The Perseverance of a Trademark Troll

Sockatume writes "Eurogamer has published an article on Tim Langdell's battle against the Edge iPhone game. Langdell, a British entrepreneur, founded Softek (later renamed The Edge, Edge Games and Edge Interactive Media Inc.) in the 1980s as a venture to fund game development, with profits to be split 50/50 with the developers. He moved to California in the 1990s in the wake of accusations of failing to pay his developers. Now a professor in games studies at National University, an IGDA board member, and a former member of BAFTA-LA's board, 'Dr.' Langdell spends his time accusing people of infringing his trademarks and offering to settle. After delivering a settle-or-die ultimatum to Edge publisher Mobigames (detailed in the article), he has convinced Apple to pull the game from the App Store. Mobigames is preparing to strike back: their lawyer believes that his trademarks are 'liable to be revoked.' Langdell has had a spate of bad press lately as other trademark disputes come to light, involving entities ranging from EA Games to Britain's venerable Edge Magazine (source of Edge Games' logo and now registering its own Edge trademark). He has never actually prevailed in a trademark hearing."

Comments

Re:Obscurity isn't a valid defense

[BadAnalogyGuy]

I'm not sure you're familiar with trademark law in the United States either. Your definition of "use" is unclear and its applicability in this case is questionable.

Let's see what the experts say: http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm

3. What prerequisites must a mark satisfy in order to serve as a trademark?
An arbitrary or fanciful mark is a mark that bears no logical relationship to the underlying product. For example, the words "Exxon," "Kodak," and "Apple" bear no inherent relationship to their underlying products (respectively, gasoline, cameras, or computers). Similarly, the Nike "swoosh" bears no inherent relationship to athletic shoes. Arbitrary or fanciful marks are inherently distinctive -- i.e. capable of identifying an underlying product -- and are given a high degree of protection.

So the trademark "Edge" in reference to games is, given the history of the company, inherently distinctive and thus fulfills the requirements for being a trademark.

4. How do you acquire rights in a trademark?
Assuming that a trademark qualifies for protection, rights to a trademark can be acquired in one of two ways: (1) by being the first to use the mark in commerce...

Again, Langdell seems to have this base covered so far as anyone can prove.

Here we get to the crux of your post.

6. Can trademark rights be lost?
A trademark is abandoned when its use is discontinued with an intent not to resume its use. Such intent can be inferred from the circumstances. Moreover, non-use for three consecutive years is prima facie evidence of abandonment. The basic idea is that trademark law only protects marks that are being used, and parties are not entitled to warehouse potentially useful marks.

But if you take a look, Edge Games has a website, claims to be developing games, and is in no way abandoning its trademark to genericity. So while your claim that Edge Games hasn't released something for years may be true, it may not be relevant.

Re:Obscurity isn't a valid defense

[BadAnalogyGuy]

Let's see what the experts say: http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm

8. What constitutes trademark dilution?
In addition to bringing an action for infringement, owners of trademarks can also bring an action for trademark dilution under either federal or state law. Under federal law, a dilution claim can be brought only if the mark is "famous." In deciding whether a mark is famous, the courts will look to the following factors: (1) the degree of inherent or acquired distinctiveness; (2) the duration and extent of use; (3) the amount of advertising and publicity; (4) the geographic extent of the market; (5) the channels of trade; (6) the degree of recognition in trading areas; (7) any use of similar marks by third parties; (8) whether the mark is registered. 15 U.S.C. 1125(c). Kodak, Exxon, and Xerox are all examples of famous marks. Under state law, a mark need not be famous in order to give rise to a dilution claim. Instead, dilution is available if: (1) the mark has "selling power" or, in other words, a distinctive quality; and (2) the two marks are substantially similar. Mead Data Central, Inc. v. Toyota Motor Sales, U.S.A., Inc., 875 F.2d 1026 (2d Cir. 1989).

Once the prerequisites for a dilution claim are satisfied, the owner of a mark can bring an action against any use of that mark that dilutes the distinctive quality of that mark, either through "blurring" or "tarnishment" of that mark; unlike an infringement claim, likelihood of confusion is not necessary. Blurring occurs when the power of the mark is weakened through its identification with dissimilar goods. For example, Kodak brand bicycles or Xerox brand cigarettes. Although neither example is likely to cause confusion among consumers, each dilutes the distinctive quality of the mark. Tarnishment occurs when the mark is cast in an unflattering light, typically through its association with inferior or unseemly products or services. So, for example, in a recent case, ToysRUs successfully brought a tarnishment claim against adultsrus.com, a pornographic web-site. Toys "R" Us v. Akkaoui, 40 U.S.P.Q.2d (BNA) 1836 (N.D. Cal. Oct. 29, 1996).

(1) the degree of inherent or acquired distinctiveness
The distinctiveness is there, as explained in my original reply

(2) the duration and extent of use
Duration is there, and the intent to use has not been abandoned, as explained in my original reply

(3) the amount of advertising and publicity
Definitely arguable. They have a website and are the first hit on Google for "edge game" and "edge games".

(4) the geographic extent of the market
US and UK, according the the Edge Games website.

(5) the channels of trade
They are a game company and seem intent on releasing their existing portfolio to the Wii.

(6) the degree of recognition in trading areas
Edge Games was a decently sized name back in the C64 days. Nowadays they are a bit infamous for stiffing their developers, but is infamy different from fame?

(7) any use of similar marks by third parties
I suppose Gillette probably has a trademark on Edge for their shaving gel.

(8) whether the mark is registered
Seems like it.

Langdell's Edge trademark seems to fit the requirements of fame.

The naming of the game certainly seems to dilute the trademark. Can the publishers of Edge (the game) claim that the name is sufficiently generic enough?

At the most, though, Langdell would only be able to get injunctive relief as it is unlikely that the infringers willfully traded on the plaintiff's goodwill in using the mark.

Re:Obscurity isn't a valid defense

[skrolle2]

He's a troll, because he's obviously exploiting it and only going after successful games that might infringe, and he always threatens to drag it to court unless he gets a big bag of money. In the case of the iPhone game he wanted them to change the name, AND half of the revenues accumulated up until the name change. Mobigames offered to change the name of their game to Edgy, whereupon Langdell as quickly as possible trademarked that name as well, and said that that name change also wasnt' acceptable.

Oh, and they're apparently developing a game called "Mirrors, a game by Edge".

It's those little details that make him a huge trademark troll.

Title

[Sockatume]

I should point out that my original title for this article did not refer to him as a trademark troll. I think the term is overused and honestly should only apply to people like Leo Stoller who have no business registering a trademark in the first place, not folk like Langdell who (IMO) take a perfectly valid trademark registration and behave like total assholes in their exploitation of it.

Edge Tycoon, Play as Tim Langdell the patent troll

[Shar-Kali-Sharri]

Someone went and made a game out of this man's career, Edge Tycoon: http://forums.tigsource.com/index.php?topic=6619.msg211236#msg211236 You play Tim Langdell trying to patent game names before the games are made, and then sue the developers. I found it rather funny.

There's currently a push to get him out of IGDA

[Anonymous Coward]

I'm a member in good standing in IGDA.

Recently (in the last month or so?), the following email went out to all registered IGDA members asking to sign a petition to have Tim Langdell removed from the IGDA's board:

The actions of IGDA board member Tim Langdell since his election in March 2009 have raised questions regarding his suitability as our elected representative. As you no doubt know, the IGDA's mission is: To advance the careers and enhance the lives of game developers by connecting members with their peers, promoting professional development, and advocating on issues that affect the developer community.

Tim Langdell's company, Edge Games, has trademarked the word "edge" and they leverage this trademark against any media that contains this word--threatening legal action should their target not enter into a licensing arrangement with the studio. Such targets have included David Mamet's film The Edge, Marvel's comic book Edge, EA's Mirror's Edge, and Namco's Soul Edge, which was released as Soul Blade and later, Soulcalibur in the west as a direct result of Edge Games' actions. Most recently their actions have resulted in the removal of the indie game hit, Edge, from the iPhone app store.

Meanwhile, Edge Games has not been associated with the direct production of an original video game in the last fifteen years.

After his election to the IGDA board, in a lawsuit against Cybernet regarding Edge of Extinction, Tim Langdell presented himself to the court like this: "Dr. Tim Langdell is considered to be a pioneer in the field of computer gaming and is widely publicized on the Internet and has been engaged as a legal expert in the field of computer gamin." He adds "He presently serves on the Board of Directors of the International Game Developers Association, which is the largest game association worldwide".
Many of us believe that this is a gross misrepresentation and feel that Tim Langdell is able to use his position on the board of the IGDA to work directly against the mission of the organization. As IGDA members with voting rights, it is our responsibility to elect a board that we can trust to represent us. But no election system is perfect and sometimes corrections need to be made.

We are asking that you take some time to consider this issue, do a little research online, make up your mind how you feel about it, and take action.

Under the IGDA bylaws, we are able to call for a special meeting of the membership to vote on the removal of Tim Langdell from the board of directors. In order to do this, we need 10% of the membership to request the board call the special meeting. We are hosting a petition to this effect here: (removed link, as the special meeting is going forward)

Thank you for your consideration,
Concerned Members of the IGDA