My Little Pony Fan Game Shut Down By Hasbro Over Trademark

from the my-little-trademark dept

If you have spent thirty minutes in the past year surfing the internet for anything revolving around memes, you know what bronies are. They're a rather passionate adult fanbase for My Little Pony and they love to create stuff to express their fandom. We previously covered (surprisingly) that Hasbro appeared to be a company that embraced this fanbase, realizing that all the additional attention and exposure would only serve them.

Well, reader PonyRock alerts us to news that Hasbro hasn't completely come over to the light side of the force, having recently shut down a fan-made MLP game. For their part, the makers of the game appear to bend over backwards in professing understanding of Hasbro's position, even after spending a year and a half developing their game.

Hasbro is not to be blamed here. As per U.S. Trademark law, as soon as an infringement comes to light, they are obligated to defend the trademark, or they will lose it. They had no choice in the matter, regardless of what they thought of the project or how it benefited them.

As I said, very gracious, if perhaps a bit incorrect. Hasbro likely did indeed have other options beyond a strict takedown of the game, which is now lost to everyone. If they had wished instead to continue to embrace their rabid fanbase, I would imagine they could have issued a zero dollar or low-cost license to the developers, allowing the game to go forward and potentially benefiting from even more exposure. Instead, the nuclear option was chosen, resulting in the game disappearing and exposure of the takedown instead of the game.

Despite the developers being more than fair to Hasbro regarding the takedown, the comments on the article are rather negative towards the company. I almost wonder if all the bending over backwards towards Hasbro might not be part of a strategy to get the company to reconsider and go the route described above. It'd surely be the better route. Going nuclear gains nobody anything.

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Comments on “My Little Pony Fan Game Shut Down By Hasbro Over Trademark”

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42 Comments
jameshogg says:

Wait, trademark law, not copyright? This is not as bad then… bear with me, hear me out.

There is a moral right to brand signature as long as it does not get abused. A good rule of thumb is that the same standards should apply to that of what you use to sign contracts, letters etc. So no, Disney. Three black circles does not constitute something you would use to sign a paper with – the font of the “Walt Disney” name suffices just fine.

But I think I need to stress here: this does not seem to be an issue over copyright. I think the company Hasbro needs to protect its brand otherwise people will think that this fan game actually came from the company itself, which is a fair point.

Like it’s been stated, the company does not seem to have a problem with the fandom, otherwise they’d be abusing the unjust morality of copyright to take down every remix, redub etc of MLP on YouTube aggressively. I think they just objected to the fact that there was a trademark ambiguity. Perhaps the game here could continue as long as the makers take away the brand signature? Hasbro might not have a problem with that.

jameshogg says:

Re: Re: Re:

Yes. But what I can gather from the article is that if Hasbro do not act on brand breaches they lose the brand name. It seems to be a part of the legislation. So it seems to be the law’s fault, here.

If copyright did not exist, hundreds of spin offs would be competing vigorously for official approval from the original makers. In other words, the freedom to market without the obstacle of copyright would allow the natural selection of market survival to help the company realise what markets are succeeding, giving them the chance to make money from “officiality” licenses to the most successful spin offs.

I have always said that either making spin offs of creativity wear “UNOFFICIAL” tags on their products or give more rights to the original artists to emphasise their officiality solves a lot of problems without the need for copyright, especially the issue of libel i.e. defamation of the artist by representing ponies as Nazis, for example. With legislation emphasising what is official and what is not, no real defamation could really take place as the unofficial knock-offs are recognised as knock-offs by the public.

The fashion industry backs me up on this: if a knock-off somehow does better than the official brand wear, that brand usually takes what the knock-off is doing and adopt it for themselves, strengthening the marketing power of the brand because it has the advantage of being the genuine, original fashion. And the same can happen in the creative world.

John Fenderson (profile) says:

Re: Re: Re: Re:

But what I can gather from the article is that if Hasbro do not act on brand breaches they lose the brand name. It seems to be a part of the legislation. So it seems to be the law’s fault, here.

The law doesn’t say they have to sue or otherwise be antagonistic. Offering a license for a dollar would be plenty enough.

Also, the bit about having to respond to every breach to keep a trademark is overstated to begin with. You don’t always have to, but you’re safer if you do. Again, though, the response doesn’t have to be a lawsuit or takedown.

Anonymous Coward says:

Re: Re: Re:2 Re:

I am unsure about their other contracts, though. If they give a 1 dollar license to this company, the danger of it going public and smashing future deals will have to haunt them. Also: A lot of deals in especially copyright is about exclusive deals etc. If the companies do not like the fanfiction we are again talking a lowering of the value of their property.

It is more of a problematic mindset in the business that makes it a problem to license free or cheap, but as long as enough of their potential future clients are of that mindset, it is not worth doing.

Anonymous Coward says:

Re: Re: Re:2 Re:

“The law doesn’t say they have to sue or otherwise be antagonistic. Offering a license for a dollar would be plenty enough.”

This is a misconception that is often bandied about here. Licensing a trademark requires quality control oversight. If you license your mark out to everyone without exercising such control, that’s actually worse than doing nothing.

It’s called a “naked” license and it can be a basis for losing your trademark rights.

cpt kangarooski says:

No, a quickie license would have been a bad idea.

A trademark is a sign indicating source identity and quality consistency. Customers who see a good or service carrying a mark are meant to be able to rely on all such marked goods or services ultimately originating from a common source, and having a common level of quality (whether the quality is good or bad doesn’t matter, it just has to be consistent) ensured by that source. (Btw there’s no moral component to this. There might be some condemnation of free riding on another’s reputation, and possibly damaging it, but it pales in comparison to consumer protection)

Anyway, if a trademark holder licenses the use of a mark without instituting strict quality controls and imposing governance over the licensee, it is said to have engaged in naked licensing. This is tantamount to abandoning the trademark altogether. They’re not going to do it.

But mere use of another’s mark isn’t necessarily infringing. The developers might want to look into the use of strong, unavoidable disclaimers, in avoiding commercial benefits from their work, and limiting the extent to which they compete with the inevitable authorized games.

Also they might want to get a life. It’s a cartoon meant to sell plastic crap to little girls, for God’s sake.

(And if that upsets you, just assume I was playing the role of Evil My Little Pony from episode 37)

Lord Binky says:

Re: Re:

So a quickie licence that required the developers made the cartoon pony art and story are of the correct quality before getting released publicly (which would be subsequently checked by someone at hasbro that would want to, maybe even for free!).

Still seems like they could have worked something out easily if they wanted too.

And it still seems trademark is being applied wrong if it’s a sign to indicate a source and quality, when it is merely the sign itself people are interested in….

cpt kangarooski says:

Re: Re: Re:

So a quickie licence that required the developers made the cartoon pony art and story are of the correct quality before getting released publicly (which would be subsequently checked by someone at hasbro that would want to, maybe even for free!).

It wouldn’t be a quickie license at that point, it would be a normal trademark license. It would put the trademark holder in control, with veto power over the whole project if the game didn’t measure up to the standards that any licensee would have to meet. It would take time (and thus money) for the licensor to do this, and they’d have to vet new versions, expansions, etc. too. It might require sharing the master artwork with the game developers, and paying for the involvement of the voice actors. If the game is being given away for free, who foots the production bills? Does this mesh with the licensor’s plans for official games? It had better, since this would be an official game. I bet it wouldn’t.

As for the mark itself, if anyone who wants to starts to use it in a manner identical to that of the mark holder, it no longer uniquely identifies official goods and services from the toy company. Thus, it is lost. There’s not a good way around it. Even emphasizing the unofficiality of one’s goods and services may not always be enough.

Pinstar says:

This makes me worried for the other big MLP game, My Little Pony: Fighting is Magic. The fighting game that’s been development since season 1.

The creative staff at MLP, including the show’s creator and some of the writers and voice actresses are on record as being excited to play that game.

For the record, Hasbro HAS gone the light side route. I forget her name, but a female brony was a master plush maker…making one for Laurn Faust’s OC and sending it to her personally. Hasbro came after her…but gently, offering the licensing option so she could keep making custom ponies without getting dragged to court or sued.

I’m not sure why they didn’t do that with this game.

KelsieBree says:

Re: Response to: Anonymous on Dec 14th, 2012 @ 1:25pm

Maybe you need a lesson on bronies.
Bronies started on 4chan as a small group of older males who liked the show. The fandom gradually grew to include teens and females (like myself) and even Hot Topic started selling t-shirts and belts and the whole fandom kept growing. šŸ™‚

LOVE AND TOLERATE THE SHIT OUT OF ANTI-BRONIES

Anonymous Coward says:

This has happened before, annd will probably happen again.

Quotes from a letter from Hasbro’s lawyers, sent to another fan-made game (emphasis mine):

We have now discussed the matter with both Hasbro and Wizards of the Coast, and regret that, as stated in our original correspondence, although both companies appreciate your enthusiasm for their properties, they must protect their intellectual property rights and therefore deny your request.
[…]
Under U.S. copyright law, the copyright holder has the exclusive right to reproduce, distribute, and display the copyrighted work and to create derivative works from it: http://www.copyright.gov/title17/92chap1.html#106.
[…]
?Fan fiction? does not constitute any of the potentially protected fair use purposes

Source:
http://www.equestriadaily.com/2012/09/shards-of-equestria-officiallly-closed.html

I’m no expert, but offhand I’d say Hasbro needs to hire better, less trigger-happy lawyers. I don’t think their current guys have even heard of licensing.

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