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'Memory' board game trademark threatens several iOS games
'Memory' board game trademark threatens several iOS games
November 13, 2012 | By Frank Cifaldi

November 13, 2012 | By Frank Cifaldi
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Apple is sending notices to several developers asking them to remove or rename Apps that have 'Memory' in their titles.

The notices are coming at the request of German company Ravensburger, which claims to hold trademark for the word in several European countries, where it sells a very popular board game simply titled "Memory."

Gamasutra has received confirmation from two separate App developers about the notices, though neither Ravensburger nor Apple have responded to our requests for commentary.

Darren Murtha, half of the duo behind the popular Preschool Memory Match, tells us that he was forced to remove it from all 42 countries, as he's too busy working on another app to re-submit this one with a new name.

"We plan on changing the name in those countries and uploading a new version early next year," he tells us by email.

The news could be a headache for quite a few developers: a cursory glance through the United States App Store shows over 50 games with "Memory" in their titles, most of them card-matching memory games similar to Memory.

And though Ravensburger's trademark doesn't extend to the United States, it is an easy assumption that many of these Apps have international versions available.

The countries in which Ravensburger claims to hold the trademark, according to the Apple notice that one developer forwarded to us, are as follows: Armenia, Austria, Bosnia and Herzegovina, Belarus, Belgium, Brazil, Croatia, Czech Republic, Denmark, Egypt, Equador, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, India, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Montenegro, Netherlands, Norway, Peru, Poland, Portugal, Russian Federation, Serbia, Slovakia, Slovenia, South Korea, Spain, Switzerland, Turkey, Ukraine and Venezuela.


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Comments


Raymond Grier
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Monopolization of any single word in such a way is absolutely ludicrous. Furthermore, "Memory" is also the name of a common card game that exists in the public domain, perhaps many of those removed apps are indeed incarnations of it. It's time for serious IP law reformation.

Jeremy Reaban
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Yeah, that's a very good point - "Memory" the card game existed long before this board game version.

Joe Wreschnig
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""Memory" the card game existed long before this board game version."

Ravensburger is 130 years old. I don't know where in that timeframe they first published Memory, but at that age I wouldn't presuppose they didn't coin or popularize the name.

Ken Kinnison
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@joe- wouldn't it still be in public domain?

Joe Wreschnig
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(I am not a lawyer.)

Trademarks never automatically enter the public domain; they last as long as you keep using them in trade; and another party can re-trademark something after you've abandoned it, if they are using it in trade. It's possible "Memory" may be diluted, but dilution is a fairly intricate matter to decide. It's quite possible that via rigorous cross-licensing and diligent enforcement notices they have managed to avoid that.

Aiden Eades
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I'm sorry you can't use the word Monopolization in your post, it's too similar to monopoly, a trademark owned by Hasbro.

Tom Baird
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That is a surprisingly large amount of countries that allow a company to maintain a absolute control over the usage of a very common word.

Atte Kotiranta
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I didn't see any English speaking countries in that list. Word "Memory" is not very common in any of these countries.

Hakim Boukellif
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I don't know about the other languages, but in Dutch the English word "memory" is frequently used to refer to computer memory (though simply "geheugen" is common too).

The context where the word is found in is important to take into consideration as well. When you have an English-language game with an English-language name, the "memory" part of the name won't appear to be any more special than any of the other English words used in the name, even from the from the perspective of someone who's not a native English speaker.

Christopher Stoy
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This has happened to us at Mad Monkey Militia. We have a game, DragonEye, that simply has "memory" as a keyword, and we STILL got the the email from Apple to remove it. We don't have time to go back and update the game, so unless Apple helps us out by removing the keyword, we'll get removed from the AppStore.

Frank Cifaldi
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Wow! The email we were forwarded mentioned keywords, but I didn't even bother to check if they were targeted too.

Janosch Dalecke
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I'd contact Apple and ask for more information. Your game isn't even remotely using a similar gameplay as Memory by Ravensburger. I'm pretty sure, though not a lawyer, that this is about all the knockoffs of their game using that keyword. I remember that Ravensburger wanted Apple to pull any apps including memory trainers a few years ago and Apple said no to that (for obvious reasons). So really, contact Apple and resolve this as to your best knowledge this cannot possibly apply to your app.

Joe Wreschnig
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[Elided. This post contained only lies.]

Alex Leighton
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That's just stupid.

james sadler
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So I'm going to make a couple of games called "The" and "A" and maybe even "i", trademark them and force thousands of companies from using the words in their titles, but only after they've established customers.

I guess I could somewhat understand this if the other games were card based/board games, but they're video games which should hold no crossover trademark infringement. Especially for a commonly used phrase.

Christian Kulenkampff
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Uno?

Ron Dippold
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Shades of the 'Edge' fiasco, except in this case they have enough lawyers to make it stick.

Frank Cifaldi
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(also they have an actual product, and not a website coded by their nephew)

Dave Blanpied
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Bet Google/Andriod doesn't blink.

Janosch Dalecke
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Knowing Ravensburger they will probably do anything to defend their IP. My guess is that Ravensburger will take legal steps directly against any developer that infringes on their IP on Google Play.

Robert Carter
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Square-Enix should copyright the RPG genre. That would be good for the industry. Gamers can only benefit right?

Seriously though, entire genres and vague one word names should not be copyright-able. Its called 'Magic: The Gathering' because 'Magic' could not have been copyrighted or owned. Sorry but the guys at Ravensburger werent the first people to use the word 'memory'.

They should make iOS take down every game with the word burger in it too. Lets see how far we can take this patent trolling!

Joe Wreschnig
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Go ahead and make a card game named "Magic." You honestly think you won't get sued?

Probably it wasn't called "Magic" because trademarks for e.g. "Magic Card" already existed - http://tess2.uspto.gov/bin/showfield?f=doc&state=4006:2hd3au.6.20 . Or just because someone decided that wasn't a distinctive enough mark from a marketing perspective, since it would've been confused with a dozen generic card tricks.

There's no patents involved here, and no copyrights. Please just try to be informed for a change.

TC Weidner
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actually Joe, google magic and card games, all sorts of card games with Magic in their name.

Adam Bishop
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Wizards of the Coast owns a patent on turning cards sideways to indicate that they have been used.

Ken Kinnison
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Clue, memory, edge, scrolls... this is getting old.

TC Weidner
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if they are a german company wouldnt they have the word "Erinnerung" or something trademarked, not the english word "memory"?

I agree this is all getting ridiculous and silly. So apple app developers now have to do trademark searches for Estonia now? wtf?

Joe Wreschnig
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"So apple app developers now have to do trademark searches for Estonia now?"

If you want to sell to Estonians, why is this an undue burden?

TC Weidner
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its an undue burden if apple doesnt give you an option not to sell there.

Joe Wreschnig
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Apple gives you the option not to sell there. The article even specifically refers to removing the app solely from the affected regions. On iTunes Connect there's a giant table of checkboxes for each region. Dealing with this is trivial, it just doesn't make good comment rage fodder.

Christian Kulenkampff
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There is an international trademark database, it's not that hard to search there.

Lex Allen
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By far the most ridiculous IP claim so far. I think we need to start a boycott on Ravensburger for being so ridiculous.

Sebastian Cardoso
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Oh, the humanity.

brad coleman
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Just silly so now we're going to get a bunch of memoryz or zmemory... Guess they could go with recollection or remembrance. Man how long before the whole dictionary is taken?

Probably already a product but looks like someone could publish a dictionary of trademarked words. The guy/girl who decides to create a game called "memory scroll edge" is in for a world of hurt.

Janosch Dalecke
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The article states that most of the games using memory in their name are actually using a similar gameplay. I can see that Ravensburger owning a game with that mechanic and the name "Memory" will want to defend that. If you make a clone of tetris and even market it with that name you wouldn't expect to get away with that either, would you? If you clone a not-so-unique gameplay, at least come up with an original name for it, okay?

Christian Kulenkampff
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Tetris is a very good comparison. Memory is a trademark and became a common word for a whole category of games. Marketing gone right. Especially in non-english speaking countries trademark disputes make sense.

Uno is another example. But in this case it's an Italian word ("one"), no right-minded English native speaker would claim that a trademark dispute over an Uno-like game that is called "Preschool Uno Match" is nonsense.

As a developer you have to face the truth that globally selling games bears some risks and that a quick search at http://www.wipo.int/romarin does not hurt.

It is pretty neo-racist/culturalist to ignore the fact that in other languages English words might be foreign words (just like david canela describes) and can be trademarked.

david canela
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This is mainly a language thing. It's easier to understand when you realize other countries speak other languages than English (it's true!). Common words are hard to trade mark. Common words of a foreign language, not so much. I'm willing to bet you could trademark a Swaheli word in an english-speaking country. That said, nowadays simple english words might not be so easy, because there's an assumption people speak a bit of English, but for instance "flabbergasted" would still be feasible. Back when Memory was trademarked, however, there weren't so many people in, let's say, Austria, who knew English. Of course there are also other things to consider, such as what kinds of products you're requesting the trademark for (e.g. "car" wouldn't be allowed for cars, whereas it might be for hair products because it's not descriptive).

Joe Wreschnig
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Blizzard, Civilization, Fable, Lips, Fallout, Biohazard, XIII (that's not even a word!), Contact, Contra, Steam - Why are those okay to trademark but not Memory?

Or are you saying I should be able to open a studio named "Valve" and publish a game called "Halo"? They're just single English words!

Ravensburger may be overreaching here - going after the "memory" keyword, if true, is pretty harsh - but the reaction of most Gamasutra commenters is ridiculous. Ravensburger isn't a NPE; having an exclusive game title is not a strange idea; and just because something is older than you doesn't mean you can ignore it.

E Zachary Knight
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The difference, here at least, is that the word "memory" has been genericized to mean a specific game type rather than a specific game. It has come to mean a game of matching. While it is possible to make up a new name for such a game, it is quite common to use the word memory to describe it.

When valve, blizzard or fable become genericized in gaming, then we can talk.

Adam Bishop
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A word can be genericised and still be eligible for trademark protection, like Kleenex.

Joe Wreschnig
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"the word "memory" has been genericized to mean a specific game type rather than a specific game."

Like I said above, this is a matter for a legal system to decide. You have no idea what kind of contracts and agreements may exist regarding this, or how often they have enforced it before, especially in countries that do not speak English. Trademark dilution is a tricky issue and "everyone I know calls it 'memory'" is *not* sufficient grounds to show it exists.

Ken Kinnison
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Did memory as a game name exist before they trademarked it is what I'd like to know?
Also it sounds like apple sent the email too broadly. I actually get that memory+game type = bad mojo.
But it seems like we're seeing too big a brush too often.

Ken Kinnison
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When you see a lot of suspicious or spurious use of the patent/trademark/copyright systems it tends to make for some kneejerk reactions.

Joe Wreschnig
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"When you see a lot of suspicious or spurious use of the patent/trademark/copyright systems it tends to make for some kneejerk reactions."

It's very rare to see a spurious use of trademarks. They are forceful but also very narrow. There are "trademark trolls" but unlike patent trolls they rarely meet with any success[1], and Ravensburger - a company that has probably done more for enshrining games and play in modern culture than the entire videogame industry put together - certainly does not qualify.

[1] The exception is within DNS registration, which is a problem, but isn't relevant here.

Ken Kinnison
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Shame that this has fallen off the pale- but you don't see the cease and desist letter from bethesda to notch about 'scrolls' as dubious? In anycase 'I' and I think most here regard IP defense as largely similar, so thats why I was explaining the kneejerk reaction.
I'm not 'blaming' bethesda in the scrolls example, you have to 'protect' your rights by showing an active defense. I just wish the 'active defense' was more along the lines of 'Your game name is has the appearance of infringingly close to our copyright/trademark. However on review we have determined that it does not.' Demonstrating that they are interested in defending their trademark but not spuriously.
The clue website case and one or two others, plus the patent and other cease and desist letters lead to the knee jerk reaction -especially since you have limits on game mechanics that you can protect and much of the digital gamedev community resists ANY attempt to do so unless it is blatant- and even then I know many people were bummed the dragonballz quake mod was cease and desisted.
I've hinted elsewhere that I think they have more of a case than I originally 'kneejerk' thought- not without knowing when the game 'memory' came into existence since the card game I grew up with is commonly called memory. Did this company invent it or did they just trademark a rendition of it? Were they the first to call it 'Memory'? They can realistically file this and it is unlikely anyone will challenge them. They also can't stop other games from using 'memory' in their titles if the game isn't a concentration matching game (I think Apple was probably to blame for the carpet bombing here).

Michael Rooney
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Does anyone know how trademarks work for words as a fractional part of the title? It seems like, "Preschool Memory Match" shouldn't violate the trademark as it is referencing "memory" the word rather than "Memory" the title.

In any case, I would consider filing a class action against them for harassment or some such. Especially threatening takedowns over keywords/meta-data.

TC Weidner
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that is interesting because US law now no longer allow threatening of IT so easily. If you receive a threatening cease and desist letter, you can then file against the plaintiff , get the case in your home jurisdiction and get the plaintiff to actually become a defendant, saying you were unreasonably threatened. Im not a lawyer, just a patent holder.

Christian Kulenkampff
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No, "Memory" refers to the game "Memory", because "Preschool Memory Match" is a "Memory" game, just look at https://itunes.apple.com/us/app/preschool-memory-match/id368542467?mt=8

Christopher Stoy
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Thanks for running the story. I totally understand the desire to protect the Memory game trademark, but Ravensburger is being a bit heavy-handed about it. There is no way a small, self-funded company like Mad Monkey Militia can hope to fight them. Unless Apple steps up to protect their smaller developers, I think this kind of thing will ultimately hurt the AppStore. It should be Ravensburger job to prove to Apple that someone is violating their trademark, instead of just a blanket "you used the word memory, your app must go!".

Also, unless something has changed, you can't change keywords for an existing App. You have to submit a new build, and sadly, we don't have the resources to update an older game while we are working on a new one.

Joe Wreschnig
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"Also, unless something has changed, you can't change keywords for an existing App."

Since I mentioned it before I went to check it out, and you're right - keywords are the only thing on the Version Details you can't seem to edit after the app goes live! That's nuts.

Christian Kulenkampff
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I just want to add, that IF YOU DON'T DEFEND YOUR TRADEMARKS, YOU LOSE THEM. Companies have to sue everbody otherwise they lose their trademarks (also see http://en.wikipedia.org/wiki/Genericized_trademark). Bigger contrahents could argue that there are many games that are called Memory on the market and that Memory is a common word for such a game. This is why Ravensburger is forced by law to defend any attempt to generalize their word mark "Memory".

While patent trolling is especially in US out of control, trademark defense is essential to the concept of trademarks. I don't get why everybody is so upset about this.

Bart Stewart
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Protecting a game's form, yes.

Even protecting a word, strange, but OK.

But as Michael Rooney asks, how can it make practical sense as a legal restriction that compound titles may not contain any protected word?

If I sell a game whose complete title is "Scrolls: The Edge of Memory," that's at least four opportunities for someone to sic their legal hounds on me. Why? That's unnecessarily complicating commerce today (translation: needlessly raising product costs and potentially eliminating some products altogether), and it's only going to get worse if compound titles are not treated as unique.

Look forward to a future where game titles will all be something like "Skrflgnchk." (Apologies to anyone who's already trademarked the word "Skrflgnchk.")

Christian Kulenkampff
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In this case (Preschool Memory Match) the title uses the word mark "Memory" as a reference to the game type. This association is "owned" by Ravensburger (because they established the association). It is clearly an unauthorized use of the trademark.

If Ravensburger gave its "Memory" game another name, for example "Memor", I am sure many developers would try to use the name "Memor" as keyword or title element to refer to the game type (to profit from Ravensburger's efforts). This is what it is all about. There are many trademarks that are used in everyday language to refer to a category of products. Using these trademarks in your product description/title/etc. is risky.

I think "Scrolls: The Edge of Memory" may lead to trademark disputes, especially when you name your RPG game in this way. "Elder" and "Edge" look very similar. When this game contains a major Memory gameplay element it might also infringe on the Memory trademark.

When you want to create a new trademark, that contains other trademarks in the name, just ensure it is not the same product category and does not contain conceptual references to these trademarks. (Plain use of trademarks in other product categories is of course also problematic, because it can lead to Trademark dilution, see http://en.wikipedia.org/wiki/Trademark_dilution)

david canela
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It's also noteworthy that a trademark's range of protection can vary: strong trademarks have a wide radius where they can fend off other trademarks, whereas you can move closer to weaker ones. Another fun factor is that if you use something as a trademark long enough (years) and the target audience perceives it as such, even words etc. that per se wouldn't be allowed as trademarks can be established as such. I believe that's how a particular shade of yellow came to be a tm for postal services in Switzerland, and magenta is trademarked by the german telecom (for telecom services)...

Bottom line, if you want to be safe, do a quick research, or better yet, pay an expert to do it. And you're more likely to be safe with fantasy words like Skyrim, than words of any language, especially English, and the more descriptive it gets of genre or product type.

Boborjan Pandacsoki
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So, all you defendants of Ravensburger, you basically say that we should never ever use any kind of English titles for our games again, because if we do, then the next day we'll get all rightfully sued over every single word used in that title?

That's just brilliant.

Christian Kulenkampff
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No, we just say, you should not name your "Memory"/Pairs-game "* Memory *", your electronic devices company "Apple *", your mobile phone "* iPhone *", your soft drink "* Coca Cola *", your "Lego"-game "* Lego *"... There are strong trademarks you simply have to avoid...

Ken Kinnison
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Problem with most of what you just named- the other examples aren't real words.
(Cept apple)- Compound game titles should really be a valid solution, especially since most buyers are already immune to them and know the difference.

Christian Kulenkampff
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I am from Germany and when I first heard the word Memory as a child, I would have never thought, that this name had something to do with a word in another language. For me "Memory" was only the game, for me "Memory" was a fantasy name like "Lego". Would you allow combined game titles with the name Lego in it that do not belong to the Lego trademark?

By the way I think Lego means something in Spanish (unintentional), Uno is the Italian word for one and I am sure there are many other brands in English speaking countries that mean something in another language of this world.

I think every country in which a word mark means something has the right to refuse it as a protected trademark. It is a dilemma, because it builds up barriers of communication on one hand and on the other it simplifies the trademark registration process in each country (which was especially in times of non-global markets a very good reason).

I don't think this dilemma is wrongful, but a valid builtin conflict, when it comes to globalization. I don't think you can solve this dilemma easily and it is a matter of respect for other cultures to not ignore strong foreign trademarks, which don't suit your plans. I don't like the fact, that small developers, who naturally go global via easily accessable global markets, are sometimes threatened by big foreign trademarks, but I think it is a valid rightful process, especially when the trademark is very strong in many countries.

The solution for this problem is definitely not a simple "just ignore all word marks that are part of my language in global markets". In times of a strong global communication network I think only combined trademarks (word+logo and/or sound) should be valid in a global context. Meanwhile we have to live with some legal risks when publishing a game on global markets out of respect for foreign cultures.

Paul Ginger
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The problem here, in this particular case is the use of a key descriptor as a patented title. Basically the company has used a word that most accurately describes an entire range of products as the name for their product. Because the use of the optimal name of a range of products is restricted, your ability to optimally describe any product in that range with'in the title is infringed upon. Basically they are trying to own the word "memory" when referencing memory matching games. This would be a non-issue if the game was called "sneezes" and they were defending their exclusive right to the word "sneezes" when referencing memory matching games. Perhaps Ravensburger has some level of right to protect the name of their products from copying, but those rights pale in comparison to the right of people to accurately describe their product if they can do so without obviously copying the name and product. I don't want to get too political here but it seems something not so First Amendment friendly is happening here. Free speech over protectionism is always better for posterity. Oh and the same things stated here apply doubly to the "ownership" of keywords IMHO!

Christian Kulenkampff
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We perceive the name "Memory" as optimal because Ravensburger named their take on the game that way (1959), marketed it that way (since 1959) and soceity sticks to the name.

Remember the trademark is primarily registered in non-english speaking countries and is not registered in the US! You can create as much games called "Memory" in the US as you want. You will get some problems when you market it with this name globally.

Companies should not be punished when they find a very good name for their product.

It is well defined how these "very good names" are handled by law in US (see http://en.wikipedia.org/wiki/Genericized_trademark ).

Paul Ginger
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I perceive memory as being optimal because( I assume) memorization is a core mechanic of the game. Please don't even begin to tell me why I perceive things the way I do. Let me assure you I have never heard of the game you seem to be affiliated with, regardless of how long they have marketed the name or how influential you think this game is to society.

"Companies should not be punished when they find a very good name for their product."

Really? You mean, unless some random other company half way across the globe has applied a patent to A word in the title. At which point you should be legally forced to remove that name......forever from anywhere that company has touched.

Well congratulations on patenting the word "memory"'s use in any memory game's title. I think it stifles communication, creativity and is morally uncouth. Apparently you seem to think it is perfectly legal, and who can afford to argue? Kudos!!!!

Christian Kulenkampff
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"You mean, unless some random other company half way across the globe has applied a patent to A word in the title. At which point you should be legally forced to remove that name......forever from anywhere that company has touched."

No, only when it comes to really strong trademarks. Which is definitely the case, when it comes to "Memory".

The problem is dealing with multiple cultures and legislations at once. This will always be a risk for global market providers like Apple or Steam and sometimes a risk for the people who publish on these markets. Such a risk is a direct result of dealing with global markets and this risk is per se not wrong in a tolerant non-culturalist world.

We have to wait or fight for global legislation in these cases. Since the internet is still very young as an easily accessable global market place, it is only natural that there is lack of global consent. Trademarks are only the tip of the iceberg, just think of youth protection laws etc.

PS: Pairs or Remember are also good names for Memory.

Salome le Roux
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I have not read all the comments, but I've noticed some recurring questions regarding trademarks, which I'd like to answer. The main purpose of a trade mark is to indicate the ORIGIN of a product and then some trade marks (especially well known ones) have a further advertising function. The idea of trademark law is to protect trademark owners firstly from confusion (users of "Preschool Memory Match" may think or wonder if the app comes from Ravenburger, I'm not saying they will... just giving an example) and secondly from their trademarks (if its well known) being diluted or tarnished. Dilution typically occurs when others take unfair advantage of the reputation of a trademark. Anyway, the point is: a trademark is not a monopoly that can just be enforced without more. This decree from Apple is not a court decision and has no bearing on trademark laws, it's a decision made by Apple and enforced in terms of its agreement with app developers. If Ravenburger were to sue any of the app developers for trademark infringement the relevant court would take into account a whole lot of factors and ultimately reach a decision which that court deems fit. The court would take into account the realities of the marketplace and would not give the IP owner undue monopoly.


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