Scroll Without It: The Small Print In Mojang vs Bethesda

By Alec Meer on March 13th, 2012 at 9:46 am.

Coming soon, the Terraria devs announce their new game 'Falldagger'

Initially reports suggested the turf war between Minecraft-makers the Mojangs and Skyrim-makers the Bethesdas over the former’s forthcoming online card game Scrolls had been settled broadly reasonably. However, Bethesda’s own statement on the matter yesterday revealed that it isn’t as simple as Mojang getting to make Scrolls unhindered and Bethesda ending up with the trademark for a common English word.

Here’s a new kicker: “The terms of the settlement bar Mojang from using the Scrolls mark for any sequel to the current card game, or any other video game.”

So there can never be a Scrolls 2. At least, not in name. Rolled-Up Bits Of Old Paper 2 it is, then. Granted, I’m not sure I see Mojang as being particularly sequel-prone, but it’s a shame to see them have the option taken away. Notch and co are allowed to make ‘add-on content’ for Scrolls without Bethesda’s lawbots terminating them, but that’s all.

What a sad, strange affair all this has been. Intellectual property and copyright law is about as much fun as a night out with the Reverend Gilbert Anti-Fun. His interests include wallpaper cataloguing, staring at washing machines and complaining about buttons.

Here is a statement from a man who speaks as many:

“We are pleased to have settled this matter with Mojang amicably,” said Robert Altman, Chairman and CEO of ZeniMax. “The Elder Scrolls is an important brand to us, and with this settlement we were able to protect our valuable property rights while allowing Mojang to release their digital card game under the name they preferred.”

Yeah, yeah, yeah.

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175 Comments »

  1. Meat Circus says:

    That’s Robert Altman there. A cunt, ladies and gentlemen.

    • adonf says:

      Yeah, but he made good movies before he got into video game companies CEOing.

    • jezcentral says:

      @Meat Circus
      Surely we accept that due to the trademark laws, Bethesda HAD to do this? We’re not still arguing this point are we?

      Blame trademark laws and lawyers, not the bloke who had to act this way because he had to.

      • Aninhumer says:

        Except this is a settlement that takes away various rights from Mojang. That means Bethesda’s lawyers actively negotiated for this unnecessary and unreasonable restriction. As far as I understand it, they could have just said “That’s our trademark, but you can use it if you want.”, but they didn’t.

        • Unaco says:

          They did. Beth/Zeni initially had no problem with Mojang calling their game Scrolls. The Mojang tried to trademark that single word, which would have impinged/threatened the TES trademark. That’s when Beth/Zeni were roused.

          • Aninhumer says:

            Mojang filed a trademark for the title of their product, as is normal practice. If them owning that trademark would have damaged Zenimax’s they could still have just settled to own the trademark, and allow Mojang free use of it. The point being, at some point a lawyer from Zenimax sat down and specifically said “no sequels”, which was entirely unnecessary.

          • JackShandy says:

            This argument depends on the legal system being such a fucked-up crazy town that any question of “Who’s the bad guy” is ludicrous.

            If a guy could make a game called “Final”, and then go on to pose a significant legal threat to Final Fantasy, I might never leave my bedroom again.

          • The Least Fun Human Being On Earth says:

            Anim, I don’t think it was unnecessary.

            Basically they don’t want Mojang owning a valuable fantasy IP known as ” Scrolls” which could cause confusion (in the eyes of the law) between “Scrolls” and “The Elder Scrolls”. Stopping them from creating any sequels thus reduces it’s worth.

          • Phantoon says:

            The fact the eyes of the law would find this confusing is a problem with the system.

            Justice is blind probably shouldn’t be taken literally, although I’m sure ugly people would do better in court cases.

      • GlacialTurtle says:

        Trademark law does not mean you have to defend against any use of a name similar to yours blindly. I wish people would stop repeating this.

        Yes you have to defend a trademark, no you are not obligated to litigate every usage of it or even people who get similar names to you, especially if that name is one word that forms one small part of your trademark that is not even particularly significant in relation to the products you’re selling.

        • Aninhumer says:

          They’re not obligated to do so, but if they don’t, someone could come along later with a game called “Elderly Scrolls” and use the existence of the “Scrolls” trademark as evidence against them. Perhaps it’s still overly cautious, but large companies have to be, because they have a lot to lose if they leave an opening like that.

      • heartlessgamer says:

        Man that is such horse crap. If they were serious about protecting the word “scrolls” they would have pursued the domain name. Bethesda didn’t show any interest in protecting the word “scrolls” until a cash fat and relatively easy target emerged.

        • Havok9120 says:

          Emerged and THEN tried to copyright the name. Standard practice. Just as standard as suing to protect your copyright. Anin is right above that the NOT contesting makes it difficult to contest a similar dispute over the same copyright later. Legal precedent is not fun, nor friendly, but its hardly BethSoft’s fault.

          And I don’t even LIKE BethSoft.

          • DK says:

            “Emerged and THEN tried to copyright the name. Standard practice. Just as standard as suing to protect your copyright.”
            Except The Elder Scrolls does in no way give you the right to the word Scrolls. They fought a battle they had no right in fighting and through application tons of money, won. Bethesda won – and everyone else including the consumers lost.

          • Zelius says:

            DK, you have to understand how copyright law works. Trademarking the word “Scrolls” would have threatened any other trademark containing that word. Had the game been called “Card Scrolls”, there wouldn’t have been any problem whatsoever.

          • Havok9120 says:

            This.

            The owner of word X could, if they wanted, contend that the phrase WXYZ infringes on their copyright. Because of the way the law works, the owner of X wins that case.

            Another possiblity that doesn’t involve Mojang is if a third party ALSO infringes on WXYZ. WXYZ has a far, far more difficult time defending their CR against THEM if they didn’t against Mojang. Judges hate when companies try to selectively enforce their rights.

      • gwathdring says:

        I feel like this whole situation was an abuse of trademark law. Trademarking a name with no distinctiveness whatsoever, suing for infringement of a title few would confuse with a major video game franchise, and so forth. It isn’t out of touch with the letter of trademark law but hat doesn’t mean any of it is responsible, reasonable, or acceptable behavior. Not every word used by a corporation needs a trademark, not even the title of a game. Trademarks are rather broad reaching things and should be used more for branding or establishing a franchise than for simply protecting a single work’s title. That’s just not what trademarking should be used for, no matter how common and routine it is.

        All of that said, I recognize the interpretation that Bethesda was compelled to act on a mark they perceived as threatened. I disagree that things are that simple though. I would argue that their behavior is only acceptable in order to assure that Mojang does not create a franchise out of scrolls–a fantasy game franchise/universe called Scrolls would be a lot closer to a fantasy franchise/universe called the Elder Scrolls than a single, virtual card game is to a series of blockbuster open world RPGs. I’m still not entirely respectful of either side in this instance, but it honestly makes a lot MORE sense to me with the provision that Mojang cannot create additional games under the banner of Scrolls. Which is also, in my opinion, the main reason one ought to trademark something rather than relying on IP protections more tailored to individual works. In the context of cutting Mojang’s right to sequels and spin-off games in the Scrolls franchise/universe … everyone looks a little less like an irresponsible dolt and a little more like a slightly-unreasonable business person with favor leaning towards Big Bad Bethesda.

      • jrodman says:

        Dear, don’t play armchair lawyer on the internet, you’re bad at it.

        Trademark case law says that you have to demonstrate that you are actively defending your trademarks, not allowing them to be used without permission, if you want to maintain the strength of your trademark exclusion. That says *nothing* about what that active action must be. For example, you could settle amicably. You could offer actual permission to use your trademark quite explicitly — thereby showing that you see that someone is treading in your arena, but in this case you feel that it is not brand diluting and reasonable, but obviously it remains in your provenance to deny it .. if you so wished.

        Trademark case law certainly says *nothing* on the matter of what exact terms you must extract from those treading too close to the mark.

        So let’s put your canard to rest. Bethesda lawyers chose to act this way, and chose to extract these exceedingly onerous terms.

        • gwathdring says:

          I agree completely. If absolutely nothing else, letting a game called “Scrolls” slide wouldn’t let someone impinge with “Elderly Scrolls” as the second one is much more clear-cut infringement. It only weakens their mark against similar infringements in the future, not any and all infringements irrespective of their relative similarities to the mark in question.

          I also still think it makes sense for them to prevent sequels if they’re going to make a fuss about scrolls in the first place.

    • sogeking99 says:

      Did notches lawyers just skim the agreement? Jesus.

      • Havok9120 says:

        No. They just realized they were going to lose. Which, by the letter of the law, they should have.

        Not the most sane benchmark, but its the one that really matters in court.

  2. 4026 says:

    “Notch and co are allowed to make ‘add-on content’ for Scrolls…”

    I smell a loophole!

    “This £15 expansion pack – which we’re calling Scrolls 1.9.9 – has all-new graphics, engine and mechanics and is completely incompatible with the previous version. Buy it now!”

    • Jerakal says:

      Oh and the hilarious part is that I can see Mojang phrasing it EXACTLY LIKE THAT to poke fun at Bethesda.

    • worbat says:

      That’s a pretty obvious loophole, it should totaly be done though!

    • Kynrael says:

      Standalone expansions are the way, ahah :)

    • sneetch says:

      I can see that going well:

      Opening statement: Ladies and gentlemen of the jury, we intend to show that Notch (dramatic spin and accusatory finger pointing at defendant) a known and blatant hat-wearing foreigner (shocked gasps) did knowingly and wilfully attempt to pass off an entirely new game in an entirely new engine as an expansion. Although the “expandalone” is an increasingly common phenomenon in video games, they have always been built on the existing engine (cite: list of expandalones that do just that)…

      • Phantoon says:

        They could do like Bioware, but in reverse! Claim that they meant to have the sequel be part of the first game, but it wasn’t ready yet so they went to devel-

        Hmm. Not that different at all, come to think of it. At least it wouldn’t physically be on the disc of the first game, if we still used discs for anything besides movies.

    • Persus-9 says:

      Hmm was Day of the Tentacle a sequel or an expansion to Maniac Mansion? It probably couldn’t run without a version of Maniac Mansion being installed since a complete version was included and accessible within Day of the Tentacle so arguably it was an expansion pack that was only available bundled with the original.

    • ww99w says:

      Should name it: SCROLLS Expansion: THE OLDER SCROLLS

    • Havok9120 says:

      People come up with this, want to do it, but would be pissed forever if (that is to say, when) BethSoft dropped a building on Mojang for it. Which is exactly what you’re ASKING them to do.

      Sigh.

  3. Acosta says:

    Well, the idea of Scrolls seems to be about expanding, so I can understand why Mojang has no problem with it. Same reason you don’t get a Magic: The Gathering 2, but endless waves of expansion packs and so.

    Still silly.

    • Epsz says:

      But we did get Magic Online 2 and 3 when the engine got old. Well, MTGO 3 engine is actually ancient, I don’t know what’s holding the fourth edition back. But I could see the same thing happening to Scrolls.

  4. benjymous says:

    At what point does a game with rolling constant updates stop being the original game.

    Currently we’re on Minecraft V1.2.3. Eventually that’ll reach Minecraft v1.9 – then what? Minecraft v2.0. Does that become “Minecraft 2″? I’d guess not, as it’s been a slow rolling update, rather than new release after waiting, but for someone who’d only played “Minecraft 1.0″, I’d imagine “Minecraft 2.0″ would feel like a whole new game.

    • FhnuZoag says:

      I suppose the difference is that you are not expected to pay again for Minecraft 2.0.

      • Havok9120 says:

        This. The issue will be if money continues to change hands and the rolling updates leave the pre-established engine.

    • Llewyn says:

      Minecraft v1.10.

      One thing that’s rather confusingly reported in this case is the suggestion that Mojang is somehow “giving” Bethesda trademark protection on “Scrolls”, which is quite clearly not the case. I don’t see what Bethesda are gaining out of this beyond a commitment by Mojang not to use the name for any future games.

      • VelvetFistIronGlove says:

        Basically (as reported earlier), Bethesda now has the “Scrolls” trademark, and has licenced it to Mojang to use for the “Scrolls” game (and add-ons) only.

        Bethesda’s “Elder Scrolls” brand is—with regard to any trademark issues arising in future—stronger in consequence.

        • Phantoon says:

          Which is not what trademark law should be about or should have to be about, at all.

          • Havok9120 says:

            Which doesn’t mean it ISN’T about that. That’s the point. BethSoft has done exactly what the system tells them they had to do. It sucks, but there it is. If they don’t respond to infringement of their biggest franchise, its harder, legally harder, to do so next time someone else does it.

        • gwathdring says:

          That is exactly the purpose of trademarks. Protecting individual IP is the purview of other IP law categories–patents and copyrights depending on the stature of the IP. A trademark is designed to protect corporate catchphrases, bywords, logos, brand names, and franchises. A single game shouldn’t be using trademark law to protect itself–however common that may be. That’s not what trademarking is for, and that’s how we end up with every word in the dictionary have a TM next to it–people trademarking non-distinctive uses of non-distinctive words for purposes that really don’t require trademarks. Of course, that eventually happens even with “responsible” trademarking both becasue there are only so many words in existence (and a lot of brands etc. to make use of them), and because whether used optimally or not, trademark law has a lot of philosophical and legal holes at the moment.

          The crux of my point is simply this: trademark law is designed to do what Bethesda did with it, and designed to protect franchise IPs and corporate distinction and so forth. Trademark, as it stands, should not be about individual creative works compared bullet-point by bullet-point.

          • SanguineAngel says:

            Almost, except that the word ‘Scrolls’ is not synonymous with any of Bethesda’s brands so what they did with trademark law is not what it was designed for. What they were doing was protecting their ability to contest FUTURE infringements because of the way the law works, but the actual result is that they damaged the IP of someone else which actually not related to their own in any way.

            I don’t think it was malicious, as it was the sensible thing for them to do, given the way that trademark protection currently works. But it is not good and it is not in the spirit of the law.

          • gwathdring says:

            Fair enough. Debating the spirit of the law is more the purview of philosophy and history than of legality so I will concede that your opinion on its spirit is at the very least no less valid than mine.

            I will also reiterate from a separate thread on this page that I think their actions exceedingly irresponsible, whether or not it is legal or in keeping with the operation of trademarking. It would have been great if Bethesda settled the suit by licensing the trademark nominally as a way of “defending” the mark–effectively doing nothing but also covering their legal backside and preventing Mojang from doing something stupid like trademarking “scrolls.” Now Bethesda has effectively claimed the right to do that. Argh. These issues always make a mess. Nobody wins, and the sooner the people reaping the double-edged rewards of the trademark system realize that maybe we can start changing matters.

    • Mr Bismarck says:

      “At what point does a game with rolling constant updates stop being the original game”

      Plutarch has something to say about this.

    • JerreyRough says:

      DotA is in version 6.74. Just something to think about.

  5. rocketman71 says:

    I know I’m repeating myself but: the Bethesda guys should be fucking ashamed of themselves.

    And someone should tell hollywood and co that this is not the 19th century anymore.

    • AmateurScience says:

      I think it’s important to note that this has absolutely nothing to do with anyone who *actually makes games* for Bethesda or id or anyone else under Zenimax, and I imagine (save from actually just quitting) there isn’t much your average coder or even a Todd Howard could do to stop IP lawyers being IP lawyers.

    • Yimmeryams says:

      Why should the Bethesda guys be ashamed of themselves?

    • DeanLearner says:

      In a roundabout kind of way, I don’t actually think it’s ZeniMax’s fault. It’s the laws fault. I would imagine that ZeniMax didn’t think “HEY! They are trying to take our name”, but following legal advice were advised that they should act to protect their IP/Copyright or whatever it is in question. They have a legal responsibility to protect their assets. Common sense has absolutely no place in the law and that’s fucking stupid. What’s even dumber is ZeniMax can’t just say “Hey, we’re just doing this to show we care about our whatever”, because that in itself questions the validity of the protection they are seeking. It’s all stupid.

      • roryok says:

        yeah, I think you’re right. While we all know notch is making his own game, the next could be a blatant rip-off called “The Older Scrolls”, and Zenimax would have a hard time defending their IP after letting Scrolls go by. I really think its a case of legal advice.

        That said, legal advice is always given by lawyers who always end up profiting from said legal advice

      • frymaster says:

        “Common sense has absolutely no place in the law and that’s fucking stupid”

        but it does, though. To pick a contrived example, they aren’t suing the makers of Bastion due to possible confusion with The Elder Scrolls franchise, and they aren’t suing Call of Duty either. Plainly they go through some decision-making process where they decide what is and isn’t infringing. The “they have to sue or lose the rights” argument is too simplistic, what it boils down to is this: if they didn’t sue the makers of a fantasy-themed CCG called “Scrolls”, then they couldn’t later sue, for example, the makers of a sci-fi-themed RTS called “Scrolls”. It’s not an all-or-nothing thing.

        • SanguineAngel says:

          I’m not sure I follow your last point. Why would they want sue a sci-fi RTS called Scrolls?

          Common sense tells them that they can’t sue Call of Duty because there is no visible link between the two games. So there is a slight element of common sense I suppose but it is entirely gone by the point that an extremely tenuous link is made. Common sense would state that of course the word scrolls is not theirs. Common sense would state that, even if a game called scrolls went uncontested, and sequel to said game entitled “The Older Scrolls” Clearly resembles The Elder Scrolls and that at this point, Beth/Zeni should be able to at least query it. (Although I would still say, a different name is a different name. but it is at least less clear cut)

          Neither of these are obvious in law.

        • DeanLearner says:

          Sorry yeah, on reading that back, it sounds stupidly exaggerated. I do still think there is a lack of common sense though, it feels that it’s too easy for a lawyer to say “well, it COULD be a problem” and then zenimax/someone else has to go “Oh, well, we better act”

        • Avenger says:

          Whoever were to say Zenimax should not be able to take action against a name like “the older scrolls” just because they wouldn’t take action against “Scrolls”, is in need of being slapped across the face with their wooden framed law degree diploma.

          Trademark law is total bananas. Anyone who supports its “necessary evils” is unnecessarily evil.

          • Havok9120 says:

            It doesn’t MATTER if its total bananas (it is), because its still the law. And whether they should be slapped or not for saying it, its still true. Protecting a copyright selectively is very, very difficult to do when compared with protecting it indiscriminately. Until the law is changed, companies must act within it or lose out.

          • gwathdring says:

            Actually it does matter. This is exceedingly subjective and fuzzy stuff as written. It has a lot to do with interpretation and precedent. The case against “The Older Scrolls” is so much more clear-cut than the case against “Scrolls” … I doubt Bethesda would lose that suit simply becasue they let a game called “scrolls” slide. This is not, as someone said, all or nothing. It’s complicated. There is no clear line where you HAVE to sue or CAN’T sue. There is no clear line where you automatically lose your mark or where it is in absolutely no danger whatsoever.

            Quite simply, even if, practically speaking Bethesda had to take some kind of an action against Mojang in this instance to protect their mark properly and reasonably … not doing so would only erode the strength of their mark so far … and for those who personally don’t see a problem with a fantasy CCG series called “Scrolls” coexisting with TES franchise, it wouldn’t really have been eroded all that much in the first place.

            Yes it is your responsibility to defend your mark against infringement. But nothing in the law says what the scope of your personal trademark is or should be, and thus how serious an infringement has to be to start eroding the territory you’ve staked out.

    • Bhazor says:

      Hate the game not the playa.

    • Unaco says:

      Why should Bethesda be ashamed? They had a Trademark (The Elder Scrolls). Mojang comes along and tries to Trademark a single word in the English language (Scrolls). If Mojang had that Trademark, Bethesda’s TES Trademark may have been jeopardised. They tried to protect their trademark, and prevent Mojang from taking ownership of a single word.

      Bethesda/Nezimax had no issue with Mojang calling their game Scrolls… It was when they made moves to Trademark the word that they objected (because they would have owned the trademark to part of their trademark).

      • SanguineAngel says:

        I don’t think that’s entirely correct. If Mojang had successfully trademarked ‘Scrolls’ then Bethesda/Zenimax would not have been able to then creat a game also called ‘Scrolls’ but their actual title ‘The Elder Scrolls’ is not the same as the title ‘Scrolls’ and has been trademarked already to boot.

        • Havok9120 says:

          Sigh.

          No matter how many times people use this line, it still won’t make any more legal (LEGAL I say) difference. Trademarking the word “Scrolls” can be seen as “compromising” (legal term) the TM The Elder Scrolls. A previous uncontested infringement sets a precedent (at least in some/many judges eyes) that makes future infringements, possibly far more serious ones, more difficult to contest. Is it stupid? Yes. Is it the law? Also yes. ZeniMax must therefore act on it.

          Remember, these cases very, very rarely go to a jury. Judges generally rule on them themselves. Meaning that appealing to common sense is a far less reliable defense. That’s just how it is.

          • gwathdring says:

            Yes. But really, how bad off are they if, in the future, they can’t sue OTHER marks that are as different from theirs as “scrolls?” Yeah it jeopardizes their mark. But they have a mark with a distinctive title, a very specific genre of product (open-world high-fantasy RPGs), a longstanding brand, and a large audience. Having a CCG game called “Scrolls,” fantasy or not, sitting next to all of that? The amount this jeopardizes their mark is small–unless they want to be able to attack people who are just as far from their mark in the future–which I would argue is equally unimportant so in my view they don’t lose much.

            That said, I think Scolls is a horribly weak mark, for the same reasons. Horribly weak marks are bad for the whole system and shouldn’t be filed for. I don’t think Mojang should have bothered.

            No matter how many times people use the line about “having to defend your trademark” it won’t change the fact that the law, as it stands, is quite subjective.

      • Avenger says:

        I don’t think that’s the case. I am betting Sandra Bullock’s pants that the movie called “Speed” is trademarked yet it does not stop EA from launching “Need for Speed”s year after year.

        What about that game called “Dungeons” ? I am sure “Dungeon Defenders” and “Dungeon Siege” and not to mention the god damn “Dungeons & Dragons” publishers would all be slicing it up like cake.

        • SanguineAngel says:

          exactamundo

        • Unaco says:

          Speed is a movie. Need for Speed is a game. Different domains.

          As for the Dungeon example… Dungeon is a pretty commonly used name, whereas Scrolls is pretty uncommon, barely used in any products.

          Just because The Elder Scrolls is not Scrolls, allowing Mojang to basically own that word would have/could have compromised their TES Trademark.

        • stupid_mcgee says:

          You do know that Need For Speed and the movie, Speed, are different mediums and therefore not confused to be the same product, right? Because, that’s one of the major parts of trademark law.

          If my name was Billy Bob Jacuzzi and I made baseball bats, I could trademark “The Jacuzzi Power Slammer” and reasonably have it considered to not be infringing upon Jacuzzi, the hot tub makers. Now, if I made hot-tubs, trademarking “The Jacuzzi Tub” would be infringing upon Jacuzzi.

          Also, like Unaco said, if a word is deemed “common” then it can be used. For example: “dungeons.” Just like you couldn’t TM “fire” “witches” and other such common terms. Scrolls may seem like a common word, but how many games have actually used the word “scrolls” or even “scroll” in the title? Not very many. And most of those are “Game Title: Scrolls of Someplace” which is not the same thing in the eyes of TM law. Also, there’s only one listing for “elder” for anything other TES, and that’s Runes of Magic: Chapter III – The Elder Kingdoms. Which, again, isn’t even close to TM infringement.

  6. rustybroomhandle says:

    Graaargh, ‘Scrolls’ is not the same as ‘The Elder Scrolls’, same as ‘Rage’ is not the same as ‘Streets of Rage’.

    And before throwing the ‘movies, t-shirts etc’ bollocks argument at me, be sure to look up all the USPTO entries for Rage.

    So Zenimax now effectively own the trademark ‘Scrolls’.

    • Llewyn says:

      Trademarks are specific to markets, and in some cases those markets can be defined very narrowly which can lead to apparent overlaps.

      Holding the registration on “Scrolls” won’t do Bethesda any good unless they actually do something with it. Or rather, it shouldn’t, although the failings of the USPTO and the jurisdiction-grabbing of certain lower US courts can no doubt be abused to price any challengers out of the market.

    • The Least Fun Human Being On Earth says:

      “Streets of Rage” is no longer a valid trademark, so there’s no issue there.

  7. The Least Fun Human Being On Earth says:

    No sneering condescension for Mojang applying for the Trademark to a common English word in the first place?

    • Alec Meer says:

      Reverend Gilbert, there’s such an enormous difference between trying to trademark the specific name of one’s game and blocking any and everyone else from using, in an entirely different context, a common word that appears within the name of some one’s games. Would Mojang have brought in the lawyers if they had got the ‘scrolls’ trademark then someone released a game called Custard Scrolls: The Scrollening? That’s the question.

      • AmateurScience says:

        Aye but, if I understand it correctly (I probably don’t), there would be nothing stopping them doing that either. And lawyers are not known for being particularly or trusting.

        Edit: that doesn’t mean I’m in the pro sneering condescension camp though.

        • jrodman says:

          Well of course in most of our law systems you can bring a civil suit against anyone for pretty much any reason.

          That doesn’t change the fact that such a suit would be frivilous in any sane system — trademark or no.

          And *that* doesn’t change the fact that having a trademark in hand with IP lawyers on staff that are easily transgressed is like some sort of bull fight analogy.

      • DeanLearner says:

        Sir, tell me more about this Custard Scrolls : The Scrollening game. I have cash.

      • Bhazor says:

        @Meer

        In a word. Yes. If they didn’t they would have lost ownership of their own IP and could indeed have another developer sue him for making Scrolls 2.

        When David is a multimillion dollar game developer you don’t really need to automatically root for him when he goes up against Goliath.

      • Unaco says:

        But… Bethesda were happy for Mojang to call their game Scrolls. It was only when Mojang tried to trademark that word that Beth/Zeni objected.

      • Kaira- says:

        Now, someone refresh my memory, but didn’t Mojang try to trademark the word “Scrolls” on over 300 different contexes, such as toys, cartoons, games et cetera.

      • Havok9120 says:

        No. No that isn’t the question. That’s not even CLOSE to the question.

        The question is, would Zeni have had a harder time maintaining copyright if they let this infringement (and it technically is one, which is one reason settlement is the best option here) pass uncontested? The answer to that is, yes. Because by the letter of the law, they would have.

        So, if someone were to use your, or any of the the other 40 funny names in this thread, to make a parody game of TES, it becomes harder to enforce the IP laws because Judges generally hate, hate, HATE discriminate enforcement of the law. You either universally enforce your IP or you can quite easily lose it. Direct your ire at the poorly written law, not the company who must act within that law.

    • Asyne says:

      Absolutely!

      Imagine what would happen if we started rampantly trademarking single common words: portal, decent, thief, golf, black, doom, quake, defender, civilization, halo, braid, fallout, journey, elite, unreal, bully, limbo, cogs, dodgeball, sacrifice, fable, joust, dirt, mafia, tribes, postal, grid, flower, skate, battlefield, pure, gauntlet, amnesia, prototype, risen, spore, stacking, vanquish, rift, uplink, driver, painkiller, blur, rage, dune, tank, paperboy…

      Ten years after this starts, there’ll be no more words left to use!

      • stupid_mcgee says:

        Except you can still use the VAST majority of those words as long as they’re not video games, and even then a lot of them you cannot completely TM. For example, you could still a game “The Doom of Everythingville” and it would not be in violation. If you owned an aerospace company, you could call them Joust and not be in violation. You could start a door-framing company and call it Portals. You, technically, could not TM “golf.”

        This bizarre notion that once something is TM’d it cannot be used in any other form of media or enterprise is horribly misleading. TM law is a PITA and rather dumb in a lot of ways, but misrepresenting the way it works while crying alarmist tones is rather disingenuous.

        -edit-

        I would also love to know a single game called “Thief.” Because all of Eidos’ Thief games have had extended titles. That means they would have TM’d “Thief: The Dark Project”, “Thief II: The Metal Age”, and “Thief: Deadly Shadows”, not just “Thief.”

  8. Revisor says:

    I think it’s actually a reasonable decision for both parties.

    Bethesda doesn’t want to see Scrolls as a game series, Mojang is OK with making it a platform instead. No naming collisions happen, both parties are satisfied.

    IMHO no reason for angry internets.

  9. SheepOFDOOM says:

    To be fair, that whole “able to protect our valuable property rights” bit seems to have always been the crux of the issue. In US copyright law, you HAVE to protect your copyright, and if you let others go about willy nilly using your copyright, you can’t suddenly get a stick up your ass about it years later. Newp, you lose that shit, and those guys can go wiping their bums with Elder Scrolls brand toilet paper as they please.

    So while the move in general has been overall assholish. It seems to me that on the Bethesda side it’s kinda like “Well, Notch is kinda snazzy, BUT HE’S DESTROYING OUR COPYRIGHT!” What with the deathmatch challenge and whatnot. I’m secretly hoping that they settled for like $1 or a box of doughnuts and a playful wink. But I’m sure the lawyers demanded a golden jetski or two for their legal ninjitsu.

    So in conclusion, I don’t think Bethesda are quite assholes top to bottom. I DO still think that all lawyers need to be boiled alive, though.

    • SheepOFDOOM says:

      *aherm* trademark, not copyright. I’m pretty sure it’s accurate otherwise, though.

      • The Least Fun Human Being On Earth says:

        Yep, it is. WHich is why this whole thing has been really silly. Mojang made a mistake, it happens, and it’s now been resolved in a positive way.

        • SheepOFDOOM says:

          Which I think is also part of the point. Like half the stories I’ve read about Scrolls in the last 6 months have been related to this lawsuit. As far as I’m concerned, it’s been a *huge* PR coup for Mojang. They’ve gotten so much more goodwill than “from minecraft!” would necessarily conjure. Especially since Notch has been relatively playful about it; I feel like the respective leadership has been positive, and this has been a bunch of legal sausage-making to ensure both sides are relatively satisfied.

          Nothing to see here folks, move along. And buy what will probably be a pretty nifty game on your way out.

          • SanguineAngel says:

            Well I do agree with you that the publicity has been beneficial. Probably for both parties. To be honest, even Bethesda’s public face on this has been something of a “our hands are tied, we want to be reasonable”.

            It’s still totally ludicrous though. May as well trademark ‘The’.

          • stupid_mcgee says:

            @ Sanguine Angel: The thing is, it’s actually much more reasonable to TM “The Elder Scrolls” than it is to try and TM something like “Scrolls” or “Elder.” “The Elder Scrolls” is a full and unique expression, while “Scrolls” is vague and can be easily broadened. On top of that, Mojang wanting to extend that TM into books, figures, and so on actually makes it much more risky. That means that not only would “Scrolls” be TMd by Mojang in the domain of video games, but also for novels, toys, films, etc. That’s VERY problematic. It would tie up “Scrolls” from use in TM in numerous forms of media.

            This is one of the reasons why you often see games, like the Thief series, use those little subtitles. Whereas getting a TM of simply “Thief” might be impossible or detrimental to enforce (ie: too expensive and difficult to to legally protect), “Thief: The Dark Ages” is precise enough not to be confused with or potentially infringing on other TMs, and it’s also precise enough that it doesn’t lend to legal trolling.

          • SanguineAngel says:

            @ stupid_mcgee Thanks. This entire thread has been extremely interesting. I’ve been sort of learning as I go, as is probably evident from my annoyingly inconsistent posts! At first reading about it, trademark law seemed quite straight forward, and I still think that the intent behind the law is, but the more I read and learn the more frustrating I find it.

            Your post probably rates among the most useful here though, so thank you.

    • Saldek says:

      I was always under the impression that Mojang was initially open to and had indeed offered an amicable settlement. It seemed Bethesda/Zanymax could have protected their trademark without litigation attempts.

    • aerozol says:

      Why are Bethesda assholes?
      They have hundreds of employees to feed, and to do that they have to protect their IP. Just because some guy ended up with a windfall and a multi-million dollar company of his own can afford to be super snarky and casual about trying to trademark “a common english word“, doesn’t mean they can afford to as well.

  10. SquareWheel says:

    Sure Bethesda/ZeniMax, kill your brand name if you want. Blizzard is already going down that path.

  11. LarsBR says:

    So, the sequel will be in the form of DLC.

  12. NathanH says:

    Throughout this saga I am struck by the fact that it’s not that I don’t know who to support, it’s that I *can’t* know who to support. Obviously I can’t deal with who is right according to the logic of the rules, because I don’t understand them. So I’d be left with considering morality. But I can only conclude that, when considering trademark law, my usual morality simply does not apply, and I can’t work out what morality should apply. So what you have is two organizations deciding to play a game whose rules I don’t understand and whose morals I can’t comprehend. I’m left with the conclusion that I’d just better leave them to it and not judge either side.

    • AmateurScience says:

      How about: both had a reasonable case that they settled reasonably (without resorting to judges) and Mojang gets to make Scrolls as intended and that there’s no need to resort to this us versus them stuff over what is a pretty nebulous and complicated corner of the law that hardly anyone in the common or garden games community really understands the nuance of (I know I don’t).

      It’s over now in any case.

    • MajorManiac says:

      That is a very good point. I am mostly ignorant in this issue also. However as a member of a democracy, I do know we should always try to be aware of any ‘unfair’ laws that get put into place, and then moan on the internet. :)

      You never know, maybe one day these organizations will come after you.

      • SanguineAngel says:

        Bless, as if the law is designed to be fair. Our resident lawyer (and ex-government legal lad at that) has informed me a few times that law is for the rich and the powerful. Justice doesn’t really come into it. You don’t even have to abuse the system. It is just skewed

  13. adonf says:

    Mojang should just buy out Bethesda and be done with that whole nonsense

    • Shadram says:

      I think you overestimate Mojang, slightly. 5.2 million copies of Minecraft sold is impressive, but over 10 million copies of Skyrim sold is impressiver.

      • adonf says:

        Leveraged Buyout: borrow to buy a controlling share of a rival company, then use this company’s assets to repay the loan. This is how smaller companies buy bigger ones.

        • MasterDex says:

          On top of that, I’m willing to bet that Mojang, or even just Notch, is more liquid than Bethesda just now.

          • adonf says:

            That’s not necessarily a good thing. The company that’s being bought must not be too much in debt because it’s going to be repaying for its own purchase eventually. Some companies even make loans just to prevent LBOs

  14. MajorManiac says:

    This is a great shame. As it is obvious miss-use of copyright trademark law. ZeniMax are clearly abusing the spirit of “protecting their ip” by using the law to harm the ip of other’s.

    Now that copyright trademark law can be used for unlawful activity is public knowledge, I really hope changes are made to stop this from happening again in the the future.

    Edit: Fixed which law I’m refering to.

    • SanguineAngel says:

      I would love to agree with you on that. Probably there are some selfish people at ZeniMax but it is also entirely possible the company as a whole is really doing what they have to in order to retain their trademark. The law is ass-backwards and as you rightly say, changes should be made.

    • Unaco says:

      You’re right! It’s a horrid misuse of Copyright law…. In a Trademark case! Why did no one in the court notice this?

    • MasterDex says:

      This is trademark law, not copyright law.

    • MajorManiac says:

      Fixed it. Now I want your opinions?

    • jrodman says:

      So you want laws to prevent people from taking unlawful activities?

      The problem here isn’t even that it’s legitimate to trademark a common English word. The problem is that the court systems are not restraining claims on these trademarks to a reasonable degree. For example Promise butter-like spread is a trademark, in practice even if not registered. But that doesn’t mean you can’t make Promise-of-Heaven brand toast, because consumers are not going to be confused. However if you were to make Promise Plus brand margarine, that would be legitimately confusing and could be legitimately shot down.

      Essentially our society is over-litigous and trademarks are not adequately reigned in.

      When Sun Microsystems decided to sue The Sun newspaper for trademark infringement, they probably should have been sanctioned. (This suit actually happened.) I can’t say for sure, because i wasn’t privy to the proceedings. Maybe The Sun was launching a line of computers? But probably not. However the case dragged on for a while before being resolved by a ‘settlement’ where everyone agreed there was nothing to talk about, and Sun Microsystems paid some fees. But they certainly wasted a lot of time and trouble of a totally innocuous party. This really should not be accepted.

  15. pkt-zer0 says:

    Altman be praised!

    wait, wrong game.

  16. Yimmeryams says:

    This is the best way I could see this ending.

    I also do not agree with people calling Bethesda or Zenimax people names.

    Mojang filing a copyright for “Scrolls” was stupid and overly aggressive, and I feel like Zenimax did exactly the right thing defending their copyright.

    EDIT: Correction: trademark, not copyright.

    • Saldek says:

      This use of “overly aggressive” gives impressive readings on the bizzarotron.

      • Gap Gen says:

        What, you mean suggesting that the word “Scrolls” was created by Notch? That is slightly bizarre, yes.

        EDIT: Unless he tried to trademark it, in which case it’s a little more understandable.

      • Yimmeryams says:

        Trademark. My bad. I used the wrong terminology, which yes, I understand matters.

        I still think trying to trademark “Scrolls” was overly aggressive.

        • SanguineAngel says:

          Aggressive implies intentionally attacking someone else. As far as I can tell, they were simply attempting to trademark the name of their game in order to create a brand name that could be associated with them as a company and that would stop others creating a product or brand under the same name that could then be confused with their own product

          • MasterDex says:

            In otherwords, Mojang were carrying out standard operating procedure. Which was overly aggressive but Bethesda’s claim of trademark infringement in no way was, because they have to protect their trademark “The Elder Scrolls” which is obviously the same trademark as “scrolls”./ sarcasm (apart from the bit about S.O.P)

            As I see it, this was Bethesda’s lawyers looking to make some money while granting Bethesda the victory of a new trademark and a stronger trademark on “The Elder Scrolls”.

          • nearly says:

            so you’re saying there was nothing the least bit aggressive about Mojang trying to trademark what realistically amounts to half of someone else’s trademark, and in every conceivable format? zenimax shouldn’t have to lose sales to Mojang because parents only half-listen to their kids and want to buy them that there “scrolls” game. frankly, I’m impressed that they’re letting them use it at all, and I think it’s better than they should have or had any right to hope for.

  17. MajesticRob says:

    Jaffa Cakes should totally get on this band wagon!

  18. djim says:

    I think it was obvious from the original statement. This has always been a victory for Bethesda and it is actually disappointing and wrong imo.

    Now there’s a thought. Lets copywrite every available word and then sue everybody. That would be fun…

    • aerozol says:

      Seriously? How does this entire article miss the fact that Notch was the one trying to copyright the word?

      • Unaco says:

        TRADEMARK!!!

        But yes, you’re right. Notch and Mojang were the ones trying to trademark a single word.

        • SanguineAngel says:

          I may be incorrect here but a trademark does not stop others using that word but does stop them trading on the exact trademark. So another company could not have produced a product called Scrolls as that might then be easily confused with their product called Scrolls. And that is it. A trademark is a brand. It must be taken as a whole.

          • Aninhumer says:

            To be more precise, another company couldn’t produce a video game product called “Scrolls”. If someone wants market some bogroll with the name, they’re probably fine. I belive they also trademark the specific logo, so that the bogroll people can’t stick a similar looking logo on their packaging.

          • SanguineAngel says:

            Yes, I believe you are correct there. The point being that I see absolutely nothing wrong with what Mojang was doing and everything wrong with zenimax’s position. Mojang was entirely in accordance with the spirit of trademark law whereas zeni were entirely contrary to it.

          • Unaco says:

            You are incorrect.

            Company A getting Trademark on word X, when Company B has a Trademarked phrase WXY, without any defense/objection from Company B, means that Company A can, possibly, begin to threaten that Trademark on WXY.

          • SanguineAngel says:

            Then the law is worthless as every word, name brand or what have you in the language is a potential trademark infringement. The Elder Scrolls itself undoubtedly has the potential to infringe upon someone ELSE’s trademark. And so on forever.

          • stupid_mcgee says:

            There’s also the little fact that Mojang’s “Scrolls” TM was for far more than just a video game. It was meant to cover toys, books, films, and all sorts of stuff. Mojang would have had TM influence in a wide sphere of media.

  19. puppybeard says:

    Well, a lot of legal professionals made a fuckload of money out of this, which I think we can all agree is the reason this bullshit happens, 96% of the time.

  20. Enlightend says:

    I really don’t get Bethesda getting so crazy about this.

    The way they ended up handling it is clearly because they didn’t expect the backlash they’d get from attacking Mojang, making it seem they are a tad detached from whats going on in the gaming community. They seem to be a bit humbled by a lil Indie developer wielding just as much power as them, in said community.

    But what really grinds my balls is that they somehow seem to think “The Elder Scrolls” is such an important title for them.

    I did a little test this week and asked everyone that I know who has Skyrim, Morrowind or Oblivion, and asked them if they could tell me the full title.

    I even led them in with “The Elder?”

    Most non “core” players have no clue what so ever that those games are part of The Elder Scrolls series. I asked around 20 people.

    And even in advertisement, the emphasis was “Skyrim, the successor to Oblivion and Morrowind”, with very little mention of The Elder Scrolls, except for the full titling on the box and maybe at the start of an advertisement.

    • Yimmeryams says:

      You’re putting words into Bethesda’s mouth. You assuming that they thought all those things is not a basis for a valid opinion.

    • wccrawford says:

      Even as a hardcore player (that started with Morrowind and knew the full name by heart), when I found out I’d be actually handling an Elder Scroll in Skyrim, I was like, “Those are actually a thing?”

      Were they even mentioned in Morrowind and Oblivion?

      • Enlightend says:

        Culmulation of the Thieves guild questline in Oblivion was related to an Elder Scroll, can’t remember if it was mentioned in Morrowind or its expansions though. So much lore in those games its hard to remember stuff they don’t emphasize.

  21. Anders Wrist says:

    Regardless of the issue of this topic, I had to comment on the awesomeness of the picture chosen, since I’m a Daggerfall-oholic.

  22. AgamemnonV2 says:

    RPS is the only place I come for video game news–mostly because Kotaku looks horrid and they killed the comment system and all the rest (1UP, destructoid, etc.) have terrible comment systems and do their best to try and cover every little bit of news that they possibly can. Plus you usually get things right.

    The fact that you continue to say “Bethesda this, Bethesda that, Bethesda is practicing dark magic and sacrificing baby squirrels to the copyright lawyers” even after you quote ZeniMax on the issue is just getting to the point of blatantly ignoring the facts. Bethesda has done SHIT-ALL in this legal matter. It’s ZeniMax. It says so IN YOUR VERY OWN WRITING.

    How much longer do I have to endure every single story on this piece with every headline falsely accusing a company?

    Later, after the jump: I use the word ‘scolls’ all the time in casual conversation, yup.

    After our next commercial break: Copyright law and you: defending your IP simply on the principle–because if you don’t anyone can walk on you the next time someone walks all up on your infringement!

    In the future: RPS might actually get back on track.

    • Yimmeryams says:

      What about Ripten?

    • jezcentral says:

      I am made of that selfsame mettle as of AgamemnonV2, but with slightly less passion. Still, let’s all give the XCOM FPS a good kicking and let bygones be bygones, eh?

    • theblazeuk says:

      Yes, it sucks when your browser is locked into automatically opening all the articles on a site and you can’t leave before you read them.

      The hivemind must really be more considerate.

  23. Kandon Arc says:

    Bethesda haven’t ended up with a trademark on a common English word – Mojang settled, therefore no legal precedent has been set. Bethesda have not proved they have a trademark on ‘Scrolls’, Mojang have just agreed not to contest the issue.

    • Yimmeryams says:

      You can sell, trade, or give away registered trademarks. Part of the settlement is Mojang giving Zenimax the trademark. They don’t have to “earn” it.

    • diamondmx says:

      I think the real heart of the problem is that the trademark system didn’t reject Notch’s application immediately, and that he had a trademark to give.

      I mean, Notch said he only put in the application out of curiousity: “Can I really register a trademark for ‘Scrolls’?”

      The answer should be no, and yet for some reason it wasn’t. This was the first point of failure.

      • Aninhumer says:

        Why shouldn’t they be able to trademark the title of their product?
        If someone else comes along and makes a similar game with the title “Scrolls” purposefully so that people end up mistaking it for Mojang’s game, should they have absolutely no recourse in the law?
        That’s what trademark law is supposed to be for. The fact that people have tried to abuse single word trademarks in the past is no reason to disallow them.

        • Yimmeryams says:

          He probably shouldn’t have submitted the trademark in almost every available field, then, if it was to be a legitimate trademark request.

  24. zeroskill says:

    Bethesda should also trademark “The” and “Elder”.

  25. Casimir's Blake says:

    I’m more disappointed that we’re not talking about Daggerfall. Come on, where are all the first-person RPGs nowadays? :(

  26. aircool says:

    Fucking Ridiculous (C)

  27. Deano2099 says:

    They can always call the sequel ‘Elders’

  28. Brun says:

    I’m sure it’s been brought up before but there’s a philosophy that goes along with patents and trademarks, to the effect that “if you own a patent/copyright/trademark you should defend it or risk losing it.” In other words, if you have a trademark on something, you should defend it against even the most ethereal of potential infringements or you risk your trademark becoming increasingly “public domain.”

    That being the case, I don’t think there was any malice in Bethesda’s moves. Just rational (if highly risk-averse) business decisions.

  29. theblazeuk says:

    I stabbed a guy yesterday after he looked at my sandwich.

    It wasn’t malicious! It was just that if you don’t defend your sandwich now you might have difficulty defending it later.

  30. Tei says:

    Apple Music sued Apple Computers for the name Apple, this was solved by apple signing never entering the music industry. This was eons ago way before iTunes and the ipod. The legend its that apple tested the limits of this aggrement by adding a music file to the mac with the sound Sosueme.

    Apple its awesome.

  31. Nero says:

    How about Scrollz.

  32. Megadyptes says:

    ” Bethesda ending up with the trademark for a common English word.”
    It doesn’t matter that it’s a ‘common English word’, does anyone not understand what Trademarks mean these days?

    I don’t even see what the huge fuss is about all this, and the amount of dodgy coverage this is getting is baffling.

    Also it’s Zenimax vs Mojang, you even quote the CEO of Zenimax, not the Project Lead of Bethesda Studios or whatever, but I guess Zenimax vs Mojang isn’t a sexy enough title for you, sod the realities of it all, eh?

  33. Dirtmuncher says:

    In my humble opinion Mojang should make another game.
    Shit scrolls or old scrolls and a toiletrole as logo.You have explosive diarrea and have to keep wiping or you drown in your own shit.

  34. hosndosn says:

    That was my immidiate reaction. “Bethesda ‘keeps’ the trademark”?!? What trademark? A word? I can see “The Elder Scrolls” or “Skyrim” being trademarked. Heck, even a number if it’s distinguishable enough (007, anyone?). But “Scrolls”? They never called their games “Scrolls”. The focus has always been in the big name like “Morrowind” and “The Elder Scrolls” being barely a subtitle.

  35. Devan says:

    I think this whole thing seems to indicate that it simply shouldn’t be allowed to have a single-dictionary-word trademark. If you make a name that generic then you’re already taking the risk of customer confusion, as you’re actually adding to the ambiguity.

    If that were the case then anyone could make a game called Scrolls, nobody could “own” the name, but at the same time multi-word names like “The Elder Scrolls” would be protected from actual knock-offs like “The Older Scrolls”.

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