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 Sins of a Solar Empire  publisher, developer win infringment case
Sins of a Solar Empire publisher, developer win infringment case
June 26, 2014 | By Christian Nutt

UK developer Rebellion's case against Ironclad Games and Stardock Entertainment has been dismissed by a U.S. judge on First Amendment grounds.

The UK studio filed suit against the developer and publisher of Sins of a Solar Empire: Rebellion in 2012, claiming that the use of the word "Rebellion" in the title of the game would cause confusion -- implying to consumers that Rebellion, not Ironclad, developed the game.

Judge Victoria A. Roberts dismissed Rebellion's claim after applying the so-called "Rogers test," a two-pronged examination of creative works which examines whether the title in question is relevant to the work and if it's deliberately misleading as to the source or content of the work.

Judge Roberts determined that in neither case did Ironclad and Stardock infringe, writing [PDF link] that "the Court finds that the word Rebellion has artistic relevance to Defendants' work," and "Nothing on the face of the pleadings indicate that Defendants engaged in overt misrepresentation by using the term Rebellion in the title of their computer game." These two statements cover the two prongs of the Rogers test.

It's worth mentioning that the game is set against the backdrop of a civil war, as Roberts notes in her judgment. She also took pains to point out many prior examples of games being treated as expressive works by the courts -- meaning they are granted First Amendment protection.

Ironclad's Blair Fraser greatly expands on the background of the case and the ruling in a post on the Sins of a Solar Empire forums.

"This judgement is an important result for anyone developing games and for the gaming community as a whole. First, it reaffirms that video games are protected by the First Amendment. Second, it establishes that artistically relevant video game names are also protected by the First Amendment so long as the name isn't explicitly misleading about the content of the game or who created it. Finally, it demonstrates that a First Amendment defense of a video game can be successfully applied to a motion to dismiss thus 'preventing a chilling effect on speech.' This last point is particularly important to smaller developers who cannot afford to enter a lengthy and expensive court battle. We are very proud that this judgement could help others in the future," Fraser writes.

In the post, Fraser notes that his studio is moving forward with plans to trademark Sins of a Solar Empire: Rebellion. However, he writes that Rebellion appears to be moving against this in Canada and the UK.

Want to know more about the game? You can read a postmortem of the game written by Fraser and Stardock's Chris Bray published not long after its summer 2012 release.

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Ron Dippold
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That's great! However, I don't know if 'first amendment' has much explanation value here. Claiming you have a first amendment right to produce something called an iPad wouldn't help you.

Actual lawyers please chime in, but my understanding is that trademarks have various levels of genericism, and whether the term you're using is generic to your industry is very much a part of it. For example (ignoring the Beatles thing), Apple can enforce Apple(TM) in their areas of business because they are not actually selling apples (the fruit). You couldn't have a trademark on Apple(TM) in the fruit business.

The question is whether you are causing confusion between your product and another. If your studio is BobsKewlBeenx0r Entertainment (TM), then there's not much room for confusion by anyone, and anyone using BobsKewlBeenx0r, even for a car, is arguably infringing. If for some strange reason they created a genre that everyone then referred to as 'BobsKewlBeenx0rlikes' and you didn't fight that, then it becomes a genericised term and it 'escapes' into general use. This is Kleenex(TM)'s worry.

On the other hand if you're named something generic like Rebellion(TM) in a business where rebels are a stock plot, then it should (as ruled here) only apply to the name of the company. The question is whether anyone would think that Sins of a Solar Empire: Rebellion was using developer Rebellion's 'good name' to scam goodwill for the product, and obviously they're not.

Besides King trying to TM Candy, the most ridiculous example of this in this industry might be:

Jennis Kartens
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"However, I don't know if 'first amendment' has much explanation value here. Claiming you have a first amendment right to produce something called an iPad wouldn't help you."

I think the emphasize lies on this "Rogers test" (apparently some lawsuit back from the 80s) here which somehow falls under the "first admenment"

Christian Nutt
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It's about expressive power, and that games are an expressive medium, as I understand it.

Products are products, but games are media.

Also: It's worth noting the classic example that comes close to what you describe is Apple Computer (now just Apple) vs. Apple Records (the Beatles' record company). If you're in different industries, even with a highly generic name, you're safe legally.

Of course, I am not sure what happens if you have a highly novel name (to use a more realistic example, something like Compaq that isn't actually a word at all.)

Slo Bu
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It'd be great if we could all stop trying to own words from the English dictionary *cough* scrolls *cough*

Terry Matthes
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This should set an interesting precedent for Candy Crush Saga.