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Topic: My take on Stardock (Read 224699 times)
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Ariloulawleelay
Zebranky food
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Posts: 44
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I'm finding it very difficult to take the allegations at face value (particularly when Stardock misleadingly redefine the Star Control 3 copyright as "The Star Control Copyrights", it's hard to work out what the face value is) - those paragraphs reference Exhibit N, wherein P&F indicate the GoG and Atari arranged a trademark contract.
Pursue your whirling thoughts and find ruin. Only by fully embracing the Complaint can one fully appreciate the defensive nature of the trademark counterclaim. It only succeeds under the facts as alleged by Stardock. I'm not quite certain I follow, but are you suggesting it may be unwise for Stardock to suggest that P&F ( and not Atari) were the party using the Star Control mark in commerce from 2011-2017?
It would be difficult for anyone to opine as to what would be wise or unwise for Stardock to suggest, as none of us outsiders know what Stardock's ultimate goals are here.
For example, were Stardock primarily concerned with protecting the "Star Control" mark, then surely its lawyers would not have eschewed the quicker, more informal, and often cheaper resolution promised by confidential binding arbitration. P&F would likely have been unable to challenge the trademark in an arbitration based on the Licensing Agreement, and a timely gag order from the arbitrator could have shut down P&F's PR efforts before they even started.
Instead, Stardock filed a federal lawsuit, all but guaranteeing that the parties' dirty laundry (including this inevitable trademark counterclaim) would be aired in public, and potentially putting a Friday the 13th-like cloud over SCO for months after launch.
Presumably, Stardock's proffered narrative serves to advance Stardock's desired outcome - whether that outcome involves asserting control over the names of the classic aliens, avoiding fallout from having described SCO as a prequel, or something else entirely - providing the "factual" basis for this particular counterclaim was a calculated risk. Amended pleadings are due in a month's time: we'll see if Stardock reconsiders its approach.
ZwabbitWhether something can be a trademark has no relevancy as to whether it can be protected by a trademark. The test to be a trademark is not the test that is used to determine infringement. It has every relevancy. One of the requirements for infringement is use in commerce - the same requirement as for being a trademark.
Not a response, but a general aside: "commerce" is one of the more dynamic terms of art in American jurisprudence. When reading federal laws, one should never take references to "commerce" at face value, nor should one assume that the word has congruent meanings in different contexts.
For example, just looking at the Lanham Act, § 43(c) actually codifies the 2006 Trademark Dilution Revision Act. That is to say, that subsection is actually an entirely different law that has been inserted into the Lanham Act. References to "noncommercial use" in the TDRA are not necessarily related to "use in commerce," as that phrase may be used in the older sections of the Lanham Act.
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Lakstoties
Frungy champion
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Posts: 66
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Not a response, but a general aside: "commerce" is one of the more dynamic terms of art in American jurisprudence. When reading federal laws, one should never take references to "commerce" at face value, nor should one assume that the word has congruent meanings in different contexts.
I was curious about that and did some serious digging around to trying to find exactly what "use in commerce" meant in the context of trademarks. Ended up finding a few key bits.
From https://www.inta.org/INTABulletin/Pages/Defining_Use_in_Interstate_Commerce_7117.aspx :
Use in commerce” on goods occurs when a mark is affixed to the goods and such goods are sold or transported in commerce. 15 U.S.C. § 1127. “Use in commerce” for services occurs when the mark is used on promotional materials that describe the service and the services are rendered in commerce. 15 U.S.C. § 1127.
So the goods don't have to be sold, only transported. And by the nature of the Internet, it is commerce that Congress can regulate.
From the Trademark Manual of Examining Procedure, https://tmep.uspto.gov/RDMS/TMEP/current#/current/TMEP-900d1e7.html :
Offering services via the Internet has been held to constitute use in commerce, since the services are available to a national and international audience who must use interstate telephone lines to access a website. See Planned Parenthood Fed'n of Am., Inc. v. Bucci, 42 USPQ2d 1430 (S.D.N.Y. 1997) , aff'd, 152 F.3d 920 (2d Cir. 1998) (Table).
Which means, The Ur-Quan Masters project by offering the services of forums, advertising source code locations, and providing downloads to a product is technically... in commerce. Much like many other open source projects out there both big and small. And the "The Ur-Quan Masters" title which is being used as a mark, is in commerce. Which means, the Stardock filing of "The Ur-Quan Masters" trademark will legally threaten UQM.
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Elestan
*Smell* controller
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Posts: 431
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On the trademark front, I noticed a few goings-on that don't appear to have been remarked upon:
* Most of Stardock's alien name applications have now been looked at and found not to be conflicting.
* It looks like Stardock's lawyer got their address wrong on the alien name applications, and had to go back and file corrections to them all.
* All of the alien name applications had the examiner come back with (essentially) "Does this mean something in a foreign language?"; many had other administrative requests.
* The examiner for "ILWRATH" is holding it up due reading it as "IL WRATH" and finding a conflict with a "WRATH" trademark from another game.
* P&F filed for time to oppose Stardock's new "Star Control" registration.
* P&F appear to have created a new company, "Frungy Games", and filed a trademark for the name.
* They have also filed trademarks for Precursors, Frungy, and Ghosts of the Precursors. Stardock is opposing the latter.
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PRH
*Many bubbles*
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Posts: 209
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Note that Brad made that post in June, and was surely already aware of the trademark P&F for "Frungy Games" in April.
Yeah, I should have thought of that.
What's the 'win-win' that Brad is offering?
It's in the same thread I linked to.
Fred and Paul pay whatever damages they owe to Stardock, and exchange the Ghosts of the Precursors mark for the Ur-Quan Masters trademark. They enter into a free licensing agreement with Stardock, which allows them to release a Star Control game.
Yes, I am aware that it's not exactly a "win" for Fred and Paul, since they basically lose the lawsuit. But it is a win-win for the fans, since both Origins and F&P's sequel get released. And yes, I am aware that F&P will have to trust Stardock on fulfilling their end of the bargain, and there isn't much trust between F&P and Stardock now.
Why am I in favor of this solution? Because I don't see any other way to settle this without either Origins or GotP being endangered. Then again, I am not a lawyer, and I only go by what F&P and Brad said.
And F&P's decision to oppose the Star Control trademark also confirms Stardock's claim that GotP falls under the Star Control trademark even if it doesn't have "Star Control" in its title. If that weren't the case, why wouldn't F&P leave the Star Control trademark alone?
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« Last Edit: June 17, 2018, 03:40:38 am by PRH »
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