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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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Elvisd lives down the street from me. Honest. I met him at the neighborhood watch meeting. He's an elderly black man who runs a local antique shop. Hail to the king, baby. And suck it down, biotches! George, you need a new lawyer, yours has no imagination. |
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I enjoy 3Drealm's games but they're a bunch of peckerheads for trying to claim ownership of someone else's work. |
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I think Unreal for the Amiga was a side scroller (kinda like Shadow of the Beast). Trademarks are either defended or abandoned. I assume that nobody at Psygnosis cared, or that the team owned the trademark and didn't care. Also that was a UK game, and it's likely they had not trademark in the US. No idea though. It's just likely nobody cared. So what would happen if they now discovered that they had the trademark registered in both the states and the UK and wanted to produce a sequel to their original game. Would they have a case? |
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I enjoy 3Drealm's games but they're a bunch of peckerheads for trying to claim ownership of someone else's work. How is it any more their work than ours? They didn't invent the phrase 'Hail to the King'. We're not the ones making a Duke Nukem game called "Army of Darkness" or "Evil Dead". So what would happen if they now discovered that they had the trademark registered in both the states and the UK and wanted to produce a sequel to their original game. Would they have a case? Not sure if there is a statute of limitations on something like that. I'm sure Epic ran "Unreal" through the lawyers to make sure it was ok to pursue before releasing the game in any case, so it must have not been an issue. |
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Milamber, I doubt they would have a case because they have never defended the trademark and Unreal (the Epic game) wasn't exactly an obscure blip on the gaming industry radar that might have gone unnoticed. :) |
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I think its a sad commentary on the world that we have the ability to "own" words. --jmc ~owns you~ |
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George Broussard mumbled: How is it any more their work than ours? They didn't invent the phrase 'Hail to the King'. You thieving, lying whore. You would have NEVER used that line if the Evil Dead moves had not been made. You can try to dispute that, but everyone knows it's true. We're not the ones making a Duke Nukem game called "Army of Darkness" or "Evil Dead". Nope, you are just stealing catch phrases and ideas. And then trademarking them. Nice work. |
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#25 wrote: "How is it any more their work than ours?" Well, they did it first, you did it second. Then you called it your own. Kids in my elementary school got beat up for doing that. |
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You thieving, lying whore. You would have NEVER used that line if the Evil Dead moves had not been made. You can try to dispute that, but everyone knows it's true. Note To Self: Don't work for 3D Realms if you are not willing to be called a whore. ;) |
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Note To Self: Don't work for 3D Realms if you are not willing to be called a whore. ;) Or be one. We are whores... how much money you got? I'll have sex with you if it's enough. Unf Unf! George gets paid *really* well to do this special trick with his tongue and pony tail. I get pretty good rates for the "Frat Boy" look and Brandon makes most of his money in the satanic and goth crowds. Charlie Wiederhold |
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You thieving, lying whore. You would have NEVER used that line if the Evil Dead moves had not been made. You can try to dispute that, but everyone knows it's true. You think they would have used it if the British or Elvis (sometimes I have a problem telling the difference) hadn't used it first? *shrug* As for it being sad to own words... you have a limited grasp on the reasons for trademarks don't you? Should it be ok for me to make a soda and call it "Coca Cola" and make commercials saying "Always Coca Cola!"? Or some shoes and call them "Nike" and have ads everywhere that say "Just Do It"? Charlie Wiederhold |
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#31: We are whores... how much money you got? I'll have sex with you if it's enough. Unf Unf! George gets paid *really* well to do this special trick with his tongue and pony tail. I get pretty good rates for the "Frat Boy" look and Brandon makes most of his money in the satanic and goth crowds. Hehe, didn't know you guys had a sense of humor... I wouldn't have guessed it from looking at the average "Andy vs. 3DRealms" PC thread. =) Seems to be two sides to this "Hail to the King" coin. On one side, Duke's general style and several of his phrases seem eerily similar to the Evil Dead guy's. On the other side, how can this possibly hurt the Evil Dead copyright holders? Probably most of the people who end up buying the Evil Dead game are long-time fans anyway, and they'll certainly know that Ash (I seem to recall that's the name) said it first. It's all very unethical and everything, but hey, this is the games biz, where scandals happen every day - if one were to believe Andy. As a long-time 3DRealms fan, I'm looking forward to DN4E. Hope it comes out this millennium. Peace, -Johan |
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Charlie, you're a funny person. You make me laugh! Also, I just submitted an application to trademark the phrase "Player Died", I'm already counting my future royalties! Bwahahahaha!!! |
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gnoleb: >>> You thieving, lying whore. You would have NEVER used that line if the Evil Dead moves had not been made. You can try to dispute that, but everyone knows it's true. <<< And id would have never made a game called Wolfenstein 3-D had there not been a gamed named that already. ;-) The problem is that trademark law is very complex and takes years to understand, which is why many attorneys specialize in intellectural property rights--in fact, the firm we use has a department of over 40 such specialists. A major problem for people who are not educated on trademark law is that they do not understand the class system, in which the same mark can be owned by many different entities in different classes (and even within the same class -- the word "Star," for example, is trademarked over 2000 times, and there are less than 100 classes). For each class there's automatic trademark protection for first use, which we own with "Hail to the king," dating back to 1996. There are many, many other complications and factors (dilution, expansion, distinctiveness, secondary meaning, goodwill, commercial use, registration, abandonment, on and on), but I'll leave it for the gentle reader to explore. :-) Scott |
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How about "Hail to the Queen" or with that upset Duke ;) |
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So if Sam Raimi decides to make another Evil Dead movie, with Bruce Campbell as Ash, he'll need to get permission in order for Ash to say "Hail to the King, baby!"? A phrase that the character Ash originated? That's pretty fucked up, you have to admit. |
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Ergo: "So if Sam Raimi decides to make another Evil Dead movie, with Bruce Campbell as Ash, he'll need to get permission in order for Ash to say "Hail to the King, baby!"? A phrase that the character Ash originated? That's pretty fucked up, you have to admit." It's only fucked up if your example and conclusion is correct, which it isn't. Scott |
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Hulka: "Also, I just submitted an application to trademark the phrase "Player Died", I'm already counting my future royalties! Bwahahahaha!!!" I know your smarter than that, but just so no one else is misled, "Player Died" is a phrase that has prior use within the game industry and also would likely fail the distinctiveness test. So, I would be shocked if this is a phrase anyone could legally trademark. Scott |
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How is my example incorrect? Are you saying that 3DR wouldn't object to the "unauthorized" use of the phrase in a new movie? You can bury readers here in a ton of legalese and ambiguities, and gently chide us on our lack of knowledge of copyright and trademark law. However, I think the point that's trying to be made here is that trademarking phrases smacks of corporate greed. I'm sure you'll disagree, Scott, but then again, you're not exactly an unbiased third-party. |
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Sigh. Ergo, I'm pretty sure your example doesn't work because the catchphrase isn't trademarked by 3D Realms for movies. And llet's all try to be sane for a moment. Why do you think 3DR used all the Evil Dead and Army of Darkness stuff in the first place? Maybe it might be because they actually like the movies? If they thought it was cool enough to rip off lines, they probably aren't going to be interested in being dicks and going to court over any future Evil Dead stuff. In my opinion, of course. Maybe 3D Realms really is a gigantic evil spider-monster, spreading its tentacles of vileness through the gaming industry and trademark offices. I don't really see it, though -- most of their decisions seem to make sense and not be motivated by a desire to screw gamers deeply and repeatedly. Unlike, say, Derek Smart. |
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The problem isn't that they showed their love of the movies by using the lines (which Bruce Campbell and Sam Raimi both have publicly denounced on the web) but that they then went and TRADEMARKED the phrase. All I see the 3dRealms here is justifying themselves by saying that other people do it and they are ok legally. Show some backbone, guys, and at least tell us why you did it and then why you would be asses by legally wrangling with a game company that's making a licensed Evil Dead product with the original character and actor, not some cheap rip-off. Not being creative enough to come up with your own lines is one thing (hey, you're hacks, no big deal. Entertainment is full of rich hacks. Good going guys.), but ripping off lines from a popular movie and then claiming them for your own and attacking a company that's licensed to use the source material? Bad juju, man. |
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I'm no expert in trademark law, I know. It just really bothers me that corporations run around trademarking everything they can these days. One can rarely read anything without encountering a TM or copyright symbol every third word. |
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I also don't think 3DR is out to screw anyone, either. I just wish they'd actually release something ;-). As for Derek, he's not evil either. His ego jusr gets in the way of his common sense sometimes. |
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DeusIrae: "Sigh. Ergo, I'm pretty sure your example doesn't work because the catchphrase isn't trademarked by 3D Realms for movies." Bingo. :-) Scott |
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The trademark doesn't cover movies? This is the "goods and services" text from Apogee's registration: IC 041. US 100 101 107. G & S: Entertainment services in the nature of the production of pre recorded video cassettes, video discs, and laser discs; entertainment services in the nature of the production of live-action and animated motion picture films for television; entertainment services in the nature of computer games provided and played through a global computer network; entertainment services, namely, live performances by a musical rock group. FIRST USE: 19980400. FIRST USE IN COMMERCE: 19980400 Suppose Sam Raimi wanted to make an Evil Dead cartoon or TV movie called "Hail To The King". Wouldn't this give Apogee the power to stop him? |
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"The problem isn't that they showed their love of the movies by using the lines (which Bruce Campbell and Sam Raimi both have publicly denounced on the web) but that they then went and TRADEMARKED the phrase." That's because we want to protect ourselves from having other game companies use this phrase. For example, let's say Raven releases a game with an action hero who says "Hail to the king" and "Come get some," etc.--that wouldn't be right, would it? Trademarks protect intellectual property that has value to the company that used it first, within a specific trademark class. Anyone who doesn't believe in trademark protect doesn't understand it. It's that simple. Without trademark protection, then I could release a game called DOOM and a drink product called Coke, and use the phrase "Just do it" to promote my line of shoes called Nike, and so on. Trademarks are the defining traits of a product or service, that allow it to be distinguished from other similar products in consumers' minds. They've been around since the USA was founded, and in other countries long before that. Patents, trademarks and copyrights, all three, are the bedrock of a entrepreneurial, capitalistic system, in which people and companies who create something can then reap the rewards without fear of their creations being freely stolen, copied or reproduced. Once again, the more knowledge you have of this system, the more you appreciate it's value over any other system yet devised. It's this system, more than anything else, by incentivising people to create innovative new products, that has allowed the US to become the most enterprising, technological leader of our world. Consumers benefit equally well via this system, whether they understand it or not...and many do not. Scott |
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I think the real issue here is that in the past 3dReams (Hulkaesque there) has taunted that they could get the Evil Dead game makers in trouble by enforcing their patent if they wanted to. --jmc ~Suck it down, baby!~ |
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Andy: "The trademark doesn't cover movies? This is the "goods and services" text from Apogee's registration: ... " Now you're getting into complex territory, known as "secondary meaning." This I will not explain, but leave it to others to learn on their own if they care. Here's a hint, though: Every line from a book or movie or any other work can not be singled out for copyright or trademark protect. The line must be made special in order to qualify for trademark protection (more specifically, for prior use protection). I'll leave it at that. Scott |
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Scott Miller "I know your smarter than that, but just so no one else is misled, "Player Died" is a phrase that has prior use within the game industry and also would likely fail the distinctiveness test. So, I would be shocked if this is a phrase anyone could legally trademark." Hey, you don't have to be snippy about it! ;) Yes, I was only kidding. God! Some people. |
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People are a little testy over this eh ? Are there that many people who really care ? Personally I don't see how one use in any way degrades the other. It's not like we are talking about some intellectual property that took years to develop, after all it's only 5 words. The litigation in this country has gone too far. There was no loss of income generated by the use of that phrase by 3dr IMO, they should let it go. |
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"There was no loss of income generated by the use of that phrase by 3dr IMO, they should let it go." Who said we were pursuing legal action against anyone? See what happens when you assume. ;-) Scott |
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>>That's because we want to protect ourselves from having other game companies use this phrase. For example, let's say Raven releases a game with an action hero who says "Hail to the king" and "Come get some," etc.--that wouldn't be right, would it?<< You are such a damn hippocrite it makes me sick. It would be as right as you guys stealing from Sam Raimi. What the fuck give YOU the right? If Raven did do that (which they won't because they can think up ideas for themselves) guess what, YOU WOULD BOTH BE STEALING. So it's ok for you guys to steal Duke's personality from the Evil Dead films, not give any credit to the people that created Ash, but if anyone else does it you will sue? Do you realise how fucking rediculous that sounds? I remember the seeing screenshots of Duke with a chainsaw that appeared to be attached to his arm. Now if Duke had just been holding on to it there would not be a problem. But the fact that the saw is *attached* to his arm (exactly like Evil Dead 2, and Army of Darkness) shows even there you are ripping off Ash from the Evil Dead movies. You guys are uncreative morons that just happen to have some money left over from a 6 year old game, and many bad console ports. You have produced not one inspiring thing in a LONG time (if ever, and that is highly questionable). So stealing ideas from some 'unknown' B-movie is the only way you can "create" anything. Now I am positive. I will not be buying DNF no matter what. Just hearing all this hippocritical bullshit from you has convinced me you guys are just uncreative, lawyer hungry gimps. And as for the nonsense about 'Coke' and 'Just Do It'. Coke was something someone originally thought of. And at least Nike wasn't directly ripping off someone elses work. It's not just the lines. When Duke says 'Hail to the king, baby", and 'come get some', it is quite obvious that the lines, and the personality was a direct rip off of Ash from Evil Dead. Before Nike, what company or movie had used the line 'just do it'? Sure in human history it has been said, but who used the line in their creative work? No one did. So this comparison has major flaws. Nike took something that hadn't been used in someone elses creative work and made it their own. You guys ripped off the Ash character and renamed him Duke Nukem. Hell, the name Duke Nukem isn't even original. You use all these bullhshit arguments about using these laws so you don't get ripped off. Funny thing is, is that YOU ripped someone off to make Duke. You can state all the copyright laws you want to. I could care less about them. I know you are nothing but uncreative thieves. |
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Charlie Wiedorhold said, I'll have sex with you if it's enough. Unf Unf! Sorry, Charlie, I don't swing that way. ;) |
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I remember the seeing screenshots of Duke with a chainsaw that appeared to be attached to his arm. Now if Duke had just been holding on to it there would not be a problem. But the fact that the saw is *attached* to his arm (exactly like Evil Dead 2, and Army of Darkness) shows even there you are ripping off Ash from the Evil Dead movies. You guys are uncreative morons that just happen to have some money left over from a 6 year old game, and many bad console ports. You have produced not one inspiring thing in a LONG time (if ever, and that is highly questionable). So stealing ideas from some 'unknown' B-movie is the only way you can "create" anything. Now I am positive. I will not be buying DNF no matter what. Just hearing all this hippocritical bullshit from you has convinced me you guys are just uncreative, lawyer hungry gimps. Fine, don't buy DNF. Spare us from your whining. ;) Duke Nukem 3D is 4 years old. I STILL PLAY IT EVEN TODAY. DN3D was fun, and basically kicked major league ass. The console ports were also fun, too. I liked Time To Kill myself. No offense, EvilE, but you sound like the Anti-Monolith trolls over Blood 2. :P |
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Hear, hear, Evilive! I don't think they "ripped off" so much as paid homage, at least in the beginning. They later trademarked the lines for games (yeah, I understand that part, Scott) because they could--trademark law allowed it, whether it was right or wrong. |
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Whatever man. Different strokes for different folks. I just think it is bullshit how they ripped off the whole Duke character from the Evil Dead films. And now they act like they should have a trade mark on all the things they stole. And on top of that they have this attitude about it like their shit doesn't stink. |
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Ergo, At first I can see how they probably were paying homage to the movies. But now they act as if they created it all themselves. And for the laws, that aspect doesn't interest me at all. Laws are fucked. You can find a loophole in any law if you dig deep enough. People get screwed every day because of laws. I am just stating that no matter what the laws are, 3DR is wrong, and highly uncreative. |
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Read my earlier post again. I'm agreeing with you on the homage thing. :-) |
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They later trademarked the lines for games (yeah, I understand that part, Scott) because they could--trademark law allowed it, whether it was right or wrong. No, we trademarked them because we were using them for marketing and advertising purposes. That's the *only* reason you trademark something and the reason we trademarked them. A couple of lines from the hundreds in the game became really popular with the Duke players and so we use that to help further identify him. And on top of that they have this attitude about it like their shit doesn't stink. I just took a shit and it stunk. And I knew it stunk. So, no... you are way freaking wrong there bub. Ergo, At first I can see how they probably were paying homage to the movies. But now they act as if they created it all themselves. No, that's not the case at all. When you trademark something you aren't saying "I invented this". That has never been the case. What you are saying is "I intend to/I have been using this to distinguish my product for marketing/advertising purposes". A trademark is not there to show who invented a phrase, it's there to protect people who want to use that phrase/image/whatever to sell their product. We have never claimed to have invented the phrase "Hail to the king, baby" and never will. We do use it to sell the game though because Duke players who have and more importantly HAVEN'T see the Evil Dead movies recognize it as a part of him they thought was cool. And for the laws, that aspect doesn't interest me at all. Laws are fucked. You can find a loophole in any law if you dig deep enough. People get screwed every day because of laws. I am just stating that no matter what the laws are, 3DR is wrong, and highly uncreative. Heh, remember that the next time a law protects you. As for our situation... we didn't even have to look for a loophole, there was no reason to. And as for uncreative, if that's the case then I assume you'll have no problem telling me what we ripped off for every line of Dialog in Duke 3D as well as all the different characters/locations/weapons/items. I can understand people who think it is in bad taste to trademark it, but to get this much vitrol over it is just plain silly and most of it is derived for ignorance. Charlie Wiederhold |
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I remember the seeing screenshots of Duke with a chainsaw that appeared to be attached to his arm. Now if Duke had just been holding on to it there would not be a problem. But the fact that the saw is *attached* to his arm (exactly like Evil Dead 2, and Army of Darkness) shows even there you are ripping off Ash from the Evil Dead movies. Do you know HOW Duke aquires that chainsaw? No, I think not. How do you know he doesn't get it off of a crazed Bruce Cambell fan who has come to kill Duke for saying "Hail to the King, Baby" one too many times? Or that he didn't pick it up off of a display for Army of Darkness IV? Or any number of things that would be A) really funny and B) give the proper credit/homage for having it there? Sure, it's great to get all pissed off about this stuff but man, I don't see how anyone can allow themselves to get so worked up over things when they *know* they don't even know half of the story/situation. Charlie Wiederhold |
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This is an honest question to the 3drealms folks. What would happen in the case that the EvilDead people wished to release a video game? I'm sure they would want to use the quotes from their films in their video game. There might already be an EvilDead game, I don't know... I'm not flaming here, I admit to not knowing trademark law and am curious. thanks |
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"I remember the seeing screenshots of Duke with a chainsaw that appeared to be attached to his arm. Now if Duke had just been holding on to it there would not be a problem. But the fact that the saw is *attached* to his arm (exactly like Evil Dead 2, and Army of Darkness) shows even there you are ripping off Ash from the Evil Dead movies." I completely agree with you on this point -- it would make me sick if DNF has Duke with that chain saw, and internally I've argued against it. Personally, I know that if DNF is released with that style of chainsaw we'll be ripped to shreds by public and press alike. Your other arguments are flawed, but I do not have time to dispute them. Scott |
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"That's because we want to protect ourselves from having other game companies use this phrase. For example, let's say Raven releases a game with an action hero who says "Hail to the king" and "Come get some," etc.--that wouldn't be right, would it?" So whoever steals it first gets it. If I stole something and called it my own, I wouldn't want someone to steal it and call it THEIR OWN. They'd be ripping me off!!!!!!!!!!! I stole it first. When you have to copyright the phrases you stole to protect other people from stealing them again, you need some originality. The only thing 3dRealms came up with on their own is the stupidest name ever (Duke Nukem), and police who are literal pigs!!!! get it?? Fucking sad. |
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Foot, there's a game called Evil Dead: Hail to the King by THQ. I think they stole the name from 3dsRealms. |
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You should look up the term "scope" mister_pianist. Charlie Wiederhold |
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[33] Johan "Hehe, didn't know you guys had a sense of humor..." You never played one of their games then... killing the energizer bunny is what got me hooked on Duke Nukem! [39] DukeNukem "I know your smarter than that" You also ought to know Hulka has a sense of humor, screw smileys. NOT jokingly, I don't understand why you guys set yourselves up for a shitstorm of negative publicity for ... what? What good is trademarking that phrase? I'm genuinely confused here. You explain the "how" pretty well, but not the "why". [47] DukeNukem "That's because we want to protect ourselves from having other game companies use this phrase... -that wouldn't be right, would it?" How would it hurt your sales? Trademarking the name "duke nukem" makes sense. Trademarking "hail to the lamer" doesn't. [50] Hulka "God! Some people." You tell 'im, Sarge! Make 'em give ya 20 (pushups that is, for the military impaired crappers) 62] Foot ...asked a question that I, too, am curious about. [63] DukeNukem "Your other arguments are flawed, but I do not have time to dispute them." That's a copout. Come back when you have more time, dude. Now, George, Scott, Charlie, you guys know I'm a long tiome DN fan who has been playing Nukem since some of these guys have been in grade school (and maybe even in diapers), and will buy dn4, but I really am a bit confused here. -steve |
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ps- 'scuse me, I have a bunch of typos to fix elsewhere... |
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"So whoever steals it first gets it. If I stole something and called it my own, I wouldn't want someone to steal it and call it THEIR OWN. They'd be ripping me off!!!!!!!!!!! I stole it first." A clear display of cluelessness at work. This is why it's almost pointless to discuss legal matters in a non-legally educated forum, people just get too confused to make any sense. Anyone want to discuss M-Theory, more specifically relating to the quantum super symmetry aspects of gravity? I think I'd find more intelligent discussion here on this topic. ;-) Scott |
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I love everybody ;) |
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Scott, you read my post exactly backwards - assumptions eh : )? I had thought that this whole mess started with 3dr being the target of a lawsuit by the movie makers - admittedly I have not really paid attention though. |
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