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.


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  • icon
    Stephen T. Stone (profile), 26 Nov 2018 @ 4:04pm

    Maybe they should put “Edge” in the title just for the hell of it.

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

  • icon
    Gary (profile), 26 Nov 2018 @ 4:06pm

    Unfortunately

    Fortunately, the real bar when it comes to trademark law is customer confusion in the marketplace.

    Or, it just comes down to larger companies having more lawyers.

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

  • icon
    ECA (profile), 26 Nov 2018 @ 6:03pm

    Love the idea..

    1 corp buys out another and can use that NAME forever and longer. 6 major Ex-companies were bought out, and 1 of them Now can produce All of the ex products, any way they wish..

    90% of Frig's, stoves, washers, dryers are all held by 1 corp now..and it dont really matter the name..
    and you wonder why Quality gets lower, and FEW corps compete..

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

    • identicon
      Paul Brinker, 26 Nov 2018 @ 6:16pm

      Re: Love the idea..

      Note that when things get too cozy you do get new people in a market place who bring new ideas to products. Samsung entered the appliance market in 2014 or so and now is carried in every major home store and appliance seller, generally as a more expensive brand.

      Memory foam mattress did the same thing, they were able to take on the the market because the entire market was owned by wall street firms who only wanted rent.

      Other situations are caused by key pattentents expiring. 3D printing is one area where this was huge. 20 years ago 3D printing was for CNC shops and rapid prototype labs. Today I can print things using a wide range of material in my garage.

      Often when a market gets cornered, the players de-invest in R&D and instead try to collect rent. Should a new player join the market the #1 strategy is to buy them out so you can keep collecting rent. When this fails, you get market disruption, new products, and often quality improvements.

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

      • icon
        Gary (profile), 26 Nov 2018 @ 10:14pm

        Re: Re: Love the idea..

        The explosion of 3d printing is a perfect example of how patents brought that technology to a screeching halt. Even now, manufacturers have new features and process they are dying to introduce but are waiting for the patents to expire.

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

      • identicon
        Anonymous Coward, 27 Nov 2018 @ 4:08am

        Re: Re: Love the idea..

        Pattentents: Patents used merely for rent-collecting or market-locking.

        I am a great fan of interesting typos.

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

      • identicon
        Shaz, 5 Dec 2018 @ 8:17pm

        Re: Re: Love the idea..

        "Note that when things get too cozy you do get new people in a market place who bring new ideas to products. Samsung entered the application development revglue(.)com/bespoke market in 2014 or so and now is carried in every major home store and appliance seller, generally as a more expensive brand.

        Memory foam mattress did the same thing, they were able to take on the the market because the entire market was owned by wall street firms who only wanted rent.

        Other situations are caused by key pattentents expiring. 3D printing is one area where this was huge. 20 years ago 3D printing was for CNC shops and rapid prototype labs. Today I can print things using a wide range of material in my garage.

        Often when a market gets cornered, the players de-invest in R&D and instead try to collect rent. Should a new player join the market the #1 strategy is to buy them out so you can keep collecting rent. When this fails, you get market disruption, new products, and often quality improvements."
        I agree with you there, original ideas are rare but they sure bring a boost to the company that introduce it.

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

  • identicon
    Anonymous Coward, 26 Nov 2018 @ 9:20pm

    Minecraft is usually stylized Minecraft, not MineCraft, guys. Just saying.

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

  • identicon
    Anonymous Coward, 26 Nov 2018 @ 11:56pm

    Uhh, the Conflict + <whatever> formula in no way reminds me of any existing game actually. The closest that comes to mind is World in Conflict (WIC) which is totally different, and also not a series brand, just a single game.

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

  • icon
    nooralam57721 (profile), 27 Nov 2018 @ 5:41am

    Unique Idea

    Seems you are creating some kind unique idea but productive

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

  • identicon
    Anonymous Coward, 27 Nov 2018 @ 6:03am

    Shouldn't it be title + author/publisher?

    With books, many different authors publish tomes with the same title, and even same series name. This has been going on for ages, and I always just thought that the lack of confusion in these trademarks were due to the title+author combination (or something like that).

    Why is the game publishing industry so different? Two games could have exactly the same title, but if they're from different companies there shouldn't be any confusion.

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

  • icon
    Ninja (profile), 27 Nov 2018 @ 9:00am

    Square. They made their way into my "Not BUYING" list alongside with the likes of EA for a while now. They were struggling a while ago. Too bad they didn't die yet.

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


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