Slashdot Mirror
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 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 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.
Not sure I would seriously consider legal threats received via email, period.
Ah, I see the trademark now. Of course, it wasn't filed until 2009 (which really does matter: registered or not, using a trademark that is already in use elsewhere does not entitle you to force the other to take it down). However, and much more importantly, the Everquest name isn't being used to sell anything. It's frankly nothing like Disney seeking to take down trademarked content, because the mark isn't being used for trade. The point of trademarks is to reduce confusion among consumers: since nothing is being sold with or under the name (by either Sony, EQ2Wire, or the account holder, presumably) it's not a trademark and therefore can't infringe.
If Sony had made a game with that name in it, he might have a point (although, even there, unless the character in it bears a resemblance to some character he is likewise selling, he probably has very little case), but the name was created by a user, not by Sony. It isn't even part of the product.
"None can love freedom heartily, but good men; the rest love not freedom, but license." --John Milton
Too bad there's not some 'first copyright use trumps filing of intent-to-use trademark application" doctrine to make that relevant.
Umm, there is but, in the case of the character name it's not being used in commerce (trade) so, I'm at a loss of how trademark law would apply. Had this been a valid trademark case, the person who owns the character could have filed to have the filing removed but, there are just too many buts in this case
I handle trademark and some copyright stuff for a small non-profit. I've never had to threaten anyone and I've never pretended to be a lawyer, I just ask nice, explain and get good results. Had I come across a MMO character name that was the same as our trademark (which begs the question of how I found it, as I only look for infringement in places where infringement is likely to happen and cause harm), I at most would have been amused and can't imagine why I would contact anyone.
In all my cases it's either been 1) I don't want people to think we are associated with you or 2) your use is likely to cause confusion of the brand. The case against the OP is sad and laughable.
Malshandir is the character name. I have no idea why the summary didn't post it. Kinda a cool name. When I get home, I'm gonna create a character/profile with that name in: Youtube Diablo 3 World of Warcraft Guild Wars Guild Wars 2 XBox Live Slashdot (oh wait, I already did that one). And anywhere else I can think of. But seriously, WTF?!?
I know someone (I don't like this person) that works at a firm that enforces copyright as a service. It's very simple, they get a contract to find infringement. They have teams of people that use scripted software to find said infringement, then they GET PAID BASED ON HOW MUCH THEY FIND. They send their lists on to the legal department who gets it taken down. Then the client gets a bill... we found X number of infringements, we got Y taken down, Here are the ones you'll have to take to court, you owe us Z.
All the ones that just take them down without a fight never even get to the content owner. They just pay a fee to not deal with them. Does it make more sense now?
No problem. I'll need your name, address, social security number, and bank information to get the transfer from Nigeria going.
It's not worth fighting....it's worth totally ignoring. This kitty has a nasty meow, but no teeth or claws.