Oct 5, 2011

Mojang vs. Zenimax: the court papers

We've been posting about Minecraft for a while now on this blog, but we haven't really talked about Mojang's ongoing lawsuit with Zenimax Media, owner of game studios like id and Bethesda. Frankly, we think the whole thing is stupid, and have been hoping that Zenimax would come to their senses. If you don't know what's going on, in very brief summary, Mojang are releasing a game called "Scrolls", and Zenimax are suing them over it, claiming it violates the copyright on the "Elder Scrolls" series.

Yesterday, Kotaku ran an article on the lawsuit that took a new slant on things by painting Mojang as the villain of the piece. Titled Mojang v. Bethesda, or: I Hate it When Mommy and Daddy Fight, in it author Russ Pitts makes the case that Zenimax are merely defending themselves against a nefarious bid by Mojang to "patent" [sic] the word "Scrolls" and thereby, in fact, sue Zenimax.

If one were to attempt to judge based solely on Twitter and the blogs, Zenimax would appear to be the bad guy here. Notch, perhaps attempting to bolster that perception, has put on his hurt face, claiming Zeni is "picking on the little guy." But after looking at Mojang's "Scrolls" patent application, I'm not so sure the case is as black and white as many would seem to believe.


In other words, Mojang intends to own the word "scrolls" in pretty much every form of visual entertainment media, not just in videogames. This means that, if the trademark is upheld, the company could rightly take action against anyone else using the word "scrolls" in any form of media whatsoever. Now, that would only be a problem if you were a successful media company planning to use the word "scrolls" in some form of entrainment media … Oh wait … that's right. If you're Zenimax, this trademark fucks you. Hard.

The Kotaku piece has generated some acrimonious commenting and twittering, including several people attacking Notch and calling him a liar. Now we're going to participate in the discussion! To be specific, three things annoy us about that article:

1) the cavalier approach it takes to intellectual property law

2) its misrepresentation of events

3) the fact that Kotaku freely admit they can't read the legal documents, but write about them anyway

For the last point, simply see Kotaku's article Notch Vs. Bethesda: The Court Papers, where they link to said papers, but admit they don't know what they say.

While Kotaku has the documents in question, no one here speaks Swedish.

That, of course, doesn't stop them from running an article where they make Mojang out to be the bad guys.

On this blog, however, we can read Swedish, so we've had a look at the court documents. You can find them here. They tell a story that's quite different from the one invented by Mr Pitts.

A disclaimer: we're not lawyers. We're just reading what we've been shown. This blog post simply consists of our personal opinions on the case and on Mr Pitts's article about it. As we've understood things, the legal documents published by Mojang are in the public domain.


Mr Pitts's allegation is that Zenimax are suing Mojang over Scrolls to prevent Mojang from, in turn, suing Bethesda over The Elder Scrolls. He puts forward the notion that Mojang's ""Scrolls" patent application" [sic] is so broad that if Zenimax doesn't sue to stop them, they will be in a position to stop Zenimax from releasing Elder Scrolls games.

If the trademark is valid, Mojang would be able to claim infringement and potentially take Zenimax to court. They might not win, considering Zeni's ownership of the trademark preceded Mojang's, but Mojang could force Zenimax to settle or face an injunction which would keep all of those millions of copies of Skyrim off of store shelves and out of the hands of gamers, depriving Zeni of many, many millions of dollars in revenue.

He goes on:

Seem unlikely? Think again. Companies do this all the time.

Using the power of hypertext, Pitts links to four examples of "companies doing this all the time" from that sentence. Let's look at them.

#1: Trench vs. Trenched

MCV: Trenched blocked by board game trademark

Upcoming XBLA title Trenched has been blocked from release due to a trademark dispute with a board game.

Eurogamer reports that the game clashes with trademarks held by an abstract Portuguese board game Trench. The trademark was filed by Trench's designer Rui Alípio Monteiro in 2007 and covers both board games and computer games.

Like Double Fine's Trenched, the board game is based on military strategy and is set during World War I.

The video game Trenched was eventually released as Iron Brigade. This doesn't seem to me to be a case of a company maliciously suing another to cause millions of dollars of damage; instead, the Portuguese board game's designer had a pre-existing trademark on a World War I game of practically the same name, which he was planning to expand into a video game. It seems reasonable that his claim would be upheld.

#2: Apple vs. Amazon

CNN Money: Amazon wins skirmish in 'App Store' battle with Apple

NEW YORK (CNNMoney) -- Apple has been dealt a blow in its "App Store" trademark case, with a federal judge denying its request for an injunction to stop Amazon from using the term.

Apple filed a lawsuit against Amazon in March, saying that it has used the term "App Store" since 2008 and applied for a trademark at that time. Apple argued that Amazon's "Appstore," an Android marketplace that launched in March, infringes on the trademark and is confusing to customers.

Amazon fired back, saying the mark is generic and therefore not protectable -- and even if it weren't generic, Apple "cannot demonstrate any likelihood of confusion."

Judge Phyllis Hamilton mostly sided with Amazon in her ruling on Wednesday in California district court, in which she denied Apple the injunction it sought.

Hamilton wrote that she "does not agree with Amazon that the mark is purely generic," but also said that "there appears to be no need for a leap of imagination to understand what the term means."

Apple failed to prove its main points, she said, including: that Amazon's "Appstore" name will confuse customers, that it infringes on Apple and that it dilutes Apple's brand.

Here we have Apple being the evil corporation that we consider them to be, effectively trying to make the word "app" an Apple trademark instead of a generic term. Again, I'm not sure how Amazon and Apple fighting over a word are anything like Zenimax and Mojang. Note, if you like, that even though the court didn't agree that the term is generic, they still denied the injunction.

#3: Tim Langdell vs EA

Techdirt: Court Denies Injunction Against EA Over Tim Langdell's 'Edge' Trademark; Slams Langdell

We've covered a few different stories about a guy named Tim Langdell who held a trademark on the term "edge" in video games, which he had used many years ago, and still sorta kinda maybe uses as part of his operation, "Edge Games." And yet, he seemed to think that trademark law means he owns the word, as it relates to video games, forever. So he's been threatening iPhone developers and sued EA, claiming the company's Mirrors Edge series violates his trademarks. EA has fought back strongly against the claims, and Brian alerts us to the news that a court has denied Langdell's injunction request and slammed Langdell in the process, suggesting underhanded practices which could result in criminal penalties.


When a judge calls you a troll and threatens you with criminal penalties in a lawsuit you initiated... you've got problems. Reading through the actual ruling is incredible, in what it describes about what Langdell has done.

The article describes Dr Langdell's doctoring of evidence, including sending the court photoshopped images (!), which in our opinion is more like fraud than a legitimate copyright case. Essentially, Dr Langdell claimed that his trademark on the name "Edge" stops EA from releasing Mirror's Edge, because it contains the word "edge". His suit was thrown out of court.

Dr Langdell is especially relevant to the case at hand, because Mr Pitts refers back to him later. But we'll get to that.

#4: Activision vs EA

Joystiq.com: Activision 'Rocktober' trademark conflicts with EA's Brutal Legend marketing

When Activision sent out a press release this morning regarding a Guitar Hero DLC discount, we couldn't help but notice a tiny trademark symbol dangling precariously above the term "Rocktober™." That got our mind grapes juicing: Isn't that the term EA has been using to market Brütal Legend's upcoming [strikethrough: October] Rocktober 13 release? It is!

Lo and behold, we turned up an Activision trademark filing for "Rocktober" dating all the way back to 2007. An EA representative was unable to comment at the time of this posting, but assured us we'll have an official statement from the publisher soon. We've also reached out to Activision for its side of the story. In the meantime, we've dropped the text from Activision's press release -- or as it's no doubt being dubbed by lawyers, Exhibit A -- after the break.
Activision press release:

The article doesn't actually mention either company suing the other, i.e. "companies doing this all the time"; what it says is that a third party noticed both EA and Activision were promoting their games using the word "Rocktober", which Activision had apparently filed a trademark on. This doesn't seem to have anything to do with the Zenimax-Mojang case.


Having provided these links, Mr Pitts goes on to directly compare Mojang to Dr Langdell:

Besides, if Mojang were as naive and innocent as Notch claims, why the far-reaching trademark application? If one were being generous, one could assume that Mojang is simply attempting to cover all potential bases, which, for a game as potentially all over the map as Scrolls could make sense. But if we're drawing comparisons to the case of Tim "Edge" Langdell (and I am), it pays to remember that Langdell was the one who applied for broad and far-reaching trademarks on the use of a single word, who attempted to sue EA over Mirror's Edge and Future Publishing over Edge Magazine and many, many other companies large and small, and who, ultimately, was pilloried for obfuscation and fraud.

While the comparison may seem attractive on the surface, it's rather more complicated than that. Dr Langdell seems to have effectively run a phantom game company, given that he had to photoshop and otherwise concoct evidence that he was actually doing any real business. As the court ruling puts it:

...given the suspect nature of Dr. Langdell’s representations to both the USPTO and the Court concerning plaintiff’s current and future sales and business activities, it is an open question whether plaintiff’s business activities legitimately extend beyond trolling various gaming-related industries for licensing opportunities.

The court effectively found Dr Langdell to be a copyright troll who maintains a fake game company solely in order to sue real game developers. So drawing a direct analogy to Mojang is a substantial accusation that we feel shouldn't be made lightly, or in fact at all.


So Mr Pitts's scenario is that Mojang are copyright trolling by launching a game called "Scrolls" and trying to trademark the name, planning to later sue Zenimax for infringing it with the Elder Scrolls series.

That's nonsense. Not because of any knowledge or assumptions I have about Mojang, as Mr Pitts puts it:

This begs the question of whether or not Mojang would ever do such a thing. "Surely the cute and fluffy, fan-friendly designers of the cult-hit Minecraft would never play such a down-and-dirty trick," you might say, and I, for one, would love to believe that to be true. But if you're Zenimax, and you're sitting on a multi-million dollar videogame franchise with the word "scrolls" in its title, you can't take that chance.

It's nonsense for a simple reason:

Mr Pitts doesn't seem to understand what a trademark is. Indeed, throughout the article he seems to confuse trademarks with patents. Trademarking a name doesn't give the trademark holder sole authority to decide who gets to use that name for any purpose. Mr Pitts claims:

In other words, Mojang intends to own the word "scrolls" in pretty much every form of visual entertainment media, not just in videogames. This means that, if the trademark is upheld, the company could rightly take action against anyone else using the word "scrolls" in any form of media whatsoever.

This is absolute rubbish. It is, however, delightfully taken to its logical conclusion in one of the comments to Mr Pitts's article:

They would own the trademark to anything with "Scrolls" in it. Not just use of the word "Scrolls" on its own.

Including libraries of historical documents.

Yes. Because that's exactly how trademarks work.

A trademark protects against products that might be confused for the trademarked product. For example, in one of the cases Mr Pitts quoted, a Portuguese game company successfully filed suit for trademark infringment against another company. The case was upheld because the WWI computer game "Trenched" was so similar to the WWI board game "Trench" that they might be confused for each other; someone buying the computer game might think it was based on or affiliated with the board game. That seems perfectly reasonable. It doesn't mean that no-one can ever use the word "trench" in the name of a game, let alone that the Portuguese company suddenly "owns" all World War I books or trench coats. Using Mr Pitts's logic, however, the Trench trademark would mean that no-one can ever include the word "trench" in the title of a video game. Trademark law simply doesn't work like that.

Mojang's trademark for Scrolls doesn't mean they've somehow "patented" the word "Scrolls", as Mr Pitts implied. It also doesn't mean they "could rightly take action against anyone else using the word "scrolls" in any form of media whatsoever". It doesn't even mean that they can sue anyone who has the word "scrolls" in the title of their game. No: it means that if someone else releases a game called Scrolls or something very similar, that consumers will mistake for Mojang's Scrolls, then Mojang can take action.

Under US law, in a case of trademark infringment the plaintiff has to prove the infringing trademark is the same as, or similar to, their trademark. The court determines whether the trademark has been infringed upon by using the "Sleekcraft factors", so named after a Supreme Court case that set them out. Those factors are:

1. Strength of the mark
2. Proximity of the goods
3. Similarity of the marks
4. Evidence of actual confusion
5. Marketing channels used
6. Type of goods and the degree of care likely to be exercised by the purchaser
7. Defendant's intent in selecting the mark
8. Likelihood of expansion of the product lines

In other words, in a trademark infringment case, the party bringing the case has to prove that they have a valid, pre-existing trademark, and the product they claim is infringing on their copyright is sufficiently similar that consumers can be misled into thinking they are buying one when in fact they are buying another.

Mr Pitts's scenario of Mojang suing Zenimax over, say, Skyrim, is patently ridiculous and would be thrown out of court in any jurisdiction. Zenimax have been publishing "Elder Scrolls" games for 17 years and, indeed, own the trademark to "The Elder Scrolls". To obtain an injunction, Mojang would have to demonstrate that their trademark to "Scrolls" (from 2011) is stronger than Zenimax's far older, better-established, multi-million-selling "Elder Scrolls" trademark, and that Zenimax are intentionally selling and marketing Skyrim in such a way as to confuse consumers into buying it, thinking that they were buying Scrolls. The very idea is laughable. We don't, for one minute, believe that Zenimax's lawyers really feel that a trademark on "Scrolls" would threaten their upcoming release of Skyrim.

Such a hypothetical lawsuit would be dismissed as pure trademark trolling, exactly like Dr Langdell's suit against EA was. Given that Mr Pitts diretly refers to Dr Langdell's lawsuits and the Trench-Trenched lawsuit, it's puzzling that he doesn't seem to understand how trademark law works. Mojang could not "rightly take action against anyone else using the word "scrolls" in any form of media whatsoever", because they don't have, and couldn't get, a trademark on the word "scrolls" in "any media whatsoever".

Mr Pitts makes much of the fact that Mojang's trademark application includes things like TV shows and clothing, again failing to understand that this trademark would only cover TV shows, movies, clothing and whatnot directly related to the game "Scrolls". It doesn't cover any movie or clothing line that uses the word "scrolls" in any context, just ones that could reasonably be thought to be related to the game. Just yesterday someone tweeted to Notch, saying Mojang's trademark of Scrolls "would even be hurting book writers". Again, this would only be true of books that could be reasonably thought to be connected with the game Scrolls, not any book with the word "scrolls" in it.

In coming up with a scenario like this, predicated on the false assumption that "Mojang owns the rights to the word "scrolls"", Mr Pitts is simply demonstrating his ignorance of trademark law. His notion that succesfully trademarking "Scrolls" would jeopardize Zenimax's Elder Scrolls franchise is nonsense. Notch has also since stated that Mojang offered to drop its trademark of Scrolls in exchange for Zenimax dropping the lawsuit, but this was rejected. That would seem to be the final nail in the coffin of Mr Pitts's theory


While we're puzzled as to why someone would write a lengthy attack on a game company engaged in a trademark lawsuit without even seeming to know what a trademark is, we're even more confused that the same author would posit motivations for Zenimax in filing the suit without having even read the papers they filed. As we mentioned earlier, they are available online, and make for interesting reading.

Zenimax's case against Mojang is based on the allegation that Mojang are deliberately releasing a game called "Scrolls" to fool customers into confusing it with Skyrim. Yes, you read that right. Far from claiming that Mojang intend to trademark troll them, as Mr Pitts maintains, they are postulating a conspiracy by Mojang to confuse customers.

Zenimax are claiming that Mojang are using the name "SCROLLS" to market "identical or similar" goods to those covered by Zenimax's trademark for "THE ELDER SCROLLS". Both terms are capitalized throughout. They assert (sections 3.1-3.5) that they own the trademark to "THE ELDER SCROLLS", have been releasing Elder Scrolls games for 17 years and sold millions of copies. That's fair enough, but then things start to get interesting.

They maintain that Mojang are using the "confusable" title "Scrolls" to market their video game to be published in 2011 (3.7), despite knowing about Zenimax's plans to publish an Elder Scrolls game in 2011. They quote an interview with Notch, where he says he's played Oblivion, to prove that Mojang know about the Elder Scrolls series (3.8).

In section 3.9, the conspiracy theory begins. We'll quote:

Vidare är klarlagt att Mojang är metvetna om den kommande lanseringen av THE ELDER SCROLLS V: Skyrin och att Mojang har för avsikt att dra fördel av kännedomen om spelserien THE ELDER SCROLLS. Efter att ZeniMax tillkännagav att THE ELDER SCROLLS V: Skyrim skulle lanseras den 11 november 2011 tillkännagav Mojang att de skall lansera den slutliga versionen av sitt första spel MINECRAFT på samma datum. Vid tillkännagivandet uppgav Markus Persson att datumet sammanfaller med lanseringen av ett par andra spel och filmer, däribland Skyrim, och att den inofficiella motiveringen var "us too" (Sv "vi också"), bilaga 9. Mojang har därefter antytt att spelet inte kommer att lanseras på detta datum. En samtidigt lansering av MINECRAFT och THE ELDER SCROLLS V: Skyrim utgör visserligen inte direkt intrång i ZeniMax varumärkesrättigheter. Det är emellertid uppenbart att Mojang därigenom avser att i konsumenternas ögon koppla samman lansering av MINECRAFT med lanseringen av THE ELDER SCROLLS V: Skyrim och därmed dra fördel av den internationella kännedom som upparbetats kring spelserien THE ELDER SCROLLS.

Our boldface. Translated, the last two sentences read approximately:

A simultaneous release of MINECRAFT and THE ELDER SCROLLS V: Skyrim does not really violate Zenimax's trademark rights. It is, however, obvious that Mojang intend thereby to join in the consumers' eyes the release of MINECRAFT with the release of THE ELDER SCROLLS V: Skyrim and thereby take advantage of the international fame of the game series THE ELDER SCROLLS.

That's... ridiculous. They're really saying that Mojang picked 11.11.11 as the release date for Minecraft in order to leech on Zenimax's PR, as opposed to picking it because, well, it's 11.11.11.

As a note of legal interest, they run through the criteria for trademark infringement, including similarity between the marks, the actual goods or services, and how well they're known on the market (4.2). And further, in 4.3-4.5, they make the case that the overall judgment on the case must take into account the likelihood that the "average consumer" will confuse the two marks.

The document refers to some cases brought before the European Court of Justice. In Gut Springenheide GmbH and Rudolf Tusky v Oberkreisdirektor des Kreises Steinfurt - Amt für Lebensmittelüberwachung, the ECJ ruled the following:

37 The answer to be given to the questions referred must therefore be that, in order to determine whether a statement or description designed to promote sales of eggs is liable to mislead the purchaser, in breach of Article 10(2)(e) of Regulation No 1907/90, the national court must take into account the presumed expectations which it evokes in an average consumer who is reasonably well-informed and reasonably observant and circumspect. However, Community law does not preclude the possibility that, where the national court has particular difficulty in assessing the misleading nature of the statement or description in question, it may have recourse, under the conditions laid down by its own national law, to a consumer research poll or an expert's report as guidance for its judgment.

Our boldface. This is effectively the same requirement as the wonderfully named "moron in a hurry" rule of English case law. Wikipedia:

It appears to have been used first by Mr Justice Foster in the 1978 English legal case of Morning Star Cooperative Society v Express Newspapers Limited [1979] FSR 113.[1] In this case, the publishers of the Morning Star, a British Communist party publication, sought an injunction to prevent Express Newspapers from launching their new tabloid, which was to be called the Daily Star. The judge was unsympathetic. He asked whether the plaintiffs could show:

a misrepresentation express or implied that the newspaper to be published by the defendants is connected with the plaintiffs' business and that as a consequence damage is likely to result to the plaintiffs

and stated that:

if one puts the two papers side by side I for myself would find that the two papers are so different in every way that only a moron in a hurry would be misled.

The "moron in a hurry" was also cited in the Beck v. Eiland-Hall case, featuring the infamous Glenn Beck.

So under trademark law, when Mojang has a trademark for "Scrolls" and Zenimax has a trademark for "Elder Scrolls", it doesn't follow that Mojang's trademark means they automatically own the rights to everything with the word "Scrolls" in it. Instead, as explained in Sabel BV v Puma AG:

Mere association alone is not enough to justify a finding of a likelihood of confusion

As we explained, Mojang's trademark for Scrolls doesn't mean they can sue anyone who has the word "scrolls" in the title of their game. It means that if someone else releases a game called Scrolls or something very similar, that consumers will mistake for Mojang's scrolls, then Mojang can take action.

Similarly, Zenimax's existing trademark on "The Elder Scrolls" doesn't mean they "own" that phrase or any of the words in it. Instead, to uphold their claim of trademark infringement against Mojang, they must demonstrate that a "reasonably well-informed and reasonably observant and circumspect" consumer would mistake Mojang's Scrolls for Skyrim.

This is what Zenimax sets out to prove in the papers they filed in Stockholm, and frankly, we find it amusing. The best part is 4.14:

Även innehållet i de dator- och videospel som tillhandahålls eller planeras att tillhandahålls under de motstående kännetedknen uppvisar stora likheter. Båda är exempelvis äventyrsspel som innefattar magi och utspelas i en bergsrik fantasivärld. Dessa likheter är uppenbara vid jämförelse mellan den officiella trailern för ZeniMax spel THE ELDER SCROLLS V: Skyrin som lanserades 23 februari 2011 och den första trailern för Mojangs spel SCROLLS som lanserades den 25 augusti 2011. Representativa skärmbilder och kopior av respektive trailer lilägges, bilaga 13-15.

In this section, Zenimax claims that the content of the games is very similar. The boldfaced sentence reads: "Both are, for example, adventure games that include magic and take place in a mountain-rich fantasy world." As proof, they offer the official trailer for Skyrim, which has mountains, adventure gaming and magic in it, and the Scrolls teaser, which has no gameplay footage at all, but admittedly does include some mountains.

This is where it all gets really stupid. On scrolls.com, the game is described as follows by Jakob Porser, its lead designer:

The game we envisioned had elements from the collectible card game genre as well as from traditional board games. It would be a strategic game with a strong foundation in tactical game play but with a touch of random and chance guaranteeing a never-ending stream of curve balls. You would control the outcome of battle by creating, modifying and refining your arsenal to overcome the obstacles in your path. The game would challenge you with ever changing content and let you explore the world and cleanse the lands of harm, one monster at the time. It would give you the opportunity to test yourself with your peers by battling other players using a long list of tournament templates ranging from friendly matches to ranked league matches. From quick, small sized tournaments to world championships!

Notice that it says "collectible card game genre" and "traditional board games". Here's how the game was discussed in an article on Wired UK this March:

Wired UK: Scrolls: Minecraft creators reinvent collectible card games

Swedish independent games developer Mojang, which is behind the phenomenally-successful Minecraft, has announced its newest title -- Scrolls.

Scrolls will be a hybrid of collectible card games, such as Magic: The Gathering, and boardgames. Players place different units, buildings and siege weapons on a virtual gameboard, assembling a collection of scrolls to play from before the battle begins. To win, you'll need to balance up spells, units, equipment and resources. Some sample cards can be seen in the gallery above.

"I don't think there are many similarities between Minecraft and Scrolls, if any," Jakob Porser, lead designer on Scrolls told Wired.co.uk. "I guess you could say that both games encourage the player to actively take part of the game and not just sit idle as a story unfolds in front of them, but as for genre they really do not have anything in common."

Where, in all this, do you get an adventure game set in a mountain-rich environment? Here's some sample cards from Scrolls. Cards, because it's a CCG.

How can anyone in their right mine confuse that with Skyrim? To paraphrase the "moron in a hurry" idea, how much of a moron, and in how much of a hurry, would you have to be to think Scrolls was Skyrim?

Here we'll gladly submit ourselves as evidence. It should be obvious to anyone reading this blog that its authors are complete morons. Yet even we never confused Scrolls for Skyrim. The short introductory text on the scrolls.com website was enough for us to realize that Scrolls is a lame Magic: The Gathering rip-off, and we're not interested. Meanwhile, we've been under the constant impression that Skyrim won't be a collectible card game but, in fact, a role-playing game. Or, if you like, an adventure game involving magic and all that.

As we said earlier, The Elder Scrolls series is a 17-year-old, multi-million-selling game series of no small fame in the gaming community. Indeed, Zenimax themselves allege just this in the papers they filed. Yet they're claiming that gamers will accidentally go online and download Scrolls, thinking that they're going on Steam or down to the shops to buy Skyrim. Further, they're saying that Mojang are deliberately trying to confuse people into doing that.

They go even further in 5.5, where they maintain that Mojang's plan to give out alpha versions of Scrolls at Minecon 2011 will "dramatically increase the damage to Zenimax".


In our opinion, there's no way any "reasonably well-informed and reasonably observant and circumspect" average consumer is going to accidentally download Scrolls, thinking that they're buying Skyrim. Surely gamers can tell the difference between a downloadable card game and a mass-marketed computer role-playing game. What makes the Zenimax case totally ridiculous is that they either don't realize that Scrolls is a collectible card game, or they're deliberately misrepresenting Scrolls to the court. We anticipate Mojang should have a fairly easy time pointing out that Scrolls is not, in fact, an adventure game involving magic, set in a mountain-rich environment.

Only a complete moron with their hair on fire could possibly buy Scrolls and think he had bought Skyrim.

We think - and this is pure speculation - that Zenimax were gambling on Mojang not risking a court case and the risk of substantial damages. Now that they are going to court, in our opinion Zenimax's case rests entirely on substantiating a plot by Mojang to deliberately hoodwink customers into confusing Scrolls and Skyrim. We find it hard to imagine that succeeding. Apparently Mojang feel the same way, which is why they're going to court. We applaud their bravery in doing so.

We don't know why Mr Pitts wrote his uninformed attack on Mojang and attempted to brand them as dishonest trademark trolls, and it would be illiberal of us to speculate, let alone to speculate on the motivations of people who were prompted by Mr Pitts's article to attack Notch on Twitter. We don't want to make the opposite case, either, and claim that Zenimax is an evil corporation bullying independent game developers around with its legal department, even if we wouldn't be the only ones saying that. We don't know if there's a villain in this story at all. Maybe Zenimax genuinely do believe that Mojang are dealing dishonestly, although we find that difficult to swallow. It's even harder to believe the case Zenimax are making. For all we know, though, they may even be right. We can't claim any insight into Mojang's operations.

Overall, we find ourselves at an uncomfortable impasse, because even though we think Mojang's Minecraft is one of the best PC games ever made, we think The Elder Scrolls III: Morrowind shares that distinction. We were also pleasantly surprised by Fallout 3 and Fallout: New Vegas, both excellent Bethesda games published by Zenimax.

Even if there isn't a villain in this story, though, in our opinion Zenimax is certainly acting like one. Unless their claims of Mojang's malicious intent are conclusively and thoroughly upheld in court, this will look like a big game company trying to trample all over a popular independent developer. Even worse, they're grossly misrepresenting what Scrolls is in an attempt to get money from Mojang. If they were really this concerned about the integrity of their trademark, wouldn't they go after, say, the browser game "Scroll Wars"? That actually is an RPG, unlike Scrolls.

In this day and age, we think few people are going to side with the big corporation making unreasonable accusations against the cheerful, sympathetic indie developer. It's a virtual certainty that the bad PR from this lawsuit has already caused far more damage to Zenimax than any hypothetical Skyrim sales lost to Scrolls ever could.

As for Mr Pitts's article and the people attacking Notch and Mojang because of it, we can only bemoan the fact that in the Information Age, people can't even be bothered to find out what a trademark is before accusing Mojang of "trying to patent a word". Clearly these people have access to the Internet; they could try to make at least some effort to understand how trademarks work before, say, writing an article that tries to make Mr Persson into Dr Langdell. It reflects poorly on Kotaku that they should publish such an ill-informed personal attack during a fairly high-profile court case.


Anonymous said...

You wrote a very intelligent and thoroughly argumented article. I thank thee.

On a side note: I couldn't help but notice that the logo of the Swedisch law firm (DLA Nordic), is strikingly similar to that of Mojang. Irony.

Hmmm said...

You're missing the point of the suit. It's not about confusion over past games, it's about the future. Zenimax is making a new MMO based on the Elder Scrolls. Maybe they wanted to title it: Scrolls Online. More to the point, say they go with Elder Scrolls Online and it becomes incredibly popular. What comes next? Blizzard released a WoW based CCG so a CCG based on the Elder Scrolls Online is not out of the question. What do you call the CCG. The Elder Scrolls CCG. Is confusion possible between an Elder Scrolls CCG and a Scrolls CCG.... ?

Waffleyone said...

Thank you kindly for your article. I ended up writing a huge reply to post to Kotaku, inspired by your post, but sadly I don't have the permissions...

I won't hazard you with the whole thing, but I found the actual trademark stuff, you can look it up too with the USPTO (number 85323305)

Furthermore, some of my thoughts:

At this point, it is lawyers exploiting companies. You have to do this, you have to do that, blah blah blah, we know this stuff better than you, give us lots and lots of money. Nobody stands to gain from these lawsuits other than the lawyers, who will do everything they can to draw them out as long as possible - the results are irrelevant, the legal costs will be paid no matter what the outcome. Whether it costs $50,000 or $50,000,000, the lawyers win, the company who comes out ahead breaks even, maybe ahead a little, and the other one loses horribly.

What is going on at Zenimax and Mojang are probably pretty reasonable, I don't think either are villians here, but rather the legal system doing its job (being a horrible, vicious, obfuscated money sink) and companies doing what they think they must (Zenimax being the active aggressor, as they're the side filing lawsuits).

It is true, however, that the scope of Mojang's attempted trademark of "Scrolls" is ridiculous. It covers all forms of: 1) Software, 2) Apparel, 3) Toys/Games/Playthings, 4) All electronic entertainment and communications media. This would be for any and every font/style/size/color of the word "scrolls". Essentially it would provide commercial control over the word for all entertainment and apparel indefinitely.

Rather than a company's attempt to control commercial use of a word indefinitely, it looks like an amateur company that hasn't decided on a particular logo/typeface being dumb and trying to make way too broad of a trademark claim.

Waffleyone said...

I apologize a bit: At the end there I lost track of what you had been saying, I got foolish.

Mojang's attempted trademark would potentially stop anyone else from trademarking "Scrolls" for those things, even when differing substantially, and allow legal repercussion should anyone attempt to duplicate their stuff.

The trademark attempt is overly broad regardless, I tend to think.

Michael Halila said...

You're missing the point of the suit.

You didn't read the post. Zenimax aren't talking about CCGs, they're claiming that Scrolls is an adventure game. If their concern was the future expansion of the products, why didn't they say so? Are you saying that Zenimax are deliberately lying to the court?

The trademark attempt is overly broad regardless, I tend to think.

In what way? They're trying to trademark the name of their game, so other people can't publish a game that consumers might confuse for their game. That's exactly what Zenimax did with Elder Scrolls and what all game companies everywhere do. Did you know Zenimax has trademarked the word "Fallout"? Is that overly broad and unreasonable?