Bethesda And Notch’s Scrolls-Off Explained

By Alec Meer on August 8th, 2011 at 5:04 pm.

Artist's impression of how a royalty payment to Bethesda might look

While Minecraft creator Marcus ‘Notch’ Persson remains an avowed fan of Bethesda games, the legal argy-bargy between the Elder Documents publisher and Notch’s company Mojang over its forthcoming second game ‘Scrolls’ doesn’t look like dying down any time soon. In fact, the big B has stepped up its efforts, announcing its intention to sue Mojang in a Swedish court, as well as a demand for money. In a blog post explaining a little of his side of things, Notch reveals that this all happened shortly after Mojang tried to trademark ‘Scrolls’, which rang alarm bells for the rights-holders of The Elder Rolled-Up Papers. Common sense has had us all thinking the situation is simply ridiculous – one word within a title hardly equals the same title, right?

Well, it may not be that simple. In other words- Bethesda might well have a case, regardless of how you might feel about it.

Games lawyer and friend of RPS Jas Purewal writes on his Gamer/Law blog has taken a long look at the situation and how it relates to trademark law, feeling that it boils down to these two key arguments:

(1) Is Mojang selling identical or similar goods/services to Bethesda in an identical/similar business?
(2) Is there a likelihood of public confusion between Scrolls and The Elder Scrolls?

It’s the second point that might be the lychpin of any action (or settlement), he claims, but there’s no cut and dried answer to it. “On the one hand, clearly The Elder Scrolls IS the foremost game series to use the word ‘Scrolls’ and a consumer may therefore think that the Mojang game Scrolls is part of the Elder Scrolls series. On the other hand, the Mojang game Scrolls is reportedly going to be a different game to The Elder Scrolls series and Mojang itself has a good brand profile among gamers, making it arguably less likely that its game would be connected with Bethesda. Then again, if you just look at the games themselves, both are fantasy themed (one first person RPG, the other a card playing game with RPG elements) so is there a risk of confusion there? As you can see, it’s far from a straightforward yes/no answer.”

Common sense and the product familiarity will have games-knowledgeable folk such as you and I convinced there shouldn’t be cause for concern, but as Murder Dog IV tries to prove, the law’s all too capable of interpreting things very, very differently.

Also in the mix is that “There’s one more key aspect about trade marks you need to know: once you have one, you need to enforce it.” Otherwise, as was the case with Hoover, you might end up losing it. Bethesda may not even want to do this, especially as suing indie’s golden boy is hardly the way to earn gamers’ love – but they may feel they have to.

So, Gamer/Law feels, “Mojang has three options at present:

(1) Fight the claim
(2) Capitulate and change the game name
(3) Agree to coexist with Bethesda (ie both use the name Scrolls, potentially in return for Mojang paying Bethesda).”

2 or 3 is apparently most likely due to the costs of 1, for both sides. Neither of them seem fair, of course – but that’s because ‘fair’ pretty much doesn’t come into matters of trademarking. If it did, we’d probably never have heard of Tim Langdell.

So, this story probably isn’t a just a matter of crossed wires or one over-zealous lawyer, and instead could hang around for quite some time. Especially as the ongoing fight with Interplay suggests Bethesda isn’t exactly afraid of long and bitter legal fights regarding what it feels are its trademarks.

Incidentally, do read the entirety of Jas Purewal’s post about all this – it’s highly illuminating regarding matters of taking out, enforcing and battling trademarks.

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303 Comments »

  1. Lobotomist says:

    Another case of copyright running rampant.

    I would not wonder that in future we will have to pay fines for saying copyrighted words.

    This has to stop !

    • ArcaneSaint says:

      I’m sorry to break this to you, but I recently acquired a copyright (and trademark) on the word “Copyright” in written texts. I noticed you used my trademarked/copyrighted word in your comment, and now people might confuse it with my comment, so please change your comment to something that doesn’t use the word “Copyright”, or pay me a monetary compensation every time you use the word “Copyright”
      ~~the ArcaneSaint legal department

    • Vague-rant says:

      I copyrighted copyright. You now owe me two patents.

      I think that’s how it works.

      Edit; I think you’ll find I own the international rights.

    • ArcaneSaint says:

      I ninja’d you by about a minute, so technically, you owe me money.
      EDIT: oops, seems my I deleted most of my post when fixing a typo. D’oh

    • Walsh says:

      Copyright != Trademark. Try again please.

    • ArcaneSaint says:

      Read my comment again, it was always like that, I swear! I’ll sue you if you claim otherwise! (referring to comment 1, not the second one which was an accident)

    • Jannakar says:

      A pedant writes:

      Actually trademake law. Which is a different slightly different part of Intellectual Property branch of lawyering. It is not a completely nutty idea when you think about the reasons why trademarks came into existence in the first place (like copyright, really) but tends to get abused (like copyright, and also c.f. Langdell, Apple “App Store”, Microsoft “Windows”, etc, ad absurdum)

    • WPUN says:

      I trademarked the white space between words, but every website I sue changes their background to black.

    • Hanban says:

      Mr./Ms. ArcaneSaint

      I recently acquired the rights for both the words Arcane and Saint. I now own you. I would like you to do a little dance for me and dress up in various dress coats of my choosing.

      If you do not comply, I will have to lock you in my coat closet, more jovially known as the dungeon.

      /Hanban

    • MiniMatt says:

      Whilst, as noted already, copyright != trademark if you want to avoid paying fines for saying copyrighted words you’d do well to avoid singing “Happy Birthday” to anyone in a public space. Warner own the copyright and if you’re not paying royalties you’re no better than those filthy pirates who fund terrorism and the drugs trade with their home taping escapades. http://en.wikipedia.org/wiki/Happy_Birthday_to_You

    • Vague-rant says:

      Whoops. I’m sure I was told the difference at some point, but completely forgot.

    • steviesteveo says:

      Doesn’t a man in a wig come and collect your two patents?

      I think the very first comment not getting it this hard shows how difficult it is to say something sensible about trademarks without first receiving a fairly specialised education.

    • danimalkingdom says:

      I’m gonna have my ass pariah’d for this but I can see where Bethesda are coming from. They have to enforce this.

      But taking a step back; ‘Scrolls’ isn’t a very good name for a game anyway, is it? I’m not saying it has to be called The Veil of Doobydo or some other fantasy guff, but surely Mojang can pick another name. I can’t imagine ‘Scrolls’ was a name that took particularly long to come up with. It sounds like a working title.

      ‘Minecraft’. Now that’s a title!

    • Devec says:

      Dear sirs, I have just copyrighted the patent on discussing copyrights between two or more parties. I demand you either seize this activity at once or pay a set amount per argument.

      Thank you.

    • sebmojo says:

      Scrolls is actually a pretty terrible name. Bethsoft may be doing him a favour here.

    • stillwater says:

      Copyright is nothing more than people trying to adapt for the intellectual sphere standards that have been around in the physical sphere for millenia, so that people who create intellectual property are protected in the same ways that people who create physical property are. So, if you have a problem with copyright, blame the whole concept of ownership.

      After all, even though we don’t usually question it, isn’t it just as absurd that I can lay claim to a piece of land and sue someone for trespassing on it, even though I didn’t create any of it – the soil, the plants, the rocks, the microbes – and even though that land has been around for millions of years, and will be around for millions of years after I die? The more you think about it, the more preposterous the idea of us laying claim to land or property is.

      If people think it’s rational and fair to ‘own’ land, then why shouldn’t people be expected to ‘own’ words?

  2. wccrawford says:

    He forgot option 4) Talk to Bethesda like a human being and see if they won’t be reasonable.

    Which is exactly what Notch is already doing.

    • VelvetFistIronGlove says:

      That is what Option 3 is, don’t you know.

    • Thomas says:

      Option 4 doesn’t get him paid :3

    • Daiv says:

      Reasonable human beings?

      AHAHAHAHAHAHAHAHAHAHAHAHA

    • Ergates_Antius says:

      Except that due to the way trademark laws work, option 4 isn’t really an option.

      If a court decides that there is the possibility that “2) Is there a likelihood of public confusion between Scrolls and The Elder Scrolls?” is true, then Bethesda don’t have any choice. They either have to stamp on it, or lose their trademark. They can’t say “Hey, it’s OK, we’ll let it slide this time”.

      It all hinges on the likelihood of public confusion. Personally I don’t see how anyone could get the 2 confused, but then I (like everyone here) have a high degree of familiarity with the works of both parties, which most of the population won’t.

      This reminds me a bit of that thing with the guys who made/started to make a Warhammer 40k movie. GamesWorkshop liked the project, but had to crush them, the law left them with no choice. Due to one aspect of copyright law, the makers couldn’t sign of the rights (or something) of the thing they’d made to Gameseworkshop – it just wasn’t allowed for some reason. Another aspect of trademark law meant that if GW didn’t fight them, they’d simply lose their trademark on 40k.

    • Theory says:

      I’m pretty sure they could grant Mojang a licence to use the name in return for a nominal sum.

    • FakeAssName says:

      Question: who the fuck refers to an “elder scrolls” title as an “elder scrolls” title unless referring to the series as a whole?

      last time I checked not even the developers themselves refer to Oblivion as “THE ELDER SCROLLS: oblivion.”

      no one, literally no one, is going to ask granny to get them “Elder Scrolls” for Christmas; that’s asking for Arena, Daggerfall, Battlespire, Redgaurd, Morrowind (including Tribunal + Bloodmoon), all three of those crappy cellphone games, Oblivion (including knights of the nine + Shivering isles), and now Skyrim.

      the elder scrolls is not a “product” it is a series, trying to make the argument that nothing else within the same genera can have “Scrolls” in it’s title is like trying to make the claim that no other book can have “Ice” in the title because it infringes on “A song of Ice and Fire.”

    • VA1N says:

      At the end of the day, business is business and no amount of taking like human beings will make money. It sounds horrible and that’s because it is. Companies will make money and protect their interest that make them money no matter the cost.

    • Theory says:

      FakeAssName: who are you, I, or anyone else on RPS to say that nobody calls them Elder Scrolls? Isn’t that exactly what someone who has never encountered the series before (like your granny) would do?

    • kazooka says:

      Unfortunately, lawyers, while wearing their lawyer suits, are not allowed to act like human beings.

    • MikoSquiz says:

      @Ergates_Antius:

      So basically by bringing this up, Bethesda Legal have just put their company in a situation where they get to either take a minor, ugly PR buggering (if the court decides they have no case), take a massive, hideous PR buggering (if they either win the case or Mojang caves), or lose the use of a trademark?

      To my untrained ear that sounds like a pretty good reason to get a whole new legal department to replace the one that’s started to make a whirring noise and smell funny. It’s supposed to be “inside pissing out”, not “inside pissing inside”.

    • Kent says:

      I think the entire situation is ridiculous. Just change Scrolls into something else instead of darting headway into a legal situation.

    • Consumatopia says:

      Yes, Option 3 is the same as Option 4. Bethesda could grant a license to use “Scrolls”, even without money changing hands, and the whole defend-it-or-lose-it problem goes away. This is the case in EVERY trademark dispute, and anyone saying they’re obligated to sue to defend their trademark is just making excuses.

      This fight is just as much, if not more, optional for Bethesda as it is for Mojang.

    • Sian says:

      @Theory: I checked the box art for Morrowind, Oblivion and Skyrim. The biggest word on there is always the name of the game in question, not the name of the series, thus even my granny wouldn’t call any of these games “The Elder Scrolls” – if either of my grannys were alive.

    • Jason Moyer says:

      The biggest words on the box for Deus Ex 2 are “Invisible War”, that doesn’t mean Eidos somehow lost their trademark rights to Deus Ex.

      I’m probably the only person on the planet who does this, but my shortcuts to the ES games are labelled The Elder Scrolls I through IV without the subtitles.

    • Theory says:

      Sian: that is certainly something that would count against Bethesda, but you can’t assume that people will identify the game based on the typography of the box. Its name is also written down all over the place in plain type, particularly on websites where it can be bought.

    • GT3000 says:

      I don’t get why this is tough to understand. It isn’t Mojang that’s the real problem here.It’s when someone does come along and tries to infringe on TES proper that this issue becomes inflamed. If BethSoft doesn’t wield a hammer of legal retribution then it really weakens their position when Jackass number 2 comes up with Elder Scroll: Morrow of Sky Oblivion Rim. Then BethSoft grabs it’s hammer and proceeds to smash their face in. If they don’t crush Mojang (Or anyone else for that manner) over the slightest infraction then that Jackass can point and say “WELL THEY WEREN’T PROTECTING THEIR TRADEMARK” which BethSoft proceeds to lose. It makes practical sense, and I don’t see the issue other than Notch allowing such a lazy game name. Call it Parchments of Power if he’s so sold on it.

    • thebigJ_A says:

      I would totally play Elder Scroll: Morrow of Sky Oblivion Rim.

    • Bhazor says:

      The issue with Beth giving them a license here is that Notch made the game then tried to patent it. Thats like making a “Star War” game and then asking for a license from Lucas Arts. I think at that point Beth has to be the bad guy and turn it down.

      The simple issue is
      Is there room for confusion between Scrolls (Card Collecting Fantasy RPG) and Elder Scrolls (Action Fantasy RPG)? And to that I’d argue yes.

  3. MrMud says:

    If this has merit then all that stupid EDGE stuff should have as well, this is equally stupid.

    • DarkeSword says:

      This is pretty different than the Edge stuff, and definitely not as bad.

    • johnpeat says:

      It’s different in that Bethesda do actually make stuff – instead of just PRETENDING to and then extorting money on that basis.

      It’s not different in that they’re attempting to assert that a common word is theirs and theirs alone – which is ridiculous.

      It’s hard to see this as anything less than bullying and exploitation – no-one calls the games “Elder Scrolls” – it’s Morrowind, Oblivion and Skyrim – hell Oblivion was ‘the new Morrowind’ for eons :)

    • Starky says:

      Actually no they are not trying to say a common word is theirs, they are saying that a word is theirs when it exists in the context of a similar medium. In a similar genre (video games and fantasy RPGs) – and that it may be close enough to be confusing to customers which it probably isn’t – unless of course Bethesda have plans for a Elder Scrolls based CCG, then it absolutely would) – and law DEMANDS that they pressure Mojang in defence of their trademark, or risk losing it.

      If they ignore it, someone in a few years time might make a game called “Ancient Scrolls” and then have Mojang as a case to point to prove that Bethesda didn’t maintain their trademark.

    • Jumwa says:

      I know everyone immediately decided what their view on the subject was going to be the moment Notch posted about being sued by Bethesda, heck, I felt pretty darn strongly in his favour too.

      But with the new news that Notch himself was trying to trademark the word Scrolls it hardly seems fair to pretend it’s a case of Bethesda bullying the indie developer. It seems a definite case where Mojang was trying to step on their toes, so they feel they have to respond in kind.

      Right or wrong, I think it’s been pretty clearly made out to be not so clear cut anymore with these latest news.

    • Harkkum says:

      @Starky

      I think that this is just at the core of this issue. They really have to bring up the case or they are at risk of losing whatever rights they used to have. Obviously, Notch could argue that the trademark is actually on the entirety of the name (i.e. elder scrolls) rather than individual words within. Whether there actually is a risk of confusion for a knowledgeable individual that is used as the golden standard of these cases remains at the hand of whatever tribunal/court this will end up in.

      From Notch’s point of view, the risk of losing the case is somewhat too high to really go for the legal struggle. If he loses the case he will be either forced to pay exorbitant amounts or change the name of the game with a further risk of facing a similar claim again. For Bethesda there is fairly little risk, even if they lose the case they will still have shown that they are defending their trademark and they can raise the claim with next Scrolls-themed game to be released.

    • Lukasz says:

      @Jumwa
      of course he was going to trademark the name. no matter what it was called he has to trademark it.
      otherwise someone else does it and will either force him to change the name or make him pay.

      beths should do it quietly, without lawyers, behind doors. call him maybe even personally and explain the situation and ask him to change the game or pay beth some silly money like one dollar.

      they made big mistake sending 14 pages lawyer bullshit.

      valve did just that in relation to black mesa: source. source is trademark of valve but they skip the boring shit and directly dealt with the moders.

      now. no matter what happens beth are the bad guys. they can turn it into a silly thing or they can dig themselves even deeper.

    • Starky says:

      @Lukasz

      The difference, and it is a BIG fucking difference – is that those modders were not trying to trademark “Black Mesa: Source”.

      Notch isn’t just using, he’s trying to trademark – that is a massive, massive deal.

  4. Coins says:

    So, uh, basically this boils down to “copyright law is silly and should be changed.”

    • johnpeat says:

      It’s got nothing to do with copyright so that’s certainly silly.

    • Coins says:

      Copyright, trademarks, eeeh. I’m not a lawyer, for me it’s all the same.

    • Dana says:

      Neither it has to do with trademarks. The trademark is “The Elder Scrolls”. Period.

      Notch should just flip a bird and take it to the court. He can afford it, and he can win this.

    • pandora says:

      @Coins …and still you feel knowlegable enough to claim it – whatever “it” is, you don’t know – should be changed. That’s just racist.

    • Jumwa says:

      Since Notch himself was trying to trademark the word “Scrolls”, sounds like that would definitely impact upon Bethesda. So I doubt this is just a clearcut case of Notch taking it to court with an easy win.

    • Coins says:

      Pandora, it’s certainly not racist. Perhaps ignorant, and I’ll tip my hat to that, but really. We all know that ‘The Elder Scrolls: X’ is something else than Scrolls. One is an RPG, the other what looks like a trading card game. Even people not as interested at the general gaming landscape can see that one is not the other.

    • steviesteveo says:

      I have this sneaking suspicion that an awful lot of the discussions taking place in the world today would go a lot better if the people involved knew what they were talking about.

      Tip your hat to your own ignorance, but give your opinion anyway. Facts are for nerds.

  5. TillEulenspiegel says:

    Mojang has three options at present:

    He’s forgetting 4) Tell them (nicely) to piss off. AFAIK, he’s only received a threatening letter. Until there’s actual litigation, nothing needs to be done.

    Frankly, I think this is all utter bullshit (the article is a tiny bit of Trademark Law 101 with virtually no interesting discussion of the specifics of the case), and I’d be very interested in any examples of similar cases that have been won (trademark on “A B” where B is a normal English word, suing someone with “B”). Not settled, won.

    • VelvetFistIronGlove says:

      “He’s forgetting 4) Tell them (nicely) to piss off. AFAIK, he’s only received a threatening letter. Until there’s actual litigation, nothing needs to be done.”

      Notch reported that Bethesda were saying “that they will sue us (and have already paid the fee to the Swedish court)”. Whether this means that they have filed a suit, or whether it is in relation to opposing Mojang’s trademark application is unclear. From what little we know, it looks like Bethesda is serious enough that this option 4 just becomes option 1 quite shortly.

      “the article is a tiny bit of Trademark Law 101 with virtually no interesting discussion of the specifics of the case”

      The “Trademark Law 101” bit should be required reading for many people on the internet who have been commenting on this case from complete ignorance, unfortunately. And at present there is so little that we know about the case, that any more detailed discussion of the case would be largely speculation.

  6. kwyjibo says:

    I’d rename it to Edge 2: The Edgening

    I reckon they’ll come to an agreement, without any serious legal wrangling.

  7. FleabagF7 says:

    Hopefully Bethesda realizes that this case is going to stir up some trouble with the people that are fans of both Mojang and Bethesda.
    I can’t think of many people that will side with the big company over the indie devs and with a title as big as Skyrim coming out it’d be a shame for Bethesda to lose as many fans as they will.

    • jarvis says:

      Given that whole thing is a dispute concerning potential confusion it might be worthwhile starting an open letter by fans of both notch and bethesda basically stateing – we know you both exist, we promise we’re not going to be confused about your games please play nicely with each other.

      If it gets widely picked up it weakens any case bethesda might make – the target audience is visably aware and reacting to the issue.

    • thebigJ_A says:

      I’m in!

      Wait, which one was the rpg I liked, again?

  8. Omroth says:

    Would it be ok to call it “Scroll’s” ?

  9. Bozzley says:

    Scedgerolls! Trademark that, Beth.

  10. warcode says:

    Can you actually trademark single words now? I feel its strange that they would attempt doing that in the first place.

    • Starky says:

      Apple says hello :P

      Yes you can trademark anything you like for anything you like so long as no one owns the same/similar name in the same/similar market.

    • VelvetFistIronGlove says:

      Apple. Windows. Skyrim. Minecraft.

      All single words, all trademarks.

    • Torgen says:

      You mean the Beatles’ recording company?

      Actually, this case (from a blind legal standpoint) has more merit than the fight between Apple Corps and Woz, Jobs & Co.

    • Pointless Puppies says:

      @2VelvetFistIronGlove:

      Skyrim and Minecraft aren’t real worlds, but otherwise yes, you’re right.

    • dirtyword says:

      Skyrim and Minecraft aren’t really words.

    • VelvetFistIronGlove says:

      Ah, you meant dictionary words. Well there’s plenty of other examples: Excel. Next. Gap.

      The Windows trademark was noteworthy not because it was a dictionary word, but because the term Windows had long been in common use to describe the GUI element, and the Microsoft’s trademark application had long been opposed by Apple (and possibly others).

    • Calabi says:

      All the words will be used up soon surely?

    • Monkey says:

      Me and my new company “Surely” agrees with you

    • Milky1985 says:

      “Actually, this case (from a blind legal standpoint) has more merit than the fight between Apple Corps and Woz, Jobs & Co.”

      Not really, the fight been apple and apple corp happened specifcally because Apple (the computer company) decided to go into the music market…. thereby very specifcally breaking the rules on trademarks (as your trademark is only in your market)

      I beleive there was also an agreement between the two companies about the use of the company name, which basically said “apple computers may not enter the music business”

      That was a case of apple computer being there arogent selfs as normal, this is IMO a case of stupidity, i never once even made the connection between “scrolls”" and “the elder scrolls series” so as a person thing i don’t see the confusion.

    • drewski says:

      You only get a trademark for a specific purpose, you don’t get to “own” the word.

      So whilst I can’t create an operating system called Drewski’s Windows, I can create a glassfitting business called Drewski’s Windows.

      This is a problem because Scrolls and Elder Scrolls are competing for a valid trademark in the same space – video games.

  11. johnpeat says:

    What I find interesting is that no-one really knows what Mojang’s “Scrolls” game is going to be like – aside from it’s obvious cardgame/RPG brief (nothing at all like Bethesda’s games then).

    End of the day it’s upto Bethesda to prove their case – not Mojang to defend it – and it’s hard to imagine someone making a good case about something they have to admit they know little or nothing about.

    I reckon they just took a potshot thinking they’d just roll-over – forgetting that they have more money than Mammon and can take on this sort of bullying bullshit.

    • drewski says:

      That’s not how civil law works.

      If Bethesda are cruising for a bruising and Mojang’s strategy before the tribunal/court is “lol prove it” Bethesda will win.

  12. rocketman71 says:

    This is stupid. Trademarks the way they exist today are stupid, as are software patents. Oh, and all digital rights management in general.

    We should start fixing this by disposing of all the lawyers in the world. Whatever the outcome, it would be a fantastic start!

    • Walsh says:

      Trademarks work just fine. You are just unhappy because you don’t like it applying to some indie guy. If it was indie guy oppressing the man, you’d probably ok with it.

      Copyright laws have become excessive though in the US.

    • Pointless Puppies says:

      @Walsh:

      But you don’t see any “indie” guys oppressing “the man”, do you? Why do you think that is? I’ll give you a hint: all these business laws are made and implemented such that the bigger of the two businesses always wins.

    • johnpeat says:

      Trademarks are incredibly messy – they’re not a hard-and-fast thing like copyright or patents, they depend on context and you don’t even have to register one to take legal action against someone if they copy something you consider to be a ‘mark’ of your trade.

      A lot of legal stuff really works on the basis that “those who can afford the best lawyers, will win” but Trademarks work NO OTHER WAY – historically they’ve been widely abused and most cases run and run and run (Apple, Windows et al)

      End of the day – words aside – what Bethesda are saying is that they feel Mojang are trying to ‘cash in’ on their game’s by sharing part of it’s name.

      They have to prove that tho – they have to show that it’s likely people will be confused and think that Mojang’s game relates to their game – and as the game doesn’t actually exist yet, thats’ not going to be easy.

      Scrolls suck anyway – Grimoires are where it’s at :)

    • briktal says:

      I think people are/were pretty unhappy with the Minecraft clones with vaguely Minecraft-sounding names making money (FortressCraft). But that’s totally ok because it’s an indie fighting off an evil copycat, not a big bad corporation trying to muscle out a poor little indie guy with bags of money.

    • iniudan says:

      This comment need some Simpson’s video quoting:

    • gwathdring says:

      Let’s go back to the days before a judicial system that included litigation, appeal, and representation.

      You are a accused of a crime. You are asked to stand before a judge and a jury of (most likely) uninformed and not-especially-well-educated people with two weeks to research all of the law surrounding your case and practice your speeches. You are not especially charismatic. As there is no lawyer to oppose you, the accusations and evidence are presented directly by police, witnesses, and any other involved parties. Notice where all the people who have the trustworthy power of authority behind them are. There is no filter through a prosecuting attorney to defuse the power of their authority and seeming clarity of their motive. Notice where the burden of proof shifts in the eyes of the jury. More towards you.

      You want to contest a law as unconstitutional. You have to do all the research and file all the paperwork by the right deadlines. You have to appear in the right places at the right time. And eventually, if you are very lucky and a very good writer, you’ll have to appear before the court itself and make arguments against the law before the foremost authorities on constitutional law and law in general.

      You are a woman accusing a man of rape in a male dominated society where victims are still quite often blamed and stigmatized for these sorts of things (such as the United States). He claims it was consensual and that you are out to get him. He is much more confident than you. You seem nervous and when you talk about it you seem numb. The jury expects you to be more obviously upset, because the jury doesn’t understand psychology. You had to organize all of your own evidence, and weren’t able to pay for testing of DNA smaples–you didn’t even think of getting a psychologist to explain how victims usually react after events like this. You are still in shock.

      Lawyers are equalizers. They make it so the most eloquent, charismatic, trustworthy and educated are not automatically given a pass whenever they come into the courtroom. Lawyers mean the weaselly looking man with a stutter isn’t an open and shut conviction regardless of the facts. Lawyers mean women and minorities have a chance even when both conscious and subconscious cultural pressures and prejudices should mean nothing they have to say matters to the jury.

    • VelvetFistIronGlove says:

      gwathdring, you are my hero today.

    • nindustrial says:

      @gwathdring

      Thank you for writing that so I didn’t have to. I’m sure Rocketman might not feel the same way if he was falsely accused of a crime and had done away with all the lawyers the day before.

  13. RMPR says:

    This is a no-win situation from Bethesda here. They will either lose their case (as I think they should), or they will win and become Activision-esque bad guys for suing the poster boy of PC gaming.

    Nobody who is looking to purchase Scrolls will ever confuse it with The Elder Scrolls. That’s like suggesting people could confuse Twisted Metal as a game in the Metal Gear series.

    • sinister agent says:

      I’m pretty much in agreement with this. If this goes much further I’ll be cancelling my decision to buy Skyrim altogether.

    • dewey15 says:

      Mojang tried to trademark the word “Scrolls” which, by the way, is a shit name for a game in the first place. Bethesda has a trademark on “The Elder Scrolls.” These are both ‘fantasy’ video games. We, as pc gamers who read sites like RPS, obviously know who Notch is, know how different Scrolls and The Elder Scrolls are in terms of gameplay.

      There could potentially be millions of kids with xbox live accounts with their parents credit cards attached who will see ‘Scrolls’ in the marketplace, associate it with the lavish marketing campaign bathesda will roll out for The Elder Scrolls: Skyrim, and purchase it. As was stated in the post, nobody is going to help bathesda protect their trademark on ‘the elder scrolls’. if “scrolls” is as big a hit as minecraft, and makes 3 sequels, mojang could put out a game called ‘Scrolls IV: Skyraam’ and bethesda really wouldn’t have much of a leg to stand on because the didn’t protect their trademark.

      not buying skyrim because its publisher/developers legal arm is doing due diligence to protect it trademark seems like misdirected anger.

    • gwathdring says:

      Well put, dewey. As much as I would like any company that wanted to use the word Scrolls to be able to, not only would that be a bit of a mess but it’s not how current law works. Bethesda have a right and, to a certain extent, a bit of an obligation to make these legal motions. They have a respectable case. The art style even has some similarities that complicate matters for Notch: http://pinoytutorial.com/techtorial/wp-content/uploads/2011/03/mojang-scrolls.jpg

      http://www.thinkhero.com/wp-content/uploads/2011/02/elder-scrolls-skyrim-desktop-gray.jpg
      http://www.gameinformer.com/cfs-file.ashx/__key/CommunityServer-Components-SiteFiles/imagefeed-featured-bethesda-elderscrolls-elderscrollsv/skyrim2_2D00_1920x1080.jpg

      Yeah. they’re both somewhat ornate and generic fantasy aesthetics. One is 2d and a bit cartoonish and one is 3d. But there’s enough similarity here I could certainly see the aesthetic of Scrolls as the aesthetic of a CCG based on Skyrim. And here’s the kicker: even if I couldn’t, they are both fairly generic fantasy art schemes with the word Scrolls attached to them. The confusion grounds, legally speaking, seems solid to me.

      Here’s where I think Mine craft has to make a case:

      The Elder Scrolls series is primarily recognized via the subtitles. Kids will ask for Oblivion or The Elder Scrolls III: Oblivion, and Scrolls sounds pretty different from that. The brand recognition exists, but it is the single-game subtitles that are most widely recognized and name-dropped both by customers and the company. The trouble with this line of reasoning is that it starts sound like a case to revoke or legally damage Bethesda’s Elder Scrolls trademark rather than a defense of the Scrolls application. And that’s a much more risky legal maneuver.

      The other merit I see in Scroll’s defense is, similarly, trying to argue, quite simply, that the word is insufficient in bringing to mind The Elder Scrolls for customers. I really think if Notch weathers this without changing the name, he’s going to have to fight brand confusion. It’s way to easy for Bethesda to show market overlap. Trouble is, Bethesda really has a good case on this one.

    • sinister agent says:

      Good grief, do you really think that more than about ten people on earth are that stupid? Oh wait, of course, they have consoles, so obviously they’ll just see one word and buy the wrong thing with their big stupid console fingers.

      Christ.

    • gwathdring says:

      Whoops. Replaced Mojang with Minecraft in a few places …. :P oh well.

      @sinister agent

      It’s not so much about how stupid people are.

      Rationally, I think his logo and concept are different enough from Bethesda’s games that he’s not doing any damage to Bethesda. But the concept and art, at this stage, is also rather generic. Which makes things a little less in his favor. And so much of trademark law is built on precedent, Bethesda is almost required to pursue things that are a little too much of a stretch for anyone to feel good about them winning based on the way we’ve been handling these sorts of cases int he court room.

      So to answer your question: Yes, there are lots of people who are that stupid but a whole lot more people who aren’t. But once your brand gets diluted even a little bit the way law currently stands forces you to market completely in defense mode. Plenty of people are intelligent enough to understand the difference between Band-Aid brand bandages and other brands of bandages. But Band-Aid was in some ways TOO successful for their own good. Now that Band-aid is a common name for ALL such bandages in popular speech, Band-Aid is in a bit of a tricky situation and could easily lose their trademark in our lifetime because companies are going to be able to successfully argue that “Band-Aid” is so pervasive a term for the adhesive bandages they have every right to market their product as [Brand name here] Band-Aids.

      Now, that example really has little to do with this situation. But it’s a nice example of how “brand confusion” isn’t about how astute people are. It’s about popular usage, popular association, and legal precedent.

    • nindustrial says:

      Another nice point gwathdring. I’d also like to point out that, despite the fact that I am a regular and savvy gamer who obviously would not confuse the two at this point (like many of you are arguing), the very *first* time I read a headline for an article revealing the existence of this game, the title Scrolls made me wonder if it was an Elder Scrolls-related or Bethesda game. Clearly, upon reading the article I became properly informed and am no longer confused, but if the first mention of the title Scrolls evoked Bethesda’s properties in my mind, it’s not a stretch to extrapolate that to the rest of the video gaming community, where many may not take the time to follow every news article, etc.

  14. testman3 says:

    I’m glad Bethesda is going through all this trouble to clear things up. I myself am extremely confused whether The Elder Scrolls® V: Skyrim™ is the game with the dragons, or Scrolls

    • Starky says:

      But would you confuse it with a CCG (or a C-CCG) based on the Elder Scrolls series called “Elder Scrolls”?

      Because that is what a trademark reserves Bethesda, and that is what might cause the confusion in the market.

    • Tomm says:

      Every single game in The Elder Scrolls series has been called ‘The Elder Scrolls X: Subtitle’ and have been known colloquially by their subtitles. If they had a game that was simply called ‘Elder Scrolls’ I could see them having a case, but at the moment I can’t see how anyone would get confused between the two.

      I wasn’t even sure what TES were until I saw Oblivion and Skyrim pop up.

    • Starky says:

      That doesn’t matter legally though.

      They own “Elder scrolls”

      Notch is trying to trademark “scrolls” not just use it , not just release a game with that title, but trademark it.

      If notch was successful in gaining the trademark – their trademark of “Elder Scrolls” could easily be challenged in the future, as it would exist within a broader trademark that they do not own or have rights too.

      You see the legal issue facing Bethesda now?

    • Consumatopia says:

      If notch was successful in gaining the trademark – their trademark of “Elder Scrolls” could easily be challenged in the future, as it would exist within a broader trademark that they do not own or have rights too.

      Do you have any examples or citations for this, because it seems really implausible that if Bethesda had licensed Mojang to use Scrolls that that this would somehow short circuit and destroy the “Elder Scrolls” trademark. Even if it were the case, if Bethesda’s secret point of view is that they’re okay with the game being named “Scrolls” they just don’t want Mojang to have the trademark, suing to block the release of Mojang’s game probably isn’t necessary. When Microsoft and Amazon don’t like Apple grabbing the trademark “App Store”, they don’t have to sue to shutdown Apple’s App Store, they just object to the trademark application.

      Bethesda might want to sue, and they certainly have that right, but they aren’t forced to, and the rest of us have the right to adjust our opinion of them accordingly.

    • gwathdring says:

      The key there, is “if they licensed it to him”. If he gets his OWN trademark without having to ask their permission (whether or not money is required) It’s a whole different game.

      And you’re only half right about the extent of their aggression. Stupid as it may sound, one of the stipulations of maintaining a trademark is proving you are willing and able to defend it. I admit it seems weird, but from the legal perspective they have to show they are wiling and able to take action for their case against the mark to carry weight. It’s a bit of a pissing contest, and it’s one of the issues with trademark law … but making a show of force is kinda part of the system of retaining and defending a mark.

    • Consumatopia says:

      Right, the key is “if they licensed it to him”, and it’s Bethesda that has complete control over what they choose to license. I’m not saying they’re somehow morally obligated to license it (and it would certainly be reasonable to make that license contingent on Mojang withdrawing its trademark claim), but if they choose not to then that’s completely on them. Trademark is only a pissing contest if you want it to be.

    • gwathdring says:

      Not exactly. Because unless he revokes his application for a trademark, they can’t exactly license their’s to him. He’s claiming he has a right to it whether they want to license it or not. And in a lot of ways I think he should have a right to it. But by applying for the trademark he’s made an aggressive move.

      Bethesda can’t just stop proceedings and say “Hey, we could license it to you.” Once he successfully trademarks Scrolls he has no need to license it and their options are much more limited. It would be a lot harder to challenge the mark after it is established. So they have to keep the pressure up even if they want to make a deal. Quite simply, by applying for the trademark, Notch forces Bethesda to fight the mark. From here, either party can suggest licensing as an alternative to court action, you’re right. Either party can suggest a name change. But neither party has the slightest bit of leverage if they back down while making those suggestions–once the trademark is approved or shot down in court, things get a lot a lot more brutal.

  15. Oak says:

    He should rename it Bethesda.

  16. kikito says:

    I’m doing the Antique Patchments.

  17. skurmedel says:

    It doesn’t really say where he filed for the trademark.

  18. Quine says:

    if Bethesda really are unwillingly being forced to fight for their trademark, can’t they just license Mojang to use the term Scrolls for a nominal fee, then everyone’s (largely) happy and they can avoid the PR shitstorm that will otherwise cause.

    • Starky says:

      They can, but because Notch tried to trademark it first – they almost have to be aggressive about defending it, then notch can be the one to step down and seek agreement.

      Basically until notch withdraws his attempt to trademark scrolls Bethesda can’t be seen to make any offers or compromises as it would weaken their case and maybe their trademark.

  19. brog says:

    Wait, so the fact that they’re both generic RPG medieval fantasy settings makes it *worse* because there’s more of a case that they could be confused, rather than justifying the name because it’s a setting-appropriate word derived from prior art in both cases?

    • gwathdring says:

      Pretty much. If they were less generic, or had less generic names, brand confusion would be less of clear-cut case and it would be easier to argue for coexistence of the marks. As things stand, there isn’t much immediate flavor to grab onto. Mojang would have to work kind of hard here to show that once you know more details about their game, it doesn’t seem like a generic medieval fantasy anymore to win points in this department.

      Mojang shouldn’t have applied for a trademark. He was clearly aware of The Elder Scrolls as a fan. It was a bad move, and he might have been able to name his game Scrolls without forcing Bethesda’s hand … but as things stand Bethesda has very little choice as it’s a case of two trademarks in a similar market with similar aesthetics and settings containing the word Scrolls without adequately different accessory words (as Notch’s games has none and it’s not like Bethesda is trademarked something complex like Dragonborn Adventures as Recorded in the Elder Scrolls). Simplicity makes this quite a bit worse.

  20. Joshua says:

    To be honest, to me, trying to trademark the word “Scrolls” is almost as bad as trying to trademark “Edge”. Although Notch actually is producing real games, Mojang has to enforce the word ‘Scrolls’ as well according to the above post.

    • VelvetFistIronGlove says:

      You do realise that it is Mojang who are trying to trademark the word “Scrolls”, not Bethesda?

      Edit: Oops, misunderstood your post. I see you do realise this. Carry on.

    • jonfitt says:

      Yes, when I read that Mojang had tried to trademark “Scrolls” that put an entirely new spin on it.
      I don’t think they would have had the problem if they hadn’t tried to own the word Scrolls in a game-name context.
      Even if there wasn’t an Elder Scrolls brand already that’s pretty low to try and trademark a common language word when your game rides so high on other people’s game ideas of the past.

    • dirtyword says:

      That’s important. Bethesda have used the word for so long, they really can’t allow another company to trademark it, as that risks them paying damages to Mojang for infringing their broad trademark (from a lawyer’s perspective).
      From Wikipedia:
      In the case of a trademark registration, failure to actively use the mark in the lawful course of trade, or to enforce the registration in the event of infringement, may also expose the registration itself to become liable for an application for the removal from the register after a certain period of time on the grounds of “non-use”.
      So they are basically required to do this due to loophole-y laws, having invested so much in the franchise.

    • jonfitt says:

      Right. Although what’s not clear is that if Beth would have sued Mojang if they had called their game Scrolls without trying to trademark Scrolls?
      Could try allow someone to trade with it without risking losing their rights to (Elder) Scrolls?

    • Starky says:

      That is the catch isn’t it, if Bethesda allow Notch to continue without raising a peep, and Mojang gained the “scrolls” trademark, their own trademark of “the elder scrolls” would risk been weakened enough that it could be challenged and lost.

      Bethesda really have no choice.

      People are just automatically jumping to the defence of the plucky little indie company.

    • jonfitt says:

      I jumped to his defence when it looked like Mojang had been straight up sued rather than been sent some request for them to come to an agreement on the name.
      But if it’s true that Mojang were attempting the register the trademark it looks like Bethesda are in the right.

    • eduh says:

      Unless notch’s lawyers are fucking retarded, there is simply no way he’ll lose in court.

    • Salt says:

      I am replying to this comment in the vain hope that it will become more prominent and read.

      This is not really an issue about Scrolls being confused for a The Elder Scrolls game. It’s an issue of Bethesda wanting to keep control of their trademark.

    • jonfitt says:

      @Salt But follow that thought through to the end: you don’t sue random people to keep a trademark, you sue people who are trying to use your trademark *or are trying to trademark something that’s too close to your trademark*.
      Hence it is completely a case of whether Scrolls is too close to The Elder Scrolls as competing games.

    • Starky says:

      “Hence it is completely a case of whether Scrolls is too close to The Elder Scrolls as competing games.”

      It is too close – Bethesda can’t allow another company to gain trademark of word that would so massively weaken their own trademark without challenge.

      Notch is basically trying to take out from under them a more potent trademark, once that in future could really damage theirs.

      What if notch got “Scrolls” and in a few years time started licensing it out? “Ancient Scrolls”, “Forgotten Scrolls”, Mystic Scrolls” all start getting used, and when challenged, they all point to Mojang and say “we have permission, they own “scrolls”.

      Legally Bethesda have to be showing themselves to be actively and aggressively defending their trademark so that they have weight behind them when they try to prevent notch from gaining the “scrolls” trademark.

    • jonfitt says:

      I’m not certain strength is determined that way. If Mojang were granted Scrolls, and then tried to license Forgotten Scrolls, I think Elder Scrolls would still have a case. I’m not certain that the precedence follows the shortest name. Length of trading could play more into it. I have no idea.
      Short length might even work against a trademark as they are very specific. More words could mean you can cover a broader number of permutations. They could be able to claim infringement based on The X Scrolls which Mojang could not.

    • Starky says:

      Bethesda would have case yes, but it would be a much, much weaker case if someone had ownership of the trademark “scrolls” – which is why they are going after it aggressively.

      It is nothing to do with the length, or the wording, but the strength of the trademark.

      if X company could argue in court that Notches “Scrolls” was a stronger trademark than “the elder scrolls” in the gaming market, and that they had agreement with Mojang for it’s usage – it would significantly weaken, if not destroy Bethesda’s case and damage their trademark.

      Simply put Bethesda cannot allow another company to be granted and develop a stronger trademark than their own that might one day be used to challenge their TM.

      It really is a case of if “Scrolls” was granted to Notch, the stronger that TM/Brand became, the weaker “The Elder Scrolls” would become legally.

    • gwathdring says:

      Huh. Personally, I think Notch would have a stronger case (and Bethesda a weaker one) if there were another word in their like “Forgotten Scrolls” or “Scrolls of the Forgotten.” However, I do agree that his case would be strongest if he were being sued for more ordinary infringement rather than being sued to cease his claim to a competing mark.

  21. ArcaneSaint says:

    Wait a moment, will Bethesda now sue RPS because they used “Scrolls” in the title of their article?

    • Salt says:

      I know you’re making a joke, but no.

      If “Rock, Paper Shotgun” decided to change its name to “Elder Scrolls of Gaming News” and filed a trademark on that name, then Bethesda would quite correctly make threatening noises at them. Otherwise Bethesda would lose control over the name Elder Scrolls in the domain of computer games.

    • jonfitt says:

      Losing the hold on the trademark would be a tertiary reason for suing “The Elder Scrolls of Gaming News”.
      For a start the site would be attempting to profit off the work done by Bethesda, also anything bad the site did would be confused as the responsibility of Bethesda this bringing their company reputation down.

      Imagine being accused of being responsible for terrible healing and a lack of iron!

  22. Jimbo says:

    ‘Scrolls’ will be on the Skyrim box in about font size 0.5. Nobody who is at all likely to be confused by this will even know the game as ‘The Elder Scrolls’ anyway, it will just be ‘Skyrim’. You’re probably more likely to get it confused with Skyward Sword.

    • Archonsod says:

      It’s nothing to do with the single games, the series as a whole is quite regularly referred to as The Elder Scrolls. Just like most people refer to Deep Space Nine or Voyager rather than Star Trek.

      It’s pretty easy to demonstrate the issue right now in fact. Type “Scrolls” into google and in the first four hits I have Mojang’s forthcoming game, the Wikipedia definition of a scroll, and two Wikipedia articles on The Elder Scrolls (one on the series as a whole, one on Skyrim).

      Assume I’m a non-gamer consumer who has heard about these great fantasy games from a gaming friend. All I can remember beyond it involving dragons, wizards and the like is it had the word scrolls in the title. Now if I go to google and type in scrolls, and I get those four results; how would I know which game(s) my friends were recommending?

    • drewski says:

      That’s a good comparison, actually – there is no way whoever owns the rights to Star Trek would sit idly by if someone tried to trademark a sci-fi TV series called “Trek”.

  23. Raiyan 1.0 says:

    Oh puh-lease, can’t you see through this?

    Notch loves Bethesda games, and has good relationship with some Bethesda people. Bethesda is obviously trying to raise the profile of ‘Scrolls’ using all these controversies. Behind all these, Notch and Bethesda are BFF.

  24. Paul says:

    Trademarks should be abolished.

    • Daiv says:

      So you think anyone should be able to call their company “Apple”, for example?

      A clear system of trade marks reduces confusion for the consumer. When you buy something from Apple, you know you’re buying it from Apple, not Trotters Independent Traders who have taken to calling themselves Apple and selling bricks in fancy boxes instead of iPhones*.

      *No comment about the quality of iPhones as a product intended.

    • jonfitt says:

      Very interesting choice of company name considering the history!!!

    • briktal says:

      There would be a lot of Infinity Wards releasing a lot of Call of Duty: Modern Warfare 3s this holiday.

  25. daz_uk says:

    To me it boils down to this:
    1> Do Bethesda own the rights to the word ‘Scrolls’? (If no, goto step 3)
    2> Should anyone own the rights to a word anyway ,one that is not an abstract word at least (if no goto step 3)
    3> STFU and go to sleep Bethesda
    I know it’s not the actual dev team trying to enforce this. Any reasonable person would see that this is not an attempt to trade off the success or name of an existing product. Just because something is a fantasy setting and has the word scrolls in it should never make it more likely to infringe on someones IP. It’s RIDICULOUS and really pisses me off.
    Lets face it, copyrights are a strange thing anyway opening up lots of loopholes for idiots like Langdell to exploit, but if the law wasn’t as it is then these vultures wouldn’t have the chance to rip people off. Copyrights should not be granted on anything but abstract words/sentences such as ‘Coca-Cola’ or whatever. Even then it’s not bullet proof and someone will always get ripped off or bullied etc, but at least we wouldn’t get such blatantly obvious bullying as this, whereby a game is called Scrolls and is a card/strategy game and one is a game called The Elder Scrolls: Skyrim and is a AAA RPG.
    I’m a massive Bethesda fan and have played all the Elder Scrolls since Arena and I’m pretty sure that without the ZeniMax influence, this wouldn’t be happening…
    Sometimes I hate being in this industry :(

    EDIT: I don’ think Notch should be able to trademark ‘Scrolls’ either by the way. Nobody should own the commercial rights to a word like that. We’ll just get the ‘Edge’ scenario again

    • jonfitt says:

      I don’t think you understand trademarks.
      Have Bethesda been selling a product under the brand The Elder Scrolls? Yes
      Does Bethesda claim to own the word Scrolls? No
      Is Mojang’s Scrolls product similar enough to cause confusion with The Elder Scrolls? That’s for a court to decide.

    • steviesteveo says:

      Sorry but to me it boils down to this:
      1> Is the comment talking about the same topic as the post it’s attached to? (If no, goto step 3)
      2> Does the comment appear to understand that trademark and copyright are different things? (If no, goto step 3)
      3> Comment does not seem to be a relevant and informed piece of legal commentary.

      There’s a lot of non-ridiculous reasons to allow producers to prevent other companies selling products which are confusingly similar to their own.

  26. po says:

    I think it comes down to this:
    Just how thick are Bethesda’s customers?
    Do Bethesda want to be known as a company with realy thick customers?

    As a Mojang customer, I’d say we’re smart enough to tell the difference.

    • Starky says:

      What about in 5 years time when Bethesda want to release a free-to-play computer CCG called “elder scrolls”, and then Notch challenges them because he owns “scrolls” with a computer CCG?

      Yeah now do you see why Bethesda HAVE to challenge it? Less the use (they could have easily made a deal over the use for that specific game) but because Notch is trying to get a broader trademark than their own trademark would exist inside of.

  27. Milky1985 says:

    “Well, it may not be that simple. In other words- Bethesda might well have a case, regardless of how you might feel about it.”

    I know you got a lawyer in who knows more than me, but from what i do know about the trademark areas is that they are VERY VERY specific, just because you have a trademarkt aht consists of multiple words doesn’t mean you have the right to use all the words within the trademark seperatly

    • Starky says:

      Not that specific, but otherwise true; but in “The Elder Scrolls” scrolls is clearly and undoubtedly the stand out and most unique word in the trademark – that matters.

      Just like a company might be able to name a burger “the big beef” or something else “the big…” but they could never get away with using the word “mac”. mac is clearly the main identifier of the trademark.

      Same goes for scrolls in “The Elder Scrolls”.

    • Consumatopia says:

      On Google, elderscrolls.com is relatively high (but not top) for both elder and scrolls. Elder has 159 million hits, scrolls has 51 million. So scrolls stands out somewhat more than elder, but not all that much more.

      Out of context, if I see “Elder” or “Scrolls” alone, I’m not thinking of Bethesda.

    • gwathdring says:

      I agree to a point. But I think Notch would have a better case if the name was more complex that just “Scrolls,” if he weren’t pursuing his own trademark for Scrolls, or both.

  28. 8-bit says:

    “(one first person RPG, the other a card playing game with RPG elements) so is there a risk of confusion there? As you can see, it’s far from a straightforward yes/no answer.”

    seems kinda like a straightforward no to me, in fact I would go so far as to say that you would have to be pretty stupid if you manage to confuse a first person, open world, hacky slashy rpg with a card game. besides that beths franchise is the elder scrolls, thats like sega going around suing everyone who uses the word war in their game title, or nintendo doing the same to anyone who uses the word legend.

  29. Haroshi says:

    I think if I were Notch I would just change the name.

    Buying a new web domain and changing a few other things which mention the name will obviously be a fraction of the cost of taking this to court.

  30. BurningPet says:

    I know plenty of retards who would buy Scrolls thinking it is somehow related to TES.

    i am with bethseda here.

  31. Demiath says:

    The justification offered here (if not the the actual trademark case) depends on the rather far-fetched assumption that people who are sufficiently uninformed to potentially confuse “Elder Scrolls” with a “Scrolls” even knows that the Bethesda games Oblivion and Skyrim are part of something called “The Elder Scrolls” series. And I don’t see a whole lot of mainstream fans use nerdy abbreviations such as TES3 and TES4, and even Elder Scrolls spelled out seems very uncommon in less initiated circles. I think Bethesda’s actual (as opposed to their preferred or imagined) brand recognition can primarily be summed up in the three words “Oblivion”, “Morrowind” and “Fallout 3″.

    On second thought, even having heard about TES doesn’t appear to be a sufficient criteria for creating the hypothetical scenario needed to support Bethesda’s claim. One has to care a whole lot about the TES name specifically to be able to mistake any text, promo, magazine article, screenshot etc. that does not include names such as Skyrim, Oblivion etc. for something Bethesda has produced.

    • briktal says:

      It’s true that people don’t use TES often, but it is on the box and on lots of online store listings. Actually, if I look at the gamestop website right now, in the “Most Anticipated” column it only has room to put “The Elder Scrolls V: Sk…”.

      It’s easy to see how people could get confused in a retail environment. I mean, there you get shoppers who call any console a Nintendo or a Playstation or an Xbox, but digital distribution only might get more informed consumers. Of course, I don’t even know if you can do that with the law, but it’s something.

      Also, the only PC game I could find that has “Scroll” or “Scrolls” in the title that isn’t an Elder Scrolls game is rtsoft’s Dungeon Scroll, where you fight monsters in a dungeon by spelling words.

    • nindustrial says:

      A lot of the assumptions being made in these comments is that *hardcore PC gamers* (e.g. RPS readers) would never confuse the two games. But that’s not the test. It’s public confusion more generally, and a lot of the public isn’t as informed as the people posting here are.

      EDIT: This isn’t to say that it’s a slam dunk case for Bethesda, but just to point out that it’s by no means a slam dunk case for Notch, which a lot of people seem to be assuming.

  32. Temple says:

    Eldar Scrolls by Games Workshop -really no one else thinks that is a great idea?

    I blame X-com. They brought out a TBS as an FPS now everyone thinks their RPG can be a CPRG or FBG or something.

  33. Deston says:

    I’m usually well against these kind of things, but I can actually see both sides of this one. Bethesda are preparing for a huge TES release so their marketing and legal guard is up more than usual, it’s also conceivable that Notch had TES in mind when coming up with the name… on the other hand, the game will not really be ripping off The Elder Scrolls “franchise” and kicking up over a single dictionary word seems rather petty. It’s not like he’s calling it The Older Scrolls or something.

    Hopefully they’ll resolve it amicably outside of court, it makes no sense for either party to drag this issue out – it’ll cost Notch precious time and money, and it’ll damage Bethesda’s rep within the gaming community. The only winners are the lawyers, and no one wants that.

    We need to sit Notch and Todd Howard back down in a room again like Game Informer did, and have them talk this out over beer and pizza. That’ll sort it out.

  34. magnus says:

    Virgin records did something similar in the 80′s when a rival released a compilation and Virgin objected to their use of the word ‘Now’, so nothing new then.

  35. cairbre says:

    Well when I heard that Notch was making a gamed called scrolls it ddnt even cross my mind that it could be something to do with Bethesda and their game. Its seems like common sense is going out the window if this goes further than a few angry letters. This is coming from a solicitor. What would be man on clapam bus think thats the real question.

  36. ZeroSigma says:

    I do NOT care if Bethesda really has a claim or not if they do continue with this I’ll definitely not BUY any more of their games… but I will be playing them… :)

    BTW. normally when you sue someone and demand compensation its because of the loss of revenue or financial loss… how the flying hec monkeys did Mojang’s Scrolls game cause loss of revenue for Bethesda??? Does stupidity know no bound??!

    PS. The answer is ‘NO’.

    • Starky says:

      I was waiting for the first post by an ignorant (if the issue, of the law, and just in general) fool to crop up and claim this as a good and moral reason for pirating.

      Thanks for making the wait fairly short. Well done.

    • jonfitt says:

      Game Commenting Rule 7: If a company does something ‘bad’ some dumbass will then comment that they are now justified in pirating a game.

    • patricij says:

      I’m gonna do something almost as “bad” for them…I’m not going to buy any of their games unless it is on at least 75 percent sale :D

  37. gb056 says:

    This is also an interesting article on the subject: http://howtonotsuckatgamedesign.com/?p=3327

    • Walsh says:

      This this this this

      Read this before you all start spouting off about greed and other nonsense. If you had a trademark and it was your livelihood, you are required to and would defend it to the death.

  38. Drinking with Skeletons says:

    What about Bethesda’s use of subtitles? Name someone who refers to Morrowind as The Elder Scrolls III or Oblivion as The Elder Scrolls IV. Provide evidence of any marketing or journalistic effort which makes more than a passing reference to the series name. I’d be surprised if any non-gamer would look at the box for Daggerdale and walk away remembering the series title.

    Now, if Mojang’s new game was called Scrolls: Yesterbreeze, I would be more sympathetic. It seems to me that, outside of very specific, very letter-of-the-law-but-not-the-spirit interpretations given by individuals with no knowledge of, interest in, or connection to the industry, Mojang is in the right. Which is to say that Bethesda would almost certainly win in court.

  39. Out Reach says:

    “Age of Empires” is still owned by Microsoft, but they’ve never sued anyone for making an “age of X” game. A quick glance at the TV tropes page show it’s happened enough times http://tvtropes.org/pmwiki/pmwiki.php/Main/AgeOfTitles and other then AoM, AoE 1,2 and 3 the rest of the list are all developed outside of Microsoft.

    I highly doubt there is a legal president for the ownership of the word “scrolls” if Bethesda owns “The Elder Scrolls”.

    • Theory says:

      “Age of” is a phrase commonly used as a prefix to a title, rather than a title itself. I would be interested to see who would win if someone tried to trademark a strategy game simply called “Age Of”…

  40. Starky says:

    I really wish that this would be posted in bold art the top of this case…
    This isn’t just about notch calling his game “scrolls”, if that was the case alone Bethesda probably wouldn’t be so aggressive.
    It is about notch/mojang trying to get the trademark for the name “scrolls” for themselves.

    Bethesda HAVE to challenge this – law requires it or their own trademark would become worthless, swallowed by the broader trademark owned by Notch.
    And the only real way to prevent Notch gaining the trademark is for them to aggressively go after his usage of it.

    • boldoran says:

      So your point is that Trademark/Copyright law is a huge game of mutual assured destruction for most companies. Imagine if the army of lawyers that firms have to employ would actually start doing things that further innovations instead of hindering it by uselessly hoarding trademarks/copyrights just in case.

    • Starky says:

      Pretty much yes, I’m an Engineer and patent law (and trademark law) is a fucking nightmare.

      Costs a fortune, is almost worthless (nothing stops a company in china ripping you off for 1/5th the cost) – and ends up with fucking stupid situations like google buying companies just for the backlog of patents they own, so that if someone sues google, they have their own stash of patents to fight the case with.

      It is exactly mutually assured destruction for the big companies, such as with Apple vs Palm – both infringed so many patents of each others that none could dare take the other to court.
      You HAVE to infringe if you want to compete in the consumer electronics space – because all companies involved get patents on fucking stupidly broad stuff, even things with prior art. All because the industry moves so fast and patent offices so fucking slow.

      So you end up in situations where companies get into a patent cold war, of dancing around legal action but neither ever daring to actually take it to full blown litigation.

      It is madness, and as an engineer who just wants to design and build cool stuff, I fucking hate it all.

    • nindustrial says:

      Both valid points, but (and this is directed to boldoran) if we don’t like it, how about blaming the people that wrote the laws and then re-write them, rather than blame lawyers… That’s like blaming the auto mechanic who tells you your car failed the emissions test and you’ll need to spend money on it to meet the requirements of the law.

  41. PanzerVaughn says:

    I hope Notch and Bethesda don’t ultimately FALLOUT over this.
    GET IT ITS A NAME AND ALSO MEANS THEYRE NOT FRIENDS HAW HAW HAW WORDPLAY.

  42. kirkbjerk says:

    Maybe we should writte about new development on The Elder Scrolls : Scrolls official playing card game of Tamriel in the meantime.

  43. Nero says:

    I wouldn’t buy the game World of Zoo just because it sounds like World of Goo because I look up what the game is about before buying it. If you buy something just because it somehow sounds the same then I don’t know what to say. I think the whole thing is silly.

    • Stellar Duck says:

      Heh.

      A good example. I’ve read World of Zoo any number of times on Steam and wondered why there was a new World of Goo. Then I read it again. I didn’t just press buy.

    • jonfitt says:

      I was sad when I read a post about a new Cut The Rope game and mistook it for a new You Have To Burn The Rope!

  44. snv says:

    The whole concept of intellectual property is just broken

    • Salt says:

      It can be argued that our laws regarding intellectual property are broken, but do you really think the very concept of intellectual property is ‘broken’?

      If I spend 4 months creating an innovative terrain engine for a game (which I just so happen to have been doing), should everyone else in the world have the same access to and rights over it as I do? It’s a work of intellectual property – existing entirely as information, which of course wants to be free.

      I feel that I should be entitled to claim ownership over the intellectual property I have made, so that I might leverage that ownership to pay for my shelter and food.

    • Tei says:

      I remember some math discoveries done independiently and at the same time in different places of the world at the same time.

      The idea tha tthe first one to register the discover/invent owns it, but the others don’t have right to it is intelectually dishonest. All the IP laws are pure intelectually dishonest, and poor thinking.

  45. Berzee says:

    edit: removed comment as I am no longer interesting even to myself

  46. Stardog says:

    In court, Notch’s lawyer just needs to show the box art to Daggerfall, Morrowind and Oblivion. “The Elder Scrolls” name is relegated to barely noticable text at the top. Customers will not confuse Scrolls with their series.

  47. Vexing Vision says:

    Come on Bethesda, stop being a bully. I really want to buy Skyrim and not boycot it for some silly reason or another.

  48. Tei says:

    Rename the dawn game.
    In practical terms it don’t even exist yet.

  49. Unaco says:

    Notch was trying to trademark “Scrolls”? Now THAT is pulling a Langdell right there.

    • eduh says:

      So, you expect him to make a game and not trademark its name? lol

    • Unaco says:

      Well, a lot of people here seem to expect Beth to trademark their game/name, but then not protect that trademark. Maybe he (Notch) should have picked a mark that didn’t conflict with currently existing marks in the market, then there would be no problem.

    • Starky says:

      So, you expect him to make a game and not trademark
      its name?

      And you expect a company who owns “elder scrolls” not to try and stamp down on anyone trying to gain a trademark that supersedes their own in the same market (video games)?

      This case isn’t about usage rights, or the name of a game, it is about Notch trying to pull a Langdell and claim a catch-all trademark, one which might directly challenge Bethesda’s some day.

    • Azradesh says:

      Scrolls is a basic english word, there’s nothing special about it. Their games are “The Elder Scrolls”, that was trademarked, so I guess they should sue all fantasy games with “The” in the title, oh and no one can use “Elder” either.

    • Starky says:

      Elder is a much more common and broad word though (ignoring “the” because that is just silly).

      For years now “scrolls” has been solidly linked to Bethesda and their series. In fact I’d argue that Scrolls is the most important word in their trademark of “The Elder Scrolls”
      In fact up until now, there has been nothing that would challenge TES. If any gamer, publication or consumer said “scrolls” and “videogames” in the same sentence, with or without the “the elder” most would associate that automatically with The Elder Scrolls, oblivion, Morrowwind, Bethesda etc.

      Which is entirely the point, if ANY company should be granted “scrolls” it should be Bethesda (though I don’t think anyone should be) – which is why they are challenging it.

    • eduh says:

      ofc i didnt expect beth to do something like this. there are a bunch of more flagrant cases of similar names. This is anything but reasonable, especially since notch and beth already had some kind of agreement.

    • Wulf says:

      Yeah, that did change my opinion of this a bit.

    • VelvetFistIronGlove says:

      No, Notch is not trying to “pull a Langdell”. He is applying in good faith to register a trademark for the name of his game. He is producing the game, and intends to market it game under that name.

      This is good business practice: it helps to ensure the game’s name stands out in the market*, and also ensures that customers won’t get misled into purchasing products with confusingly similar names, whether unintentional (as this case appears to me to be) or intentional, e.g. trying to pass off one’s own products as a better known brand.

      Remember, trademarks apply to fairly limited classes of goods and services. If Mojang or Bethesda have registered trademarks on the name “Scrolls” in computer games, I am not infringing if I open a bookshop called “Scrolls”, and I would be entitled to register that as a trademark in that sector.

      In addition, trademarks are usually required to be in continuous use in order to be valid. For example, in the US, you must already be using the mark in commerce, or be using it within six months of your application being granted. Five years after filing the trademark, you must file a declaration of use, which sets out the details of how you are using it in commerce. Then ten years after filing it, and every tenth year subsequently, you must file another declaration of use together with your application to renew the trademark.

      In Tim Langdell’s case, EA’s argument and evidence was that “Edge Games” had not been using the trademark, and had in fact been deceitful in his trademark filings when demonstrating the existing use of the mark (e.g. the fake EDGE magazine covers). And he had no substantial evidence that Edge Games had produced any games since 1989. In other words, Edge Games was using the trademark deceitfully, abusing trademark law in order to obtain licencing fees from Future Publishing, Mobigames, and so on.

      Notch is not trying to pull a Langdell.

      * Assuming that is, that you’ve picked a name that isn’t too close to any pre-existing trademarks.

    • Starky says:

      Velvet, context man, learn it and understand it.

      It was clear that he (and I) meant pulling a langdell in the “trying to trademark a single broad word” context. Which is absolutely true.

      Not that he’s trying to scam people.

      Notch, if he one day became a total bastard, could start becoming a troll with “scrolls” – granted it would not be as common as edge – but it’s not a million miles away.
      He probably wouldn’t interviews make him out to be a pretty relaxed Sweed (which obviously makes him seem stoned most of the time) .

      The point is he was trying to trademark a word that has long been associated* and the stand out word in another 3 word trademark in the same class of service. Out of “The” “Elder and “Scrolls” the latter is clearly the dominant word.
      *and strongly associated – you ask any gamer “scrolls and video games what first comes to mind?” and the Answer will 95% of the time be Elder Scrolls related.

      I for one was shocked that Bethesda didn’t already own “scrolls” when paired with computer games, RPGs and fantasy, they – not Notch (who’s product is unreleased and easily changed) should own “scrolls” if anyone should.

      Hell, notch should just give them the trademark on the caveat that he gets free usage for his game and directly related products.

    • VelvetFistIronGlove says:

      “It was clear that he (and I) meant pulling a langdell in the “trying to trademark a single broad word” context. Which is absolutely true.”

      I’m sorry, I misunderstood. If that’s what you meant, why are you calling it “pulling a Langdell”? The fact that Edge Game’s trademark was for “Edge” (or was it only for “Edge Games”? I forget.) is not significant to those events, except that it gave Langdell a slightly larger “potential licensee” base.

      “Not that he’s trying to scam people.”

      True, and neither of you made any such implication. However comparing Notch’s actions to those of Langdell carries with it connotations of that behaviour, which I think are unhelpful to the argument, and not fair to Notch.

      If you oppose trademarks on all dictionary words, then there are better examples trademarks to compare to than Edge, that don’t carry the same connotations.

    • Starky says:

      Fair enough, perhaps instead of saying he pulled a langdell it would have been more accurate (and clear of misunderstanding) to say “It’s trademarks like this that allow people to pull a Langdell”.

    • Milky1985 says:

      “For years now “scrolls” has been solidly linked to Bethesda and their series.”

      No i link scrolls to fantasy RPG sure, but generally “the thing you use to learn or cast magic”

      Or rolls of paper

      That what i think of by scrolls, “The elder scrolls” i link to there series, not just the word scrolls.

      Hell the word elder i would think of as eldar and link to the sodding warhammer series.

    • gwathdring says:

      But in trademark law, individual words are important. And the strongest word in the Elder Scrolls, as several people have pointed out, is Scrolls. So calling your fantasy game “Elder Wands” is a lot less likely to get you in trouble than “The Junior Scrolls” (EDIT: well … for trademarking … copyright might get you in trouble though … that was a bad example: pretend Harry Potter doesn’t exist for a moment/EDIT)

      Now, there’s two sides to that. If you can make it distinctive enough with that first word than maybe you’re in better shape than just having “Scrolls” (for example, Ragnar’s Scrolls is more distinctive with respect to Elder Scrolls than Junior Scrolls is). If Notch were just calling his game “The Elder” … context depending, odds are he would be in a better position.

      The Elder Scrolls may not be about scrolls in any way. You might not associate scrolls with the Elder Scrolls. But trademark law is about more than simple practical perception. It’s more in depth than that, and while I think it has a lot of issues, I think trying to make laws around purely practical perception of branding would be even more of a mess.

  50. DClark says:

    I have a few thoughts about this; first, I’m not going to criticize Bethesda for going through the motions. They have a trademark for video games using the ‘Elder Scrolls’ title and someone is trying to create a video game using ‘Scrolls’ as the title – they pretty much have to take some sort of action if they want to keep their trademark.

    Second, I’ve never really thought of ‘Elder Scrolls’ as an important part of Bethesda’s games’ titles aside from grouping them together. I’ve always just called them Daggerfall, Morrowind, Oblivion, and Skyrim even though I knew it wasn’t the full title.

    Third, ‘Scrolls’ isn’t a very good name for a game. By itself the word doesn’t really roll off the tongue. I don’t think it would be very difficult for Mojang to find a better title than ‘Scrolls’.

    I think an easy way to settle it (assuming Mojang really wants to use the name ‘Scrolls’) would be for Bethesda to allow Mojang to use ‘Scrolls’ without any other words around it for an ‘undisclosed amount’ ($1) to show that Bethesda did defend its trademark and Mojang recognizes Bethesda’s trademark.