Bethesda's Pete Hines Shrugs His Shoulders About Trademark Dispute With No Matter Studios
from the praey-for-him dept
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.
Filed Under: pete hines, praey for the gods, pray, prey, trademark
Companies: bethesda, no matter studios
Comments on “Bethesda's Pete Hines Shrugs His Shoulders About Trademark Dispute With No Matter Studios”
It was sad how many gaming websites breathlessly repeated the claims of a PR/Marketing VP on a legal matter without consulting any legal experts themselves.
Re: Re:
There are some stipulations about non-enforcement. So the question becomes when the excuse about enforcement flies.
If I was a lawyer for such a company I would also err on the side of keeping the trademark, which unfortunately, to some extend requires action. That said very short common language word like “prey” are certainly being overenforced, when we are talking about it appearing as part of longer sensible names. The only reason for Bethesda to pursue this case would seem to be if they wanted to name an expansion for prey in exactly the same way as this games title.
The complexity, wiggle-room and options for “letting it go” is certainly not what Bethesda has been looking into. When that kind of common courtesy is a bad excuse for not being litigious, it seems there is a fundamental flaw somewhere in the seams of this case…
Re: Re:
That is why we will pirate the crap out of them.
So now nobody can use the word “prey” in a video game title or they are depriving Bethesda of their rightful income.
Yes, Pete Hines…”cool” does not have anything to do with this… But “stupid” and “greedy” do.
Can you quote the part of the law about appropriate enforcement?
Re: Re:
If you’re asking where it is in the Lanham Act, it isn’t. The requirement to police CONFUSING marks has been developed in caselaw.
When you’re told you have to be a bully to get anything done, that’s all you do. Have they tried not being a bully to see what happens? I doubt it. Their lawyers are obviously looking in every crack and crevasse for every petty little thing to keep themselves busy(as in paid).
Re: Re:
No. Bethesda’s lawyers are complete idiots when it comes to both trademark and copyright law.
This is the same company who tells its mod makers to wrongfully file DMCA notices against other modders if they’re “stealing” their work.
When I sent out notice to Bethesda their advice could get modders in trouble since they legally don’t own the works nor the copyright, I was told “our lawyers stated using the DMCA in this manner is legal”.
What’s worse is Bethesda’s own ToS is so across the board, it’s impossible to know who really owns the rights to mods (something Bethesda indicated they’re working on to remove all confusion).
It’s extremely unlikely Bethesda lawyers know what they’re doing, which is precisely why I will never create mods using their games.
I am not putting myself into the crosshairs of this idiocy, as MxR found himself recently by another modder over the illegal use of the DMCA.
Pete Hines is, sadly, a product of what happens when people twist the law to falsely represent what it’s really doing.
I can’t blame Pete, but I sure as hell can his idiotic lawyers.
Engineered Mechanical Services v. Applied Mechanical Technology (1984), “The owner of a mark is not required to constantly monitor every nook and cranny of the entire nation and to fire both barrels of his shotgun instantly upon spotting a possible infringer.”
Tweeted this article at that douche
Let the hilarity ensue.
Re: Tweeted this article at that douche
Pete did his usual move of inserting himself into a debate and then immediately pretending he doesn’t want to be part of that debate.
If Bethesda doesn’t have to do it, and law is not requiring it, then why would Bethesda do it? Why spend in all those lawyers and the bad PR? Honest question, no mean to debate.
Re: Re:
Well, it’s probably easier/more straightforward to take Bethesda’s approach when they have the monetary advantage (by far).
Win for the little guy!
While Zenimax (the actual owners of the Prey trademark) may have intended to police their mark and force the indie devs to change the name of their game, they’ve insured that from now until the stars burn out, any search for Prey will include this other game that Zenimax/Bethesda had no hand in making.
What was that bit about trademark dilution and confusion again Zenimax?
Bethedsa hasn’t been cool for a LONG time..not since they got bought out by Zenimax, their staff that worked on the good original games such as morrowind, oblivious, skyrim etc were fired and they brought in off-shore programmers who are “just as good” (i.e. cheaper). – Hence the utter pile of broken buggy shit that is skyrim online.
Like the lady at the end of Titanic said, Bethesda exists in our memories only.
Re: Re:
Yeah, umm, you’re basically just wrong.
Zenimax was founded by Bethesda’s founders 3 years after they founded Bethesda.
There was an exodus of some writers since Morrowind, not-so-much programmers, let alone “off-shore” ones.
Also, “Skyrim Online” doesn’t exist, and TES Online is made by a completely separate developer, Zenimax Online Studios.
I’m surprised this article forgot to mention Techdirt’s own coverage of Zenimax doing the exact same thing several years back to Mojang with the overly-broad trademark of “Scrolls” — https://www.techdirt.com/articles/20111013/13213516340/mojangs-trademark-application-rejected-too-many-scrolls-uspto.shtml — and that unfortunately the USPTO actually accepted Zenimax’s argument that the trademark for “The Elder Scrolls” is close enough to cover a game using the name of just “Scrolls”.
AFAIK Zenimax has a history of this beyond just the two trademarks, too, some of which is also covered on TechDirt. Note that while Bethesda is mainly mentioned in this article the quoted portion clearly shows that Bethesda’s owner, Zenimax Media, was the one in contact with No Matter Studios.