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Trial by Deathmatch
August 17, 2011 9:36 AM   Subscribe

A week ago, Markus "Notch" Persson (creator of Minecraft) received a letter from Bethesda (makers of the Elder Scrolls games) warning him that Scrolls (prev) was infringing on their trademark. Today, in a new twist on an old idea, Notch has challenged Bethesda to settle matters without lawyers: Quake 3 Team Deathmatch.
posted by kmz (70 comments total) 12 users marked this as a favorite

 
Bethesda's parent company owns id thus Quake 3, so it's an away game for Notch.
posted by michaelh at 9:39 AM on August 17, 2011 [2 favorites]


Bethesda to Notch: "Wow, that's so awesome! But, no--we'd totally rather have the money."
posted by Admiral Haddock at 9:41 AM on August 17, 2011 [7 favorites]


in a new twist on an old idea

Cool. Trial by combat. From which historical figure or event was inspiration drawn, I wonder.

Remember that scene in Game of Thrones...

oh.
posted by ODiV at 9:41 AM on August 17, 2011 [2 favorites]


That's pretty cool, but he's got a ways to go to top the all-time response to a frivolous copyright-infringement claim.
posted by Shepherd at 9:41 AM on August 17, 2011 [60 favorites]


I love the fact that someone -- a lawyer, I assume, probably a fresh one -- over at Bethesda has to deal with this. It's part of the whole affair w/r/t the name and it can't be left unadressed. Someone, somewhere has to write an email to notch stating that no, due to company policy, they cannot settle a copyright dispute in open combat. And after hitting send they will lean back in their chair and consider the chain of events that lead them to this email, and whether or not they should have been a film major like they originally wanted.
posted by griphus at 9:42 AM on August 17, 2011 [83 favorites]


Notch is going to end up having to change the name of their game, and I don't know why he hasn't already.
posted by empath at 9:44 AM on August 17, 2011


This is like Paramount suing George Lucas over the title of Star Wars because they own the trademark on "Star Trek". It's got the word "star" in it, man!
posted by Zozo at 9:47 AM on August 17, 2011


Frankly, he should change the name. It sucks.
posted by notmydesk at 9:47 AM on August 17, 2011


I was hoping for broadswords in a pit.
posted by brundlefly at 9:51 AM on August 17, 2011 [5 favorites]


This makes me happy in ways I cannot describe. I really want to live in a world where Bethesda takes him up on this.

And if he loses, he should totally name it Scroll's Edge.
posted by NMcCoy at 9:52 AM on August 17, 2011 [3 favorites]


I think Gathering Magic might be up for grabs.
posted by yellowbinder at 9:53 AM on August 17, 2011 [2 favorites]


Whether the name sucks or not, does Bethesda own the word "scrolls" now? What will you do when they trademark the word "sucks"? Will you disapprove?
posted by BYiro at 9:53 AM on August 17, 2011 [1 favorite]


Anything that increases the bugfix rate in Minecraft is OK by me.
posted by DU at 9:54 AM on August 17, 2011


Three of our best warriors against three of your best warriors.

Q3 TDM 3v3? N00b. 4v4, pro-q3dm6, Orange Smoothie mod installed, get DJ Wheat to shoutcast that shit.

I am ashamed
posted by nathancaswell at 9:56 AM on August 17, 2011 [4 favorites]


This calls for spiteful mockery. He should change the name to Senior Scrolls: Rimming the Sky.
posted by naju at 9:56 AM on August 17, 2011 [6 favorites]


Whether the name sucks or not, does Bethesda own the word "scrolls" now? What will you do when they trademark the word "sucks"? Will you disapprove?

Trademarks are restricted to a particular context, so no, they don't own the word "scrolls" except where it refers to games.
posted by atrazine at 9:57 AM on August 17, 2011 [2 favorites]


Notch got married like 3 days ago as well!

Also I think the android release is today maybe?
posted by Ad hominem at 9:58 AM on August 17, 2011 [1 favorite]


Notch wins forever.

(Even if a member of Scroll's creative team is Penny Arcade's Tycho, who created the dickwolf.)
posted by andreaazure at 9:58 AM on August 17, 2011 [2 favorites]


This calls for spiteful mockery. He should change the name to Senior Scrolls: Rimming the Sky.

Actually, this name would probably be less likely to face legal troubles, since it moves it more under the category of "parody", which is fair use. However, he'd then have to make it a parody of Elder Scrolls, and I don't know if many people would embrace a game where rimming is the main form of game interaction.
posted by Deathalicious at 9:59 AM on August 17, 2011 [3 favorites]


Notch is going to end up having to change the name of their game, and I don't know why he hasn't already.

Why do you think (Swedish) trademark law would favor Bethesda in this particular case? I personally don't think it's as cut and dry as say Piano Hero or Tetris clones adding -tris at the end of their names. The games seem to be pretty substantially different in terms of content, and they both use the word scroll in their name because it's a common fantasy element (just like dungeon or wizard or any other word that multiple fantasy games have used). To me Blizzard would have a better case calling Minecraft an infringement on Warcraft and StarCraft.
posted by burnmp3s at 10:00 AM on August 17, 2011


I know nothing about copyright law. I've heard it claimed that all threats to a copyright must be treated seriously, lest that be used against you in a later court battle. So, is that true? If it is, if Bethesda/Zenimax agrees to the match, could that hurt them (against, say, someone later making a game called The Older Scrolls V : RyeSkim), or would it be seen as just another out-of-court agreement that was reached by both parties?
posted by suckerpunch at 10:00 AM on August 17, 2011


It's important to note, BTW, that Bethesda isn't really doing this to be a dick. They're defending their copyright. Even if they're not 100% serious about restricting the use of the name Scrolls, if they don't do this, then later developers can take the name because they didn't do a sufficient job of defending the trademark because it is no longer considered a trademark.
posted by Deathalicious at 10:01 AM on August 17, 2011 [3 favorites]


Why not? Let's entertain this for a moment. Each party picks their own side of three, eh? Beth certainly would have deeper pockets, but Notch could probably afford to pay a bit of coin for some pro leaguers too. Hard for me to say if either would have enough goodwill to get sufficiently skilled volunteers.

What they should REALLY DO is Notch should agree to change the name anyway because it's terrible and everyone mostly loves The Elder Scrolls, but they go ahead and do a big duel with some sort of proceeds (yeah, from what I don't know yet) going to a charity like maybe Child's Play or whatever. Make it into a big PR win for everyone instead of a crappy legal slugfest.

Notch, Bethesda: I am available for consultation. Email: edogy[4T]edogy[D0T]net
posted by BeerFilter at 10:03 AM on August 17, 2011 [5 favorites]


suckerpunch: Copyright is not trademark. They are entirely different forms of intellectual property and have entirely different legal situations. Please do not confuse the two.
posted by dhartung at 10:03 AM on August 17, 2011 [7 favorites]


I know nothing about copyright law. I've heard it claimed that all threats to a copyright must be treated seriously, lest that be used against you in a later court battle. So, is that true?

Trademarks, not copyrights. If you don't actively monitor and police your marks, they risk becoming diluted. It should be safe to settle the matter with an agreement or license to use the mark, though.
posted by naju at 10:04 AM on August 17, 2011 [1 favorite]


So if Bethesda doesn't sue everyone using the words "the", "elder", scrolls", "sky", "rim", "marrow", "wind" and "oblivion" then they lose their trademarks?
posted by BYiro at 10:06 AM on August 17, 2011 [2 favorites]


Argh. Apologies, dhartung and naju! So, could a Quake 3 battle just be another sort of valid agreement, thus defending the trademark?
posted by suckerpunch at 10:08 AM on August 17, 2011 [1 favorite]


It should be safe to settle the matter with an agreement or license to use the mark, though.

Notch offered them an agreement, they already chose to sue.
posted by BYiro at 10:09 AM on August 17, 2011


If it concludes with some written agreement being signed, I don't see why not.
posted by naju at 10:09 AM on August 17, 2011


Don't want to comment too much in my own thread, but I just realized I totally forgot to link to info on the original letter: Ars Technica article, Notch's original post.

And if he loses, he should totally name it Scroll's Edge.

Heh, note the last line in Notch's original post: I sincerely hope Bethesda isn’t pulling a Tim Langdell.
posted by kmz at 10:13 AM on August 17, 2011


Anyone happen to know if Notch has retained a real lawyer on this? I assume not, since he's making non-credible offers to settle. Leave the lawyerin' to the lawyers...
posted by anotherbrick at 10:16 AM on August 17, 2011


Also I think the android release is today maybe?

It is, but it is currently exclusive to the Xperia Play. I thought we left that kind of garbage behind in the 90s. Ugh.
posted by adamdschneider at 10:17 AM on August 17, 2011 [1 favorite]


I don't know if many people would embrace a game where rimming is the main form of game interaction.

It's called Japan.
posted by XQUZYPHYR at 10:20 AM on August 17, 2011


It's really Notch who would be in the position to pull a Tim Langdell if he had a trademark on the word "Scrolls" for video games.

I think Bethesda should get a few id employees to show up at the match wielding weapons similar to Valve's prank TF2 Developer Weapons.

e.g. Robin Walker's Valve Rocket Launcher

+1009900% damage bonus
+1009900% clip size
+75% faster firing speed
On Hit: +250 health (to wielder)
On Kill: 10 seconds of 100% critical chance
+50% projectile speed
+100% faster move speed on wearer

or Gabe Newell's Vintage Ban Hammer

Bans Steam account of players killed
posted by straight at 10:26 AM on August 17, 2011


Anyone happen to know if Notch has retained a real lawyer on this? I assume not, since he's making non-credible offers to settle. Leave the lawyerin' to the lawyers...

Back when he was officially forming his company, he had lawyers (and griped about them on Twitter, for which I personally chastised him at the time). Presumably he still does.

And yes, Notch should shut directly up until this matter is resolved. As I recall, one of the things he griped about in the past was his lawyers telling him what he can and can't say about certain matters.
posted by Gator at 10:36 AM on August 17, 2011


And after hitting send they will lean back in their chair and consider the chain of events that lead them to this email, and whether or not they should have been a film major like they originally wanted.

They probably were a film major. That's why they ended up in law school.
posted by Jahaza at 10:41 AM on August 17, 2011 [3 favorites]


Notch is going to end up having to change the name of their game, and I don't know why he hasn't already.

Gosh, I sure hope all this publicity doesn't hurt the release of his upcoming new game.
posted by Nelson at 10:44 AM on August 17, 2011


empath: "Notch is going to end up having to change the name of their game, and I don't know why he hasn't already."

Free press. Great, great, indie-gamer-admiration-generating free press.
posted by introp at 10:44 AM on August 17, 2011 [2 favorites]


Damn you, Nelson!
posted by introp at 10:44 AM on August 17, 2011


Notch was a sort of lovable, indie man-child. Now he's an empowered, grandiose man-child; the lovable is in question.
posted by gilrain at 10:49 AM on August 17, 2011 [2 favorites]


IAAL, IANNL (I am not Notch's lawyer... if he has one yet)

Yeah, there's a whole lot of not so good info in this thread.

Bethesda has a trademark on the name "The Elder Scrolls" (that link takes you to a copy of the trademark on the PTO website). They don't have a copyright on it, you probably could not claim copyright over a phrase so short.

Bethesda would be suing Notch in the US under US trademark law, not in Sweden under Swedish trademark law.

Bethesda doesn't have an exclusive right over the use of the term "scrolls" in any context, they MAY have an exclusive right over the term "scrolls" within the realm of video games, WHEN USED AS THE DEFINING TITLE OF A GAME. That is, you can create a game that has a metric ton of old pieces of parchment included within it. You cannot name that game "The Elder Scrolls." Whether you can name your new game just "Scrolls" is what this case will be about (presuming Notch doesn't agree to just change the name). I wouldn't put money on Notch's position, though, particularly if he's making a habit out of publicly castigating the lawyers that are trying to help him.
posted by Inkoate at 10:51 AM on August 17, 2011 [2 favorites]


Bethesda would be suing Notch in the US under US trademark law, not in Sweden under Swedish trademark law.

According to the Ars Technica article kmz linked to above, the current case is happening in Sweden:

Since Mojang is based in Sweden, the document itself is in Swedish, and thus we can't gather much from it. However, Persson explained that, in brief, the document says that "they demand us to stop using the name Scrolls, that they will sue us (and have already paid the fee to the Swedish court), and that they demand a pile of money up front before the legal process has even started."
posted by burnmp3s at 10:57 AM on August 17, 2011


Burnmp3s, yeah, I noticed that after I posted. An interesting decision on their part, if you ask me. I guess they must have their reasons.
posted by Inkoate at 11:06 AM on August 17, 2011


What does all this mean for Jinxter?
posted by Rock Steady at 11:12 AM on August 17, 2011


Well, when it comes to settling trademark disputes by combat, there is historical precedent. For example, the time Stevens Aviation won the right to use the slogan "Just Plane Smart" from Southwest Airline's chairman Herb Kelleher -- in an arm-wrestling contest
posted by penguinicity at 11:24 AM on August 17, 2011 [4 favorites]


Man, there has to be a FPP there somewhere in unorthodox ways of settling legal disputes.

Honestly, if the lawyers say you've got a 50/50 shot of prevailing, why not make it a coinflip and forget about it?
posted by empath at 11:53 AM on August 17, 2011 [2 favorites]


castigating the lawyers that are trying to help him

Who?
posted by ODiV at 12:07 PM on August 17, 2011


Nothing meaningful is at stake here (just the principle of the thing), so it seems like a conflict well suited to refusing to play the game in the irritating and insular way that the way the pros prefer to playing it. (both his pros and theirs)
posted by -harlequin- at 12:09 PM on August 17, 2011


-harlequin-: Nothing meaningful is at stake here (just the principle of the thing)

He may feel the same as you, but that isn't technically true. Mojang has already done quite a bit of marketing and promotion using the name and logo for Scrolls. Also, I remember that when asked how on earth he managed to get scrolls.com for the game, he replied that one of the benefits of all the Minecraft money was being able to purchase expensive domain names.
posted by gilrain at 12:19 PM on August 17, 2011 [2 favorites]


Mojang proudly announces their new game:

Multiple Rolled-up Parchments: Stupid Naming Rights Edition
posted by BigHeartedGuy at 12:48 PM on August 17, 2011


Honestly, if the lawyers say you've got a 50/50 shot of prevailing, why not make it a coinflip and forget about it?

Coin tosses are sometimes used to decide tied elections (a recent example).

I will now make some remarks about trademark law that are a) not legal advice and b) specific to the US, since I know nothing about Swedish trademark law.

If you don't actively monitor and police your marks, they risk becoming diluted.

Trademark dilution has a specific meaning. It's a cause of action akin to trademark infringement. I suspect you meant abandonment or genericization, but the oft-cited fear that a mark will go abandoned if the mark owner doesn't aggressively pursue every possible infringement is actually pretty overblown.

It should be safe to settle the matter with an agreement or license to use the mark, though.

Ah, no, trademark licenses don't work that way. You can't just grant someone a license to use a mark willy-nilly. You have to take reasonable steps to exercise control over the use of the mark (e.g. product quality standards, mark usage standards). Simply trying to make money by licensing a mark is called a "naked license" and is a good way to lose the mark. The sale equivalent is called a "naked sale" or a "sale in gross." If you sell a mark the underlying business has to go with it as a going concern.

In this case there's really no way that Bethesda could license the mark to Mojang. For one thing, Bethesda owns a mark on "The Elder Scrolls," not "Scrolls." For another, the products are completely unrelated, and I doubt Mojang would be happy with Bethesda controlling the product.
posted by jedicus at 1:28 PM on August 17, 2011 [2 favorites]


Huh. And here when I heard of this I thought Holmgang specifically, rather than general trial by combat.

HOLMGANG!
posted by CrystalDave at 1:32 PM on August 17, 2011


Quake 3: ARENA
posted by symbioid at 1:36 PM on August 17, 2011 [1 favorite]


He needs to make a character/unit in scrolls named Blind Junior Scrolls: A Bard who hails from the Mississippi delta.
posted by symbioid at 1:45 PM on August 17, 2011 [1 favorite]


I suspect you meant abandonment or genericization

"Trademark law places the burden of policing a mark on the owner. While a trademark owner need not pursue every infringing use of its trademark, the owner must pursue infringers to the extent necessary to ensure that the mark does not lose its distinctiveness and does not become diluted by widespread use. From a business standpoint, widespread use of the same or similar marks adversely affects the perception of consumers. When consumers lose the sense that certain goods or services connected with a mark all come from the same source, the mark can become generic or be considered to have been abandoned. "

Ah, no, trademark licenses don't work that way. You can't just grant someone a license to use a mark willy-nilly.

Sorry. I'm talking about a license with a full set of provisions and requirements, not an implied license or one with few/no restrictions.
posted by naju at 1:54 PM on August 17, 2011


ensure that the mark does not lose its distinctiveness and does not become diluted by widespread use

That was sloppy usage by the author of the blog post you took that quote from. Dilution has a specific statutory meaning given in 15 USC 1125(c), and it has nothing to do with failure to police a mark. It is a cause of action available to owners of famous marks (which is another term of art); essentially the famous mark version of trademark infringement.

Sorry. I'm talking about a license with a full set of provisions and requirements, not an implied license or one with few/no restrictions.

I addressed that kind of license as well, and it would likely be impossible or impractical in this case for several reasons.
posted by jedicus at 2:03 PM on August 17, 2011


If we do it your way kingslayer, you'd win.

We're not doing it your way.
posted by porpoise at 2:20 PM on August 17, 2011 [3 favorites]


Whether the name sucks or not, does Bethesda own the word "scrolls" now?

No more than Apple Corp owns the world "Apple". What do you think would happen if Dell or somebody made a computer named "The Apple Core".
posted by Justinian at 2:22 PM on August 17, 2011


This is the other way around. If Apple was actually called Apple Core Computers or something and Dell made a computer called the Core.
posted by kmz at 2:33 PM on August 17, 2011


or The Apple. I don't think it changes much.
posted by Justinian at 2:53 PM on August 17, 2011


I don't think you can blindly swap out words when comparing these things, since "Apple" is an uncommon and distinctive word when applied to computers, while "scroll" is a ubiquitous element of fantasy games.
posted by Pyry at 3:17 PM on August 17, 2011 [2 favorites]


Apple became a distinctive word when applied to computers because Apple Computers made it so. That's exactly what Bethesda is trying to do with video games. Note that they're not claiming people can't use the word scroll in a game, only that using it as the title infringes on their trademark.
posted by Justinian at 3:35 PM on August 17, 2011


Bethesda HAS to pursue perceived infringements to protect its trademark. There's nothing that says they can't settle for one dollar once the burden of trademark protection due diligence has been met. Mojang and Bethesda have a good relationship at the executive level. I anticipate no trouble.
posted by Aquaman at 3:57 PM on August 17, 2011 [1 favorite]


The funny thing is, nobody ever refers to those games as anything involving scrolls. Everyone calls the most recent one Oblivion, and the one before it, Morrowind. I understand something about an elder scroll is technically part of the title but it's not a meaningful part you see anyone ever using.

Anyways, I kind of hope Bethesda eats it on this case, there isn't enough similarity between "The Elder Scrolls' and 'Scrolls' to justify confusion. And yeah, I know that theoretically they have to defend it, but they get to use discretion to decide what constitutes infringement, and this shouldn't even be close to that. One word out of three and it's a generic element of most fantasy games? This is just wasting good money on lawyers.

On a side note, as much as I like Minecraft, I think Scrolls looks like an absolutely terrible game.
posted by Mitrovarr at 5:24 PM on August 17, 2011


I am ashamed

Ashamed? Don't be silly. Come and join us at Mefightclub and hop in to our weekly-ish Wonderchicken Invitational Rocket Arena 3 Sessions on our dedicated server instead, and be PROUD.
posted by stavrosthewonderchicken at 6:10 PM on August 17, 2011


Do they understand that Notch has Creepers?

TISssssssssssssst
posted by digitalprimate at 6:40 PM on August 17, 2011 [1 favorite]


I know that theoretically they have to defend it, but they get to use discretion to decide what constitutes infringement, and this shouldn't even be close to that. One word out of three and it's a generic element of most fantasy games? This is just wasting good money on lawyers.

This is lawyers wasting money on lawyers. If anyone who wasn't a lawyer was evaluating the similarities and the possibility of infringement, they would not have wasted the legal effort on this.

But to a lawyer? This looks like a opportunity to bill some hours.
posted by BYiro at 6:56 PM on August 17, 2011


Apple became a distinctive word when applied to computers because Apple Computers made it so.

and Bethusda did not make scrolls a distinctive element of the fantasy genre. Fred Saberhagen wrote the Books of Swords. Imagine him trying to sue everyone wrote a book the had the word "Sword" in the title.
posted by BurnChao at 11:35 PM on August 17, 2011


If it were me and I lost the name of my game, I'd change it to something stupid like 'Moop', or something controversial and stupid like 'HITLERPENIS (Warning: May Not Contain Hitler or Penises)'.
posted by BiggerJ at 11:48 PM on August 17, 2011


It's really Notch who would be in the position to pull a Tim Langdell if he had a trademark on the word "Scrolls" for video games.

I think this is right. My understanding is that Bethesda (or Zenimax? not sure) isn't strictly speaking suing Notch for infringement on Bethesda's "The Elder Scrolls" trademark. They are challenging his registration of the "Scrolls" trademark because it seems likely to overlap with the trademark that they own. This is a bit different and changes the complexion of the dispute, from "big faceless company tries to squash little guy" to "big faceless company seeks to defend itself pre-emptively from attack by little guy".

But then I'm not really sure, since whatever legal action they are taking appears to be under Swedish law and I don't know anything about Swedish trademark law (something I imagine I share with most other people in this thread, even the ones who can tell the difference between trademarks and copyright).

I do support the settlement of legal disputes according to trial by deathmatch, though.
posted by A Thousand Baited Hooks at 3:08 AM on August 18, 2011


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