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

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Author Topic: My take on Stardock  (Read 71893 times)
Krulle
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Re: My take on Stardock
« Reply #705 on: May 01, 2018, 10:57:49 pm »

But the thing is, that FF and PR did not announce a "true sequel to the story of Star Control II". There were some words missing, which may have created confusion, and badly enough, it seemed to have created more confusion with ezines and blogs, where journalists should have made a better attempt at checking the story.
Whether confusion was created, and whether this actually did cause a loss in final sales for Stardock or whether the increased discussions created more sales*, is up to judges and jury, and hired specialists estimating the loss in sales.


*: Any press is good press, modern proverb in marketing (Succès de scandale).
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WibbleNZ
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Re: My take on Stardock
« Reply #706 on: May 01, 2018, 11:31:01 pm »

I'm really unsure about that last part.

I'll try to expand on it.

"You can't stop someone from selling similar products using a different trademark." - https://www.beelinelegal.com/Trademarks101/Trademark

"A trademark is generally a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods" -  https://www.uspto.gov/sites/default/files/documents/BasicFacts.pdf

"Goods" in this case specifically means "IC 009. US 021 023 026 036 038. G & S: Computer games; Computer game software; Video games" as per the trademark applications.

Thus:

"Star Control" identifies "Stardock" as the source of certain computer game(s).
"Galactic Civilizations" identifies "Stardock" as the source of certain computer game(s).
"Drengin" identifies "Stardock" as the source of what exactly? There is no Drengin computer game(s).

The only trademark that seems to be of any concern (assuming it is one at all) is:

"The Ur-Quan Masters" identifies <currently disputed> as the source of a certain computer game.

Both Stardock and Paul and Fred have applied to register this mark. Whoever wins it has at least some power over the UQM project (in my opinion, only the name). Paul and Fred's application is more complete, but Stardock may have a case - it would rely on a subtitle counting as trademark (not clear to me) and either a) it hasn't expired or b) the project is not engaging in commerce. P&F's case relies on the project engaging in commerce, and that they represent it; it's possible it's not a trademark at all. As far as I currently know, the competing applications mean the whole process (which takes ~12 months at the shortest) grinds to a halt - perhaps that is why Stardock have only filed the bare minimum.
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WibbleNZ
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Re: My take on Stardock
« Reply #707 on: May 02, 2018, 01:30:02 am »

Not directly related to UQM, but just...wow. https://imgur.com/a/TfrnxQ0
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huhlig
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Re: My take on Stardock
« Reply #708 on: May 02, 2018, 01:53:12 am »

I'm really unsure about that last part.

I'll try to expand on it.

"You can't stop someone from selling similar products using a different trademark." - https://www.beelinelegal.com/Trademarks101/Trademark

"A trademark is generally a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods" -  https://www.uspto.gov/sites/default/files/documents/BasicFacts.pdf

"Goods" in this case specifically means "IC 009. US 021 023 026 036 038. G & S: Computer games; Computer game software; Video games" as per the trademark applications.

Thus:

"Star Control" identifies "Stardock" as the source of certain computer game(s).
"Galactic Civilizations" identifies "Stardock" as the source of certain computer game(s).
"Drengin" identifies "Stardock" as the source of what exactly? There is no Drengin computer game(s).

The only trademark that seems to be of any concern (assuming it is one at all) is:

"The Ur-Quan Masters" identifies <currently disputed> as the source of a certain computer game.

Both Stardock and Paul and Fred have applied to register this mark. Whoever wins it has at least some power over the UQM project (in my opinion, only the name). Paul and Fred's application is more complete, but Stardock may have a case - it would rely on a subtitle counting as trademark (not clear to me) and either a) it hasn't expired or b) the project is not engaging in commerce. P&F's case relies on the project engaging in commerce, and that they represent it; it's possible it's not a trademark at all. As far as I currently know, the competing applications mean the whole process (which takes ~12 months at the shortest) grinds to a halt - perhaps that is why Stardock have only filed the bare minimum.

One thing to note is that without underlying transfer of assets, Star Control becomes a fraudulent mark as it indicated Paul and Fred/Accolade as the producers of the product. Stardock has no associated goodwill to the Star Control Trademark and without the assets underneath must build new good will. See Assignment-In-Gross. Trademarks are fragile things and The trademark buyer, or assignee, bears the transaction risk in a trademark assignment. If the acquired mark is declared invalid, the assignee’s new trademark rights will be lost. This is what Brad is afraid of. Without the underlying assets and goodwill his trademark is so much dust in the wind. To quote:
Quote
Trademarks cannot be sold apart from their businesses because they do not have discrete value as property, are meaningless apart from the business with which they are associated, and so are inseparable from that business. Trademark assignments, whether or not they are assigned attendant to a sale, are declared illegal if the trademark is sold alone, divorced from the business it formerly represented.
If the buyers of the product identify it's use as illegitimate and not representing the product or service the mark represents, Stardock could easily lose the trademark.
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WibbleNZ
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Re: My take on Stardock
« Reply #709 on: May 02, 2018, 02:39:06 am »

If the buyers of the product identify it's use as illegitimate and not representing the product or service the mark represents, Stardock could easily lose the trademark.

I don't think that's likely - The SC3 copyright seems sufficient to keep the mark alive.
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huhlig
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Re: My take on Stardock
« Reply #710 on: May 02, 2018, 02:57:44 am »

If the buyers of the product identify it's use as illegitimate and not representing the product or service the mark represents, Stardock could easily lose the trademark.

I don't think that's likely - The SC3 copyright seems sufficient to keep the mark alive.

Except they don't own unilateral rights to it.
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Serosis
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Re: My take on Stardock
« Reply #711 on: May 02, 2018, 03:52:02 am »

If the buyers of the product identify it's use as illegitimate and not representing the product or service the mark represents, Stardock could easily lose the trademark.

I don't think that's likely - The SC3 copyright seems sufficient to keep the mark alive.

Except they don't own unilateral rights to it.

P&F believe Stardock doesn't own the unilateral rights to it. That's what the countersuit is all about.
To determine who has the rights to what based on whether the 1988 Agreement is void or not.

Both sides firmly believe they are the rights holders. That's why there is an ongoing lawsuit.

We do nobody any favors assuming one is the correct party.

But the thing is, that FF and PR did not announce a "true sequel to the story of Star Control II". There were some words missing, which may have created confusion, and badly enough, it seemed to have created more confusion with ezines and blogs, where journalists should have made a better attempt at checking the story.
Whether confusion was created, and whether this actually did cause a loss in final sales for Stardock or whether the increased discussions created more sales*, is up to judges and jury, and hired specialists estimating the loss in sales.


*: Any press is good press, modern proverb in marketing (Succès de scandale).

Okay, it doesn't say "true sequel", but it did say "direct sequel" to Star Control II - The Ur-Quan Masters: https://web.archive.org/web/20171010093136/dogarandkazon.squarespace.com/
« Last Edit: May 02, 2018, 04:13:56 am by Serosis » Logged

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Re: My take on Stardock
« Reply #712 on: May 02, 2018, 04:08:11 am »

No, that's pretty basic copyright law. Star Control 3 is a derivative work, based on Star Control 1 and 2. Meaning that any copyright in the derivative is subject to the copyright in the original. So, yes, Paul and Fred absolutely own a piece of Star Control 3, by virtue of the fact that Star Control 3 is based on P&F's original copyright in SC1 and SC2.

The 1988 licensing agreement also confirms this in section 11.4: "Publisher shall be the owner of the copyright and all other proprietary rights in all Derivative Works by Publisher and Derivative Products, subject to Developer's copyright in the Work and all Derivative Works." It is also further clarified in Adendum #2, where Reiche grants a license to Accolade to "intellectual property rights pertaining to Star Control I and Star Control II in which Reiche has an ownership interest".

This is one of the most uncontroversial parts of copyright law and the licensing agreement. Stardock is not the unilaterial rightholder -- they co-own it with Paul and Fred.

It's also one of the most misleading parts of Stardock's Q+A. They say "We had no choice [but to sue them] after Paul and Fred filed DMCA claims against the distribution not only of Star Control 1 and 2 but also Star Control 3 which they admit they had no involvement." Even if you don't think that licensing their intellectual property is considered involvement, the issue isn't whether they were involved, but whether they own a piece of the IP, which they do. It would be like co-owning a house, and then trying to sell it without your partner's permission.
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Elestan
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Re: My take on Stardock
« Reply #713 on: May 02, 2018, 04:50:25 am »

No, that's pretty basic copyright law. Star Control 3 is a derivative work, based on Star Control 1 and 2. Meaning that any copyright in the derivative is subject to the copyright in the original. So, yes, Paul and Fred absolutely own a piece of Star Control 3, by virtue of the fact that Star Control 3 is based on P&F's original copyright in SC1 and SC2.

Even if you disagree with it (as I do), I think it's still respectful to note when an issue is contested.  It's always possible that we've missed something.
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Elestan
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Re: My take on Stardock
« Reply #714 on: May 02, 2018, 04:36:20 pm »

There have been a handful of new documents filed on the docket:
Quote from: pacer
May 1, 2018   ORDER by Judge Kandis A. Westmore terminating Defendants' 40 Motion to Quash. The parties are ordered to meet and confer and file a joint letter that complies with the undersigned's standing order if they fail to resolve the pending dispute. (kawlc1, COURT STAFF) (Filed on 5/1/2018)

Apr 30, 2018  ORDER REFERRING CASE to Magistrate Judge for Discovery purposes. Signed by Judge Saundra Brown Armstrong on 4/30/18. (dtmS, COURT STAFF) (Filed on 4/30/2018) (Entered: 04/30/2018)

Apr 30, 2018  STIPULATED PROTECTIVE ORDER by Judge Saundra Brown Armstrong.(dtmS, COURT STAFF) (Filed on 4/30/2018) (Entered: 04/30/2018)

Apr 27, 2018  MOTION to Quash Subpoena to Singer Associates, Inc. filed by Robert Frederick Ford, Paul Reiche III. Responses due by 5/11/2018. Replies due by 5/18/2018. (Attachments: # 1 Declaration of Sam Singer in Support of Motion to Quash, # 2 Declaration of Stephen C. Steinberg inSupport of Motion to Quash, # 3 Exhibit 1 to Steinberg Declaration, # 4 Exhibit 2 to Steinberg Declaration, # 5 Exhibit 3 to Steinberg Declaration, # 6 Exhibit 4 to Steinberg Declaration, # 7 Exhibit 5 to Steinberg Declaration, # 8 Exhibit 6 to Steinberg Declaration, # 9 Exhibit 7 to Steinberg Declaration, # 10 Exhibit 8 to Steinberg Declaration, # 11 Exhibit 9 to Steinberg Declaration, # 12 Exhibit 10 to Steinberg Declaration, # 13 Exhibit 11 to Steinberg Declaration, # 14 Proposed Order Granting Motion to Quash)(Steinberg, Stephen) (Filed on 4/27/2018) (Entered: 04/27/2018)

Apr 27, 2018  STIPULATION WITH PROPOSED ORDER filed by Robert Frederick Ford, Paul Reiche III. (Attachments: # 1 Declaration Attestation)(Steinberg, Stephen) (Filed on 4/27/2018) Modified on 4/27/2018 (jmlS, COURT STAFF). (Entered: 04/27/2018)

Takeaways I see here:
  • In addition to the primary trial judge and the settlement magistrate, we now have another magistrate managing the case's discovery process.
  • The parties have agreed to some kind of protective order, probably establishing limits on discovery and/or agreeing to keep some discovered materials from being made public.
  • Stardock subpoenaed Singer Associates, Paul and Fred's PR firm.
  • Paul&Fred asked the judge to quash the subpoena, but were told that they needed to try to work it out with Stardock first.
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Death 999
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Re: My take on Stardock
« Reply #715 on: May 02, 2018, 04:56:45 pm »

I wonder why Stardock felt the need to subpoena their PR firm. Looking for an otherwise-secret admission of weakness?
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Elestan
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Re: My take on Stardock
« Reply #716 on: May 02, 2018, 05:01:30 pm »

I wonder why Stardock felt the need to subpoena their PR firm. Looking for an otherwise-secret admission of weakness?

I'd guess that they're digging for evidence that might show malicious intent.
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Krulle
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Re: My take on Stardock
« Reply #717 on: May 02, 2018, 09:19:39 pm »

Well  the PR firm allegedly told the public, that Stardock/Wardell is stealing the FF/PR IP.... (through downplaying their "contributions" to SC2).
« Last Edit: May 02, 2018, 09:21:26 pm by Krulle » Logged
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Re: My take on Stardock
« Reply #718 on: May 03, 2018, 02:44:18 am »

Curious to see what the "STIPULATED PROTECTIVE ORDER" entails in more detail.
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Re: My take on Stardock
« Reply #719 on: May 03, 2018, 04:43:17 am »

Curious to see what the "STIPULATED PROTECTIVE ORDER" entails in more detail.

It's probably one of the standard-form orders the court uses for such things. I believe the purpose is to agree on limits or rules in discovery, and on what discovered documents will be released to the public.
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