Tag: Trademark

In Plain English: KLM Starfall Education Foundation v. Trion Worlds, Inc.


Today’s In Plain English covers the very short lawsuit between Starfall Education Foundation and Trion Worlds regarding the Rift expansion Starfall Prophecy. You may be aware that Trion Worlds recently changed the name of the expansion to the Prophecy of Ahnket and wanted to know why. The explanation lies in a recent lawsuit filed by a children’s charity foundation over its ownership of the trademark “Starfall.”

If you don’t know what Starfall is, I’ll let the charity’s website explain itself:

Starfall Education Foundation is a publicly supported charity, 501(c)(3). We create free and low-cost experiences whereby children can successfully learn through exploration. On the Starfall website and in Starfall classrooms, children have fun while learning in an environment of collaboration, wonderment, and play. We teach through positive reinforcement to ensure children become confident, intrinsically motivated, and successful.

Donors to the Starfall Education Foundation can sleep soundly knowing that your contributions went to fund the Bardacke Allison LLP, Melkonian & Co, and Purvis Gray Thompson, LLP law firms for the purposes of filing a dispute over a video game expansion title. For what might otherwise seem to be a pretty minor issue, Starfall decided to bring a team of three lawyers on board, an ultimately pointless move since Trion Worlds didn’t put up much of a fight or make much in the way of arguments on their own behalf.

Still, a $400 filing fee is a big lump of money when your 2015 revenue looks like this (via Citizen Audit):

Unlike certain other cases covered here on In Plain English, this story is fast and has a simple ending. Rather than fight what could become a lengthy and costly legal battle over something rather trivial, Trion Worlds decided to settle. Those of you who play Rift, or read about it, will know that Trion Worlds has changed the name of the expansion to Prophecy of Ahnket, a decision that might be confusing if you don’t understand this underlying context.

Trademark ownership is only as strong as the owner’s protection, although MMO Fallout has doubts that the case would hold up given a company willing to lawyer up and take a stance. The numerous Starfall video games and video game related websites that we were able to find over the course of a half hour, many of which predate the Starfall 2002 founding date, and thus its 2004 trademark registration date, could make a solid case against Starfall’s claim to the term. Still, I’m not a lawyer, so don’t take any of this as legal advice.

STICLI Games: Toxic Developer With Invalid EULA


STICLI Games is the developer of Airport Master on Steam, a $15 airport simulator that by all accounts seems to be a decent game that merely suffers from a bad user interface. The developer, however, seems intent on driving their reputation directly into the river by coming right off the starting line with toxic behavior, an illegitimate end user license agreement, and enforcing trademarks that it very likely does not own.

Since we live in a world where shady, toxic indie Steam developers waste no time perjuring themselves (because filing a false DMCA is committing perjury, a very real crime) by striking critical videos, banning people who post critical reviews, and threatening critics with everything from legal action to revoking their access to the game because they had the gall to complain on or off of the forums.

But STICLI Games has taken it a step further. Imagine, as a non-business owner, what you would do to stop criticism of your game. You write it into the rules, right? While rules are fine and dandy, you need a set that has implied legal backing behind it, and that leads us to our next topic: The end user license agreement. It’s a tool that, for many small business, would never hold up in court because it wasn’t drafted by a lawyer (a competent lawyer), contains bad sections that could invalidate the whole agreement, and the owner assumes that anything written is legally binding because why not, the customer agreed to it.

STICLI Games has decided to bake justification for toxic, anti-consumer practices directly into their EULA, starting with the recognition that STICLI owns the trademarks on all properties and you are not allowed to produce content without prior written permission:

The End User recognizes that all of the rights associated with the Software as well as the rights related to the trademarks, royalties and copyrights, are the property of STICLI Games and are protected by international laws and treaties. Any use of Copyright Holder’s trademarks, imagery content, videos, graphical elements, names, plot in any activity (including but not limited to: producing 3d party video content, electronic and on-paper publishing, creation of promotional content etc.) is only possible with prior written permission of Copyright Holder.

Incidentally, we can learn a lesson from Digital Homicide’s James Romine on this subject: As he stated in his lawsuit against Jim Sterling about the use of the ECC Games name, he isn’t violating any law because ECC Games doesn’t own the trademark in the United States. And after a cursory search of the US Trademark Office, it looks like STICLI Games doesn’t own a US trademark on Airport Master. Trademark, unlike copyright, does not protect works automatically. You have to file, pay the fees, and have your application approved.

But let’s go further, because the EULA just gets better from here out.

4. TRADEMARKS AND RIGHTS TO THE SOFTWARE
The End User recognizes that all of the rights associated with the Software as well as the rights related to the trademarks, royalties and copyrights, are the property of STICLI Games and are protected by international laws and treaties. Any use of Copyright Holder’s trademarks, imagery content, videos, graphical elements, names, plot in any activity (including but not limited to: producing 3d party video content, electronic and on-paper publishing, creation of promotional content etc.) is only possible with prior written permission of Copyright Holder.

A large portion of the threatening emails I receive from developers follow this pattern, people who think they the legal authority to decide who covers their products and want to know why I didn’t ask for permission before publishing my review/editorial. Here’s the thing about copyright law: You don’t have to ask for the creator’s permission in order to cover it. I don’t need STICLI’s permission to use a screenshot as part of this publishing, I don’t need their permission to write this article about how they’d want permission from me to write this article, and I don’t need permission to review their products.

EULAs don’t magically grant companies special privileges, there have boundaries you can’t go outside of when it comes to agreeing on what can and can’t be done.

9. NO REFUNDS
Except when required by law, the Licensor shall be under no obligation to issue refunds under any circumstances. The Licensor may issue refunds basing on Licensor’s own judgement and solely as a gesture of good will.

I have seen some discussion about this clause and it isn’t technically ‘illegal’ in the basic sense because the writer was smart enough to add ‘except when required by law.’ It doesn’t make sense otherwise because STICLI doesn’t get to decide who receives a refund, that’s Valve. None of STICLI’s judgement comes into effect when it comes to Valve’s refund policy.

That means you MUST obtain prior written permission from us before uploading any videos to YouTube. Otherwise, you are breaching the EULA and we can terminate your software license without refund and fire a copyright strike on YouTube.

Also, is this a challenge? Because it sounds like a challenge, and I love a good challenge. So, in testing whether Steam would enforce Airport Master’s ‘under any circumstance’ EULA, I decided to purchase Airport Master for $14.99. I quickly came across some performance issues, including the following illegible text on most menus. It made the game, in my humble opinion, impossible to play on my system and therefore a qualifying circumstance to ask for a refund, I think most will agree.

So I asked for a refund, to which Valve said “yea sure whatever” and promptly handed it over after about two hours.

Turns out that STICLI Games’ EULA isn’t so binding after all.

One more thing: The whole argument about trademark is useless as trademark and copyright are two wholly separate entities. Trademark is all about market confusion, owning a brand and identity and being able to protect it. It is what would prevent someone from, say, starting up a business called STICKLI Games and producing a game called Airport Masters and selling it on Steam, because that is confusing the market. It stops sleazy furniture stores from advertising the “Ultimate Super Bowl Couch,” because it implies official affiliation. It does not give you full control over the use of the words.

It looks like STICLI Games is in Cyprus, and doesn’t own the trademark there either.

Creating Games Using Someone Else's Intellectual Property


As someone who started writing by creating derivative works of existing properties, I have a special place in my heart for amateur studios who do the same. So whenever I have to deal with such a group of people, I never see them as content theives when I tell them they will probably be served a cease and desist, if not sued outright, for stealing intellectual property.

As is the case with My Little Pony Online, a testament to the internet’s demand that not even this website can refrain from mentioning the show. MLP: Online is an MMO based on the tv show dedicated to a base of adult men. Unsurprisngly, MLP: Online was the target of a cease and desist by Hasbro for all sorts of infringements. The project will continue, but without anything that would identify it as a My Little Pony game.

Still, the law sucks. It puts content owners in a rough spot since if they don’t protect their properties, they could lose them.

Perhaps the better question to ask is why Hasbro took so long to send the cease and desist, considering the game was on the radar of the mane-stream press for a good while now.

I am so sorry.

Creating Games Using Someone Else’s Intellectual Property


As someone who started writing by creating derivative works of existing properties, I have a special place in my heart for amateur studios who do the same. So whenever I have to deal with such a group of people, I never see them as content theives when I tell them they will probably be served a cease and desist, if not sued outright, for stealing intellectual property.

As is the case with My Little Pony Online, a testament to the internet’s demand that not even this website can refrain from mentioning the show. MLP: Online is an MMO based on the tv show dedicated to a base of adult men. Unsurprisngly, MLP: Online was the target of a cease and desist by Hasbro for all sorts of infringements. The project will continue, but without anything that would identify it as a My Little Pony game.

Still, the law sucks. It puts content owners in a rough spot since if they don’t protect their properties, they could lose them.

Perhaps the better question to ask is why Hasbro took so long to send the cease and desist, considering the game was on the radar of the mane-stream press for a good while now.

I am so sorry.

Champions In Court #2: Batman Returns


bat

In a game where players can create whatever they want, be whoever, they want, and personalize their experience to the enth degree, it is only natural that there will be hundreds of hulks, batmen, and supermen. Creative? Not so much. Inviting a lawsuit? Cryptic should already know that, which is why both City of Heroes and Champions Online have a policy of changing costumes for characters who are reported as having trademark/copyright infringing costumes.

Champions In Court is something of a whimsical article, where I take shots at some of the players in Champions Online, but the copying of superheroes in Champions Online, to the players, is a big issue that needs to be resolved. I report maybe one person a day when I’m playing, as I rarely see these player types, and I know that some members of the community look upon it as playing Internet Police, but the implications are real. DC Comics and other companies regularly send investigative teams into games like City of Heroes and Champions Online. If you don’t report them, they will, except they will be reporting to their lawyers. Cryptic being tied up in legal matters, whether or not they win, is not good for the game, and will eventually lead to a heavily restricted creation system.