EA Sues EA Over The EA Trademark

from the who's-on-first dept

Kingster writes in to let us know about an interesting trademark infringement case. In this case, the makers of Madden football games, EA (Electronic Arts), is suing the makers of sports wristbands, EA (Energy Armor), for trademark infringement. The main rub here is that Energy Armor markets its wristbands using a logo that is strikingly similar to Electronic Arts logo. Electronic Arts also claims that because Energy Armor markets its wristbands as sports equipment, the trademarks overlap and can cause confusion in the market place.
I can certainly see the concern here. While we have seen a number of dubious trademark lawsuits, most recently with Edge and Scrolls, this is an example of trademark law working as intended. On one hand, we have a business which has spent roughly 30 years building a brand that people recognize and trust and on the other, a business stepping in with a knock off logo used in a way meant to confuse buyers.

Electronic Arts has a very strong case for brand confusion and I really don't see any way out of this mess for Energy Armor other than to change its name or lose in court.


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    Anonymous Coward, Oct 6th, 2011 @ 7:47am

    Oh Zack, careful! You are going to lose your job at Techdirt if you start agreeing with the nasty trademark supporting, patent using, copyright loving companies of the world.

    Are you part of the #occupytechdirt movement?

     

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      Anonymous Coward, Oct 6th, 2011 @ 7:57am

      Re:

      Still not buying what you are selling, whatever it is.

       

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      Anonymous Coward, Oct 6th, 2011 @ 8:03am

      Re:

      "You are going to lose your job at Techdirt if you start agreeing with the nasty trademark supporting, patent using, copyright loving companies of the world."

      What, are you too afraid of losing your job if you disagree with them?

       

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        Anonymous Coward, Oct 6th, 2011 @ 8:08am

        Re: Re:

        Zach is getting paid. I am not.

         

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          Anonymous Coward, Oct 6th, 2011 @ 8:12am

          Re: Re: Re:

          But you are Zach?

           

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          Dark Helmet (profile), Oct 6th, 2011 @ 8:25am

          Re: Re: Re:

          "Zach is getting paid. I am not."

          REALLY!!?? How much, exactly, oh all knowing mega-accountant?

           

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            Gwiz (profile), Oct 6th, 2011 @ 8:31am

            Re: Re: Re: Re:

            I think the figure is around $28,000 per article, but Mike uses standard MPAA/RIAA accounting procedures, so Zach actually owes Mike $216.89.

             

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            Anonymous Coward, Oct 6th, 2011 @ 10:30am

            Re: Re: Re: Re:

            Ahh, that is the mystery. See, Glynn Moody let the cat out of the bag admitting that he gets paid to post on Techdirt (and seemed to be doing a bang up business this week), so I have to assume that everyone else posting on Techdirt as a contributor is getting paid.

            Like you. How much do you get paid per post? Care to come clean?

             

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              Dark Helmet (profile), Oct 6th, 2011 @ 10:39am

              Re: Re: Re: Re: Re:

              "Like you. How much do you get paid per post? Care to come clean?"

              I make absolutely zero dollars and zero sense from Techdirt. Techdirt has never paid me one dime. Nor have I ever asked them to. I write about what I find interesting, they kindly post my work, and I make reference to that work in my business.

              More importantly, why do you care?

               

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              Dark Helmet (profile), Oct 6th, 2011 @ 10:41am

              Re: Re: Re: Re: Re:

              "See, Glynn Moody let the cat out of the bag admitting that he gets paid to post on Techdirt"

              Link, please? Not that I really care, I'm just interested in whether or not you're BSing again, TAM....

               

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                Anonymous Coward, Oct 6th, 2011 @ 1:09pm

                Re: Re: Re: Re: Re: Re:

                I am not TAM, but hey, you can work however you want.

                http://opendotdotdot.blogspot.com/2011/10/registry-of-interests.html

                Glynn's own blog. Techdirt is one of his three main sources of income.

                Don't you feel like you are getting shafted writing for free?

                 

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                  John Fenderson (profile), Oct 6th, 2011 @ 1:38pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Oh, good lord, this again??

                  A commercial blog paid a writer for his product. That's certainly an embarrassment, isn't it? Clearly, this shows that techdirt is somehow shady. It might be different there was an accepted and longstanding practice for publishers to pay writers for their writing.

                  Seriously, I'm not even sure why this was considered troll-worthy in the first place, let alone of enough import to bring up a second time.

                  The only explanation I can think of is that you must hate capitalism, you socialist!

                   

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                  Dark Helmet (profile), Oct 7th, 2011 @ 5:58am

                  Re: Re: Re: Re: Re: Re: Re:

                  Fair enough, and thanks for posting the link to back up your statement. It's....refreshing.

                  That said, no, I don't feel shafted in any way. I love Techdirt. I love the articles, the community, the commenting, even the detractors. The chance to write about something I'm passionate about and have it posted here is rewarding enough for me. In addition, as I mentioned before, I reference my writing for Techdirt in my work, both in my "real" job as a technology consultant, and you better believe I reference my writing for Techdirt in every query letter that goes out to an agent or publisher.

                  Pay comes in different ways. I assure you, I am EXCEPTIONALLY well paid for what I do with Techdirt, even if that pay isn't based on paper or silver....

                   

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          Karl (profile), Oct 6th, 2011 @ 8:59am

          Re: Re: Re:

          Zach is getting paid.

          I don't know about Zach, but I've written a couple of articles for Techdirt, and Mike didn't pay me a dime. (He didn't offer, and I didn't ask.)

          The accusation that people are paid to post here is one that has been cropping up recently from those who are trying to slander Techdirt, and it is completely wrong.

           

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            Anonymous Coward, Oct 6th, 2011 @ 10:31am

            Re: Re: Re: Re:

            Ask Glynn Moody. It is completely right.

             

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              PaulT (profile), Oct 6th, 2011 @ 11:39am

              Re: Re: Re: Re: Re:

              Again, link to where this was "revealed"?

               

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              Karl (profile), Oct 6th, 2011 @ 9:59pm

              Re: Re: Re: Re: Re:

              Ask Glynn Moody. It is completely right.

              Ah. Since one person got paid to post articles here, that must mean that everyone who posts comments that you don't agree with are paid to shill Mike's opinions.

              Yeah, that makes sense.

              This is really just a transparent attempt to discredit the opinions of anyone who vaguely agrees with Mike. It is, of course, total nonsense, and nobody is buying it. I'm sure that won't stop you all from bringing it up ad nauseum, whether relevant or not, since you don't have any response to the merits of the arguments themselves.

               

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            Atkray (profile), Oct 6th, 2011 @ 11:39am

            Re: Re: Re: Re:

            Accusing them of trying to slander Techdirt is giving them too much credit, I am yet to witness any evidence they are that bright.

             

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      The Groove Tiger (profile), Oct 6th, 2011 @ 8:28am

      Re:

      You must be one of those TD staffers that are getting paid to pretend to be anti-TechDirt trolls.

       

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      Chosen Reject (profile), Oct 6th, 2011 @ 9:21am

      Re:

      Let's take a look at the big three intellectual property categories:

      Copyright - prevents the public from copying stuff.
      Patents - prevents the public from making stuff.
      Trademark - protects the public from buying stuff they didn't mean to buy.

      Wait, one of those is not like the other.

       

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    josh_m (profile), Oct 6th, 2011 @ 7:49am

    With the words "Energy Armor" directly below the initials EA, I'd wonder what kind of consumers would think of Electronic Arts instead of, you know, Energy Armor.

     

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      Anonymous Coward, Oct 6th, 2011 @ 7:54am

      Re:

      Eh, I could see someone uninformed thinking that they were a product "from" EA.

      Though, given what the product is, I have absolutely zero sympathy for anyone who is deceived.

       

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      blaktron (profile), Oct 6th, 2011 @ 7:59am

      Re:

      Remember, moron in a hurry... i can see possible confusion.

       

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        heyidiot (profile), Oct 6th, 2011 @ 1:50pm

        Hey, I resemble that remark!

        Because what I thought when I saw it was, literally: "Energy Armor - by EA Sports." I probably mentally added "...it's in the game" to the end.

         

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          E. Zachary Knight (profile), Oct 6th, 2011 @ 2:16pm

          Re: Hey, I resemble that remark!

          That is actually a good point I had not thought of. I can certainly see a number of people thinking this is a line of EA branded wrist bands.

           

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    jilocasin, Oct 6th, 2011 @ 7:54am

    Recognize, yes. Trust..... I'm not so sure.

    With all the ill will EA's engendered with it's love of restrictive DRM, I'm not sure I would go so far as to say people _trust_ it.

     

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      JaDe, Oct 6th, 2011 @ 8:11am

      Re: Recognize, yes. Trust..... I'm not so sure.

      That was my first thought.

       

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      Anonymous Coward, Oct 6th, 2011 @ 8:17am

      Re: Recognize, yes. Trust..... I'm not so sure.

      Heh, that was my first thought too: well, got the "recognize" part right...

      That said, this seems like a pretty genuine case for EA. Although, considering there's some ill feelings out there for Electronic Arts over things they've done to their customer base, if I did confuse these logos at first glance I'd not have wanted anything to do with Energy Armor products anyway. Gotta keep up my personal boycott, you see.

       

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      Anonymous Coward, Oct 6th, 2011 @ 8:56am

      Re: Recognize, yes. Trust..... I'm not so sure.

      EA's bread and butter is console sports games. It has been for a long time. No DRM in that case. (Even if they are dicking PC gamers.)

       

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        Transbot9, Oct 6th, 2011 @ 12:12pm

        Re: Re: Recognize, yes. Trust..... I'm not so sure.

        Sure there is - it's just usually handled by the console makers. The platform itself handles DRM.

         

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      Anonymous Coward, Oct 6th, 2011 @ 8:56am

      Re: Recognize, yes. Trust..... I'm not so sure.

      EA's bread and butter is console sports games. It has been for a long time. No DRM in that case. (Even if they are dicking PC gamers.)

       

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    Trails (profile), Oct 6th, 2011 @ 7:58am

    Change its name?!

    Sorry, I can kinda maybe get changing the logo.

    They're similar and off the cuff I might think Energy Armor logo was for EA.

    But change their name? Why?

     

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      Anonymous Coward, Oct 6th, 2011 @ 8:53am

      Re: Change its name?!

      This is what I came in here to ask. I don't think they need to change their name, just their logo.

       

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      PaulT (profile), Oct 6th, 2011 @ 11:46am

      Re: Change its name?!

      I'd assume it would be something to so with EA's trademarking - that is, whatever replacement logo is invented it will probably be dependent on making the letters E and A prominent. That might still be enough to infringe on a further trademark on that abbreviation (which I think EA has, not 100% sure).

       

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      Jeffrey Nonken (profile), Oct 6th, 2011 @ 4:55pm

      Re: Change its name?!

      Agreed. To me the logo is close enough to cause confusion. But the name? Why, because it has the same initials? Nonsense. Electronic Arts would never have noticed Energy Armor if they hadn't screwed up with the logo.

      My other question is: did Electronic Arts lead with a lawsuit, or did they try a cease-and-desist letter first?

       

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    Anonymous Coward, Oct 6th, 2011 @ 7:59am

    Where is Mike to stop this type of article from appearing on TechDirt, is he sleeping or ill?

    I think I know how the stakeholders of this company selected a name, "hmm.. let's think of an established company with great brand recognition in the sports industry and then we can create a knock-off logo." Seriously who would name a company that creates wristbands "Energy Armour", its almost like they are trying to rip on Electronic Arts and UnderAmour. A very flagrant attempt to mislead consumers.

     

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    Anonymous Coward, Oct 6th, 2011 @ 8:01am

    It's almost like when Wells Fargo sued itself.

     

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    StarkRG, Oct 6th, 2011 @ 8:04am

    There are right ways to use patents and trademmarks and there are wrong ways. This is one of the right ways.

     

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    David, Oct 6th, 2011 @ 8:19am

    EA Sports. Bands. It's in the name.

     

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    Faceless Minion, Oct 6th, 2011 @ 8:21am

    Eh... I can certainly see this one failing the moron in a hurry test. EA is somewhat justified here.

    But given EA's general antics, I'd be more wary of buying one of these things for fear of it trying to use an EULA to lock off access to my own arm, more then trusting that it would be a high-quality product.

     

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    Anonymous Coward, Oct 6th, 2011 @ 8:27am

    When I read the title to this article I thought EA (electoric arts) had come so big and dysfunctional that they were suing themselves over their own trademark.

    A few giant dysfunctional companies have sued themselves before for violating their own copyright/patent.

     

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    The Groove Tiger (profile), Oct 6th, 2011 @ 8:33am

    Misleading article! When I read the title I immediately assumed that Energy Armor was suing itself!

     

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    Karl (profile), Oct 6th, 2011 @ 8:55am

    Nope

    I disagree with this article completely.

    First of all, Electronic Arts is a gaming company. One of their titles is sports-related; but they also make Mass Effect, Battlefield, and the Star Wars games. A maker of wristbands is not in the same product space.

    To see how dangerous this is, turn it around. Suppose Energy Armor was in business for thirty years, and then Electronic Arts wanted to put out Madden NFL. They would be prevented from doing so, due to a trademark violation against Energy Armor. Electronic Arts - which had, until that point, built up a brand around its video games - would have to change its logo across its entire product line to put out the game.

    Second of all, the logos have different fonts, and the lettering looks very different. The only things they have in common are that they are "e" and "a," with the "e" being slanted.

    To see how common this style is, let's again flip it around, and see how often something similar is used with A and E.

    Applied Engineering:
    http://en.wikipedia.org/wiki/Applied_Engineering

    Associated Engineering:
    http://www.ae.ca/

    Alexander Emelyanenko:
    http://www.emelyanenko.com/en/ae_team/

    Atlantic Express:
    http://www.atlanticexpress.com/

    This is not to say that Energy Armor is not intentionally deceiving consumers. But it has nothing to do with Electronic Arts. It has to do with the fact that their "negative ion" wristbands are 100% snake oil, no more legit than homeopathy or phrenology.

     

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      Anonymous Coward, Oct 6th, 2011 @ 9:34am

      Re: Nope

      While those examples are similar they all look to be derived from Danish/Norwegian letter (windows code = ALT+0198) and not stylized like the EA (game) logo and very similar.

      The overlap here is mostly because EA (game) distributes a lot of physical goods as advertising for their sports game.

      Heck if EA (bands) had used a different color or texture background then there wouldn't be as strong as a case.

       

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      Nick, Oct 6th, 2011 @ 9:48am

      Re: Nope

      I agree with you totally. I worry what would happen if we're allowing companies to dictate how the logos of other companies look, considering the ONLY similarities are the slant of the E. The font is different, the branch of the A even comes in a different direction (and is a bolt of lightning), and the danged company name is below the logo.

      This would be a very dangerous precedent if we can allow companies to essentially trademark a slanted letter.

       

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      E. Zachary Knight (profile), Oct 6th, 2011 @ 10:11am

      Re: Nope

      Electronic Arts does more than make sports themed video games, they have a whole line of merchandise that ties into their EA Sports line of games. They also do a lot of promotional work with major league sports teams as well as athletic equipment.

      So Yes, I can see someone catching a glance of these wrist bands at the mall and thinking they are Electronic Arts sponsored wrist bands.

       

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        Ed C., Oct 6th, 2011 @ 10:29am

        Re: Re: Nope

        Sorry, but the only kind of person who would buy the "idiot in a hurry" argument is an idiot in a hurry. Well, I guess you and EA are in good company.

         

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        DCX2, Oct 6th, 2011 @ 10:54am

        Re: Re: Nope

        You'd think that a wrist band whose logo explicitly says "Energy Armor" was made by Electronic Arts?

         

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          E. Zachary Knight (profile), Oct 6th, 2011 @ 11:09am

          Re: Re: Re: Nope

          The phrase 'Energy Armor' is not the emphasis of the log though. The emphasis is the initials 'EA' as it is the largest part.

          While yes, there are differentiating marks to the logos, as you point out, they are similar enough that when confronted with a bunch of Electronic Arts merchandise and some Energy Armor merchandise next to it, a customer could be confused.

          Now an informed customer, one who takes the time to research their purchase, would not be confused. However, we are talking about a large scale of customers. How many of them take the time to carefully study the product they are looking to buy, especially with wrist bands?

           

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      Anonymous Coward, Oct 6th, 2011 @ 10:30am

      Re: Nope

      So, in order to show that EA can't be confused for EA, you demonstrate how AE is a popular mark?

       

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        Richard (profile), Oct 6th, 2011 @ 2:30pm

        Re: Re: Nope

        So, in order to show that EA can't be confused for EA, you demonstrate how AE is a popular mark?

        No - how the various holders of similar AE marks haven'tbothered to sue each other.

         

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          Anonymous Coward, Oct 6th, 2011 @ 3:57pm

          Re: Re: Re: Nope

          That is because that mark is a single letter in the Scandinavia alphabet and about the only differentiation is color and/or font.

           

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          Karl (profile), Oct 6th, 2011 @ 11:35pm

          Re: Re: Re: Nope

          No - how the various holders of similar AE marks haven't bothered to sue each other.

          Actually, it was about how the typographical idea of slanting one letter to match another is incredibly common. (In "AE," the first letter, "A," is slanted to the right, so its right leg is the horizontal part of the E. In "EA," it's the reverse - the first letter, "E," is slanted to the right, to match the "A.")

          Aside from having the letters "E" and "A," this is the only thing the logos have in common.

           

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            Anonymous Coward, Oct 7th, 2011 @ 4:03am

            Re: Re: Re: Re: Nope

            But that's wrong, because the mark you refer to is not AE but . And i'm pretty sure you can't get trademark on a letter.

             

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              Karl (profile), Oct 9th, 2011 @ 6:59am

              Re: Re: Re: Re: Re: Nope

              But that's wrong, because the mark you refer to is not AE but .

              The marks that I linked to did not use "AE" as a single vowel, but used them as an abbreviation for the letters "A" and "E."

              In any case, I think it just proves my point. The idea of slanting one letter to match another, is so common-sense, that it has been used to combine letters for as long as that vowel has been around.

               

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      Paul Hobbs (profile), Oct 6th, 2011 @ 11:42am

      Re: Nope

      Whoa! Just a minute there partner. I am a licensed, practising Phrenologist and member of the British Phrenological Society. It sounds to me like you could benefit from a consultation.

      So don't be dissing Phrenology. It is to science what Scientology is to religion - completely legitimate, grounded in verifiable fact, and of tremendous benefit to those who receive its ministrations.

       

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      indieThing, Oct 7th, 2011 @ 9:29am

      Re: Nope

      I'm surprised we haven't heard of them sueing others. Whilst working for EA (games), I looked out of the window in one of the London offices and saw a van parked outside with almost the exact same logo as EA, more so than this one, but they were a plumbing company. I mentioned it in passing to a colleague, and we both had a good laugh wondering when they would be sued.

       

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    Anonymous Coward, Oct 6th, 2011 @ 9:22am

    "On one hand, we have a business which has spent roughly 30 years building a brand that people recognize and trust and"

    Recognize and trust? Are we still talking about EA?

     

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    Paul Alan Levy (profile), Oct 6th, 2011 @ 9:24am

    Good comment from Karl

    My reaction is similar to Karl's but perhaps less strongly. Electronic Arts' argument is that the two companies are in related markets, in that both sell their products by association with the same sports and athletes; they may also appeal to similar groups of consumers. This may well be a contestable case, depending on the facts, although Energy Armor's product is pure nonsense as Karl notes, and besides it may well lack the finances to cover the cost of the litigation.

     

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      Karl (profile), Oct 6th, 2011 @ 10:03pm

      Re: Good comment from Karl

      My reaction is similar to Karl's but perhaps less strongly.

      I probably worded it a bit stronger than I intended, but hopefully I made my point.

      I do see a remote possibility for trademark confusion; I just happen to disagree that it crosses the line into infringement.

      And, yeah, the product is pure nonsense.

       

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    Scooters (profile), Oct 6th, 2011 @ 9:38am

    Stop the ride, please.

    Am I to believe the top logo actually says "EA", and not the "TA" I thought it was, implying their games are nothing but T&A?

    I sit here stunned my entire world has just collapsed.

    This has not been a good day on the internet, this one.

     

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    P3T3R5ON (profile), Oct 6th, 2011 @ 10:21am

    "... and can cause confusion in the market place..."

    Confusion in the market place? Really?!

    At what store will I be going to shopping an EA marked item and suddenly by the wrong one... a shirt instead of a video game? Yes there are places and products where the name is simply how you refer to the product, Coach purses for example. When refering to the product it's always a coach purse because just labeling it purse doesn't count... or so says my wife. Now I don't say it's an EA game because calling it just 'game' would suddenly change how it is referred to. EA sells video games for around the same price as other video game companies. However when you talk Coach vs. Mossimo were talking a couple of hundred bucks in price difference.

    In the end, saying that confusion is the source why one logo should never have any amount of similarity to another is simply saying 'i can't trust consumers to by my product based off of the logo alone'... thanks for the trust... i'll go buy somebody elses product not because of the log but because of the product.

     

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    Jim Tarber, Oct 6th, 2011 @ 10:42am

    Nice Title, Shame About The Body

    The only thing of any value in this article is the title. The rest is hogwash like the litigation itself.

    If you went to 100 graphic artists and asked for an EA logo, probably 95 of them would come up with a similar merged/sloping logo. I don't believe there is any intent to leverage the EA name, and that the full "Energy Armor" text below the logo should make that very clear.

    Electronic Arts can't hold a trademark on every use of the EA abbreviation. There are bound to be physical products out there with similar logos to theirs, both before and after the "original" EA was founded. Karl said it well, TechDirt has done some great stories, but this article is tabloid junk.

    If Electronic Arts changes their logo next year, and it's similar to some other company in another market space, I hope they have just painted a big red target on their backs with this, but arguing the market spaces need not be too close. Hey, it's their argument. I hope someone else uses it against them.

     

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    Viln (profile), Oct 6th, 2011 @ 10:54am

    How dare they...

    I was shocked and appalled to hear some of Energy Armor's business practices. First, they bought up a bunch of other companies who created and manufactured sports bracelets, thereby diminishing competition and diversity. They placed biometric chips in the bracelets to prevent the items from being resold, traded, given or shared with other people... mentioned in passing in overly complex EULA. The chips of course were unnecessarily prominent and caused abrasion, rashes and occasional jolts of electricity or burn marks on the wrists of legitimate, lawful, paying consumers. What's worse, they arrogantly dismissed requests and recommendations from their sporting customers and insisted they knew for a fact that everyone wanted their bracelets either pink or fecal brown, with clunky bulky attachments that occasionally restricted hand movement.

    What's that? Energy Armor didn't do any of those things?

    Then how the hell are they being confused with EA?

     

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    btr1701 (profile), Oct 6th, 2011 @ 2:46pm

    Logo

    > I really don't see any way out of this mess
    > for Energy Armor other than to change its name
    > or lose in court.

    The don't need to change their name. Just stop using the deceptively similar EA logo.

    Other than the logo, there's nothing confusing about the two businesses at all.

     

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    Tom Anderson, Oct 6th, 2011 @ 5:48pm

    The anglification of a nearby letter shouldn't be reason to stamp on any other EA out there. The thickness, lightning, round top of the A, etc. are obviously not inspired by EA's logo. The only people who would be confused by this are people who don't know that EA stands for Electronic Arts.

    On the other hand, the logo for EA Sports is much more similar. It has the text SPORTS below the EA logo. The EA Sports logo is also trademarked, so I'm wondering if gamasutra just mixed up which trademark is being threatened here.

     

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    ScytheNoire, Oct 9th, 2011 @ 10:29am

    EA is right for once

    While I think most trademark lawsuits are bullshit, like the Scrolls one, in this case, I think Electronic Arts has a case because they really are so similar, it almost seems as though Energy Armor is doing it on purpose. Plus Energy Armor is a scam, so that won't look very good in the eyes of a court.

     

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