(This post was originally written for Ron Coleman’s Likelihood of Confusion blog. Please note that while the author is a licensed and experienced attorney, nothing in this post constitutes specific legal advice. It is provided for general educational purposes only. The author has made an offer of pro bono consultation related to the subject matter of this post. This may be considered ATTORNEY ADVERTISING in some jurisdictions.)
If you are into vintage video games, you probably know about “ROM Sites.” ROM sites are websites where you can download the ROM (Read Only Memory) code for classic cartridge or board-level games, such as Nintendo Entertainment System cartridges or arcade cabinet games like “Spy Hunter.” They’re not really different in kind from websites or torrents where you can download more modern software which was available on disk or CD-ROM. They’re just a little more arcane because you have to not only download the ROM code (which has been “ripped,” or copied from the ROM chips to a computer hard drive) but download and run “emulator” software, which allows your modern PC to run code written for much, much older hardware. It’s entirely doable, but requires a little effort and tech know-how.
Recently, Nintendo sued one of the better known ROM sites, loveroms.com, and won a 12 million dollar judgment against them for copyright infringement. Here’s a copy of what was the front page of loveroms.com from the complaint:
Here’s what’s on the loveroms.com front page now:
Apology to Nintendo
Our website, LoveROMS.com/LoveRetro.co, previously offered and performed unauthorized copies of Nintendo games, in violation of Nintendo’s copyrights and trademarks. LoveROMS.com/LoveRetro.co acknowledges that it caused harm to Nintendo, its partners, and customers by offering infringing copies of Nintendo games and has agreed to cease all such activities. To access legitimate Nintendo games online, please visit www.nintendo.com for information about the Nintendo Game Store.
A very sharp young lawyer (well, she’s waiting for her bar results but I have confidence) who goes by LadyLawTM on the Internet invited me to speak on a panel she wanted to do on lootboxes, games, and gambling at TwitchCon this year. I like talking, I like cons, and I Have Opinions, so of course I said yes. It was this past weekend and I thought I’d just share a few of the highlights with you. 🙂
Note: There is a list of all the streamers I met (and whose gamertags I got) at the bottom of this entry. Please check them out! If I missed you, so sorry, please comment and I’ll add you.
First, I am happy to report that our panel was a smashing success. The description is here, and here’s a VOD of our panel!
The USPTO has retracted its approval to publish and issued a rejection based on failure to function as a trademark. This is pretty much the worst thing that can happen to a trademark registration application. It means the mark can’t be registered even on the Supplemental Register or become a potentially registerable mark if it acquires secondary meaning/acquired distinctiveness. The only way to get around this type of rejection is to argue that the finding of failure to function is wrong, and that is not easy to do. Unless the applicant is spoiling for a long, difficult, and expensive fight, the registration application is probably dead.
Back in June, MSE Media, LLC, the management company (I assume) for the rights of bestselling author Michael Scott Earle, filed a trademark registration application for the word mark DRAGON SLAYER. You can see the filing information here:
At the time, there was some controversy, as the author community (especially the Internet/Indie author community) was on High Alert for trademark shenanigans following the “COCKY” word mark lawsuit. However, due to the way trademark registration works, there were a limited number of things that third parties could do at that point. I’ll explain briefly, and then discuss the particulars of the DRAGON SLAYER filing.
Trademarks, as trademark expert Ed Timberlake (of @timberlakelaw and Timberlake Law) is fond of pointing out, are not actually “granted” or “awarded” or “given” by the United States Patent and Trademark Office (USPTO) or its equivalent agencies in other countries. Trademarks are, essentially, earned. And the way you earn them is by forming an association in the minds of consumers between your product or service, and the trademark. (We usually refer to them collectively as trademarks, although linguistically it’s more correct to call the ones associated with a service “service marks.”) Once that happens, the law in most countries automatically starts to protect consumers by proscribing use of the mark by other people in ways that could create a likelihood of confusion in the marketplace.
A few weeks ago I wrote a blog post on corporate entities, including General Partnerships and Limited Partnerships. Here’s what I said about General Partnerships, which I’m going to expand on in this post:
The first thing I should point out is that if you start working with other people, and don’t pick a legal entity, in many cases, the state will pick one for you. And to quote my colleague @indiegamelawyer, it will usually pick the worst possible one. Namely, a general partnership.
A general partnership is the oldest form of legal entity. Once two or more people start engaging in a common business enterprise they can form a general partnership without even realizing it – it happens by operation of law in many jurisdictions. (Alternately, you can formally create one by entering into a partnership agreement.) Basically, everyone participating is a general partner, usually able to contract on behalf of the partnership, usually having an equal right to manage the partnership, and usually liable for all debts incurred by the partnership. The takeaway here is that if you’re going to go into business with someone, you need to form an entity deliberately or you may very well enter into a general partnership without even knowing it and without any control over the form of the partnership.
NOTE: Formally created General Partnerships are usually identified by the word “Partners” or “Partnership” in their names. They are governed either by the law of the state where they form, or by their Partnership Agreements. They are owned and operated by Partners.
Now, what I want to call your attention to in particular is the text in bold in the above quote. “By operation of law” means that the law says when the conditions are met, the partnership forms, will ye, nil ye. You can’t stop it, and you don’t have to do anything other than meet the conditions. What those conditions are will vary by jurisdiction, but in many US states it’s either a part of the common law or the principle has been transferred into a statute (a law passed by a legislature) which works pretty much the same way.
(In some jurisdictions this post may be considered ATTORNEY ADVERTISING.)
I am raising my hourly and standard fixed fees as of October 1, 2018. I’ll still be charging less than most lawyers with my qualifications and experience, but I will be increasing what I charge to reflect the fact that the world’s not getting any cheaper.
But here’s your chance to get my services at my current lower rates!
If you are a current client of mine, I will continue to charge you my current rates for the next six months (until April 1, 2019.)
If you become a client of mine before October 1, I will charge you my current rates for the next six months (likewise.)
If you add yourself to my mailing list, I will charge you my current rates for your first matter if you become a client of mine within the next twelve months (by September 30, 2019.) Don’t worry, I don’t send out a lot of emails – mostly just notices when I post on my blog or something interesting happens in the world of intellectual property law. I don’t share my mailing list with anyone, ever.
If you’d like to become a client, here’s a page with more information: Retaining Me As Your Attorney
If you’d like to add yourself to my mailing list, just send an email to firstname.lastname@example.org with the subject “Mailing List.” Clicking on that link will automatically generate an email for you!
As always, thanks for reading!