Trademark

by Timothy Geigner


Filed Under:
cyberpunk, eu, games, trademark

Companies:
cd projekt red, cdpr



Dear CD Projekt Red: Please Stop Trying To Get Trademarks On The Common Name Of A Genre

from the cyberpunk-move dept

When it comes to bastions of hope in the video game industry on intellectual property matters, we've been happy to laud CD Projekt Red (CDPR) for getting most things right most of time. The company's stance on keeping its games DRM-free while being immensely successful has been a breath of fresh air, while its tendency towards bucking the DLC trend in gaming by not nickel-and-diming its fanbase for every last little thing. These are generally good folks, in other words, which is why it's a little disheartening to see how the company is handling the backlash over its attempt to trademark the term "Cyberpunk" in the EU.

But first, some background. Cyberpunk 2020 is a pen and paper roleplaying game developed by Mike Pondsmith. CDPR announced in 2014 that it was making a game based on that system, entitled Cyberpunk 2077. To that end, it acquired the already granted US trademarks for the term "Cyberpunk", originally registered in 2011, from Pondsmith's publishing company. Cyberpunk is also, of course, a common genre term for fiction, movies, and video games. If you're asking why the USPTO ever should have granted a trademark on the singular term "Cyberpunk", the answer is obvious: it shouldn't have. The term was coined in the 80s and quickly grew in usage to the point where its an established genre of fiction. Trademarking it for the use in titles within a common medium of fiction is crazy. Yet, in the course of acquiring the rights to make the game, the original granted mark was transferred to CDPR when it began making the game, and the company likewise got a trademark registration for the full name of its game, Cyberpunk 2077.

The recent uproar is because now CDPR is attempting to register the term "cyberpunk" in the EU itself, as opposed to having it transferred from a previous owner. The backlash was quite severe.

The trademark actually makes for the biggest public development for the project in recent months. On forums like Reddit, though, the focus was less on what this could portend for the long-gestating Cyberpunk 2077 and more on how one studio owning the word “cyberpunk” could cause trouble for other games in the future.

“I hope they won't be able to push that trademark, it's kind of uncool move,” reads the original Reddit post from last week, which quickly blew up. “We wouldn't be able to have term cyberpunk used just like you can't use terms Banner or Saga without a fear of being sued. Future games like [VA-11 Hall-A: Cyberpunk Bartender Action] would have to dance around the term that's core to their concept and wouldn't be able to use the term in the title.”

Admittedly, some of this uproar has been the result of confusion between trademark and copyright and the differences between the two. Still, a big chunk of the concern out there is whether or not other games can still use the term in their titles and associated branding or marketing. And that concern is perfectly valid. It's also quite logical for the mind to recoil at the idea of a single company locking up rights to use the term for a common genre in its title names. The backlash got loud enough that CDPR had to respond, though the response was somewhat lacking.

Look, the positioning here isn't entirely unreasonable. The US trademark wasn't originally filed for by CDPR, it was transferred to them when it got the rights to produce the Cyberpunk 2077 video game. But the EU application is theirs. Attempting to assuage legitimate fears of overreach by pointing out that the company has never been one to bully on intellectual property matters and promising to only use the trademark defensively are valid points, but they miss the mark for several reasons. First, the fact remains that trademarks ought not be granted on common, indistinct terms, for which a common fiction sub-genre easily qualifies. Second, past history isn't a perfect predictor of future behavior, so CDPR's previous good acts aren't good enough to defeat the principal argument. Angels do fall, however infrequently.

But the most curious part of CDPR's response is the actual remedy to all of this is near the end of its own response. In case you missed it, the response suggested:

The role of the trademark is only to protect words, signs used as titles of games, names of products, etc. If someone names their game "JOHN SMITH: ADVENTURES IN A CYBERPUNK DYSTOPIAN SOCIETY" OR "20 SHORT VIDEO GAMES SET IN CYBERPUNK WORLDS" none of them should be treated as infringement of our rights.

That's exactly correct, which is why CDPR's game never should have been named so generically if the company wanted a trademark on the title. All that was required to avoid all of this was for a more distinctive title and for the trademark application to be for that distinctive title, as opposed to the common term "Cyberpunk." Even for the US mark, there are provisions at the USPTO for surrendering a mark while retaining the trademark registration on the more distinctive associated marks. "Cyberpunk" could be surrendered while retaining a trademark on "Cyberpunk 2077."

Look, when CDPR says it doesn't plan on being a bully with its trademark, I happen to believe them. The company has put too much good will in the bank for me to think otherwise as of now. But that isn't the point. The point is that there ought to be no trademarks on a term like "cyberpunk" to begin with. Excusing holding that trademark away while also applying for a new trademark in the EU isn't a good look.


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  • icon
    That Anonymous Coward (profile), 11 Apr 2017 @ 3:53am

    Dear CDPR,
    Please for the love of the FSM, fire your legal team. I am guessing that is who told you to totally needed to lock in the term in the EU. They are just trying to get billable hours in, and it is only costing you your good will with your consumers.

    If you piss off your consumers, will the law firm buy your next game? (hopefully other than in a bankruptcy action because without fans, you fail.)
    Perhaps you think your prior good guys label is enough...
    Pepsi & United felt the same...

    Stop being stupid.

    KTHKSBAI!
    TAC

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 11 Apr 2017 @ 5:52am

    Don't forget to trademark "Red"

    Don't forget to trademark "Red".

    Your trademark should be narrowly focused, to your particular industry. After all, someone in the fashion industry might want the trademark on Red to exclude others from using it. Similarly, some automobile manufacturer might want a trademark on Red for automobiles.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 11 Apr 2017 @ 7:19am

      Re: Don't forget to trademark "Red"

      Plus, "red" is also the Spanish word for network. Better get a trademark on that before other people start thinking networking is a good idea.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Apr 2017 @ 5:58am

    > Angels do fall, however infrequently.

    The only reason it seems infrequent, is because most start at the bottom and stay there.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Apr 2017 @ 6:13am

    Wish they would make their games Linux native.

    reply to this | link to this | view in chronology ]

    • identicon
      Thad, 11 Apr 2017 @ 10:11am

      Re:

      Witcher 2 was. It's a pity Witcher 3 wasn't, but I expect the Linux version of Witcher 2 must not have gotten enough downloads for them to think it was worthwhile to go that route again.

      GOG's been better recently about providing multiplatform versions of games, but it's clearly not a priority; the Galaxy Client still isn't available for Linux or Mac (though apparently a Linux version is planned).

      CD Projekt is still my favorite publisher/distributor, but there's plenty of room for improvement.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Apr 2017 @ 3:03pm

        Re: Re:

        Even the GOG downloader is Windows ony. Browser downloads of 10GB+ is not even possible with the crappy bandwidth where I am.

        reply to this | link to this | view in chronology ]

  • identicon
    cpt kangarooski, 11 Apr 2017 @ 6:57am

    Doesn't seem like a big deal to me. I would expect that the mark is for it's secondary meaning only, and that the use of the purely descriptive term CYBERPUNK is not affected.

    Also, the original rpg game was Cyberpunk 2013; 2020 was the second edition.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Apr 2017 @ 7:07am

    Can one donate a trademark to the public domain?

    I realize I may be asking the equivalent of "Can you make orange juice from an apple?"

    If their concerns are truely making sure that they have the freedom to operate without someone else squatting on Cyberpunk, could they obtain the trademark and then offer it as a free license to anyone?

    Or would the act of offering an open licence be abandoning the trademark?

    reply to this | link to this | view in chronology ]

  • identicon
    Chuck, 11 Apr 2017 @ 8:13am

    Why?

    Why not just trademark "CYBERPUNK 2077" instead of trademarking Cyberpunk at all?

    Not to state the obvious here, but this is how most trademarks are done, no? I mean, I doubt P&G (or whoever makes it) trademarked "Spray" or "Wash" instead of "SPray n' Wash" right? Trademarking half your product's name is just...stupid.

    The fact that it's CD Project Red that's doing this leads me to believe they literally never intend to sue anyone over this, but if so, again, why bother trademarking just the word? Can trademarks not include numbers or something? What about the trademark for "Level 3" the networking company? Is their trademark just on the word "Level" or is it "Level 3" because I'm betting it's the later.

    This is just bizarre. Regardless of their intentions, this simply LOOKS nefarious. It boggles the mind that they'd trademark this one word for any reason other than suing people.

    I mean I want to believe them but...really, guys?

    reply to this | link to this | view in chronology ]

    • icon
      The Wanderer (profile), 11 Apr 2017 @ 8:29am

      Re: Why?

      My guess would be: because they don't want to have to re-trademark separately for later games with different suffixes, et cetera.

      reply to this | link to this | view in chronology ]

    • identicon
      Machin Shin, 11 Apr 2017 @ 9:32am

      Re: Why?

      The reason they are giving is that they don't want someone else to get the more generic "Cyberpunk". That is what I find sad is that they seem to feel almost pressured into this move because they fear someone being a troll and trademarking it out from under them if they don't get it first.

      Kind of makes me think they should maybe spin off a side company for holding things like this. Make that company have very clear terms saying "These are open for others to use, we are just holding them for safe keeping". Basically create the anti-trolling company. Start locking up things that are likely to be abused and lock them into a company designed so there is no way possible for anyone to abuse them.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Apr 2017 @ 8:51am

    This is silly overreaction.

    Battlefield is trademarked. Doom is trademarked. Destiny is trademarked. Mafia is trademarked. Grand Theft Auto is trademarked. "Dungeons and Dragons" is trademarked.

    These are all broad, generic terms. The sky is not falling.

    reply to this | link to this | view in chronology ]

    • icon
      Ryunosuke (profile), 11 Apr 2017 @ 9:38am

      Re:

      I agree, and to be more specific, this is about trademark on the cyberpunk brand, rather than the name or general terminology of cyberpunk.

      reply to this | link to this | view in chronology ]

    • identicon
      Thad, 11 Apr 2017 @ 10:14am

      Re:

      Battlefield is trademarked. Doom is trademarked. Destiny is trademarked. Mafia is trademarked. Grand Theft Auto is trademarked. "Dungeons and Dragons" is trademarked.

      I notice you don't mention "Saga". Funny, that; I wonder why you would omit that example?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Apr 2017 @ 11:27am

      Re:

      Context is a big deal in trademark, and outside of maybe Mafia, none of those are broad, generic terms in the actual context here—they're distinctive as titles of games. Before there was a game called Doom, there wasn't a 20-year history of "doom games."
      Apple is a generic term when it comes to fruit. It's a distinctive term in the context of computers. That difference matters.

      reply to this | link to this | view in chronology ]

      • identicon
        Thad, 11 Apr 2017 @ 11:58am

        Re: Re:

        "Dungeons and Dragons" is a weird non sequitur in his list, too. Yes, they're three generic words, but they're combined in a unique order. It's not like the words "Dungeons", "Dragons", or "and" are trademarked; only those three words in that specific order. It's not as if Nickelodeon's trademark on "Teenage Mutant Ninja Turtles" is a trademark on those four individual generic words, in isolation from one another.

        reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 12 Apr 2017 @ 2:51am

      Re:

      ""Dungeons and Dragons" is trademarked."

      I get what you're saying with the others, but I'm pretty sure the trademark came well before anyone was using it generically.

      reply to this | link to this | view in chronology ]

    • identicon
      Chuck, 13 Apr 2017 @ 9:17am

      Re:

      It should be noted that, other than "Battlefield" literally everything on your list is the complete name of an actual game. The first Mafia game wasn't named "Mafia 1" but just "Mafia" and the first DOOM, GTA, etc were likewise actually named those things. So is the DOOM remake. Destiny is obviously just named "Destiny."

      As for Battlefield, to my knowledge every single game in that franchise is followed by a number. On the other hand, that's an EA game, so given EA's history with IP, I'd expect nothing less (or nothing more) from them.

      So...your examples don't negate the problem here. They should've just trademarked "CYBERPUNK 2077" instead of "Cyberpunk" and by this point, I hope they know that. Like I said above, even if they never sue anyone over it, it just LOOKS nefarious, and CD Project Red is savvy enough to know exactly how this looks.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Apr 2017 @ 9:18am

    They can have the word, but the first time they file a lawsuit against someone for using it, they will not see any more $$ from me.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Apr 2017 @ 10:02am

    All said, this turn of events is cyberpunk af.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Apr 2017 @ 2:03am

    They don't need to lock the term in the EU. But they need to make sure no abusive Rightsholder can lock it in.

    THat is why they have to apply for, but not win the trademark rights. If they are denied for being to generic, that's perfectly fine and probably completely enough for CDPR. Because then, if ever someone else applies for this, they can defend by pointing to this denial.

    It's more a case of "if anyone can hold this trademark in the EU, we want it to be us. If it's decided noone is allowed to hold it, everthings allright, too." Becaus eif noone else can hold it, noone can abuse it against them.

    Yes, the moral high road would be not to try. Yes, the ideologically sound thing to do would be to "boycott" stupid trademarks by not applying for them. But the practical reality is: as long as someone does grant stupid trademarks, you need to ensure they grant them to you, not to a possible attacker.

    reply to this | link to this | view in chronology ]


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