Slashdot Mirror
Arcade Kit Seller Applies for MAME Trademark [updated]
"Subject: I would hope that you post this to correct your misstated comments on slash dot
Date: Mon, 21 Feb 2005 01:27:43 -0800
Like most things that are spread by rumor, the facts about me, UltraCade Technologies, and the M.A.M.E. emulation system are quite distorted. I will try and educate anyone who cares to listen about the reality of our marketplace and what we are doing and what we are not. Simply put, we are making an effort to stamp out the commercial sales of M.A.M.E. based systems that advertise the ability to play thousands of games while relying on the customer to obtain the ROMs which can not legally be obtained. What we are not doing is trying to claim ownership of the M.A.M.E. open source emulator or sue its authors. We are concerned about the commercial marketplace, and not the readers of the many M.A.M.E. user groups and forums.
I have been working on emulation technology since the mid 80's when I did work on an emulation project in college. In 1994, while working on games for companies like Sega and Williams, we developed an emulation of the arcade games Joust, Defender and Robotron that ran on a Sega Genesis. In 1996, we started the Lucky 8 project which turned into the UltraCade project. In 1998 we were one of the first companies to acquire the rights to classic arcade games from various publishers. We have licensed games from several manufacturers including Capcom, Jaleco, Taito, Stern, Incredible Technologies, Midway, Atari and more. We have started several projects and built prototypes for companies like Sega, based on technology that was licensed from authors from the emulation community. We have licensed technology from many of the communities programmers, paying them to use their code in our products and demonstrations. We have been the leader of the retro arcade movement, and have invested millions of dollars creating a market for retro games. UltraCade was the first successful multi-game arcade machine combining many of the old classics. We further enhanced the market by creating Arcade Legends, our consumer version of the UltraCade product. We have also paid hundreds of thousands of dollars in licensing fees to have the right to sell our games.
In the past couple of years, there has been a huge wave of resellers competing with our UltraCade and Arcade Legends products. They build a similar style cabinet, install a PC in the machine, load M.A.M.E., and sell it for a very low price. Lower than we could ever offer our machines for sale. How? Quite Simple. They profit by stealing others work. If you look at the web sites, and read the eBay ads they offer machines that "Play over 4,000 Classic Arcade Games" They then try and skirt the law by pretending that they are not promoting piracy of these same 4,000 games with statements like "we don't load the ROMs" but of course, almost all of them do. The others that don't, they provide you with an instruction sheet with a link to several web sites where you can illegally download the ROMs, or provide you with the contact information for a CD/DVD duplication house that will sell you a set of ROMs for all 4,000 games for less than $200. Would anyone really buy this arcade machine if they knew that there was no legal way for them to run over 99% of the games that they were promised, I don't think so, and if you really look at this without emotion, I'm sure you would agree. These companies are simply selling the promise of thousands of games on a machine that can not possibly run them legally. I sometimes hear the argument, "well, I could go on eBay and buy up all of these games and then run it", and while plausible, it certainly would not be anywhere near cost effective, and again, if the customer knew that to legally operate these games, they have to spend thousands of dollars buying legal ROMs I seriously doubt that they would consider purchasing a M.A.M.E. machine. Anyone reading this email thread is an intelligent person, and if they put emotions aside, they will realize that what we are saying about selling M.A.M.E. machines and the promise of getting 4,000 games for the average consumer can't possibly happen. Unlike most of you reading this, the average consumer looking to buy a machine for their game room has no idea how emulation works, or what is legal and illegal to do. To them, they read an advertisement on a website or on eBay and compare our product with 50 games or an ad for a machine that promises thousands of games, with the promise of instructions about how to obtain those games. Of course, in this skewed environment the average consumer would gravitate towards the thousands of games machine, not realizing that the software and the games are unlicensed and illegal to play. Most consumers who are pointed at a web site selling a 7 DVD set of ROMs have no idea that this is an act of piracy, they were simply instructed to do this by the person selling them their arcade cabinet, and told this is how you get the games.
Now that we have attempted to take legal recourse to prevent illegal competition, the same people, who steal the work of the M.A.M.E. authors, and then profit by selling machines that have no value without the pirated games being made available, turn around and cry foul when we call them on their ways. They run to the M.A.M.E. discussion forums and spread rumors about UltraCade suing the authors of M.A.M.E. or stealing the M.A.M.E. engine. I'm amazed at the response of the community, a community that is being whipped into action by the same people who are stealing and profiting from them and they're efforts. Many people have reacted with hate mail without even considering to look at the facts of the situation, or to realize who is spreading the rumors. They are being spread by those who wish to profit by selling unlicensed games.
The simple fact is that we are attempting to stop the tide of illegal arcade machines, and the promotion of unlicensed games. The M.A.M.E. platform, while a technical marvel, consists of many violations of copyrights and trademarks. The authors have always stated in the documentation that it was not put into the public domain to steal from the game authors or publishers, and they have always been hands off about how to obtain the ROMs. They have also clearly stated that it is not to be used for commercial gains. A majority of the publishers who own the copyrighted material have not paid much attention to this marketplace, as until recently it has not had a huge commercial impact. But now, there are websites and eBay sellers selling machines that directly compete with legitimate publishers like us who publish games from Capcom, Taito, Midway, Atari and others, or publishers like Namco that publish Ms. Pac-Man/Galaga or the Donkey Kong/Mario Bros. machines.
Of the many thousands of games that M.A.M.E. supports, only a minute fraction of them can legally be played on a M.A.M.E. equipped machine, and many can not. There are many fallacies about the legality of owning ROMs and how you can play the game. Many people claim that they have a board set and therefore they can download as many ROMs as they like. The law is very strict. You can transfer the image from the actual original ROM chips, which you legally own, to another piece of hardware, provided that you actually transfer the code from the chips. Just having a board sitting around, and saying I have the right to play it is not the case. Many people point to StarROMs and say that they can then sell the games with the ROMs installed. This is not the case either. StarROMs license prohibits the resale of the game licenses, and only the end user can purchase these ROM images, resellers can not. Our market is further plagued by the rash of 4 in 1, 9 in 1, 24 in 1 39 in 1 and the new 300 in 1 "multicade" boards. These boards come from Taiwan and Hong Kong and contain illegal copies of the ROMs of several games.
This is a complex case amongst companies that are trying to make it about UltraCade stealing something from the M.A.M.E. team. That is not what this is about. This is simply UltraCade Technologies and other publishers doing whatever it takes to protect our commercial interests and prevent other companies from stealing our market by capitalizing on unlicensed games and selling products that only have value when coupled with illegally obtained games. Our application towards a trademark is to simply prevent anyone from commercially marketing an illegal product, nothing more. There have been no lawsuits filed against any of the M.A.M.E. authors, and there have been no claims towards the open source engine, nor will there be We are simply protecting our commercial market, and nothing more. We have no interest in the hobby community. We have no interest in the open source project. Our goal is to simply stop the rampant piracy in our marketplace, and we will use every means at our disposal to do so.
I welcome open discussions about this situation, and will respond to legitimate communications or questions.
-David R. Foley
---------------------------------------------------------------------------- ---------------------------------------------------------
David R. Foley
UltraCade Technologies"
BYOAC Forum: http://forum.arcadecontrols.com/index.php/topic,32 339.0.html
I'd just like to point out his personal website, which contains his resume with his email address (david@davidrfoley.com or david@hyperware.com) and phone number attached. Don't be too mean. ;-)
Prior Art is for Patent law. This is TM law. See my comment below for the MAME folks' protections.
http://pcblues.com - Digits and Wood
Do we have any more substantial information than a small blurb at the top of a emu website?
Even if it is real, he has no hope of winning. Trademarks need not be registered to be protected, and I think there is more than enough evidence out there to prove conclusively that the logo belongs to the MAME developers.
-R
Make even shorter URLs - 8LN.org
This is absolute nonsense. In the U.S., you do not need to register a trademark to be the owner of it - just use the mark. Perhaps the MAME folks ought to register the name to prevent another clown from trying to steal their name. I've posted a trademark notice on my own site to keep away at least some of the predators. I did that after learning of the problems of problems of Katie Jones, owner of the katie.com domain. Linus Torvalds eventually had to register "Linux" everywhere because of a similar set of thefts.
- David A. Wheeler (see my Secure Programming HOWTO)
On the USPTO webpage for this application (here) it says that its status is "Newly filed application, not yet assigned to an examining attorney." Anyone can file any trademark -- I could file one for the term "Microsoft" -- and it would get to this stage.
The key is getting your trademark application approved. The main impediment is from either already registed trademarks that are similar in name or from people that file oppositions. The process of filing an opposition is described on this USTPO page.
As someone who knows a little bit about trademarks I can say that the individual who filed this is really wasting their time -- the only way he could get and keep this trademark is if no one noticed he filed for it.
-ben houston
http://www.exocortex.org/ben
His motivation for registering the trademark might not have as much to do with defrauding the MAME community as the Slashdot article speculates... this guy is well known for taking down eBay auctions for roms and MAME-supported hardware that compete with his. If he is awarded this trademark, this would give him even more leverage, since no one would be able use the official MAME logo on any auction site or web store, even if they were just selling their own homebrew arcade stick.
It was pretty foolish for the Ultracade guys to have filed for the mark since they clearly knew there was a prior user.
Here's what will likely happen, assuming that neither side just gives up:
Eventually the mark will be published for opposition, unless the examiner at the PTO has a problem with it first. Since the PTO doesn't perform exhaustive searches (relying on the fact that people rarely invest the time and money to get a federal registration without themselves searching thoroughly and taking pains to avoid conflicts with others) it could easily get to this point. MAME will then have a brief window to file a notice of opposition, claiming that they were using the mark in commerce first, and that it is confusingly similar. This'll result in some discovery on both sides, and evidence and briefs being sumbitted to the TTAB, which will make a decision. I have a hard time seeing that MAME could lose this, but it costs money.
Meanwhile, the MAME folks should really be thinking about just getting a federal registration for their mark to make it easier to deter this sort of thing in the future, but again, it costs money for the initial registration, and for periodic affidavits and renewals that would need to be filed every so often for as long as they wanted to keep the federal registration.
Regarding the copyright issue, it's actually less clear. Ordinarily just because some piece of art is a logo, that doesn't make it uncopyrightable. However, you cannot copyright a name, and you cannot copyright mere variations of typography. Since the MAME logo is basically the stylized word 'MAME' it would have a tough time with copyright. A fancier logo would work better. Still, MAME could always try to register and see what happens. It also costs money, but not much.
As for people talking about prior art, that's patents. There's no such thing for trademark or copyright. Try again.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
MAME logo information... the logo's been around since at least 1999 (can't remember if it's been around even longer)... maybe Chemical and Exodus3D can do something directly. Additionally, there have been a large number of magazine articles about MAME since it first came out in 1997, so there is plenty of printed evidence, should it have to come to that.
MAME on its own isn't illegal and isn't ripping off of any other's work. You can use it completely legally, either by ripping an arcade board you own, or by buying legal ROMs on Starroms or the Capcom ones that come for free with the gear from HanaHo. You can also use the couple of ROMs that are freely available on mame.net, courtesy of their own copyright owners.
So what you're refering to is piracy from MAME's users. Should the MAME devteam be punished because of what others do with their hard work? Don't think so.
Granted he likely gave this same response to everyone else who wrote him (since my original email was basically a troll that deserved being sent to the recycling bin... hey i was angry :D ) but here it is for everyones reference
_____________
Like most things that are spread by rumor, the facts about me, UltraCade Technologies, and the M.A.M.E. emulation system are quite distorted. I will try and educate anyone who cares to listen about the reality of our marketplace and what we are doing and what we are not. Simply put, we are making an effort to stamp out the commercial sales of M.A.M.E. based systems that advertise the ability to play thousands of games while relying on the customer to obtain the ROMs which can not legally be obtained. What we are not doing is trying to claim ownership of the M.A.M.E. open source emulator or sue its authors. We are concerned about the commercial marketplace, and not the readers of the many M.A.M.E. user groups and forums.
I have been working on emulation technology since the mid 80's when I did work on an emulation project in college. In 1994, while working on games for companies like Sega and Williams, we developed an emulation of the arcade games Joust, Defender and Robotron that ran on a Sega Genesis. In 1996, we started the Lucky 8 project which turned into the UltraCade project. In 1998 we were one of the first companies to acquire the rights to classic arcade games from various publishers. We have licensed games from several manufacturers including Capcom, Jaleco, Taito, Stern, Incredible Technologies, Midway, Atari and more. We have started several projects and built prototypes for companies like Sega, based on technology that was licensed from authors from the emulation community. We have licensed technology from many of the communities programmers, paying them to use their code in our products and demonstrations. We have been the leader of the retro arcade movement, and have invested millions of dollars creating a market for retro games. UltraCade was the first successful multi-game arcade machine combining many of the old classics. We further enhanced the market by creating Arcade Legends, our consumer version of the UltraCade product. We have also paid hundreds of thousands of dollars in licensing fees to have the right to sell our games.
In the past couple of years, there has been a huge wave of resellers competing with our UltraCade and Arcade Legends products. They build a similar style cabinet, install a PC in the machine, load M.A.M.E., and sell it for a very low price. Lower than we could ever offer our machines for sale. How? Quite Simple. They profit by stealing others work. If you look at the web sites, and read the eBay ads they offer machines that "Play over 4,000 Classic Arcade Games" They then try and skirt the law by pretending that they are not promoting piracy of these same 4,000 games with statements like "we don't load the ROMs" but of course, almost all of them do. The others that don't, they provide you with an instruction sheet with a link to several web sites where you can illegally download the ROMs, or provide you with the contact information for a CD/DVD duplication house that will sell you a set of ROMs for all 4,000 games for less than $200. Would anyone really buy this arcade machine if they knew that there was no legal way for them to run over 99% of the games that they were promised, I don't think so, and if you really look at this without emotion, I'm sure you would agree. These companies are simply selling the promise of thousands of games on a machine that can not possibly run them legally. I sometimes hear the argument, "well, I could go on eBay and buy up all of these games and then run it", and while plausible, it certainly would not be anywhere near cost effective, and again, if the customer knew that to legally operate these games, they have to spend thousands of dollars buying legal ROMs I seriously doubt that they would consider purchasing a M.A.M.E. machine. Anyo
The reason it's bad is because it kills the public domain. Since the Bono act, which made this automatic copyright thing happen, nothing is automatically entering the public domain. The public domain is actually dieing as a concept in America. Consider this: the point of copyright is to encourage the creation of new works. With the Bono Act the government extended the copyrights on hundreds of thousands of already published works. They were already published. How could increasing their protection time under copyright law possibly encourage the creation of new works? The creators of these works saw how long they were protected, agreed to it, and spent the resources to create the works. Going back and giving them a longer protection is a slap in the face to everyone. It is a direct subsidy to media companies worth billions.
--
WHO ATE MY BREAKFAST PANTS?
So before I sent a kneejerk reaction email based off this topic.. I went to the Ultracade site to see if they had any argument to offer. Sure enough they do. The link to it is here..
http://www.ultracade.com/mame.pdf
David Foley provides a reasoning at least for his actions. While it may not be the correct way of going about it, it is how he plans to fight his "competitors" who use illegal software and piracy methods. I'm not saying that I'm in total agreement with him but I do see his side of things. Perhaps there is another way to deal with it.....?
No. Under trademark law there is a concept known as `passing off'. If you market a product with a name / logo that is sufficiently similar to an existing trademark for there to be confusion between the two then you are regarded in law as attempting to pass off your product as being affiliated with the trademark owner and are liable for prosecution. If the owner of the trademark is aware of this and fails to prosecute then they may be unable to do so at a later date, because the trademark will have become a generic term.
I am TheRaven on Soylent News
The constructive next step is to monitor the status of the application, and when it gets "published for opposition" then file an opposition.
One convenient way to monitor the status of a pending US trademark application is by means of free software called Feathers.
I have a business problem. People are selling pirated ROMS for less then I can sell them legally. My problems would go away if I took legal control of your logo and trademark. Can't you see this is a good thing, for me?
Very astute. This is effectively what UltraCade is doing by trying to trademark the term MAME.
Now, I am definitely not nearly as corporation-paranoid as even the average Slashdot member - I would usually take the company at face value in such statements. The problem here is that the stated goal has nothing to do with the stated action. Trademarking MAME will not help UltraCade bust competitors, for several reasons:
- The proper grounds for evicting illegal manufacturers is copyright infringement, not trademark infringement. And that's very easy to do, since the "official" channels of Internet policing (courts and ISPs) are very pro-copyright - a simple email to the site hosting the content is enough to get some hosting yanked. (In fact, this is exactly how the MAME community has policed commercial sales of MAME [with ROMs] on eBay - it's a routine occurrence, and the "cease-and-desist" notice is efficient and effective.) Why anyone thinks trademark infringement would provide more leverage than copyright infringement is something of a mystery.
- The MAME trademark will only be effective in the U.S. The world isn't nearly as unified about the enforcement of trademark law as they are for copyright (and patent) law. Even trying to enforce the trademark in Canada is likely to be difficult.
- Any illegal-software-sales company that wants to avoid a trademark claim for using MAME can simply... uh... not use the MAME name in its adverts. Most n00b-idiot purchasers of such hardware don't know what "MAME" is, anyway. Their attention latches onto "4,000 arcade games in cabinet for $200!" - they don't know the term "MAME" anyway.
For these reasons, I must doubt UltraCade's stated reason for seeking a trademark on the term MAME. So what's really going on here? More likely, and reading between the lines here, UltraCade wants to block anyone else from selling a cabinet bearing the word "MAME" - even if it's solely a cabinet (with no emulation software of any kind embedded.) This is their true "competition," and it has nothing to do with copyright. There's nothing illegal about selling a hunk of wood and circuitry... unless, of course, there's a trademark issue. This is likely their goal.Hmm, a dodgy company looking to frustrate its own market for its own gain - could the emulation community be seeing the emergence of is own SCO?
As a final note, I'm curious whether this inaccurate attempt to monopolize a market by laying an inaccurate trademark claim might violate the Sherman Antitrust Act.
(IAAL, by the way - the "intellectual property" kind.)
- David Stein
Computer over. Virus = very yes.
Arcade game ROMs can be obtained legally:
Star ROMs
Our classic arcade ROM database contains over 25 games at prices as low as $2 per title!
StarROMs was established to provide an inexpensive and legal source for classic video games. These are the original games exactly as you played them in the arcade. Now you can legally download the ROM and play the game at home, as often as you like, with your favorite emulator!
I don't know anything about Arcade game ROMs. I found this after Googling for about 5 seconds. I'm sure there are many more ways of getting ROMs legally. So this invalidates UltraCade's argument in that forum post. I wish parent had posted the link to the forum thread as, I'm sure, there would have been many replies to UltraCade's post, stating my point.
What you really wanted was http://www.ultracade.com/openoffer.pdf which is a reaction to the reaction to your link.
Contents of the document follow:
So the whole problem could theoretically be solved by giving it to someone appropriate.
For those who are wondering about the MAME license:
Also interesting:
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"