they own, based on a legal technicality.

I agree with CelticMinstrel that assuming Stardock is correct, then trademark law seems deeply messed up. But it's not trademark law that is somehow forcing you to employ lawyers to litigate this. That's you (and your company).

I'd also like to echo what tingkagol asked, but let me paraphrase with the following: Hold! What you are doing is wrong! Why do you do this thing?
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Elestan
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Re: My take on Stardock
« Reply #533 on: April 14, 2018, 07:09:53 pm »

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?
They would need our permission. Just as we’d we’d need their permission to use their IP.

So, I think it would also help to clarify the grounds on which you're claiming Stardock has the IP rights on the alien names.  Is it:
  • By virtue of your recent filing for registration on them,
  • By virtue of them being unregistered/common law trademarks that you purchased from Atari, or
  • By virtue of them being part of the product identity intrinsic to the "Star Control" registered mark that you bought?

...or some combination of the above?

I ask because some of the counterpoints being raised are only applicable to certain of these.
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huhlig
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Re: My take on Stardock
« Reply #534 on: April 14, 2018, 07:12:42 pm »

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:

Quote
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 like 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.

Isn't Intellectual Property (Trademark, Copyright, Goodwill, and Patents) fun! It makes *campers* *frumple* and lawyers have *fun parties* *below*.
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svs
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Re: My take on Stardock
« Reply #535 on: April 15, 2018, 02:21:45 am »

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:

Quote
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.


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huhlig
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Re: My take on Stardock
« Reply #536 on: April 15, 2018, 02:37:27 am »

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:

Quote
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.

Nor do you for that matter. The art of being a competent lawyer is all about out researching and out debating your opponent. There is nothing magical about passing the bar exam that magically makes you better than someone else. If you want to actually argue your point, feel free to cite case law and the civil statues where you feel someone is incorrect. It's exactly what any competent lawyer will do, especially when it comes to intellectual property and the law of obligations. Research, Cite, Debate. No lawyer knows the corpus of knowledge 100%, he knows what he needs to research, and what he has done in the past. That's it.
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Death 999
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Re: My take on Stardock
« Reply #537 on: April 15, 2018, 04:07:17 am »

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.
« Last Edit: April 15, 2018, 05:22:05 am by Death 999 » Logged
kaminiwa
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Re: My take on Stardock
« Reply #538 on: April 15, 2018, 05:48:06 am »

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.

I mean, Frogboy was literally saying this was so simple it could be resolved by Googling the matter, and I'd expect he knows more about the matter than you  do, svs. What makes you think you know enough to dismiss Frogboy's advice here?

And how come you keep harping on Elestan specifically? I feel left out ;-(
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svs
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Re: My take on Stardock
« Reply #539 on: April 15, 2018, 06:21:27 am »

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. Smiley
« Last Edit: April 15, 2018, 06:31:53 am by svs » Logged
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