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MMO Fan Site Removes Character Stats Over Trademark Claim
steveb3210 writes "EQ2Wire.com is a fan site for the MMO Everquest 2. One feature of their site is a searchable portal for all game-related stats such as characters, equipment, items, and mobs which they generate from an XML feed provided by the game's publisher. Recently, the owner of a trademark has been threatening them over the name of a character and in the face of possible legal bills, they were forced to remove the character's profile from their site. Adding further insult to injury, the character seems to have been created prior to the trademark in question."
the character seems to have been created prior to the trademark in question
Too bad there's not some 'first copyright use trumps filing of intent-to-use trademark application" doctrine to make that relevant.
Sometimes it's hard to read the IP coverage here, really hard.
The whole claim is spurious. First, it's a European registered (but expired, apparently) trademark, and therefore not enforceable against a US business (yes, trademarks are regional: you can have an unrelated "SodaPop Industries" in two different regions of one country, and neither infringes the other unless they expand into the others region). Second, the trademark is for a business, it doesn't cover video game account names. A username isn't a trademark at all: to be a trademark, it has to be actually doing trade. Unless someone is running a business under that name (and a business in a similar field as the complainant), there is no infringement. Finally, the indexing website isn't using the name to identify itself, it's a search portal. Even if it was a trademark, and an infringing one, the EQ2Wire.com wouldn't be infringing in any way by indexing it.
"None can love freedom heartily, but good men; the rest love not freedom, but license." --John Milton
Trademarks apply within the Trade field of the company that registers the trademark.
You can't do Nike sports wear. But Nike is not a gaming company. You can make a Nike game.
The appropriate response to any trademark take down request is -
a) send me a notarized copy of a trademark registration document for the trademark in question that is currently valid in the country you wish to assert your ownership.
b) explain to me how the usage in this context infringes on your trademark. In your explaination cover
i) physical locality of the usage you claim infringes and its relationship to region your trademark registration is in
ii) a detailed description of how the usage in the claimed infringement conflicts with the registered usage.
c) notice that failure to do a) b) will result in no action taken on my part. Insufficient detail and in particular legal grounding for the explanation provided in b) will result in delays and requests for more details. In particular a simple claim in b) that "they used our trademark" without any attempt at detailing domain of usage conflicts will result in the ignoring of your request as insufficiently documented.
The man who sent the email in question was no lawyer, since his later threats allude to having a lawyer start sending form letters and what not.
As far as I can tell he doesn't have a case, but I'm quite far from being an international IP attorney, and between knowing when to hold and when to fold... well, a simple character name is definitely a fold, when you get into the costs of this sort of thing.
Not to say it doesn't piss me right off. This person created the name before the bad-spelling-person ever filed for a trademark. I'd say "That's like Disney suing someone named Mickey before they even created him", but... I worry Disney could have gotten away with that.
The trademark is valid until May 29, 2019. It covers various trade classes including Nice 41m which incorporates Betrieb von Online-Spiele, Foren-Rollenspiele (operation of online games and "play by post/email" games). So the complainant has a valid EU trademark that covers roll playing games. That said, it appears that the company registration has expired, which puts the ownership of the trademark into question. As far as the US site's position goes, the complainant would have to demonstrate that the American site is using the trademarked name for commerce within the EU. That would be hard to prove, especially since the product in question is a computer game owned and operated by Sony; the defendant is merely operating an online catalog of Sony's game characters. This case would therefore be akin to Disney seeking redress from a website that lists cartoon characters including trademarked properties such as Mickey Mouse, in a jurisdiction where Mickey Mouse is not a registered trademark of the Walt Disney Co.
show me your balls
The original intent of trademarks was to prevent people from releasing products under the same corporate or product name. It was not intended to stifle free speech in order to provide corporations with a cash cow so that they can charge people for sharing information about products. Part of me would recommend standing up for yourself and refusing to take down the content since their claims are somewhat spurious. The other half of me would recommend replacing the content useful to the Everquest community with a notice that a greedy corporation has made overreaching trademark claims and the content is being taken down to prevent any beneficial side effects it might have generated for that company's intellectual property.
I'd, uh, like to think I've got a valid basis for challenging that claim...