A Trademark Troll is a term applied to someone who makes money by relying on the revenue from legal action that they take against anyone creating something that they can link to one of their registered trademarks without really providing anything of any value. This can be a lucrative course of action with some people seeming to make whole careers out of this and is particularly rampant in the technology industry.
Most recently, Markus ‘Notch’ Pearson, creator of the runaway success Minecraft, has reported that his recently minted development studio, Mojang, has received a letter from the lawyers of Bethesda concerning a trademark infringement. Mojang’s in-development title “Scrolls“, according to Bethesda, is too similar to their long running RPG series, “The Elder Scrolls”, better known to gamers as Arena, Daggerfall, Morrowind, Oblivion and the upcoming Skyrim which should be released in November.
The argument is that the name Scrolls could confuse gamers into thinking that it’s associated with Bethesda’s series. If successful, it would mean that Bethesda would essentially own the word scrolls. Based on legal precedent, it seems unlikely that they will succeed.
This sort of thing has happened before. The infamous and much despised Tim Langdell, founder of Edge Games made a name for himself by suing anybody that used the word “Edge” because he argued it infringed on the name of his studio. His targets included Future Publishing for their magazine, Edge, Namco’s Soul Edge (that was renamed Soul Blade for European and US releases) and EA for free-running game Mirror’s Edge. In summary, EA bit back and broke the back of the claim, but this wasn’t before Langdell had caused considerable disruption within the industry.
The main element of a pure Trademark Troll is however that they do not produce content themselves for example in Langdell’s case, Edge Games had not released anything since 1994. Trademark Trolls instead try to rely on acquiring funds through legal enforcement of their property.
Bethesda can not be described as Trademark Trolls. They produce high quality games, many of which frequently achieve high scores and wide fan bases, but their behaviour in trying to claim a word from inside one of their registered trademarks does come across as Trademark Troll-like behaviour.
I have a suspicion that in the case of Bethesda suing Mojang, the process might have kicked itself into gear automatically. Bethesda has become an enormous company that probably suffers from internal communication issues. If their legal department has any degree of autonomy, they might have been tasked with shutting down anything that looks like a Skyrim imitator through the use of cease and desist letters and as a result could have made a bit of a blunder in the case of Scrolls. It wouldn’t be a stretch to imagine that the legal department of a large games publisher is not particularly gaming savvy. In the landscape of the modern games industry, you don’t have to know or care much about games in order to work in the business side of it as anyone who has got more than vague answers out of PR handlers about demo titles at press events will know, and this is doubly so with their legal teams. Lawyers have to be familiar with a huge amount of information and will spend large parts of their professional careers clarifying and reading around their subjects of expertise. There quite simply would not be enough time for them to immerse themselves in the gamer culture for any length of time as well and nobody in their right mind should expect that to be a priority of theirs.
It actually doesn’t necessarily require a company to be large for this sort of thing to happen. In one of his compilation books, Farside Gallery creator Gary Larson wrote that he received a threatening letter on the behalf of primate expert Jane Goodall in response to one of his cartoons, despite simultaneously receiving a letter from Jane Goodall herself saying how much the same cartoon had made her laugh. It transpired that the lawyers had been working on her behalf without actually consulting her first.
There is a defence for Bethesda having autonomous lawyers trying to shut down Elder Scrolls imitators. There are undoubtedly numerous Skyrim copycats springing up, or games using names that are incredibly similar all the time that are being sent cease and desist letters. If they were to ignore every illegitimate copy of their work that sprang up, they would run the risk of losing their trademark or for the copies to hurt the success of their product which is a scenario that could cause huge amounts of fallout for the company (no pun intended). In an ideal world, nobody would need to file for trademark infringement, but in this world, people will always try and ride on the backs of other people’s work and brands. Notch even says in that post linked above that they’ve had to shut down another game calling itself Minecraft on iOS.
The only problem here is that someone didn’t think before filing for legal action against Notch. This is a spectacularly bad, even if potentially unintentional, PR move from Bethesda. Minecraft has recently hit the 3 million mark of copies sold with a high proportion of those copies going to people who would describe themselves as fans, if not fanatics and worshippers, of Notch and I would not be surprised if some kind of Skyrim boycott was called (if not ultimately acted on) as a result of this.
Personally, although I understand why the lawsuit has been filed, I’m still disgusted that they’re trying to pull this. There is always the possibility that I’m a Notch/Mojang worshipper in denial, but I don’t think “The Elder Scrolls” and “Scrolls” can be confused with each other, especially when hardly anyone refers to “The Elder Scrolls” series by that name. I would go as far as saying that if you went into your local Game and asked when the next Elder Scrolls game was coming out, there is a high probability that you will get a very blank look in reply.
The other thing that’s very sad about all this is that a few months ago whilst I was working with Bit-Tech, I wrote up a news item about Minecraft getting a final release date, as up until now it has been in an extended alpha and beta phase. On Notch’s blog he said: “It’s the same date as a few other games and movies, and the one I’m the most excited about is Skyrim, so that will be a nice reward for me if we actually manage to hit that date!”
Notch had been looking forward to the release of Skyrim to the point that one of the reasons for releasing Minecraft at the same time was so that he could play Skyrim without having to worry about his own project and would consider it as a reward. I would love to know if that’s still something he wants to do.
I hope that Bethesda and Notch can get through this ugly business without too much bloodshed or bad feeling and that it was not an intentional Trademark Troll course of action from Bethesda. I can’t imagine what it must be like to be slapped with something like this from a company that you respect. I wish them both the best of luck in coming to a amicable solution and really hope it can be cleared up as a simple misunderstanding.