A federal lawsuit filed this week in Massachusetts district court accuses social game mega-publisher Zynga of infringing on The Oregon Trail trademark held by Houghton Mifflin Harcourt subsidiary The Learning Company (TLC).
The complaint [PDF] centers on Zynga's planned May 30 launch of an "Oregon Trail" set of missions in its popular FrontierVille Facebook game.
The lawsuit points to a YouTube trailer for these missions to highlight visual and gameplay similarities between it and various versions of The Oregon Trail game, including activities such as "setting up a wagon, provisioning, hunting, fording rivers, and helping others."
Zynga's use of the "Oregon Trail" name amounts to "deliberate theft of the goodwill associated with the iconic The Oregon Trail Mark, which the company has spent millions of dollars promoting since 1971," according to the document.
"There can be no doubt that Zynga’s adoption of an identical and confusingly similar mark is willful and intended to free-ride on the established goodwill of The Oregon Trail Mark."
According to the suit, TLC had approached Zynga last year to discuss making a Facebook version of the game. When those discussions fell through, TLC partnered with Blue Fang to make a Facebook version of the game, which launched in February and has since attracted nearly 1.2 million players.
The Learning Company is seeking a preliminary injunction to stop Zynga from using the "Oregon Trail" name, as well as assorted monetary damages.
Facebook says The Oregon Trail has 297k MAU and AppData says 305k. Me thinks TLC realized they spent money on garbage and is trying to get it back by going after the biggest target -- and one that is using "Oregon Trail", a historic name, as an expansion name.
Oh, look at all the damage it has done to... such... a... successful? game.
We need to stop feeding the lawyers for silliness like this.
I already know how this is going to turn out. TLC will be awarded $20,000,000 in damages but will only be able to carry $5,000,000 back to the wagon ;(
The plaintiff will probably get a settlement which will help salvage sagging operating margins on the FB game (which I enjoyed, and reviewed).
But if I were them I'd just be pissed that they spent half their company making a whole game out of it and Zynga just trods along, puts .5% of their total headcount on the expansion, and kills it.
http://en.wikipedia.org/wiki/Oregon_Trail -- a historical event, not an original title. Can no game be made with Vietnam in the title after Battlefield Vietnam? It's not even the entire title of Zynga's game. There is no confusion here. I didn't even know TLC's Oregon Trail IP had any relevancy beyond the 80s and nostalgia threads in game forums, which if anything is a problem with their marketing and not with Zynga's apparent attempt to "steal goodwill". If you really feel threatened or cheated by this, create a public campaign -- don't waste court resources over this childishness.
Regarding the video. Gameplay mechanics and themes can't be copyrighted and certainly can't be trademarked as they are a direct part of the work and not of the, well, trademark, so I don't see how pointing to that video has anything to do with a trademark infringement suit.
So this is further evidence that the pattern of behavior in the modern industrial system is to try something, get rich if it succeeds, and if it fails whine like a little bitch and try to get rich anyway by calling fowl at any little thing you don't like.
I'm a pretty fervent supporter of massive intellectual property reform, but this is a clear case of legitimate trademark violation.
Yes, the Oregon Trail is historical in nature. The trademark does not prevent people from making games about the Oregon Trail, it prevents people from calling the game: The Oregon Trail. Legitimate trademarks are designed in a way that protects businesses and consumers from products and services that are confusingly labeled. This is a clear violation of that:
1) The Oregon Trail is a popular video game with a fairly large amount of public awareness.
2) The Oregon Trail is also a social game.
3) The Oregon Trail is a social game on Facebook.
4) FrontierVille Oregon Trail is a social game on Facebook that has nothing to do with TLC's Oregon Trail.
That's a) obviously confusing to consumers and b) is obviously being used by Zynga as a marketing ploy. Zynga is intentionally using a popular and well known trademark, that they don't legally own, in order to enhance their business. That's a cut and dry trademark violation. There's no grey area here.
EDIT: And the fact that TLC and Zynga has previously been working on an Oregon Trail game is an additional strike against them.
One can trademark something like a historical event if it is the title of a game, movie, etc. Now if they where sewing over a trademark for the actual event in reference to the event, then you are correct you cant do that.
Ever wonder why Apple can trademark Apple? its because it applies to Apple computers not apple the fruit. How about you read up on Trade mark law in places other than wikipedia and then share your opinion on this.
*begrudgingly deletes colorful language as he cools down*
Cody... I never said or implied that they _couldn't_ trademark "Oregon Trail".
I don't even see how you interpreted me saying that they "couldn't", let alone with enough confidence to be such an ass. If they did (which I trust), then they obviously "could", and I would be a madman to conclude otherwise. And please, please please please please please don't think you're impressing me with the Apple example as if I haven't heard that before, a hundred million times, in every online trademark argument I've read. Get creative man!
What I am saying is that Frontiervilles Oregon Trail is not infringing on that trademark in any meaningful way, and that this is obviously an opportunistic and/or bitter move on TLC's part. Perhaps Zynga did something else underhanded like stealing IP or assets from their previous deal with TLC, I don't know -- that's a different claim covered by different laws anyway.
Sean, I had a reply for you last night but when I submitted it turned out that I wasn't logged in and lost it. The most interesting thing was this: http://www.mobygames.com/search/quick?q=vietnam&x=0&y=0. I don't see - ethically speaking, not legally speaking - why many different games can be about Vietnam and have Vietnam in the title but TLC seems to feel they are entitled to being the only company that can use another historical event in their title. And though a company making a game about the Oregon Trail can simply not have it in the title, I feel like they should have the right to (as long as it is not just "Oregon Trail" or "The Oregon Trail" - which would be confusing to the consumer).
Once again, I am talking about ethics, not legalities. But I have a legally-framed opinion too. I feel like putting Frontiervilles in front of Oregon Trail puts them in the legal clear, though I could be proven wrong.
Considering Zynga's game hasn't come out, it'll be hard for TLC to prove monetary damages. Most likely, the end result will be Zynga renaming their game, and TLC getting court costs, or Zynga will just flat out buy the trademark.
There's always a chance that Zynga will contest the trademark saying "Oregon Trail" is in the public domain, but doubtful. After all - Microsoft still holds onto "Windows"...
Oh, look at all the damage it has done to... such... a... successful? game.
We need to stop feeding the lawyers for silliness like this.
But if I were them I'd just be pissed that they spent half their company making a whole game out of it and Zynga just trods along, puts .5% of their total headcount on the expansion, and kills it.
http://en.wikipedia.org/wiki/Oregon_Trail -- a historical event, not an original title. Can no game be made with Vietnam in the title after Battlefield Vietnam? It's not even the entire title of Zynga's game. There is no confusion here. I didn't even know TLC's Oregon Trail IP had any relevancy beyond the 80s and nostalgia threads in game forums, which if anything is a problem with their marketing and not with Zynga's apparent attempt to "steal goodwill". If you really feel threatened or cheated by this, create a public campaign -- don't waste court resources over this childishness.
Regarding the video. Gameplay mechanics and themes can't be copyrighted and certainly can't be trademarked as they are a direct part of the work and not of the, well, trademark, so I don't see how pointing to that video has anything to do with a trademark infringement suit.
So this is further evidence that the pattern of behavior in the modern industrial system is to try something, get rich if it succeeds, and if it fails whine like a little bitch and try to get rich anyway by calling fowl at any little thing you don't like.
Yes, the Oregon Trail is historical in nature. The trademark does not prevent people from making games about the Oregon Trail, it prevents people from calling the game: The Oregon Trail. Legitimate trademarks are designed in a way that protects businesses and consumers from products and services that are confusingly labeled. This is a clear violation of that:
1) The Oregon Trail is a popular video game with a fairly large amount of public awareness.
2) The Oregon Trail is also a social game.
3) The Oregon Trail is a social game on Facebook.
4) FrontierVille Oregon Trail is a social game on Facebook that has nothing to do with TLC's Oregon Trail.
That's a) obviously confusing to consumers and b) is obviously being used by Zynga as a marketing ploy. Zynga is intentionally using a popular and well known trademark, that they don't legally own, in order to enhance their business. That's a cut and dry trademark violation. There's no grey area here.
EDIT: And the fact that TLC and Zynga has previously been working on an Oregon Trail game is an additional strike against them.
One can trademark something like a historical event if it is the title of a game, movie, etc. Now if they where sewing over a trademark for the actual event in reference to the event, then you are correct you cant do that.
Ever wonder why Apple can trademark Apple? its because it applies to Apple computers not apple the fruit. How about you read up on Trade mark law in places other than wikipedia and then share your opinion on this.
Cody... I never said or implied that they _couldn't_ trademark "Oregon Trail".
I don't even see how you interpreted me saying that they "couldn't", let alone with enough confidence to be such an ass. If they did (which I trust), then they obviously "could", and I would be a madman to conclude otherwise. And please, please please please please please don't think you're impressing me with the Apple example as if I haven't heard that before, a hundred million times, in every online trademark argument I've read. Get creative man!
What I am saying is that Frontiervilles Oregon Trail is not infringing on that trademark in any meaningful way, and that this is obviously an opportunistic and/or bitter move on TLC's part. Perhaps Zynga did something else underhanded like stealing IP or assets from their previous deal with TLC, I don't know -- that's a different claim covered by different laws anyway.
Sean, I had a reply for you last night but when I submitted it turned out that I wasn't logged in and lost it. The most interesting thing was this: http://www.mobygames.com/search/quick?q=vietnam&x=0&y=0. I don't see - ethically speaking, not legally speaking - why many different games can be about Vietnam and have Vietnam in the title but TLC seems to feel they are entitled to being the only company that can use another historical event in their title. And though a company making a game about the Oregon Trail can simply not have it in the title, I feel like they should have the right to (as long as it is not just "Oregon Trail" or "The Oregon Trail" - which would be confusing to the consumer).
Once again, I am talking about ethics, not legalities. But I have a legally-framed opinion too. I feel like putting Frontiervilles in front of Oregon Trail puts them in the legal clear, though I could be proven wrong.
There's always a chance that Zynga will contest the trademark saying "Oregon Trail" is in the public domain, but doubtful. After all - Microsoft still holds onto "Windows"...