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Hail to the lawyers, baby!
November 30th 2000, 19:51 CET by Andy Time for a quick update on 3DRealms' trademark shenanigans... For those who don't know, the phrase "Hail To The King" was used in an Evil Dead film. (It was also used by Elvis, and no doubt a few real kings too, but that's beside the point.) The guys at Apogee/3DR liked Evil Dead so they took the King line and gave it to Duke Nukem. Then they decided to claim "prior use" and trademark the line, which pretty much everyone agrees was a sucky legal stunt. Back in July we reported that the "Hail To The King" trademark was owned by THQ, publisher of the Evil Dead computer game, despite Apogee claiming otherwise in their intellectual property license. Apogee's Scott Miller said that although THQ's claim was listed in the US patent office database, it would be challenged by Apogee, and of course he expected THQ's registration to be overturned. Four months later, THQ's registration is still listed, but another two have turned up. Both are 'owned' by Apogee, or rather, they're owned by: "Apogee Software, Ltd. composed of the following general partner: Action Entertainment Software, Inc., which is a corporation organized under the laws of the State of Texas." They were actually filed before we covered the story in July, but weren't listed in the database at that time. One registration is for "Hail To The King" in the categories of videos and laser discs, television, "computer games provided and played through a global computer network" and "performances by a musical rock group". (THQ's registration covers the general category of computer and console games.) The other registration is for the full "Hail To The King, Baby!". It covers a huge range of products in over 30 categories, including computer games, mouse pads, magazines, children's colouring and activity books, "news sheets and news bulletins featuring computer game characters", greetings cards, newspaper comic strips and clothing. And stick-on tattoos. And bathroom tissues. And a lot more. It's not known if Apogee's challenge to the THQ's ownership of "Hail To The King" has either failed or succeeded yet, or how it's progressing. As for why Apogee believes it has a claim to the full "Baby!" line in the other categories, especially TV and video cassettes with a first use date of April 1998, that's anyone's guess... Apogee/3DR declined to comment on any of these points. George Broussard said: "We are not going to discuss ongoing business issues. These matters are simply nobody's business but ours at the moment." (In the context of the e-mail exchange yesterday, that wasn't as curt as it may appear.) If you know of any other strange or controvserial trademark/patent claims by games or software companies, let me know. Everything apart from One-Click please. :-) |
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Topic: Hail to the lawyers, baby!
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and BTW: ONE HUNDRED!!!!!!!!1 :-) |
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Question for George, Scott and Charlie (bear in mind I have a law degree - but its a UK law degree, so it's not entirely applicable and I'm not an IP (Intellectual Property, as opposed to Internet Procotol) specialist!). My understanding of US IP law is that if you fail to defend your intellectual property against any "abuse", it's no longer your IP. I understand that this is limited by scope, and that the various "Hail to the King" references were legally trademarked. However, much has been made of the decision not to go after THQ for the use of these phrases in both making and marketing their Evil Dead game. That clearly constitutes a decision not to defend your IP. Doesn't that mean that you no longer hold these trademarks within the scope of video games? |
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what about "Hail to the dumb fucks, Baby" or "Dr. Neutron" (or electron) or "Balls of Carbon-steel" (gold, lead, copper, brass, platinum, plutonium, sac, etc.) or "Planet of the whores" or "Time to assassinate" (or MDK) or "Nada hour" or "Come get some campbell's (R) can of whoop ass" or "King of gore" (doesn't sound all that though) or "King of non-action" or "Pu Tang" (as opposed to Lo Wang [tm apogee/3dr]) oh oh oh, here's a thought, what if I inverted the yellow nuke symbol......to the international radiation symbol standard? I could go on.....of course, these are parody's. But come on guys, you have to acknowledge that some of these lines were not originally your trademarks. The trademarks should say "when associated with Duke Nukem or a FPS game, etc." Or else, two can play this game.... Maybe I should make a game called "Duke Fuck'em" where the main character goes around blowing the heads off lawyers and IRS tax ppl with a postal worker as a side kick that supplies him with guns and ammo" (I came up with the idea.....) |
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I'm amazed that the 3D Realms guys keep responding to some of these comments. I wish 3D Realms would agree to let Duke It Out In Quake guys complete their mod. However, they have the right to not do so. Perhaps after DN4E comes out, 3DR will give permission (or do it themselves) for a modmaker to convert D3D levels to the DN4E engine. As to the AOD/Duke debate, the concept is not that difficult. Raimi copyrighted the script for AOD. This is handled through the Library of Congress. Some of the statements were original, some were not. Raimi is certainly not the first person to write "Groovy." Probably not "Hail to the King, baby." However, taken as a whole, the script to AOD is protected by copyright. Accordingly, large chunks of it could not be reprinted without permission. Individual words cannot be copyrighted. Otherwise, the guy who copyrighted "the" would be a trillionaire. Trademarks are handled by the Patent and Trademark Office. Trademarks and Copyrights are not the same. Trademarks are divided into classes. You must separately register a mark in each class that you want protection. Trademarks do not require originality. They simply require that you be the first to use or register a mark for a certain class. Nike is hardly the first to say "Just Do It" I'm sure mothers have been saying it in relation to their children cleaning their rooms for centuries. However, Nike was the first to use it to sell shoes. The question in trademark law is usually whether or not the consumer would be confused by a similar mark. For example, if I made a shirt with a little guy on a horse holding a flag, Polo would argue that it looks enough like their mark to cause consumers to associate my shirt with theirs. Raimi wrote a script borrowing catchphrases from popular culture. He copyrighted it. 3D Realms liked some of the catchphrases and used them in a video game. The catchphrases were trademarked in certain classes covering video games. Raimi's script is protected. 3D Realms' game is protected. (As a side note, computer code itself is copyrightable, as is music, etc.) If I wanted to use "Come get some" to advertise a buffet, I could register it in the appropriate class, assuming no one else had done so. That would not infringe 3D Realms trademark any more than Evil Dead 4 (if it was made) would do so if Ash said it. As for the THQ situation, it appears that Apogee owns the rights for computer games. If so, THQ could not use the catchphrases in a computer game without permission. Here's the information: HAIL TO THE KING, BABY! Goods and Services IC 009. US 021 023 026 036 038. G & S: Computer and video products, namely, video game machines for use with televisions; video game cartridges; video game tape cassettes; pre-recorded video tapes featuring computer games and computer game characters; motion picture films featuring video games and video game characters; television game programs featuring computer games and computer game characters; television game monitor consoles; computer game analog controllers in the nature of a hand held device for accessing computer games; computer game joysticks; memory cards, computer game software; computer game discs; computer game programs; computer game cassettes, computer game tapes, computer game cartridges, computer software featuring computer games that can be downloaded through a global computer network; multimedia software recorded on a CD-ROM featuring computer games; computers; computer hardware and computer firmware for use in operating computer games; computer mouse pads. FIRST USE: 19960500. FIRST USE IN COMMERCE: 19960500 IC 016. US 002 005 022 023 029 037 038 050. G & S: printed matter, namely, magazines, periodicals, newsletters, news sheets and news bulletins featuring computer game characters; children's coloring, series of fiction books, and activity action books featuring computer games and characters; gift and greeting cards; newspapers and magazine comic strips; print, strip and newspaper cartoons; stationery; posters; comic books; stickers and stick-on tattoos; facial and bathroom tissues. FIRST USE: 19960500. FIRST USE IN COMMERCE: 19960500 IC 025. US 022 039. G & S: Clothing; namely, t-shirts. FIRST USE: 19980100. FIRST USE IN COMMERCE: 19980100 IC 028. US 022 023 038 050. G & S: Hand held units for playing electronic games and any printed instruction or printed hint materials sold therewith as a unit; board games and any printed instruction or printed hint materials sold therewith as a unit; mechanical action toys, toy action figures; and arcade games. FIRST USE: 19970000. FIRST USE IN COMMERCE: 19970000 Mark Drawing Code (1) TYPED DRAWING Serial Number 76039748 Filing Date May 2, 2000 Owner (APPLICANT) Apogee Software, Ltd. Action Entertainment Software, Inc., a corporation of Texas. LIMITED PARTNERSHIP TEXAS 3960 Broadway Boulevard Garland TEXAS 75043 |
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>>>Now, the guy who asked if THQ had to ask permission: I don't know. But I can go based off of what I know about trademarks and the situation and assume that they didn't ask and probably weren't even aware that 3DR was treating it like a trademark (thus the reason for the confusion with the multiple claims for the line). TECHNICALLY IF WE WANTED TO DEFEND IT WE COULD AND WOULD WIN. [capatilization added]>>> Actually, sir, you are incorrect. Certainly your company could attempt to defend your trademark of the phrase "Hail to the king", hereafter referred to as 'the pharase', with respect computer and video game products in the manner described above. Just as certainly, your company would lose that defense. In an earlier thread it was mentioned that 3DRealms is a client of a law firm with 40 intellectual property specialists. Your lawyers no doubt advised your company that the phrase could be trademarked. As an intellectual property lawyer, I would have advised the same. The trademark claim can be made and defended, with certain qualifications. Before thinking about defense of the trademark though, it is worthwhile to note that merely having the trademark on file, with assumption of reasonable defense, is a smart business decision. If a software firm, such as Raven, toyed with the idea of incorporating the phrase in a video game of their own, your trademark should give them pause. This is probably the greatest effect your trademark have. The trademark can legally be defended only on a very limited basis. Specifically, the trademark would hold only if another video game company released a game and used the phrase in its marketing or explicitly and directly encouraged among its customers an analogy between the new game and Duke Nukem titles. However, your trademark could not be enforced to preclude another company from the use of the phrase altogether in a video game. You have no doubt been advised of these realities. Moving on, were another firm to create a game including a blonde character wearing leather pants and a blue shirt, similar to Duke Nukem, you should know that your company has prior use rights and could prevent such a game from being published and marketed. If such a game were published or marketed your company would have a strong case for collecting damages. No such claims could be made if a future game were to include the phrase alone however. Your company was probably also advised that the inclusion of the phrase in video game products exposes your company to some risk. Any number of entities, including "Evil Dead"'s writers, producers, and distributors, could validly make punitive claims against your company. Were such claims to be made however, the fact that your company holds the trademark on the phrase with respect to video games would lend weight to your defense. Hence, your trademark is additionally well-advised, from a legal perspective. ---------------------------------------------- Now, I normally would not waste so much of my time writing all of this out, as you, or your company, no doubt are already aware of these issues. However, I avidly enjoy video games in general and this commentary should help clear up the matter for interested readers. I said above that your trademark is well-advised, legally. As a lawyer I stand by that claim wholeheartedly. From my perspective as a video game player and fan of 3DRealms however, I must disagree with the decision. In my opinion, it is easy to understand many of the public's complaints. I draw a simple conclusion. To me, it appears that 3DRealms weighed the potential legal rewards afforded by this trademark against its customers potential concerns, and decided against its customers. In the end, this was probably a poor decision. For example, I will not be buying the next video game in the Duke Nukem series specifically because I am disappointed with the actions taken regarding the "Hail to the King" phrase and especially by replies to the public's concerns over this trademark. There may be many more potential customers with the same response. It is very hard to argue against the opinion that Duke Nukem 3D includes a number of features directly derived from other pieces of intellectual property (one need only remember opening certain closet doors in strip clubs). In the proper light, these inclusions can help create a great gaming experience for the customer. This experience can be easily spoiled however once a customer discovers the lengthy legal measures taken in the attempt to prevent another video game company from using any references to the same intellectual property. Realisitically, from a strictly customer-based, non-legal sense, its easy to see how someone might say 'Hey, "Hail to the king" is from "Evil Dead". If 3DRealms can use that phrase in their games, why can't somebody like Raven use it in theirs!?", isn't it? |
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I am an asshole. |
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Hail to the fucking lawyers indeed. MP3 Of The Week: Nightmares On Wax - Nights Interlude.mp3 (?)
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This is getting out of hand. Download OpenCrap and mark all as read, you prick! Milk and Cheese agree, "UAC SUCKS!"
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Nevar! Its inferior scrolling mechanism makes it not worthy of my honoured disk space. MP3 Of The Week: Nightmares On Wax - Nights Interlude.mp3 (?)
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