Square Looks To Block Trademark App Of Indie Game Over Game Franchise It Acquired A Decade Ago And Did Nothing With
from the conflict:-trademark-law dept
You will recall that several years back there was a very stupid trademark dispute between Notch, maker of MineCraft, and Bethesda, which owns the rights to the Elder Scrolls franchise. At issue was Notch’s new game Scrolls (which has since been retitled Caller’s Bane) with Bethesda crying trademark infringement, claiming it owned the trademark rights to basically everything “scrolls.” Disappointingly, the whole thing ended in a settlement with Notch getting to keep his game’s name but not getting his trademark.
While in that case one could at least lend Bethesda the acknowledgement that Elder Scrolls games are very much still active in the marketplace and haven’t become simply methods for retro enjoyment, the same cannot be said of Square’s ownership of the Conflict series. And, yet, Square has decided to oppose the trademark application of an indie developer in Malta for its title Conflict Of Nations: World War 3.
Dorado Games recently attempted to trademark Conflict of Nations: World War 3, an online strategy game which released on Steam earlier this year. Quickly thereafter, it received an opposition filing from Square Enix’s lawyers, claiming that there “is a clear likelihood of confusion” with the publisher’s long-established Conflict franchise. Between 2002 and 2008, Square Enix published six games under the branding, such as Conflict: Desert Storm, and Conflict: Denied Ops.
In a letter to Dorado Games seen by GamesIndustry.biz, Square Enix’s lawyers argue that the publisher has been using the trademark for 16 years, and has “educated consumers” to recognise the “Conflict + tagline” pattern.
There’s a ton that’s misleading in Square’s letter. For starters, while there were six games published between 2002 and 2008, Square didn’t publish a single one of them. Other publishers did, mostly EIDOS, which Square bought in 2009. In other words, Square acquired the rights to the games, but wasn’t responsible for publishing any of them. Likewise, Square itself hasn’t been using these trademarks for 16 years, having only acquired them ten years ago. Finally, it can claim that it’s “educated” gamers to recognize the naming convention of the games all it wants, but it hasn’t created a new game in the franchise for over a decade.
Which is why, along with the fact that the naming convention used by Dorado Games isn’t all that similar, concerns about customer confusion in this case don’t make a great deal of sense.
Nick Porsche, managing director of Dorado Games, compared the move to Bethesda’s “Scrolls trademark calamity”.
“Having been in the games industry for 20 years this type of behaviour is exactly the reason we decided to do our own thing – without publishers, based in an island nation with its own jurisdiction,” he told GamesIndustry.biz. “It’s really ridiculous to which degree the majors are trying to crush anyone within their space, while preventing smaller companies from effectively marketing their products online – even when there is no contextual overlap whatsoever.”
What Square will rely on is that the old Conflict series games are still available as retro-titles. But the idea that a single publisher could lock up a word like “Conflict” in the video game industry by continuing to offer decades old games and just sitting on the trademark is insane. Fortunately, the real bar when it comes to trademark law is customer confusion in the marketplace. Unfortunately, most small indie developers don’t have the resources to fight court and trademark battles, and typically just bow down before the larger corporations.
It’s not clear yet which way Dorado Games will go, but I hope they take this conflict head on.