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Mojang: 'Really Silly' Bethesda  Scrolls  Case Heads To Court
Mojang: 'Really Silly' Bethesda Scrolls Case Heads To Court
September 27, 2011 | By Mike Rose

September 27, 2011 | By Mike Rose
Comments
    86 comments
More: Console/PC, Indie, Business/Marketing



Minecraft developer Mojang today received a notice from a Swedish court, stating that Elder Scrolls publisher Bethesda is going ahead with the infringement claim regarding upcoming title Scrolls.

Last month, Mojang received a letter from Bethesda accusing the Swedish studio of infringing on Bethesda's The Elder Scrolls trademark with its in-development digital card game Scrolls.

"The Scrolls case is going to court!" revealed developer Markus Persson via Twitter.

Daniel Kaplan, Mojang business developer, confirmed to Gamasutra, "Yeah, we got a notice from the Swedish court."

He told us that his company will soon be able to send in evidence in its defense. "We are going to do as much as we can," he said, "since I really hate it how the big boys always get their own way."

He explained that the document reveals how Bethesda lawyers are using comments on Scrolls videos and articles about the game to prove that the name will confuse players into believing that Scrolls is part of the Elder Scrolls franchise.

"They even took screenshots from our trailer and said we copied them... we have mountains in the Scrolls trailer, and they have that too in Skyrim," he laughed.

"It is really silly believing our game will be confused with their FPS-RPG with realistic graphics," he continued. "They have dumped everything they could find about Scrolls."

He noted that if the worst comes to the worst, Mojang will be forced to change the name of its upcoming title.

Gamasutra has contacted Bethesda for comment.


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Comments


Jim Perry
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I like Bethesda as a developer, but I think they need to shoot their lawyers for stupidity. This is almost as bad as the "Edge" nonsense.

Alan Rimkeit
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This. Took the words right out of my mouth.

Eric Schwarz
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It's more than just their lawyers. Bethesda are extremely protective of their public image, and this can be seen in everything from how they handle their IP, how they market their games, their public relations, who they give interviews and content exclusives to on the journalism side of things, and even how they moderate their forums. I can't say I agree with it, but it seems much more like a corporate philosophy than just "asshole lawyers" to me.

Martain Chandler
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Bathsheba needs to protect their trademarks, granted. But they could have sanctioned the Mojang game name for a $1 perpetual license.



Stupid company is stupid.

Benjamin Quintero
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I knew I was holding out on pre-ordering Skyrim for a reason. I was on the fence with that game anyways, now I'll just have to spend my money on the 10 other AAA games coming out in the same holiday window. Rage (sadly a cog in the Zenimax wheel now), Batman, Battlefield, oh man the list goes on.

Eric McVinney
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@Ben - Don't forget about Dark Souls :D

Brandon Kidwell
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What was the "Edge" nonsense?

Jeffrey Crenshaw
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Here's some info Brandon: http://chaosedge.wordpress.com/ http://www.tigsource.com/2009/05/29/tim-langdell-the-edge-of-insa
nity/



Google "Tim Langdell" if you want to know more. Basically a trademark troll threatened to sue an indie developer for using the word "Edge" and got Apple to take their app off the iPhone app store. This lead to a large amount of public awareness about this man and other shady actions he has taken, and cost him his place as a board member for the IGDA (how he got there in the first place is a disappointing mystery).

Rich Tietjens
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How about Mojang changes the name to "Mojang Loves Bethesda." Everyone will know the douchebags aren't really getting any love, and the name won't use the single word that Bethesda seems to think they can trademark.

Thomas Perry
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Protecting their public image? This just knocked my opinion of them down quite a bit... Why not hold a press conference and simply state, "We think our fans are too stupid to recognize our game so we are going to spell it for you stupid fans. S-K-Y-R-I-M. Have a nice day we love your contribution!"



Give me a break... Nothing to see here.

Mihai Cozma
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The way I see things, Bethesda will lose no matter what decision the court will take. Their lose will be in popularity, and that could transform in monetary lose as well. Notch is so popular among gamers and small developers alike as a person, nothing will dim that. The way he treated this accusations led to an image of "the big guys who want to steal whatever this "poor" guy has achieved by hard work" for Bethesda, which is detrimental to them.

Kevin Cardoza
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Exactly. The only thing to be gained from this is Bethesda paying thousands if not millions of dollars in lawyer fees and getting nothing but a bunch of negative publicity in return.

Jason Bakker
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I generally love Bethesda games, but I will stop buying them, playing them or recommending them to friends until they quit with this nonsense. I haven't even heard a human word out of the company about why they're persisting with this mercenary lawsuit.



If you care about indie games, think about this issue and if you feel as I do that Bethesda are doing something wrong, let them know: http://www.bethsoft.com/eng/contact_email.php .

Andrew Grapsas
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That's a really good point. Bethesda hasn't come out to the community and said, "Hey, we're doing this for x, y, and z reasonable reasons." Most likely because they do NOT have a reasonable reason.

Jeffrey Crenshaw
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This is exactly how I feel. I love Bethesda's games and was looking forward to Skyrim, now I can't in good conscience support this company. It is just obvious that no one is going to confuse "The Elder Scrolls: Skyrim" which is marketed as "Skyrim" with "Scrolls". All it comes down to is a frightening trend where companies try to get away with as much as they can, using the legal system to unjustly profit themselves instead of protect themselves. I think that Bethesda are doing something wrong, and I think I am going to let them know with my wallet and their email contact.

Michael Yochum
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post removed by user

Russell Watson
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Echoing the above comments. The whole thing is nonsense. Very disappointing behaviour from Bethesda, they've just joined the ranks of Tim Langdell.

Jose Resines
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Between this stupidity and the disaster that was (and in part still is) Brink, I'm losing my faith in Bethesda.



What's next?. Will they patent "game"?. Or perhaps the numeral 2 so nobody can ever do a sequel?.

Jeff Stolt
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You will stop using our protected word "the" in your comments, or we'll obtain an injunction against its use.

Bjoern Loesing
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Bethesda should have settled for the Quake match - it would have been a brilliant, beautiful PR action. I sincerely hope their legal team gets another beating. This kind of desperate license-grabbing bullshit is really not what the gaming industry needs.



What's next? Trying to sue the Tolkien-society for the use of "Elder Races", which is obviously an infringement on Oblivion?

Naeem Moose
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While I love both game development companies, the lawyers do have "some" truth to what they are saying. From 1994-present they build up a successful "brand-name" and if you do a quick google image search for scrolls. Aside from the obvious answer, you end up with many references and images of Elder Scrolls titles.



That being said if its just a matter of changing the name of Mojang's new game, I think that might be the best case instead of getting into long lawsuits with giant corporate lawyers. This was they can continue to both build their games without any interferences.



The only thing you can really do is just move on and realise that this is just the sad reality of our current business world.

Jack Everitt
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I disagree and believe you shouldn't give in to lawyers like these.

James Patton
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Yes, Bethesda (and any company) should protect their brand. But Beshtesda's brand is "The Elder Scrolls". The name (which, as far as I know, has been prominently displayed *in its entirety* in every ES game) contains three words, although you could take out "The" and it would still be recognisable. Without "Elder", the name would be totally different.



Consider, say, "Another World" and "Two Worlds". They both have the name "World" in them but nobody confuses them. Or "Batman: Arkham Asylum" and "Asylum", or "The Darkness" and "Heart of Darkness" (a game which came out in 1998). Nobody confuses these titles because people understand that titles aren't necessarily linked even if they contain the same words. That's what words DO.

Jeffrey Crenshaw
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"That being said if its just a matter of changing the name of Mojang's new game, I think that might be the best case instead of getting into long lawsuits with giant corporate lawyers."



This is not a good attitude :(. Corporations depend on this sort of self-first thinking to get away with this crap. If a company as large as Mojang backs down not because they feel they did something wrong, but because "it would be easier than fighting back", that is only going to weaken the resolve of indie developers and strengthen the courage of the more bully-like publisher/developer conglomerations (of which I did not think Zenimax/Bethesda belonged until now...).

Rey Samonte
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Hrm, maybe the indie community should all create games with the name "Scrolls" on it. I wonder if Bethesda will be willing to take them all to court for it?

Jason Harris
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Maybe we should make a game called "Scrolls for the Elder Wind of the Morrow" and make it about a Chinese dragon that travels to Japan to capture runaway egg rolls that look like scrolls. LOL Name the dragon Notch and have it "accidentally" knock over a Bethesda sign while flying away in the ending scene. Of course it would have to be a mock Bethesda scene, and not actually use any of their words... I guess we will have to write the sign in Arabic or Tagalog to ensure they cannot sue us for using their words... write the main title in Hiragana and Lawsuit avoided... oh, wait, then no one would be able to read our game. OH! So THAT is the point of the lawsuit! Bethesda feels threatened!

Jason Harris
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Maybe we should make a game called "Scrolls for the Elder Wind of the Morrow" and make it about a Chinese dragon that travels to Japan to capture runaway egg rolls that look like scrolls. LOL Name the dragon Notch and have it "accidentally" knock over a Bethesda sign while flying away in the ending scene. Of course it would have to be a mock Bethesda scene, and not actually use any of their words... I guess we will have to write the sign in Arabic or Tagalog to ensure they cannot sue us for using their words... write the main title in Hiragana and Lawsuit avoided... oh, wait, then no one would be able to read our game. OH! So THAT is the point of the lawsuit! Bethesda feels threatened!

Robert Fox-Galassi
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Hahahahahahahahahahahahahahahaha



....hahahahahaha



ha....



This whole debacle is STILL FUNNY.

Alex Ball
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I would just like to point out that it is not Bethesda filing the case. It's Zenimax that are making the case. Bethesda themselves are equally as confused as Notch. Bethesda are unfairly getting the blame for this. Notch and Todd are on very good terms. If we're going to give out about this, let's give out about Zenimas, not Bethesda.

Joe Wreschnig
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ZeniMax is a parent company. It owns both Bethesda Game Studios, the developer, and Bethesda Softworks, the publisher. Traditionally this kind of lawsuit would come from the publisher. So (in the absence of evidence otherwise) saying "Bethesda is filing the case" is wholly accurate. So is saying "ZeniMax is filing the case."

Jeffrey Crenshaw
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Any clarifying statements from Bethesda would help their image. Still, they agreed to be published under Zenimax. Whether it is Bethesda in its entirety, Zenimax, the publishing branch of Bethesda, Bethesda's lawyers, Zenimax's lawyers, or the Executive Vice President of Stuff's hyper-intelligent talking pet cat, the whole organization was responsible for curtailing this before it got this far (hell, before Notch received his first C&D). To alleviate responsibility in the slightest is to strengthen the sense of dispersion of responsibility: the "evil publisher" is the one to blame, not the "innocent developer". So we still buy the game to support the "innocent developer", inescapably supporting the "evil publisher" and further encouraging this type of behavior. It is sad, but we have to allow for "civilian casualties" in situations like this if this industry is ever going to mature beyond its current model. Unfortunately this lets publishers use developers and other low level workers as meat shields, but the long-term gains of developer pride, unity, and respect for other developers (suing someone for using a single word in the multi-word subtitle of your product is not respect) far outweigh the civilian casualties. Of course, any way to punish Zenimax without punishing Bethesda is worth talking about (buy the game used and snail mail some cash to Bethesda? *shrug*)

Florian Garcia
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If Bethesda wants to jeopardize their reputation and game sells by acting like douches, it's the best way to get started. Pissing off a community composed with millions of gamers isn't the best way to launch Skyrim I believe.

Dave Sanders
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Except, millions of gamers aren't going to give two craps. They will go to GameStop, see the pretty pictures, and buy it anyway. Sony's been pulling crappy stunts for decades, and people still buy their products. Other than a few outraged people, Bethesda's sales will be unaffected.

c anderson
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Of course I don't know but I don't think Bethesda minded the fact he is calling his game "scrolls" at least until he chose to trademark "scrolls." Trademark law is incredibly idiosyncratic; and of course once lawyers are involved it really become weird.

R Miller
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Yes... I have seen people commenting, for example, how this is an invalid use of copyright law. Which would be true... except that this is a trademark issue and has nothing to do with copyrights.



(Copyright is suppose to be about artistic ownership but Trademark is supposed to be about truth in advertising.)



As best I understand it: if Mojang is allowed to trademark "Scrolls" then "The Elder Scrolls" would be a violation of Mojang's trademark. You cannot own a trademark if someone else owns it, and Mojang is trying to claim exclusive use of the word "Scrolls" to label his computer game (which would obviously include any sequels).



So... Bethesda (or Zenimax, or whoever) might lose their trademark "The Elder Scrolls" for games they have already published (if Mojang wins), while Mojang might have to come up with a slightly different name for an unreleased game (if Bethesda or whoever wins)? I'm sorry, but I think it's Mojang that's being unreasonable here.



Meanwhile, I suppose it's kind of amusing, reading people's comments on this "copyright issue".

Kevin Cardoza
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R. Miller, I don't think you are correct in your assumption. Bethesda already owns a trademark for "The Elder Scrolls" which obviously pre-dates this, so they aren't going to be in violation of anything.

R Miller
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Kevin, the issue is "losing trademark". Try googling on that subject.



So, ok, people are making the point that "The Elder Scrolls" and "Scrolls" are different, so Bethesda would obviously still be allowed to use "The Elder Scrolls". But a problem with this line of reasoning is that trademark law is written such that if you do not take someone to court, right away, that constitutes evidence that your trademark is not relevant.



Meanwhile, Bethesda recently lost a court case because they took someone to court seven months too late. And that was a copyright case (where you do not lose your rights until a long time after you are dead) not a trademark case. So there can be other issues, besides the raw structure of trademark, that could also require them to bring this case to court right away.



Anyways, asking Bethesda to not take this case to court seems equivalent to asking them to give up their trademark.

Luke Shorts
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"Meanwhile, Bethesda recently lost a court case because they took someone to court seven months too late. And that was a copyright case (where you do not lose your rights until a long time after you are dead) not a trademark case."



Assuming you are referring to the Fallout MMORPG case, Bethesda DIDN'T lose the case (which is more related to breach of contract than copyright infringement per se). They simply didn't get a temporary restraining order to prevent Interplay from carrying on with the realization of their product, on the grounds (among other things) that they waited too much before asking for such an order. They can still pursue their claim for damages before a court. See here for more info:



http://www.iptrademarkattorney.com/2011/09/copyright-infringement
-videogame-fallout-license-video-masthead-bethesda-tro-denied.htm
l



In any case, this is entirely irrelevant with respect to the present case.

Dustin Chertoff
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There is a simple way to figure out if Bethesda has any clout here. Look over all of the official media released over the years to see whether Bethesda itself has referred to "The Elder Scrolls" as "Scrolls." I imagine most of the (recent) gaming population has been calling the games by their subtitles - "Morrowind," "Oblivion," and "Skyrim." In this case, Bethesda needs to back their claim that the term "Scrolls," and not "The Elder Scrolls," has been in use in both by the company in externally released media, and by the gaming community as a whole.



Bethesda has every right to protect it's IP, but this case is a bit of a stretch. The games aren't even in the same genre...

Mihai Cozma
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Well, when Mojang announced their upcoming game title, I swear I didn't think at all about Bethesda's titles, just about scroll objects as in paper rolls with magic spells on them. And I should mention I have played Daggerfall, Morrowind and Oblivion. Allso I should mention that before playing any I read about them a lot but I didn't know they were a series called The Elder Scrolls, so as Dustin said above, people really know them more by their subtitles.

Peter Christiansen
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I think this highlights a bigger problem within the videogame industry, namely the need to patent, copyright and sue, even when it doesn't really make sense or serve anyone's particular interests. Legal action has been an obsession within the industry since the days of Atari, which means that not only are developers (or at least their legal departments) spending half their time trying to pick a fight, they're spending the other half of their time watching their backs to keep everyone else from suing them. It results in a very rigid system and in a lot of patents for ideas that don't ever get off the ground.



I don't really have a practical solution for a problem that's 35 years old, but I think a good first step would be dropping lawsuits that won't really make any difference to the success of your product and have the potential to generate a great deal of ill will toward your company.

Guyal Sfere
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As a former lawyer, and someone who deals with lawyers every week...it's a mistake to blame this on "the lawyers". They can share the blame, as willing chess pieces, but a decent corporate lawyer doesn't squeak without a go ahead from their client. The people paying the legal heavies could stop this all with a phone call.

Benjamin Quintero
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Agreed, I know corporate lawyers myself and can vouch that they frankly don't care and often have a full plate with frivolous suits against their clients that don't go as public. Being a lawyer is a day-job like any other and it's the people who pay for their services that are the ones to blame for these actions.

Andrei Zavidei
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Relax, guys. Notch just wants to be a hero, a sufferer, a martyr. :)

It's like he is fighting against the system. A lonely warrior. David against Goliath. Neo.

Rest assured, my friends, he is not taking it seriously and you should not. This is just a cheap comedy.

This is how I see it: Notch will push it to the end. To such end, where he will yield or will be forced to yield. That is inevitable and he knows that. But yielding now is an option without benefits. Why do that when you can win even if you lose? Why do that now and lose a perfect situation to gain extra popularity and a fame of a hero? :)

R Miller
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But how does being a jerk make you a hero? Funny, yes. Cheap comedy, yes. Hero?



So.. ok, Notch is, and has been a hero -- but that's for his development of minecraft. But I feel that, in the context of this trademark issue he is being a bully

Andrei Zavidei
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@Miller I don't claim to be one. So please sheathe tomahawk of your faithful wrath for you will not find me on the warpath.

Matt Hackett
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Bethesda the developer: AWESOME!

Bethesda the publisher: meh

Brock Janikowski
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The amount of hate being leveled at Bethesda over this action is entirely unwarranted. Trademark is a complicated legal matter and it requires that a company be constantly vigilant and protective of a mark that is associated with their products. Bethesda isn't picking on Notch because they're a "big, evil corporation," they are simply looking to protect their interests in the "Elder Scrolls" name. If they don't address Notch's use as uncomfortably close to their trademark, then they lose whatever defense they might have if other game makers decide to go the same route with their own titles. A trademark must be protect fiercely if it is going to be protected at all. That's just the way the law works.

Christopher Boothroyd
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best just summed up as "WWWWHHHAAAAAAAA!!!!!!!!!"

Christopher Boothroyd
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My guess is this goes all the way, Bethesda loses, gamers vote with thier feet and then there is regime change at Bethesda. This is one of those classic deadwood C-Level fuckups.

Christopher Boothroyd
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Bets on who gets the updated linkedin profile at Bethesda/Zenimax after this?

Alan Wilson
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Even if you only look at this as an exercise in how to handle an odd PR situation, Bethesda wind up with poo on their faces. Markus, just by being sensible, approachable and putting a human face (and emotion) to it, wins the PR war hands down. Worst case, Markus has to change the name of his game and pay some court costs - and gets a pile of (free) PR for that game.

Bart Stewart
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Something to bear in mind is this question: if Zenimax or Bethesda-the-publisher doesn't protect their "Elder Scrolls" trademark from similar names, then they forfeit the use of that trademark as a distinctive property.



Let's say they just shrugged and said, "Eh, it's Notch. Let it go." At that point they have zero (legal) grounds for complaint if some other outfit starts marketing a game as "The Elder Souls," or "The Eldar Scrolls," or even "The Elder Scrolls."



That said, I'm still in the camp of thinking this could have and should have been addressed with a friendly phone call to Notch to work out some acceptable compromise. I suspect the number of sales lost to consumers confused by a name similar to "The Elder Scrolls" (how many such people do the Bethesda lawyers expect there might be?) will be considerably less than the loss of revenue from Minecraft fans, anti-corporatists looking for cases that seem to confirm their worldview, and people who just don't like bullies.



Unfortunately, it looks like we may find out. How is this good for anybody?

Jeffrey Crenshaw
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"Let's say they just shrugged and said, "Eh, it's Notch. Let it go." At that point they have zero (legal) grounds for complaint if some other outfit starts marketing a game as..."The Elder Scrolls.""



I see this as a stretch. I don't think that Bethesda ignoring this would lose them their complete trademark; that's kind of the point, that they have a trademark on "The Elder Scrolls" and not "Scrolls". If what you say is true and letting a company get away with a title that does not infringe on your trademark in any logical way DOES invalidated your trademark, then serious reform needs to occur in trademark law or we will have lawsuits over almost every title that contains a word that another title used.



Yeah, I don't see how this can be good for anyone.

Jeremy Reaban
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That is not true.



Did TSR/WOTC/Hasbro lose the trademark for Dungeons & Dragons every time a fantasy RPG used Dragon or Dungeon in the title? There are a lot of them, too. Including the recent "Dungeons" which is about as close as case to this as there is.

Jason Bakker
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The argument that Bethesda have to sue Mojang in order to keep their trademark doesn't make any sense to me. The names simply are not close enough to warrant that. If it was "Gears of War" and "Cogs of War", or "The Elder Scrolls" and "The Older Scrolls" fair enough. "The Ancient Scrolls" would be a borderline case, maybe. But "Scrolls"? No way.

Mark Harris
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It's a game called "Scrolls" with a fantasy setting and the creator is trying to trademark the "Scrolls" part, and I'm assuming all the bells and whistles required for proper trademarking.



The trademarking is the issue, not the name of the game. Bethesda is showing they are actively protecting their trademark from other similar trademark attempts. Personally I think it's close enough to warrant the action, if only to show (because it's required) that they are proactively using and protecting their own trademark.



My 2 cents anyway.

Seb Jeb
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56 comments and none mentions the elephant in the room. how about, instead of putting the blame on either side of the battle, question the meaningfulness of the system which enables ridiculous behaviors such as this: the trademark law itself? how about seeing the cause, not the effect?

Derek Smart
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Most of the sentiments here are silly, without merit and for the most part, pure nonsense. Anyone who actually does this for a living knows the following:



1. Choosing "Scrolls" for the name of a game, is an absolute fracking BAD idea.



2. As in, if you're going to name a game, either :



a) run it through the attorneys for a trademark, copyright, patent check



b) run it through a stringent search test



This is the same procedure used for when you're choosing a name for your business, file a patent, file a copyright, trademark or whatever. It is procedural.



In the case of (a) using "Scrolls" would never have passed the legal muster to begin with. Period. One single trip to Google, Bing, Yahoo! or whatever would show that in the case of (b) you simply SHOULDN'T DO IT.



Zenimax/Bethesda have every right to pursue this and I absolutely see their point. Why? Because nobody challenged "The Elder Scrolls" back when they did it. Do you know how many games there are out there with "scrolls" in the name? Go check and see.



Here is the REALLY stupid part. Anyone who thinks that "Scrolls" is going to be confused with "The Elder Scrolls", is a complete idiot.



Yes, this is similar to that "Edge" farce, except that Zenimax aren't going to be using lies, fabrications, intimidation and everything in between to enforce it.



The easy - and cheaper - way out of this is for Notch to rename the game. There is no shame in that because quite frankly, regardless of the merits of Zenimax claims (which I don't believe it has any), it was a stupid mistake to begin with. And apart from that, this is not about the big boys getting their way. It is about the little boys doing something utterly stupid and thus ending up in a situation where the big boys - with the deep pockets - can take advantage of that, regardless of merit.

Jeremy Reaban
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As I've said previously, there happens to be a game called Dungeons & Dragons. Maybe you've heard of it? It was the first RPG and its tropes have infiltrated most of the game industry, beyond just fantasy RPGs.



And yet, there are dozens of games that feature Dungeon or Dragon (in singular or plural form) in the title.



The only legal problems I've heard even remotely related to the names of those is Dragon Quest having to be renamed to Dragon Warrior for a while, because SPI was publishing a pen & paper RPG named DragonQuest.



Also very recently that was a MMORPG called "Rift", which was somewhat similar to the pen & paper RPG Rifts. Despite the similarity and similarity of names, the owner of the P&P game couldn't do anything legally about it.

Christopher Boothroyd
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No, nouns should be free. What should we all quake in fear at "speed", "level up", "realm"



This is fucked and I hope it (like the edge fuckup should have) sets precedent. Z/B has no right to be idiots and I suspect the punishment will be far worse than what ever the courts hand out. Their poor, poor shareholders.

Mark Harris
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Actually, Chris, you're arguing against Notch. Mojang is the one trying to trademark "Scrolls", and Bethesda is against that.



If you're up in arms about "nouns being free", then you're on the wrong side of argument.



Besides, you actually cannot trademark a common term, you have to trademark a very specific use and feel of the term, normally accompanied by a specific font, color, background, etc.

James Castile
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I have to believe that Bethesda are not bullying Notch. They are being vilified in the court of public opinion when most people default to the David vs Goliath pigeonhole.

The fact is, they must defend their IP or else risk losing recourse in the future to perhaps an even closer attempt to ride the coat-tails of their hard earned success.

It's just the sad reality of the system. They must guard their assets with earnest in the eyes of the law. I'm not sure we can definitively cast any blame on them at this point.

Like Seb Jeb, I'm inclined to give more thought to the current state of the law than I am to people who make a decision they feel is in their best interest to protect themselves under it.

That being said, a Google search for "The Elder Scrolls" does not return any first page results for "Scrolls" the card game, but a search for "Scrolls game" returns only three entries on the first page before the rest are TES related.

Derek Smart
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@James



Absolutely.

Michael Joseph
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LOL. I think this is a non issue.



Notch is taking this seriously, but he's able to laugh because he knows what we don't; At the end of the day, he's not going to be spending money to fight this in court. Meanwhile he's soaking up some free publicity for his future game... getting it on the radar on the cheap.



http://www.penny-arcade.com/comic/2011/8/19/



... I could be wrong but i doubt it...



"He noted that if the worst comes to the worst, Mojang will be forced to change the name of its upcoming title."



That is pretty much an admission that they're not going to fight this.

Derek Smart
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LOL!! probably, yah.

Daniel Martinez
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World Wildlife Fund vs. World Wrestling Federation comes to mind. Yes, I can imagine the plaintiff arguments now: "We have animals, they have people acting like animals! We have a panda, they have Mick Foley! It's all intended to confuse. Change the name!" And of course who can forget the iconic Nissan automobile company vs. Nissan sowing machine company battle... Oh wait, that never happened, because Japan doesn't care about things like that.

Michael Yochum
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Abel Bascunana Pons
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I suppose Bethesda may fear that Mojang's Scrolls could have a huge success thus seeing the visibility and repercussion of their 'Elder Scrolls' label diminished. Because if then you typed for Scrolls on Google, you wouldn't see many Elder Scrolls references... and this could mean many lost potential users. I don't think they act this way because of any other reason.

Jeffrey Crenshaw
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thumbs up @ Game Guy. I think companies need to stop feeling entitled to all the profits they can fathom, and likewise entitled to take down any company that steps in the way. Scrolls is not going to harm The Elder Scrolls in any way other than being a better game (if it is), and even then it is a completely different gameplay genre that does not directly compete with TES. There is a difference between defending your trademark from an attempt to confuse consumers (say if someone created The Elder Scrolls: Minecraft) and pushing trademark law as far as you can against an honest use of a word just because you think your success is the only important thing in the world.

Derek Smart
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I agree with Game Guy; however, this is not primarily about who wins or loses; it is about who has the deepest pockets to justify and sustain the fight. If Mojang fought this - and won; what is the tangible benefit? None, would be my answer. Is the legal expense worth the hassle? No, I don't think so. Especially when you can just change the game's name and move on - chalking it down to experience and remembering to do the proper research in the future in order to avoid this nonsense (brought about by a badly broken and antiquated system).

E Zachary Knight
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Derek,



I agree with Mojang and how they are handling this.



Sure they could just change the name and the whole thing would be over, but what would that do for the overall state of Trademark law? Nothing. If they changed the name of their game, they will be bowing out and giving more fuel to trademark trolls. By standing up for themselves, they are sending a message that trademark only applies to the *full name* that was trademarked and not to the individual parts.

Mark Harris
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Really, trademark trolls?



Comment threads are so hit or miss these days. Half the time you get the good ol' reasonable back and forth with some good insight... the other half you get rash and inflammatory posts by people who haven't even read the article, or researched a root cause.



I'm not picking on you, Ephriam, since you're usually a pretty reasonable guy, but to borrow the "patent troll" terminology and apply it to this case is absurd.



You may agree or disagree with Zenimax on this one, but they are not even close to trolling.

Luke Shorts
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@Ephriam,



I doubt Mojang's case could do anything to the "state of trademark law", if nothing else because Sweden is a civil law country and precedents do not matter that much for subsequent lawsuits.



**



Personally, I'd be inclined to think that they are going with it because Mojang has grown big enough to sustain the costs of legal proceedings (in Europe they are on average lower than in the US, even though I have no specific figures on Sweden), and because even if they lost, the consequences wouldn't be dramatic. Heck, considering the way the news is resonating across the internet, they might have taken the funds out of their marketing budget!



Trademark violation is -generally speaking- based on two conditions that must occur simultaneously: a) the alleged infringer must operate in the same business sector as the claimant and b) there must be a likelihood of confusion of the products involved among the public. I think we can all agree that a) is met, whether b) is met as well will pretty much hinge on the assessment of the court of what is the "public" in this case. As much as my gut feeling as a gamer tells me that such likelihood is zero, from a legal point of view I wouldn't bet on either outcome.

Jeffrey Crenshaw
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@Mark the phrase "trademark troll" is not some new spinoff of "patent troll", it's been around and has its own legitimacy (just like "patent troll" does). While this case does not hint at Bethesda or Zenimax acting like trademark trolls, I did not interpret Ephriam as claiming that it did; more like claiming that their success could set a precedent beneficial to actual trademark trolls in the future. That said; trolling or not, this suit _is_ unethical and a net loss for everyone due to Zenimax/Bethesda chasing an imaginary infringement (I'll give them the benefit of the doubt that it is due to exaggerated fear and not greed), and I hope they learn their lesson from this predictable and avoidable backlash.



"the other half you get rash and inflammatory posts by people who haven't even read the article, or researched a root cause."



Please don't confuse someone having an opinion you don't like with ignorance (a mistake that I am trying to ween myself off of :] ).



@Luke - I think in this case b) does not hold up because "Scrolls" is a common noun and a common item in video games, so I don't think that people have made or will make a mental bottleneck associating the word with only Bethesda's series. If this lawsuit did not occur, I don't think that anyone except lawyers would look at "Scrolls" and think "man, Bethesda better sue, that's too close to one of the words in the subtitle of their series which they hardly market using the subtitle!". I would be very very surprised if Bethesda gets anything from going to court, but we shall see!

Mark Harris
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@Jeffrey

It's not common on this site (perhaps because of the lack of articles about trademark issues) and I'd rather it not rear it's ugly head when it's not needed. I don't think it's especially accurate, either, but whatev. I think that in general we tend to throw around a lot of ugly and inflammatory language that serves no one at all in a reasonable discussion. Whether Ephriam is specifically referring to Zenimax in this instance or not doesn't matter, equating a reasonable defense of a trademark with increasing trademark "trolling" doesn't make any sense, in the same manner that a reasonable defense of patents has no bearing on patent trolls. I'd prefer if we stop with the chilling effect of lumping reasonable litigation in with all manner of outrageous abuses of the legal system.



Whether or not one agrees with Zenimax or Mojang is irrelevant, the courts will decide the outcome and most likely nothing earth-shattering will come of it. I think that it is entirely unfair however to put it in the same category as the Edge debacle and link it in any way to trademark "trolling".



As for the other comment, as I mentioned, I was not referring necessarily specifically to Ephriam, I was lamenting on the general increase in knee-jerk responses on this site that are either a) clearly ignorant of any relevant facts or b) intentionally obtuse and inflammatory. What I interpreted as calling this action by Zenimax "trademark trolling" was leaning provocatively in that direction.



We can all get caught up in a heated discussion, that's natural and happens not infrequently. That's not really an issue for me, what I've perceived as a marked increase in the rush to judgement without any real basis in facts directly presented in an article (or easily Googled) is what gets my goat, so to speak. Perhaps I'm mistaken, I dunno, it's just what I've picked up over the last couple of years.

Luke Shorts
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@Jeffrey

Actually, "trademark troll" IS a misnomer if you intend it as the trademark equivalent of "patent troll". "Patent trolls" are individuals or companies that acquire patents for the sole purpose of litigation; they are not interested in practicing the patented invention. Trademarks, on the other hand, must be asserted by USING them (i.e having products/services branded that way), otherwise they lapse; as a consequence of that, you cannot "troll" someone with a trademark. If a company policy is asserting aggressively their IP, you may consider them assholes, but they are not trolls.



""Scrolls" is a common noun and a common item in video games"

that has nothing to do with "likelihood of confusion". The question the judge will have to answer will be whether the public is likely ("likely", not "will for sure") to buy Mojang's game thinking that it is a Bethesda product.

Jeffrey Crenshaw
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"equating a reasonable defense of a trademark with increasing trademark "trolling" doesn't make any sense"



Some of us (myself included) are of the opinion that this is not a reasonable defense of a trademark. The fear is that if this case wins for Bethesda, then it sets a precedent for other companies to start enforcing multi-word trademarks on single words, minimizing the word-space from which we can select meaningful titles (you also have to look at the title as a part of the game that you are trying to perfect for the user, not just a marketing/legal phenomenon, so such uncalled for limitations can only hurt the creative process) and giving already large publishers a huge portfolio which they can use against independent developers under the excuse that if they don't, they'll lose their (admittedly legitimate) full trademark. Of course I can't speak for Ephriam, but that is how I interpreted his sentiment, and it is with this interpretation that I fully agree.



"as a consequence of that, you cannot "troll" someone with a trademark."



That is precisely what Tim Langdell did. He was an NPE who faked practicing entity status with fake games on his website and ripped art from other games and even went as far as to hand the judge a disk with a document claimed to be from the early nineties that experts found was created with a later version of Word.



"""Scrolls" is a common noun and a common item in video games"

that has nothing to do with "likelihood of confusion"."



How common a word is has a lot to do with "likelihood of confusion", particularly how common it is in its market. For example, people would be a lot more likely to assume that Bethesda made a game called "Skyrim" (a fictional region in their universe, and made up word) than "Scrolls" (an item common to many, many games that came out before Arena). Heck I would even see where they were coming from if they went after a game called "Oblivion", even though that is a common noun.

Mark Harris
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@ Jeffrey

We'll have to agree to disagree on this one, then. I am astounded that anyone can find Zenimax's actions as unreasonable in light of current trademark law. Whether this trademarking of "Scrolls" infringes on their trademark enough for courts to take up action is definitely up for debate. Whatev, different strokes and all that.



@ Everyone

With so many people throwing around the whole "Edge" incident I'm surprised more of you aren't upset that Mojang is trying to trademark such a generic term as "Scrolls". If they're allowed the trademark this gives them pretty vast opportunity to pursue their own future "trademark trolling". Any future game name containing the word "Scroll" or "Scrolls" is right in their wheelhouse. Personally I find that even more disturbing than Zenimax actively attempting to defend their trademark.



I suppose that Mojang isn't large and evil enough for us to question their potentially destructive actions. One day maybe they'll be big enough to rage against.

Luke Shorts
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@Jeffrey

I don't have time right now to look up the specifcs of the Edge case but taking for the sake of the argument your statement at face value, the practicing status in that case would be obtained through fraud, which is a separate issue from trademark law allowing "trolling" as such. On the other side, "trolling" is a perfectly legal practice in the patent world (even if some legislations are starting to pose limitations to prevent that), because patents do not need to be practiced to be valid. Besides terminology issues, Bethesda cannot be considered a "troll" no matter what definition you follow.



As for the "likelihood of confusion", I will (for the last time), repeat the concept: the confusion has to occur between two products or services, it has nothing to do with the semantics of the words as such (it could have been a conflict between "the elders' scowls" and "scowls", which are not mainstream game items, and the situation would have been the same). The fact is, the two companies have products in or about to hit the market, in the same business sector, with similar names. One of these companies owns an asserted trademark. Is mistaking the product of the second company as something made by the company owning the trademark likely? YOU say no, I personally say no, but the judge must make a determination thinking about the public at large. The case is not blatantly unfounded on general principles, and the outcome will depend on the judge's assessment of the situation, the arguments of the parties, and the exact wording of the Swedish law, which I do not know.

R Miller
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Note that Bethesda does not necessarily have to prevent Mojang from having a trademark on "Scrolls" to "win" this case, for their purposes. For example, if they can get the court to issue a statement that the trademarks do not and cannot conflict, that gives them immunity to trademark weakening (which is what they need here).



The thing is, though: they need to deal with these issues now and not later (before Mojang develops a better version of Minecraft, with more robust handling of geometry, for example).



They have to describe their business label now, and get Mojang to describe their business label now. And it's only for issues where they and Mojang have disputes about what these labels mean where the court needs to rule.

Joel Nystrom
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These made-up future losses of Bethesda's is nothing in compared to the PR-disaster the suit itself has already become. What are they thinking?

Mark Harris
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They are thinking that if they don't defend their trademark from encroaching trademark attempts then it erodes their ability to defend from future trademarks that further encroach.



Besides, y'all are blowing this "PR disaster" way out of proportion. A vast majority of gamers don't even know this is going on, and a vast majority of those that do know don't care. Skyrim might lose a few thousand sales at most, but that's a drop in the bucket compared to letting your trademark defense slip.

Alex Leighton
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I can't think of anyone I know who actually refers to the Elder Scrolls games as "The Elder Scrolls". It's just Oblivion, Skyrim, etc.

Jeffrey Crenshaw
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Inasmuch as Zenimax/Bethesda is more concerned with the trademarking of "Scrolls" than the use of "Scrolls", shouldn't their beef be with the trademark office that felt it was ok to trademark and not Mojang for trying? And if so, is there no way to claim grievance by directly challenging the trademark office instead of using a lawsuit to distract a fellow developer and contributor to the artform from focusing on continued contribution to the artform?



I'm starting to think that we need a voluntary code of conduct in this industry, there are too many lawsuits and other unpleasant negative acts occuring. Many times these acts happen because the prosecutors feel scared and threatened; hopefully such a code of conduct could prevent these fears from occurring as well as provide guidance for handling them in a more mature and kinder fashion than what constantly graces the headlines of gaming news sites.

Clayton Weaver
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Wow, one of the arguments that Scrolls is copying off their Elder Scrolls game is because it has mountains? With that reasoning Bethesda needs to go after Square Enix, Capcom, and any other game developer that makes games with mountains in them for copyright infringement. Has the company lost it's mind?


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