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Not-So-Intellectual Property
July 1st 2000, 05:40 CEST by andy Let's hope the Apogee boys and girls are sitting comfortably, because here's a little something to stir things up... THQ and Heavy Iron Studios have unveiled the new web site for their forthcoming game based on the Evil Dead movies. The title of the game, and also the web site, is: "Evil Dead : Hail To The King" "Hail To The King" is a phrase used in the Evil Dead movies, but later adopted in the Duke Nukem games by Apogee's eponymous hero. Some people have commented that it was a teensy bit naughty of Apogee to take a line from a film and then claim it as their own -- even going so far as to register it as their own trademark, the cheeky scamps. But those people can stop worrying, because it turns out that Apogee hasn't been entirely honest with us... You see, despite what they claim in their intellectual property license, Apogee doesn't own the "Hail To The King" trademark. THQ applied for it in early February, several months before Apogee claimed ownership. There's no direct hyperlink at the moment because the application is still pending, but you can see for yourself that Apogee doesn't own it by going to this page, clicking the Free Form Search link, and then entering "hail to the king" in the search box, complete with quotes. (Note: If you use a download manager such as GetRight, you'll need to disable it for the search to work.) Update: It turns out that Apogee's IP license, published in May this year, makes a few other false trademark claims... For a start, there's no such trademark as "General Phil Graves". There's boring old "Phil Graves" (#75162460) but he ain't no General, and all three registered uses (comics, computer games and arcade games) were abandoned in August 1997. According to the trademark office, this trademark is now "dead". The "Lo Wang" trademark (#75272379) is dead too, with all four registered uses (computer games, comics, hand-held games and arcade games) having been abandoned in October 1999. And finally, it's a bit sneaky of Apogee to claim ownership of "Zero Hour". Not only was their registration (#75603132) abandoned in January this year, but the trademark is currently registered by Warner Bros (#1874656) and applies to comics. All of the informtation in this update can be verified at the United States Patent and Trademark Office web site. |
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Topic: Not-So-Intellectual Property
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Charlie, The topic was entirely accurate. I can only assume that you have misinterpreted it in some way. If you could please quote specific words or phrases from the topic that you feel were wrong or misleading, I will attempt to clarify. |
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Shall I start to call you Andy Miller? Could you possibly dodge the topic much more by trying to turn it around on me? I'm being patient and giving you more than enough information to show you how this works. Not a single thing I will say below has not already been said at least twice before in this thread. If you choose to ignore it again, I'm afraid I'll simply have to go the route of Scott. Thank you for proving him right when he said there is no point in bothering to reply to you, it won't matter. <quote>You see, despite what they claim in their intellectual property license, Apogee doesn't own the "Hail To The King" trademark.</quote> This is specifically wrong: Given how trademarks function. Given that the license agreement specifically states registered *and* unregistered trademarks. Given that THQ has only applied for the trademark, which in no way whatsoever implies ownership. Given that you don't have to have a trademark registered to claim ownership of it. Apogee has enough prior use to make a case for ownership of the trademark of "Hail to the King". You choose to avoid a discussion on whether Apogee has the right to claim that trademark or not, but in order for this to work we have to operate under the assumption that they do have the proper stuff needed to claim the trademark. So by avoiding the discussion on whether Apogee can claim the trademark or not, you give yourself a "Get out of Jail Free" card by being able to say that Apogee doesn't own it no matter what evidence there is to support it beyond what you find on the USPTO database. That's weak, but hey, I work with what you'll give me. <quote>It turns out that Apogee's IP license, published in May this year, makes a few other false trademark claims...</quote> I'll not go down them specifically, but each one is not in fact a false claim on our IP license. What you have to say about them is true (expired, just Phil Graves with no General), but those facts do not make your statement true that the claims in our IP license are false. I have given you the laws and rules in regards to trademarks several times showing when and how you can claim them. Scott explained the Phil Graves issue. Please don't insult me anymore by acting this way Andy. You have more than enough information at your disposal to understand why Apogee can claim those trademarks. The IP license specifically states *unregistered* trademarks as part of the property, and yet you continue to act as if registration is a requirement for ownership. Finally, you stated that Scott was essentially lying about whether Apogee has applied for the "Hail to the King" trademark or not. I've asked you for what proof you have of this. You will not offer it, I can only assume you have none at this point. Stop being the man you complain about and answer my questions/challenges for a change. Or is it true that you only dislike in others what you are yourself? Charlie Wiederhold |
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Most people will probably want to skip to the bit at the end... <b>#161</b>, Charlie Wiederhold: <QUOTE> <quote>You see, despite what they claim in their intellectual property license, Apogee doesn't own the "Hail To The King" trademark.</quote> This is specifically wrong: </QUOTE> No, it is right. Ownership of a trademark can only be determined by a court. <QUOTE> <quote>It turns out that Apogee's IP license, published in May this year, makes a few other false trademark claims...</quote> I'll not go down them specifically, but each one is not in fact a false claim on our IP license. </QUOTE> Each one is a false claim of ownership, because ownership has not been determined by a court. <QUOTE> Finally, you stated that Scott was essentially lying about whether Apogee has applied for the "Hail to the King" trademark or not. I've asked you for what proof you have of this. You will not offer it, I can only assume you have none at this point. </QUOTE> My "proof" is the invalidity of the evidence you provided yourself. You said that the "Hail To The King" and "Come Get Some" applications were filed at the same time, but we've since established that they weren't. (Not conclusive proof, I grant you, but as this has no relevance to the original story, I haven't spent any time trying to find further proof.) -- You appear to be unsure about the application, registration and ownership of trademarks. This is a brief explanation: <b>Application:</b> Nobody is obliged to register any trademark. However, it is a good idea to do so, as the successful registration can be used as evidence in court to support a prior use claim. To register a trademark, one first applies for it. A period of review then begins, during which time other parties can file objections and evidence if they believe they have a greater claim. <b>Registration:</b> At the end of the application's review period, the registration authority decides if the applicant has a rightful claim. If the applicant does, the trademark is registered. If not, the application is rejected. Even after a registration has been accepted, the claimant does not own the trademark. <b>Ownership:</b> Normally, it is not necessary to determine ownership. However, if one entity uses a trademark, and another entity believes they have a greater claim to that trademark, a court rules on ownership. It is at this stage that the trademark registration is useful. The holder of the registration has two very strong pieces of evidence: (1) the date of registration, and (2) the fact that the other party did not file a successful objection. <b>Summary:</b> Prior use of a trademark does not equate to ownership. Registration does not equate to ownership. Saying that you own the trademark in an IP license does not equate to ownership. You only own a trademark if a court rules that you do. This is why you will notice, for example, that a Coca Cola can doesn't say: "The Coca Cola Company owns the Coca Cola trademark." Instead, it says that "Coca Cola" is a registered trademark. ** THE BIT AT THE END ** Now don't get me wrong -- lots of companies claim ownership of trademarks that have never been determined in court. But in Apogee's case, you're falsely claiming ownership of a trademark that another company has applied for, and you're doing it in an IP license that includes this condition: <quote> By agreeing to this limited license, you acknowledge the validity of Apogee's ownership in the Marks and will not contest such ownership or the validity of any registrations of Apogee relating to the Marks. If you acquire any goodwill or reputation in any of the Marks, all such goodwill or reputation will automatically vest in Apogee when and as such goodwill or reputation occurs. You agree to take all actions necessary to effect such vesting. </quote> That's why this story is in the public interest. Apogee wants people to believe that they own a number of trademarks that they don't own at all. You can't expect the 'Crap to sit by and let that sort of misinformation go unchecked, can you? ;-) |
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If this paragraph in the topic: <quote> You see, despite what they claim in their intellectual property license, Apogee doesn't own the "Hail To The King" trademark. THQ applied for it in early February, several months before Apogee claimed ownership. </quote> Had been written as this: <quote> You see, despite what they claim in their intellectual property license, Apogee doesn't own the "Hail To The King" trademark. (Ownership must be determined by a court.) Indeed, THQ applied for the registration in early February, several months before Apogee claimed ownership. </quote> Could all of this unpleasantness have been avoided? Have I really just made a 650+ word post, when an extra eight words in the topic would have been enough?! |
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This is yet another case where you, Andy, refuse to admit that if you apply the commonly accepted definitions of the law you were wrong. Instead choose to ignore the results of previous juristic cases that are comparable to this one, make up your own definitions to fit your arguement and lose yourself in the splitting of so many hairs that I can't even think of a witty remark that should go here. I'm sure in your world you're right, Andy, but I think to pretty much everybody else you're just a poor guy who never learned the ability and skill (yes, It think sometimes it's a skill) of giving in and admitting to himself that he isn't infallible and that he might just be...well, wrong sometimes. I'm aware that in your eyes I must be riding a very high horse to make such a broad statement, but what other conclusion do you (or at least your web presense?) leave us with? |
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<quote>there are 2 previous Evil dead films, The Evil Dead and Dead by Dawn ... in both he uses various tag lines that appear in AOD and Duke in some form. </quote> Just some info here ... I just watched Evil Dead and Evil Dead 2 to refresh my memory ... none of Duke's lines appear in either one. In fact, Ash doesn't use ANY of his catch phrases. As far as I can tell, they all make their first appearance in Army of Darkness. Unless I'm watching the wrong versions of these movies or something ... but Bruce Campbell was in both of them. :P |
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Warren: IIRC, Ash says "groovy" in ED2 after he attaches the chainsaw to his arm. And again IIRC Duke uses the word with the same tone/feel. Now, of course, "groovy" is a word that anyone from Ash to Duke to the Brady Bunch can use without it being a ripoff, but I think it's the tone that makes Duke's use either artistic theft or an homage, depending on how you feel about 3DR's use of all of these lines. In any case, it's pretty clear that Duke's use of "groovy" is an ED2 reference. But, I may be wrong about the usage of the word in either Duke or ED2; I'm working completely from (2-3 year old) memory here. But my friend Wowski agrees, so I think it's correct. -brennan |
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<b>#166</b>, brennan: <QUOTE> But my friend Wowski agrees, so I think it's correct. </QUOTE> My cat just read the trademark story and she's purring in this cute, contented way that she does when I've fed her a BIG SLICE OF TRUTH! So yay. All is good. |
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Brennan : OK, yeah, "groovy" and "Let's go" (I don't think it's a Duke line, but Ash uses it a lot) are in there ... but none of the ones that have been discussed so far are... specifically "Hail to the King" and "Come get some". These first appear in Army of Darkness. |
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Just a brief thought... why do companies feel the need to register characters' names as trademarks? I mean, Phil Graves is a pretty bland kinda name - there must be hundreds of millions of them the world over - so why does any one person have the right to 'own' the name? Feh, I dunno. I make no sense. It's only 24 hours past Monday. |
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OK, I'm going to lible ALL of you- you all left your brains in your other pants. "Hail to the king" was being uttered about real kings thousands of years before 'shaft', 'evil dead', or 'duck nickem'. Trying to trademark "hail to the king" is like trying to trademark "good morning, maam". Scott's right, the thread is stupid, but so is Apogee for trying to trademark 'hail to the king'. -steve |
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<b>#170</b>, McGrew: <QUOTE> Scott's right, the thread is stupid, but so is Apogee for trying to trademark 'hail to the king'. </QUOTE> And thus, the thread is not stupid. ;-) I have absolutely no apologies for this story. Apogee is trying to mislead people, so I did the responsible thing and publicised the correct information. Apogee should have just accepted the story, the thread shouldn't have had more than maybe a few dozen posts, and we should have all moved on to something more interesting a long time ago. |
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Isn't there a song entitled "Hail to the King"? If I remember it right it goes dah dah da-da dah da-da da-da da-da dah, dah dah da-da dah da-da da-da da-da, etc. Yeah, thats the one. <I><B></B></I><I></I><I></I> |
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Charlies: "Finally, you stated that Scott was essentially lying about whether Apogee has applied for the "Hail to the King" trademark or not. I've asked you for what proof you have of this. You will not offer it, I can only assume you have none at this point." Charlie, I really think you and I (to a lesser extent) are just wasting time with Andy. He sticks with his version of the "truth" no matter what stands in his way. It's really that simply. He cannot possibly know what I know about the status of our trademarks, etc. And I'm not going to waste my time providing the evidence to prove him wrong--partly because I love to see him continue to hang himself. heehee While the train wreck continues, why stop it, it's too much fun to watch! ;) Of course there are others here who believe Andy, but that's just part ofthe continued fun. There are people who believe we never really landed on the Moon, too! And really, the bottom line is that anything Andy says here is completely and utterly meaningless to the big picture -- DNF will rock the world and sell more than all of Ion Storm's games put together (and that's just in it's first week ). (Okay, just a friendly jab and at a local competitor, nothing more to see here...move along!) Scott |
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Andy incorrectly tells the masses: "Prior use of a trademark does not equate to ownership." Sorry, Bud, but you are so, so wrong. I have had this discussion with many IP attorneys over the years (there are in fact reasons why a company would not federally register a trademark). However, it's true that marks that are not federally registered have some disadvantages compared to registered marks. But, the bottomline is that prior use and the use of the little-TM symbol (something that in fact isn't necessary anymore) is enough to give a company ownership of a mark. Generally if there's a dispute, whether the mark has been registered or not, then the court gets involved. Having a registered trademark is no guarantee of not having the court settle a dispute. Andy's message has other significant errors that point to his lack of IP law knowledge, but seriously folks, do yourself a favor and do not take the things he says as fact. He's the best bullshitter I've ever seen. Accepting anything Andy says as truth is asking for trouble. But I guess you have to know the truth to recognize his tall tales. ;) Scott |
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<b>#173</b> "Scott Miller, 3D Realms" wrote... <QUOTE>And really, the bottom line is that anything Andy says here is completely and utterly meaningless to the big picture -- DNF will rock the world and sell more than all of Ion Storm's games put together (and that's just in it's first week).</QUOTE> I'm all about the friendly jabs, but have you played Deus Ex yet, Scott? You might want to, even if the gameplay is going to pretty much different from DNF. -- Dethstryk Damage Gaming |
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course its not just the words .. its the delivery and infliction..... hrm .. wasnt there a copyright application tossed out over a company trying to copyright 'their' colour it can get a bit bloody silly if its just words youre fighting over (Can I restart that debate we had on PC2, where I stated that without words thought does not exsist and that the words you use, and language, define how you think) however how theyre said... well then you open up all sorts of nuances. For example, in AOD, in the _alternate_ ending Ash says 'Its good to be the king, Hail, to the king...... baby' in a muted if somewhat prideful voice. Duke says 'Hail to The King baby', in a snappy brash manner. On paper similar, and you can catch the reference, but stylistically and sonically different. Now, if 3DR are copyrighting _THEIR_ variation on how its said then thats okiedokilyday. If however theyre trying to trademark the saying per se, thats not so groovy. Nike have their swoosh and their 'Just Do it' copyrighted and defensibly so, as they built the brand. Instances of prior use or similarity are different, for example the McDonalds fat food franchises tried to force a local chip shop to change their name here in Bangor. They lost, big time. McDonalds had been here 20+ years and since the McDonalds (TM) was a recent newcomer to the market, they could not enforce their _local_ copyright to that extent. So, Specific sound copyright good, general word copyright bad. Ds<I><B></B></I><I></I><I></I> |
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Scott, Does Apogee own the "Hail To The King" trademark? |
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<b>#176</b> "Darkseid-[D!]" wrote... <QUOTE>(Can I restart that debate we had on PC2, where I stated that without words thought does not exsist and that the words you use, and language, define how you think)</QUOTE> Thought can and *does* exist separate from linguistics and icons. However you are correct that the language we are exposed to shapes the boundaries of our mental constructs, through the limitation of expression by syntax and definition. But ultimately our thought processes are only limited by the neccessity to think relationally, of which codified methods of communication are an example. - [g.man]<I><B></B></I><I></I><I></I> |
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<b>#176</b>, Darkseid-[D!]: <QUOTE> Now, if 3DR are copyrighting _THEIR_ variation on how its said then thats okiedokilyday. If however theyre trying to trademark the saying per se, thats not so groovy. </QUOTE> Have a look at Scott's comment in post #80: <QUOTE> I doubt we'll pursue THQ for ED's use of Hail to the king as their game's subtitle, because like everyone else we're fans of that series and we do not care if they use it because the movie used it also. But we will not let anyone else use it. </QUOTE> Apparently they DO think they own the phrase itself! Man I'd love to be in court if/when Apogee tries to enforce this... Make sure you let us know how it turns out, won't you Scott? |
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Dethstryk : "I'm all about the friendly jabs, but have you played Deus Ex yet, Scott? You might want to, even if the gameplay is going to pretty much different from DNF." Yep, I've started the game, and there's no doubt it's good. I just don't think it'll reach a wide audience -- much like the System Shock series. Scott |
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Andy "Does Apogee own the "Hail To The King" trademark?" In the class of games (don't remember the specific class number, I think classes 9 and 42, as well as others), we do. Remember, some trademarks, depending on how generic they are, can easily be owned by many companies in many non-competing classes. This is nuance that trips up a lot of people. Now then, they're may be someone else who also thinks they own this mark in the same class as we do -- and that's when the attorneys have their fun. Scott |
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<quote>Yep, I've started the game, and there's no doubt it's good. I just don't think it'll reach a wide audience -- much like the System Shock series. </quote> I don't mean to bite your head off on this, but so what? Is the only judge of a game its final sales figures? So long as the game makes money, isn't that enough? Or is it just the lure of making REALLY BIG MONEY that's driving developers nowadays? I really hate the way that people creating and cover games are fixating on sales figures as the ultimate prize. I think that's why so many games are merely mediocre, as there's a futile grasp at appealing to the widest possible audience instead of focusing on those things the developers are passionate about (and lemme tellya, this line of thinking infects most publications covering the industry as well... do any actually do any one thing particularly great?). History has shown that many of the most enduring games of all-time (and most successful) were borne not out of a quest for sales but the developers' being convinced their vision was solid. If Daikatana outsells System Shock 2 (which it may very well do), does that mean it was a better game because it reached a wider audience? Is "The Blair Witch Project" a better horror movie than "Carnival of Souls" (or whatever popular horror movie you want to think of)? (For the record, I wasn't that fond of Deus Ex based solely on the demo. I have the full game, but haven't started it.) Obviously comparing Game X to Game Y is inexact, but to dismiss games like Deus Ex and/or System Shock 2 solely because of their sales (or lack thereof) is wrong. Sales are due to so many things that have nothing to do with quality (from marketing to luck to intertia) that the only valid comparison is the quality of the experience. |
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<b>#181</b>, Scott Miller, 3D Realms: <QUOTE> Andy "Does Apogee own the "Hail To The King" trademark?" In the class of games (don't remember the specific class number, I think classes 9 and 42, as well as others), we do. </QUOTE> Thank you for giving a straight answer. <QUOTE> Remember, some trademarks, depending on how generic they are, can easily be owned by many companies in many non-competing classes. This is nuance that trips up a lot of people. </QUOTE> The THQ application relates to computer games. <QUOTE> Now then, they're may be someone else who also thinks they own this mark in the same class as we do -- and that's when the attorneys have their fun. </QUOTE> That hits the nail on the head: Someone who THINKS they own it. Just like you THINK you own it. Hell, one day a court may rule that you DO own it. But currently, you haven't even registered the trademark. So the original story was accurate, wasn't it? Scott, I really don't see why you object to this story so much. You're reacting as if I've said you don't have a claim to the trademark, which I haven't said at all. All I've said is that you don't currently own it, which is true. Are we now in agreement? |
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<b>#182</b> "Steve Bauman" No need to bite his head off. I think, if I can put words in his mouth, what Scott meant was "Unfortunatly, DE will not find an audience" not "Its a bad game because no one will buy it". I was also pretty impressed with post #180 because he managed to tone down the patronizing and defend his position without seeming like an asshole (which he failed to do in previous posts IMO) <I><B></B></I><I></I><I></I> |
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<b>#180</b> "Scott Miller, 3D Realms" wrote... <QUOTE>Yep, I've started the game, and there's no doubt it's good. I just don't think it'll reach a wide audience -- much like the System Shock series.</QUOTE> It's my personal opinion of course, but for me, Deus Ex redid the System Shock method perfected to my liking. You can barely compare System Shock 2 and Deus Ex though, feature wise. I think SS2 started development after Deus Ex and even came out way before Deus Ex shipped. That's what either Warren Spector or Harvey Smith said. -- Dethstryk Damage Gaming |
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Steve : <quote>I don't mean to bite your head off on this, but so what? Is the only judge of a game its final sales figures? So long as the game makes money, isn't that enough? Or is it just the lure of making REALLY BIG MONEY that's driving developers nowadays? </quote> As much as we'd all like the ideal to be games like Thief2 and System Shock2 ... the reality is that you have to have money coming in the door to keep the lights on. So there has to be SOME concern on the part of the developer as to how a game idea will sell. That's just reality... |
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hrm I see a trend here _dumb_ games, sell games where you need to think for more than 10 seconds dont. (by dumb games, I class most deathmatch oriented FPS theyre point n shoot n kill, most platform games, weeee jump up here and get this bonus, most, but not all sports sims, weewwwrooommmmm I just handbraked roudn that corner). Sadly games like Thief, System Shock, Deus Ex and adventure games like say Sam n Max DONT sell because the public has been getting steadily dumbed down due to being fed shite via TV and the mainstream press. face it, the youth of today, is shit thick and rude to boot. Ds <I><B></B></I><I></I><I></I> |
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<b>#187</b> "Darkseid-[D!]" wrote... <QUOTE>Sadly games like Thief, System Shock, Deus Ex and adventure games like say Sam n Max DONT sell because the public has been getting steadily dumbed down due to being fed shite via TV and the mainstream press. face it, the youth of today, is shit thick and rude to boot. </QUOTE> The youth of every age is "shit thick and rude to boot". Most non-youth are are shit thick and this aint something that going to go away. It is one of those constants over time. However people like the idea that there was a golden age in past or maybe there will be in the future. Hence the reason so many sheep join the major religions or believe in the various other kooky things (ie Aliens are coming to help us etc)<I><B></B></I><I></I><I></I> |
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Andy, you ask what problem we have with this story. You dance around about how truthful the story is and wonder what could possibly be the cause of the fuss. Yes, your facts are correct. The problem that Scott and I both have are with the conclusions you make based on those facts. You are, in effect, making 2+2=5. For example: <quote>And finally, it's a bit sneaky of Apogee to claim ownership of "Zero Hour". Not only was their registration (#75603132) abandoned in January this year, but the trademark is currently registered by Warner Bros (#1874656) and applies to comics.</quote> You take the fact that Zero Hour is expired (we've shown that is not a problem, it's still defendable). You then point out that the trademark is currently registered by Warner Bros. At least you point out that it is for comics, but the conclusion you are reaching and trying to impress on the reader is that Warner Bros. is in fact the current person able to claim the trademark so our claim is false. Either you are deliberately twisting those facts to mislead the reader, or you truly don't understand that both of those trademarks could be live at the same time. In fact, if you look at the dates, the Warner Bros. "Zero Hour" has been active since 1995. The Apogee one was applied for in late 1998 and wasn't abandoned until Early 2000. Both trademarks were live at the same time. Why did you not include that information? And why did you try to use the Warner Bros. trademark as helpful proof of your position? Those two clearly have nothing to do with each other and yet you twisted them as if they did. <quote>Had been written as this: <i>You see, despite what they claim in their intellectual property license, Apogee doesn't own the "Hail To The King" trademark. (Ownership must be determined by a court.) Indeed, THQ applied for the registration in early February, several months before Apogee claimed ownership.</i> Could all of this unpleasantness have been avoided? Have I really just made a 650+ word post, when an extra eight words in the topic would have been enough?!</quote> It would have helped, but it wouldn't have avoided our problems with the article. It would have helped because it would have at least let us understand what you meant in terms of ownership. Now this is where I get confused: You agree that many companies claim ownership of trademarks that have not been determined in court. You then state that Apogee's problem lies in claiming a trademark that someone else has applied for. Then in the topic you state that Apogee is making false claimes with Lo Wang (because it has expired) as well as Phil Graves (because it doesn't have the "General" in front of it, though Scott has explained that one already for you). Why were those two included? They aren't being registered by somebody else. As far as we know nobody else is using them for similar purposes. Which is the problem? Just the inherent claiming of trademarks in our IP license or claiming trademarks in our IP license that others are currently applying for? <quote>Apogee wants people to believe that they own a number of trademarks that they don't own at all. You can't expect the 'Crap to sit by and let that sort of misinformation go unchecked, can you? ;-)</quote> Here is my question: Could you please point me to the law or at the very least a stylebook which states that you can not claim a trademark in an IP license unless it has been proven in court or registered? Or perhaps a stylebook on the USPTO webpage or some other trademark authority which states that Apogee is in fact doing something wrong with their IP license. As far as I know, there is nothing technically wrong with what Apogee has done. You may personally have a moral problem with it, but the article does not paint it that way. You present it in a manner which makes it look like Apogee is doing something inherently wrong. <quote>This is why you will notice, for example, that a Coca Cola can doesn't say: "The Coca Cola Company owns the Coca Cola trademark." Instead, it says that "Coca Cola" is a registered trademark.</quote> Coke may not say they own the trademarks on their cans, but I guarantee that they claim them in the same manner that Apogee has claimed theirs. None of the Apogee products state "Apogee owns "XXXXXXXX"". If it is a registered trademark, it will state it is a registered trademark, just like Coke does. What I would like is for you to show me where Apogee has acted as if they own their trademarks in an manner more than they do. They have never acted as if they have been defended in court. They have never acted as if they are all registered. They have done the research necessary to determine wich trademarks they can properly claim and have done so. If you think they have claimed any more than that, then it is your own misunderstanding. <quote>Scott, I really don't see why you object to this story so much. You're reacting as if I've said you don't have a claim to the trademark, which I haven't said at all. All I've said is that you don't currently own it, which is true.</quote> Own it in the sense that it has been defended in court? No. Own it in the sense that we have doen the research to find out if we have proper claim to it, can use it freely, and will defend it? Yes. <quote><i>Finally, you stated that Scott was essentially lying about whether Apogee has applied for the "Hail to the King" trademark or not. I've asked you for what proof you have of this. You will not offer it, I can only assume you have none at this point.</i> My "proof" is the invalidity of the evidence you provided yourself. You said that the "Hail To The King" and "Come Get Some" applications were filed at the same time, but we've since established that they weren't.</quote> <b>That's your proof?</b> You are basing your proof on my speculation being wrong? Please re-read what I wrote. Each time I was speculating on what it might have been based on the evidence at hand. You speculated to the negative, I speculate to the positive, but neither of us has any more proof. My mistake was tying it to only the "Come Get Some" trademark claim. If you look at the rest of the applications by Apogee at the time most of them fall into late February. The timing could still very well be the cause. The fact that you are content to let my original <i>speculation</i> be your proof should be evidence enough for everyone on how you take certain facts to draw conclusions that you probably shouldn't. ----- I went digging around and tried to find something that backed up your claim that "ownership" can not happen until a trademark has been proven in court. I couldn't find anything. In fact, I found again and again where the person claiming a trademark was referred to as "owner" before a lawsuit to defend it had ever occured. Several links. Look at who they refer to as owner or ownership. http://www.nolo.com/encyclopedia/articles/pct/pct27.html http://www.nolo.com/encyclopedia/articles/pct/pct28.html <quote>Using and Enforcing a Trademark Advice on how to make trademark law work for you. <b>Generally, a trademark is owned by the business that first uses it in a commercial context<b>--that is, attaches the mark to a product or uses the mark when marketing a product or service. A business may also obtain ownership of a mark if it applies for federal registration of the mark and the application date is before anyone else uses the mark. See the discussion below on reserving a mark. Once a business owns a trademark, it may be able to prevent others from using that mark, or a similar one, on their goods and services.</quote> http://www.law.cornell.edu/topics/trademark.html <quote>Trademarks are generally distinctive symbols, pictures, or words that sellers affix to distinguish and identify the origin of their products. Trademark status may also be granted to distinctive and unique packaging, color combinations, building designs, product styles, and overall presentations. It is also possible to receive trademark status for identification that is not on its face distinct or unique but which has developed a secondary meaning over time that identifies it with the product or seller. <b>The owner of a trademark has exclusive right to use it</b> on the product it was intended to identify and often on related products. Service-marks receive the same legal protection as trademarks but are meant to distinguish services rather than products.</quote> You can continue to poke around in other sections of those pages, and you'll find again and again that ownership is not used only to refer to people who have had a court decision in their favor. http://www.ggmark.com/ Lots of links at the bottom there too, for further reference. Yes, a court can make a decision on ownership when there is a conflict, however a court decision is *not* a requirement to claim ownership. Charlie Wiederhold |
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Damn bold tag, I really should start using CrapSpy. If you don't want to bother replying to everything else Andy, please at least let me know about the last section where it refers to ownership and the requirements for claiming ownership. Charlie Wiederhold |
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<quote>ust a brief thought... why do companies feel the need to register characters' names as trademarks? I mean, Phil Graves is a pretty bland kinda name - there must be hundreds of millions of them the world over - so why does any one person have the right to 'own' the name? Feh, I dunno. I make no sense. It's only 24 hours past Monday.<quote> Because if Apogee ever decides to base a game around that character, it will be very handy to already have those trademarks in place. It is very difficult to claim a name as a trademark, and is next to impossible to defend against. However you might as well take whatever steps you can just in case. Charlie Wiederhold |
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<b>#183</b> "Andy" wrote... <QUOTE>That hits the nail on the head: Someone who THINKS they own it. Just like you THINK you own it. Hell, one day a court may rule that you DO own it. But currently, you haven't even registered the trademark. So the original story was accurate, wasn't it? </QUOTE> Registered or Unregistered...the point is that, essentially, everyone who CLAIMS a trademark "owns" it until a court decides who actually owns it in the case of a conflict. That's the way it works. Apogee's claims aren't misleading or false, they are WARNING people that they have laid claim (registered or not) to those marks within the specific context and genre in which they used them. Essentially they're saying; "We used <b>this</b> mark in <b>this</b> fashion, and if you try to do the same, we'll fight you over it." The (TM) symbol is used for UNREGISTERED marks and the (R) symbol is used for REGISTERED marks. Apogee <i>specifically</i> stated that the list of trademarks included REGISTERED <i>and</i> UNREGISTERED. From the original article: "andy" wrote... <QUOTE> But those people can stop worrying, because it turns out that Apogee hasn't been entirely honest with us... You see, despite what they claim in their intellectual property license</A>, Apogee doesn't own the "Hail To The King" trademark. </QUOTE> Because of the way trademark laws in the US work, they <b>do</b> own that specific usage, <b>until</b> someone challenges them and wins. So they weren't being dishonest. <b>#183</b> "Andy" wrote... <QUOTE>So the original story was accurate, wasn't it? </QUOTE> It was less accurate than the Apogees claims that you claim were dishonest. They're not required to explain the law along with their list of trademarks. -Valeyard<I><B></B></I><I></I><I></I> |
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Charlie/Valeyard No, I'm not continuing this. I'm not bothered about how either of you interpreted the story, or what you thought I was implying or what 'conclusions' you think I reached. I reported some facts, and that's the end of it. Charlie: With hindsight, I can see that mentioning the "Phil Graves" and "Lo Wang" trademarks served no great value. Apogee, in claiming ownership of those trademarks, is doing nothing worse than many other companies do. Charlie/Scott/George: As I said in another thread, I believe the burden of proof should always be on the reporter or journalist, and disputes should be settled in court. I wrote the story, I provided the proof. If you still want to claim that the story was in any way inaccurate then I suggest you find a more formal setting than a message board. |
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thanx Valeyard |
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<b>#193</b> "Andy" wrote... <QUOTE>No, I'm not continuing this...I reported some facts, and that's the end of it</QUOTE> Figures. <b>#193</b> "Andy" wrote... <QUOTE>I wrote the story, I provided the proof. </QUOTE> And as soon as you were shown wrong you tried to side-step, back-step and dance a litte jig to make it look like you were right. When people who actually KNOW what the hell they are talking about wouldn't let you get away with it...you resort to "not continuing this". Typical. That's ok, we're used to you not being wrong. Heaven forbid that foundation on which you base your witch hunts should happen to crumble. -Valeyard<I><B></B></I><I></I><I></I> |
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I will defend the story in court. I will not waste time arguing here. |
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<quote>if I can put words in his mouth, what Scott meant was "Unfortunatly, DE will not find an audience" not "Its a bad game because no one will buy it". </quote> Well, that's how I interpret it too, but how was that at all relevant to people discussing how great it is? It is a knock on a game to say it won't sell... of course I (over)reacted like a dweeb. |
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<quote>As much as we'd all like the ideal to be games like Thief2 and System Shock2 ... the reality is that you have to have money coming in the door to keep the lights on. So there has to be SOME concern on the part of the developer as to how a game idea will sell. That's just reality </quote> Absolutely. But listening to developers talk nowadays, that seems to be the main criteria for determing how they're making their game. You can principle yourself out of business. You can also try to chase the market and put yourself out of business. Or you can create products that aren't market researched and you probably stand the same chance of having a "hit" as anyone. The Thief games sold well enough to keep a developer in business (Looking Glass seems to have disappeared in larger part because of issues tied to publishing games a few years ago). They didn't sell enough to keep them in Ferraris, which seems to be the main goal of people nowadays (if the bragging over their wheels is any indication). |
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<quote>I will defend the story in court. I will not waste time arguing here. </quote> Yet you continue to ask Scott Miller (and others) question after question because he hasn't answered it specifically to your liking... hmm. |
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You won't even bother to show me where your definition of "ownership" comes from? That's really what most of this hinges on, and every reference material I've found so far indicates that your definition of ownership is not accurate. Courts can make decisions of ownership, but people can claim ownership all they like. It is intentionally left open ended and left up to the user to find out for themselves if they are allowed to claim ownership or not. When a dispute does arise over ownership, only then does the court get involved and make a decision. I understand now that when a person grows tired of arguing their case on Planetcrap, all that is left to do is "take it to court". Adios Amigos. Scott was right all along. Charlie Wiederhold |
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<quote>No, I'm not continuing this. I'm not bothered about how either of you interpreted the story, or what you thought I was implying or what 'conclusions' you think I reached. I reported some facts, and that's the end of it.</quote> Flase Claims. You didn't just report facts, you also stated that Apogee has made false claims. That is not an interpretation of the post, that is not what we think you are implying. You can not deny that it is a conclusion you reached. Just reporting facts would have been a rather different article, an article that removes the "false claims" aspect of it. Charlie Wiederhold |
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Should have mentioned this yesterday but I forgot. If you look at THQ's <a href="http://www.evildeadgame.com/terms.asp">T&C</a> page you'll see their "partial list of THQ Trademarks". This is it: <quote> THQ, THQ INC., the THQ logo, THQ INTERNATIONAL, THQ GERMANY, RUSHWARE, SOFTGOLD, GAME FX, PACIFIC COAST POWER & LIGHT, the PACIFIC COAST POWER & LIGHT logo, HEAVY IRON STUDIOS, the HEAVY IRON STUDIOS logo, SNOWBOARDING, CHAMPIONSHIP MOTOCROSS FEATURING RICKY CARMICHAEL, SLAP HAPPY, FELONY PURSUIT, ASHES 2 ASHES, GAME FX, and KOKOPELI DIGITAL STUDIOS. </quote> Notice that even though they've applied for "Hail To The King", they don't claim ownership of it. This, I assume, is because they realise that there are multiple claimants, so they will not claim ownership until they at least complete the registration process. Meanwhile, Apogee claims ownership without even having filed an application. (They may have tried to file one, but they failed, otherwise it would be in the USPTO database.) |
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Charlie, On second thoughts, perhaps a compromise is in order: If either Scott or George still feels the story was inaccurate, I'll discuss it with them by e-mail. I'm willing to continue discussing it, I'm just not willing to argue on a public forum. (It's impossible to discuss something like this when other people keep interrupting all the time.) Can't say fairer than that. |
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Andy : <quote>I will defend the story in court. I will not waste time arguing here. </quote> If this is going to be your response when cornered, I would suggest not riding people like Scott Miller and Jason Hall into the ground with questions in the future. If you can't take it, don't dish it out. |
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If I recall correctly, Trademarks are far more fragile than other forms of intellectual property. Patents are held for a fixed amount of time. Copyrights are in theory held for a fixed amount of time, but if the current wave of copyright extension continues, as long as you renew your copyrights they'll last to the heat death of the Universe. Trademarks on the other hand, IIRC, are indefinite, as long as there is a distinguishing mark in the eyes of the public. So if you let your term become generic (as the "Ketchup" spelling did, as I believe "Aspirin" did, and as "Xerox" very nearly did), then you are SOL. Moreover, IIRC, Trademarks must be defended in every case, or you risk losing them in any case. Unlike copyrights, where ignoring one violation does not preclude your ability to act against another, if I am remembering correctly, failing to act against one violation of a Trademark is grounds for losing in court if suing someone else for violating it. Specifically, IIRC, you have one year from the time a reasonable person could be assumed to have known about the violation to act. Not that this answers any of the flames going back or forth about who has what mark, whether they were deceptive, if they need to be sued about it, or whether or not any or all of the participants are being reasonable in this discussion. It's just more information, subject to the usual disclaimers. I am not a lawyer. Nor do I play one on TV. I have however, had the pleasure of discussing intellectual property law with some fairly skilled lawyers. Some of it may even have stuck. If not, I am firm and confident in my misinformation. CP |
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<b>#196</b> "Andy" wrote... <QUOTE>I will defend the story in court. I will not waste time arguing here. </QUOTE> Fine, let Apogee do the same. Frankly, what difference does it make what they do, or do not, have trademarked? It doesn't make ANY difference. You've already proven you don't have the first clue about the trademark issue, and you've also proven that you'll relentlessly dig to find any hint of wrong-doing on the part of anyone you don't like. Even if it's a completely hypothetical wrong, invented to stir discussion and raise suspicion. Apogee did nothing wrong, they didn't mislead anyone...except for those who were desperately looking for something "wrong". 'Life's no big mystery to a cop. You find a dead guy and you think his brother did it, you're going to find out you're right.' (paraphrased from The Usual Suspects) People see what they want to see...start looking for faults and you're going to find them. <b>#203</b> "Andy" wrote... <QUOTE>I'm willing to continue discussing it, I'm just not willing to argue on a public forum.</QUOTE> Why post a thread and start a discussion only for you to continue it in private? Now, more than ever, this is looking like your personal little forum. People prove you wrong? Doesn't matter, you won't admit it. People want you to live up to your own expectations and demands? You refuse and offer to continue in private. Seeing all the old defense mechanisms show up, I'm wondering how long until we'll see the famous "fuck off and stay fucked off"? -Valeyard<I><B></B></I><I></I><I></I> |
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It's about time this ended. I've been lurking this thread since the start and saw how it evolved/degenerated into a giant pissing contest. You're all right to an extent so for chrissakes, do what they teach you in grade school; make a compromise, meet in the middle, and shake hands. Bushido. |
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Posting from a friend's house. Everyone else is alseep, they aren't quite as used to the late night hours that I am. ;) Kinda ironic that their Windows Theme is "Army of Darkness", heh. Andy, thanks a TON for posting the THQ trademark claims! I had read through them but didn't really give them much though to check them out. However I decided to give them a run after you posted them and boy was I suprised by the results. You sure you want to use THQ as your poster child for how to properly claim trademarks? Lets take a look at THQ's trademark claims, shall we? These trademarks are registered and live: <i>THQ, the THQ logo, KOKOPELI DIGITAL STUDIOS</i> I couldn't find these trademarks, but they are most likely just fine: <i>THQ INC, THQ INTERNATIONAL, THQ GERMANY</i> These trademarks are applied for and live: <i>HEAVY IRON STUDIOS, FELONY PURSUIT</i> I couldn't find these trademarks, but they are most likely just fine: <i>the HEAVY IRON STUDIOS logo</i> Now we start to get into the areas that Andy has problems with in our license agreement when he originally wrote the topic, but aren't a big deal to me. These trademarks are not to be found: <i>RUSHWARE, PACIFIC COAST POWER & LIGHT, the PACIFIC COAST POWER & LIGHT logo, ASHES 2 ASHES</i> Now things get wierd. I'll go down each one of these specifically cause each one is a special case. <i>SOFTGOLD:</i> This one is not registered by THQ, however there are three dead registrations for "War Inc." and similar names by a company called "Softgold". I don't know if Softgold is a current or old property of THQ or not. They do operate with video game properties so it is possible. Softgold itself, however, is not registered. <i>GAME FX:</i> Live and registered to a company named "Gamer FX". I'm going to assume that this is a property of THQ. If it's not, then the problem is rather clear. <i>GAME FX:</i> No, that's not a typo. I list it twice because THQ listed it twice on their agreement. And some people accused *us* of having a lazily put together license agreement. Yeesh. ;) <i>SNOWBOARDING:</i> Anybody who is aware of trademarks and how they function will see an instant problem with this one. Snowboarding is a common phrase and as such can not be claimed. It's like trying to claim "Fishing". If anybody doesn't believe me on this I'll be more than happy to point you in the direction of the resources needed to see what I mean. Some of them I've already linked on this page. Why is THQ trying to claim a trademark that not a single entity on this planet would be allowed to claim? By the way, there were lots of trademarks that have "snowboarding" in their descriptions, but none that have it as part of the actual mark itself. <i>CHAMPIONSHIP MOTOCROSS FEATURING RICKY CARMICHEAL:</i> This was not to be found in any variation. However, it also falls under a few problems. "Championship Motocross" is going to be rather difficult to claim as it is a common noun (just like snowboarding). The person's name is referencing a specific live purpose and I believe any trademarks that could be made about him have to be made by him. Getting your name trademarked though, is damn hard. <i>SLAP HAPPY:</i> I got a good laugh at this one. Go up to the topic again and read the section about "Zero Hour" at the very end. You back? Ok, there is only one live application for this one, and it goes to a company named Morton-Norwich Products that makes air freshners. All other registrations for it are dead, including the one by THQ. There is obviously not a market conflict between air freshners and video games, just like there is no market conflict between comic books and video games. The Zero Hour situation and the Slap Happy situations are *exactly* the same. Now, I don't have a problem with most of the claims that THQ has made in their license agreement. They didn't claim "Hail to the King". We can speculate back and forth on why. Andy thinks they were doing the right thing, I think they were trying to slip the "Hail to the King" application by without being noticed. Neither of us knows, so nobody can believe either person on *why* they didn't list "Hail to the King". However, going off of the rest of their trademark claims, I would certainly hope that Andy has just as many problems with their license as he does with ours. I expect to see an article about the problems in the THQ agreement at some point. If I don't, then I will wonder what the true motivation for this original topic was for. ----- You want to continue this in private, Andy. I won't agree. You felt the need to write the article on a public forum in the first place and knew full well it was going to be discussed. I've presented multiple specific questions to you that you have ignored and dodged in a better manner than I have ever seen Scott or Jason Hall do. If you didn't have the fortitude to continue this to the end, you should not have posted it in the first place for discussion. It should have been written for a magazine or something else. This is the reason I won't post topics here. I rarely have the time to properly research the topic in the first place, and will certainly not have the time or willingness to defend for as long as parties are interested in discussing it. Perhaps you should consider the same. I have some suspicions about when Apogee first made a public claim to "Hail to the King" that would put a rather large dent in your argument that THQ put in the application before Apogee put up it's IP license. That doesn't matter, however I'm willing to work with what you've given me. I'll post about it tomorrow once I've seen whether my suspicions are true or not. I don't have any of the products around me right now. Charlie Wiederhold |
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I will tell you why you won't find Ashes 2 Ashes.. Cause that is not the title of the game anymore.. Duh! Any Way... Charlie as far as straining your brain to come up with these interesting list of NON-RelATED material. Here is my question WTF does 90% of the stuff you listed have to do with Evil Dead? War Inc? That's a crappy rts game that came out about 2 years ago..and like maybe 2 people played. It was a mix of corporate business and military warfare. What that has to do with Evil Dead and Apogee trying to ahem register certain phrases based of Evil Dead series.. I don't know. I think everyone is pretty much in agreement here. The lines in reference to ED2/AOD.. you didn't come up with.. and to try and say that DUKE-Nukem has the rights to them? Maybe its a question of ethics and creativity ownership. But the facts of the matter are clear there is enough factual content to back up the my statements.. Apogee didn't create those lines.. There were shirts with those lines printed on,The movies were sufficiently popular that millions have seen them... And combined they equal out to Apogee trying to pass off something as their own.. when infact their best Original line is come get some. I can just imagine Apogee is very excited that Hail to The king is coming out well before DNF is released.. Gives you guys time to try and register some new material as your own. If you read the last incite magazine to probably come out,Bruce is interviewed...And as he put it.. ALl the FAMOUS LINES will be in the game.. as well as ALL-NEW MATERIAL. Are those lines associated with Duke..to a few.. More people associate them with Ash. Is it that hard for 3drealms to come up with new material? Or does creativity not run available in this company? |
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