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.

__________________

« | »

, , , , .

303 Comments »

  1. poop says:

    viral marketing for the most dissapointing/mediocre follow up game ever?

    WHICH GAME AM I TALKING ABOUT??? YOU DECIDE

  2. that_fellow says:

    As dumb as Bethesda claims seem to me, I find it funny that no one is equally angry at the fact that Mojang was indeed trying to trademark the word “scrolls”. One could argue that trademarking the word doesn’t mean they will necessarily enforce it, but still, they were trying to, so you know, maybe one day they’d have used that…
    That’s not as shitty as what Beth is doing right now, but all in all, I don’t see a huge difference. Maybe that’s the first time in decades Beth had to enforce it.

  3. ireplytoretardo says:

    pirate skyrim looser company lololololo

  4. Myros says:

    If ‘World of Tanks’ can somehow co-exist with ‘World of Warcraft’ and ‘Gears of War’ with ‘God of War’ then I think just having the word ‘Scrolls’ in a game title should not in itself be cause for lawsuits.

    I think anyone who makes a game called Scrolls about scrolls has every right to trademark it. That doesnt mean they will own the word “scrolls”, it just means nobody else will be able to use that exact name within the same/similar concept. Just like every other game-maker does.

    Yes we get idiots who think that means they can sue everyone who uses the word in almost every context (ie edge). But that doesnt negate the need to (TM) in order to protect yourself.

    Im no lawyer but just from what Ive read on other cases etc Notch will win this one … if he decides to fight it.

  5. wodin says:

    Told you in the first story Bethesda where nobheads….and have a history of being nobheads…and anyone who loves Minecraft should boycott Skyrim…honestly all the hype it wont be that good anyway…just a reskinned bigger Oblivion…yawn.

    I hope Notch earns enough to buy em out…then sack em…now that would be something

  6. nebojsa says:

    He could go with Elder trolls :)

  7. Reapy says:

    I guess I don’t want to read this all, but just want to say it is pretty bullshit. They don’t own the world scrolls within gaming context, they dont HAVE TO enforce their trademark in this case or risk losing it, because it is not being challenged. Even if he called his game Ancient Scrolls it doesn’t touch on Elder Scrolls. Those are the words that matter. If he used “Elder Scrolls” within game space, yes, that very clearly touches trademark, in his case, Scrolls, does not.

    Either way really dushe move, depending how this turns out might reconsider my purchase of said elder scrolls game.

  8. Ajh says:

    Except for the flaw that I don’t think any random gamer knows them as the elder scrolls games so much as morrowind, oblivion, skyrim and so on. No one’s ever going to buy Scrolls and think it’s connected to oblivion. Not even my mother, who still can’t remember what that game is called with “Clouds and Seriphos and the swords.”

  9. nindustrial says:

    A lot of people seem to be of the opinion that because people apparently refer to the Elder Scrolls games by their subtitles more often than by the “Elder Scrolls” moniker, there can’t be any confusion between “Scrolls” and “Elder Scrolls.” I’m not so sure people don’t refer to the games by “Elder Scrolls” though.

    By way of illustration: What did you all call Skyrim before it’s title was announced; or even just generally when talking about the inevitable upcoming Elder Scrolls game? I don’t know about you, but I called it “the next Elder Scrolls game.”….

  10. zbeeblebrox says:

    Hmm…it sounds like the big problem with Trademark law is that there isn’t a “it’s okay, he can use it, he’s a friend” clause.

  11. Crusoe says:

    Notch should just change the name of the game to “DragonBorn”. That’d, well, probably make things worse. But it sure would be funny.

  12. Archimedes says:

    Why doesn’t Mojang and Bethesda both back off and maybe Mojang should pay Bethesda a little bit of money?

  13. Ganni87 says:

    TBH I think Bethesda is making a fuss for nothing. Let’s a look here:

    Star Wars & Star Trek Both include *Star*

    War/Starcraft & Minecraft Ironically happens to be a Mojang game too but still I don’t see Blizzard suing Mojang, correct me if I’m wrong.

    Battlefield 2: Modern Combat & CoD 4 Modern Warfare Both have the word Modern.

    The Guild & Guild Wars both have the word Guild.

    These are only 4 examples I could think of in 10mins. If everyone sues each other for using the same name in their products I can’t imagine where the world’s going like this. TES and Scrolls are both rpgs true but there are a few differences.

    One is a free roaming 1st/3rd person game the other card trading.

    Also one last thing, if we’re gonna take it to this level, then Mojang may sue Bethesda for Skyrim’s easter egg (the notched pickaxe).

    In the end I mean, come on Bethesda what the hell.

    PS: last time I watched star trek I didn’t expect light sabers and a patrick stewart in darth vader mask.