Active forum member - is it worth it?

Discussion in 'Indie Business' started by kglarsen, Feb 11, 2010.

  1. Scurvy Lobster

    Scurvy Lobster New Member

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    So when you recieve a cease and desist letter you are ready to go to court to prove your case?

    Your best chance here is probably that your game is text based and will only appeal to an extremely small audience. Maybe the music industry wont notice it.
     
  2. kglarsen

    kglarsen New Member

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    Then every author mentioning eg. "Ford" in their books would also get in trouble... Along with mentioning "Coca-Cola" "Microsoft" "Burger King" "Disney" etc.

    If I want to write Madonna on this forum I'm 100% free to do it:

    MADONNA! MADONNA! MADONNA! MADONNA! :p
     
  3. Desktop Gaming

    Moderator Original Member Indie Author

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    Its pretty clear that you're going to ignore any advice anyway, so on that note...
     
  4. kglarsen

    kglarsen New Member

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    No I'm not... Why so serious?

    I contacted the Danish Patent And Trademark Office so they could give me a clear answer. I'm waiting for a call from a law-wiz on trademark rules.
     
  5. kglarsen

    kglarsen New Member

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    The rules on trademarks and marketing only applies if we're dealing with a company. Therefore, if this game is going to be distributed by a private person, there will be no issues!
    But he advised us to contact a lawyer on how to define ourselves as a private person to avoid any trouble.
    Luckily we have free lawyers services here in Denmark. :)
     
  6. Desktop Gaming

    Moderator Original Member Indie Author

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    Wrong. You're happy to believe it simply because that person is telling you what you want to hear. Following that advice is going to land you in a heap of shit.

    The people in this thread have given you far better advice than that moron has (whoever he is).
     
  7. spoiltvictorian

    spoiltvictorian New Member

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    Dude...this is not going to end well.
     
  8. PoV

    PoV
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    More people should ask questions just so they can ignore the advice. It's an effective use of all our time.
     
  9. jlv

    jlv New Member

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    If what you guys are saying is true, why was Jim Brown's lawsuit against EA thrown out?

    Despite spending a fair amount of time searching for it, I can't find anything that says depicting trademarked entities is not legal. The closest thing I could find was a dispute over stuff being sold in Second Life, but there people were selling virtual versions of trademarked items for real money -

    http://secondlife.reuters.com/stories/2007/05/29/protecting-real-brand-names-in-a-virtual-world/

    "Trademark lawyer Martin Schwimmer said that it’s significant that economic transactions are real on Second Life, distinguishing it from a video game. Many of the same issues are at play as when a street vendor is selling bootleg products. In both cases, the seller is using a company’s brand name to market a product."

    If you are just going to depict someone or something that is trademarked without charging money to obtain that item in the game you should be fine. That doesn't mean you won't get a C&D letter, but you will be within the law according to everything I have read.
     
  10. PoV

    PoV
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    Lets put it this way. If you are an informational website or TV show that does product reviews (I.e. "educational" content), you can make reference to a product you are reviewing. If you are an original piece of content (Game, TV show, Comic, Movie), you need a license to make use of any brands. Some stuff slips by, but you're well within your right as the brand owner to protect your property (including it's misuse). In fact, if you don't, you can lose it.

    The NFL is licensed to EA to create games based on it. No one else can make NFL branded games without breaching this agreement (as the Licensor, the NFL has agreed to both the exclusivity and to protect this agreement). Racing games, every car used is licensed by the manufacturers. If a TV show wants to use your game as a prop (especially by name), you as the license holder need to sign a release form to let them use it. That can sometimes include a payment from them. Then there's product placement, where you as a brand and advertiser contact the producers of content, and both license and pay them to place your content in theirs.
     
  11. jlv

    jlv New Member

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    Can you show me a law or court decision that backs that up? I've looked all over and everything I've found directly contradicts you.

    The NFL thing is different since they are trading under that name. The game is called "Madden NFL". I obviously couldn't call my game "AMA Motocross Simulator" without a license from the AMA. Using the Jim Brown vs EA example, you can depict Jim Brown in the game, but you can't call it "Jim Brown's Pro Football".

    If a TV show used my game as a prop, trademark law would not help me at all. I could send a C&D letter and hope they cave in, but if they went to court I wouldn't have a leg to stand on.
     
  12. PoV

    PoV
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    I don't know football that intimately, but the NHL has the NHLPA. All a company needs to do is get a license from the NHLPA, and that gives them the right to use the likeness and names of players in a game. It's separate from the NHL, and whatever the organization is called that licenses the team names. The Jim Brown case, assuming he's a football player, sounds like it was thrown out before it even got that far. People and names are a different than brands though. It's not Jim Brown that would have a case if someone inappropriately used his name, it's the NHLPA equivalent. It's the NHLPA's responsibility to protect them.

    No, I don't have court evidence because people tend not to be dumb enough to fight 100 ton gorillas when they're clearly wrong.

    Law is expensive, and it's sad enough when someone is dick about unfounded trademarks.

    http://kotaku.com/5273141/trademark-troll-gets-mobigames-edge-taken-down
     
  13. vjvj

    Indie Author

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    Yes, American Football has a corresponding legal entity that owns the rights to professional player names similar to the NHLPA. IIRC, the EA exclusivity deal involved both the NFL and the NFLPA.

    Now, I need to stop getting sucked into these ridiculous threads. kglarsen, there is a reason why law is a profession in this world; it's a very complicated subject. My advice to you is to spend less time arguing with dev/publishing people about law and spend more time actually talking to lawyers. Then you don't have to argue anymore, because they will always be right :)
     
  14. jlv

    jlv New Member

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    CBS Interactive v. NFL

    "The court noted that the information provided by CBS in connection with fantasy baseball was actually as extensive as that provided for use in fantasy football and that regardless, under the Eighth Circuit’s decision, the controlling question was not whether the information infringed the players’ rights, but whether it may be used anyway to comport with CBS’s First Amendment rights. With regard to possible confusion over endorsement, the court failed to find any convincing evidence to suggest such confusion would take place and noted that the CBS webpage contained not only the information in question but advertisements for CBS and third parties.

    In a "Hail Mary" attempt, Players Inc. argued that the court should delay ruling on the motion for summary judgment to allow time for discovery concerning CBS’s intent in using NFL players’ property without proper licensing. The court, however, held that neither CBS’s business strategy nor its subjective intent factored into its First Amendment right to publish freely available public information,"


    Funny that the clearly wrong side seems to win every single case.
     
  15. kglarsen

    kglarsen New Member

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    He's a professor in trademark law, so I'm pretty sure he know what he's talking about, and more on this than you! And I've seen it myself, it says black on white!

    In Denmark we have free lawyer services, so I'm gonna talk with them. Untill then, I've looked at these facts:

    http://www.chillingeffects.org/trademark/faq.cgi#QID653
    http://www.chillingeffects.org/trademark/faq.cgi#QID395
    http://www.chillingeffects.org/trademark/faq.cgi#QID56

    I would say that this falls in the category of "Fair Use" and "Nominative Use"
     
    #35 kglarsen, Feb 16, 2010
    Last edited: Feb 16, 2010
  16. Scurvy Lobster

    Scurvy Lobster New Member

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    All that wont stop you from being hit by broadsides of this: http://www.chillingeffects.org/trademark/faq.cgi#QID418

    The music industry is very protective of its intellectual properties. Especially when it comes to computer games where they have been making a good deal of money in recent years from licensing bands for soundtracks and star appearances.

    Once again, your best chance is that your game is too small to get any notice.
     
  17. Desktop Gaming

    Moderator Original Member Indie Author

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    Do as you like. Just don't come snivelling to us when the shit hits the fan - because it will.
     
  18. vjvj

    Indie Author

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    There is a difference between a professor and a lawyer. All that matters is what the actual lawyer says, so I wouldn't make any assumptions until you've spoken to him/her.
     
  19. mrkwang

    mrkwang New Member

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    As I think, you (original author of this thread) don't have to reply / ask on this board any more. Just make your own work as you planned, because you think you can do everything you want even if other members said differently.

    And as I assume, that law professor never heard about Guitar Hero stuff. Nobody can know everything, however.
     
  20. jlv

    jlv New Member

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    Did Activision lose a Guitar Hero trademark case, or are you trying to make a connection between licensing copyrighted music and depicting trademarked entities? No one here is arguing that you can use copyrighted music without license.

    kglarsen, if you do use real names you should have your lawyer write a notice for your game that makes it absolutely clear that the named artists are not affiliated with you.
     

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