The Space Quest Historian, a gaming commentator and streamer with a particular interest in the famous “Space Quest” game franchise, asked me for some comments related to Activision’s ownership and activities in relation to it. I sent him an email discussing the matter generally and he was nice enough to use it in a video. It’s at the bottom of this post.
A few comments:
- This is a great video and he got almost everything right. The parts he was a little iffy on we’ll blame on the lawyer who made them too complicated. 🙂
- I want to make one thing absolutely clear. I am not affiliated with Activision, Sierra On-Line, Codemasters, or Assemble Entertainment. I do not and have never represented any of them or any of the other parties involved in the Leisure Suit Larry franchise. (I have represented parties in dealings with one or more of those entities, and I have nothing bad to say about any of them in that context.) I do NOT know what the licensing/ownership status of the Leisure Suit Larry franchise or any particular part of it is. My hypotheticals were just that – hypothetical. I don’t think SQH said otherwise, but it might not be absolutely clear that this was just me speculating
- His opinion on Activision’s moral and ethical considerations in how they handle the various Sierra On-Line properties is just that – his opinion. I am neither agreeing nor disagreeing with it in any particular way, although obviously as an attorney for content creators and rightsholders I have a different perspective.
Anyway, he’s a funny guy and this is an incredibly well-edited video, including projecting relevant bits of my email at the right times. If you’re interested in that sort of thing, this is the sort of thing that will interest you.
(Note: A little NSFW language.)
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.
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Previous posts on Cockygate:
Romance Author Gets Unduly Cocky Over Registered Trademark: http://legalinspiration.com/?p=503
#Cockygate Take Two: This Time It’s Judicial: http://legalinspiration.com/?p=538
Well, it’s been a weird ride. And although it seems like it’s been forever, in Federal court case terms, it’s been a fairly short one. Yesterday Faleena Hopkins and Hop Hop Productions filed a Motion to Dismiss with Prejudice in Hop Hop Productions Inc. v. Kneupper et al:
If the judge grants the motion, and he almost certainly will, this means is that neither plaintiff (Ms. Hopkins or her company Hop Hop Productions) can file another lawsuit against the same defendants for the same legal causes of action based on the same facts. (That’s the “with prejudice” part.)
So is the #Cockygate closed? Will our sexy roosters now stay safely within the barnyard of alpha romance tales?
I was flattered to be asked to appear on the “Deadman’s Tome” podcast recently. While the podcast is primarily oriented toward horror fans, the host, “Mr. Deadman,” ran across the #CockyGate saga on Twitter and wanted to discuss the general issue of registering simple words as trademarks for book series. We talked about what trademarks are, how they work. and what’s going on with the #CockyGate lawsuit and PTO process. We also talked about lootboxes and I displayed my utter inability to commit to a favorite horror movie. Check it out!
As always, thanks for reading!
As usual: I am an attorney, but nothing herein should be viewed as legal advice. I am writing on the basis of both known facts and allegations, and if those allegations are changed or proven incorrect my analysis would likely change as well. You should consult an attorney licensed in your jurisdiction and familiar with the relevant law before making legal decisions.
Faleena Hopkins, the protagonist (or antagonist, depending on your POV) of the “Cockygate” saga, which I addressed in this post, has taken her grievances to the Federal District Court for the Southern District of New York. (That’s the Federal District Court that covers New York City and its environs.) She has sued:
- Kevin Kneupper, the attorney who filed a Petition to Cancel her trademark registration for “COCKY”.
- Tara Crescent, an author who has published romance novels incorporating the word “Cocky” in their titles.
- Jennifer Watson, a publicist participating in the promotion of an anthology called “Cocktales” specifically set up to raise funds to help people who have incurred legal expenses related to the “COCKY” mark and similar sorts of marks. NOTE: Multiple persons have alleged that Ms. Watson was not involved in the creation and publication of the anthology, as I originally stated. Assuming they are correct, I regret the error.
The plaintiff has asked for a lot of things in her complaint. She wants the court to declare that her mark is valid. She wants a declaratory judgment that her mark isn’t infringing any mark of the defendants, or any other right of theirs, and an injunction to stop all the defendants from, essentially, harassing her about her mark and her use of it. She wants the people who are selling allegedly infringing books to stop it and to pay damages to her for doing it. As far as Kneupper, who hasn’t published any allegedly infringing books, she wants the court to order the USPTO to dismiss his Petition to Cancel her registration, with prejudice. (That means he can’t re-file it later, as opposed to a dismissal without prejudice, which means he could correct it and try again.) And, finally, she wants attorney’s fees from everybody.