If any single aspect of common trademark disputes has become the thing that annoys me the most about them, it’s how often the canard from trademark bullies that they have to be bullies by order of trademark law is trotted out for public consumption. You can almost set your watch to it: trademark bully does trademark bullying, public backlash ensues, trademark bully falsely explains that if it doesn’t bully it loses its trademark rights, the public usually backs off. While it would be unreasonable to expect the general public to be up on the nuances of trademark law to the degree of someone who is paid to write about it, it’s not unreasonable to smack down attempts by those who know better but who actively attempt to misinform that same general public.
Which brings us to Bethesda. We recently discussed an indie studio called No Matter Studios, which had launched a successful Kickstarter campaign for its game Prey for the Gods, being bullied into changing that name to Praey for the Gods by Bethesda. Bethesda recently released a AAA title called simply Prey and is enforcing its laughably broad trademark rights, acquired by Bethesda from 3D Realms, on that name. Faced with a trademark dispute by a much larger company, No Matter Studios caved and made the requested changes which, as we pointed out in the original post, are so absurdly inconsequential as to beg the quesiton of how much real customer confusion was Bethesda actually concerned about in the first place. Right on time, the public backlash began, with much of it directed at Pete Hines, who is in charge of PR and marketing for Bethesda games. And, right on time again, Hines trotted out the shrugging excuse blaming the law rather than his company’s actions.
Many contacted Bethesda’ Pete Hines on Twitter and voiced their concerns over the development, in response to which he said that ZeniMax had contacted No Matter Studios in 2015 to warn them of potential implications but ZeniMax’s letter was ignored. He said that neither companies are responsible for how trademark laws work and that there have been countless times when ZeniMax’s own studios had to change game titles to accommodate the same laws that No Matter Studios is now having to comply with.
“We reached out in Nov 2015. We tried talking to them. Well before their Kickstarter. And they could have used a name that didn’t infringe on our mark like we have 1,000 times when we came up with something another company marked. I’m not a trademark lawyer. Or any kind of lawyer. They disagree. Doesn’t matter what I think about any of this.”
Hines was even more specific on Twitter in response to those who raised concern over this dispute.
@TallulahSoie Cool has nothing to do with it. Its how trademark law works. You protect your mark or lose it. You don’t really have a choice.
— Pete Hines (@DCDeacon) May 3, 2017
As I am going to apparently be forced to keep repeating, this is the sort of thing that sounds good but simply isn’t true. There is no blanket requirement that every use of a trademark by another party must be policed in every instance, forever and ever, amen. The requirement is for appropriate policing, with the likelihood of customer confusion governing what is and is not appropriate. Hines has gone back on Twitter and sent out reporting from media that buys into the forced bullying canard. Much of that reporting repeats the myth whole cloth, but its belied by some very simple facts.
The chief fact to consider is that the changes requested by Bethesda and agreed to by No Matter Studios are so inconsequential. They mostly amount to a single character being added to the latter’s game title, an “a.” The game’s logo, meanwhile, remains untouched and reads as Prey for the Gods. There is nothing in trademark law that requires action resulting in so little consequence. More importantly, were this to be a valid trademark concern on the part of Bethesda, the necessary results of any dispute would have to be more substantial. Remember that customer confusion drives all of this. If there is no potential for confusion in the marketplace, there is no need for the policing of the trademark. Given how the likely lack of confusion in this example is the result of one game’s title consisting of a single word while the other’s title uses that word as part of a longer and unique title, it’s difficult to imagine a future in which Prey for the Gods keeping its name results in Bethesda being stripped of its trademark rights to Prey.
So, please, don’t buy the excuse. Hines himself notes on Twitter that he is not a lawyer. And I will say that he generally seems to be actively trying to engage these concerns, rather than ignore them. Given those two factors, I almost wonder if Hines himself is misinformed on the subject.
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Author: Timothy Geigner