It had to be said.

Win? You get what you want and you don’t come of looking like a douc … er … feminine hygiene product.  Loose, and loose gracefully, you still win in the hearts and minds, and face it … the names aren’t really that close.  Keep this fight up, and everyone will know you alright, but we’ll use your name in the same sentence with Lodsys.  

Evil – Resident Evil: Evil Dead: Beyond Good and Evil

Super – Super Mario Bros: Super Meat Boy: Super Street Fighter IV: Super Scribblenauts

Man – Pac-Man: Mega Man: Xplosion Man: Gitaroo Man

Quest – Dragon Quest: King’s Quest: Quest 64: Puzzle Quest: Castlequest: Castlevania II:Simon’s Quest

Dragon – Dragon Age: Dragon Quest: Dragon’s Lair: Blue Dragon: Spyro the Dragon: Double Dragon

Legend – The Legend of Zelda: Legend of Heroes: Brutal Legend: The Legend of Kage: The Legend of Dragoon: Mega Man Legends: Burnout Legends

Castle – Castlevania: Castle Crashers: Castlequest: Return to Castle Wolfenstein: Crystal Castles

Dungeon – Dungeon Siege: Dungeon Keeper: Dungeons: Dungeon Explorer: Dungeon Maker: Dungeons & Dragons

Sword – Heavenly Sword: Swords: Dragon Quest Swords: Sword of Mana: Rondo of Swords: The Legend of Zelda:Four Swords: The Legend of Zelda:The Skyward Sword

Puzzle – Puzzle Bobble: Puzzle Quest: Puzzle Fighter: Puzzle League

There are many, many more examples besides these. The Mojang/Betheseda dispute makes about as much sense as Konami suing THQ for releasing “Quest 64″. (Konami created Castlevania II: Simon’s Quest – “Simon’s Quest” is clearly tradmarked right on the front of the Nintendo box).

Many of these similarly named games are in the same exact genre, yet somehow customers can tell them apart. Also, I don’t see any trademark “dilution” with any of these IPs, unless someone is actually convinced that the release of Super Meat Boy makes Nintendo more likely to lose their trademark on Super Mario Bros? Then why was Nintendo in talks to release Super Meat Boy on the Wii? Wouldn’t that create some confusion amongst customers, or show that Nintendo is unwilling to challenge attacks on their trademark? Or is it that Nintendo knows their customers aren’t total idiots and can tell two obviously different games apart from each other?

Bethesda doesn’t have an argument. They should take the offer to settle this in a good PR stunt and save face while they can.

My point is though, that either things aren’t really as screwed up as people claim (if Bethesda really are *forced* to sue in a case like this, I’d classify it as royally screwed up, for reasons outlined above) or I’d expect lawyers to be at the forefront of people telling the government “Things need to change, this isn’t working!”

I know that lawyers don’t make the laws, but they are the people who are directly involved and working it. Just like if there is a problem with a health care system where patients aren’t getting the care they need, I don’t expect doctors to just say “Well, that’s just how the system is – we have to work with it.” I expect everyone who knows about the problem to do something, but I expect doctors in particular to say “No, this won’t do – I can’t work under these conditions, this isn’t how things should work.”

Everyone else can do something too, if they know what should be done (well, I can’t write my congresspeople – I’m not American). But the group that is directly in the know and the group directly affected (lawyers in this case) are the ones that I expect not to shrug their shoulders and say “That’s how things are” if things aren’t working.

And again – many similar cases (there are many games with words like Doom and Rage in them) don’t lead to lawsuits. Maybe those who own IPs and trademarks with the word Doom and Rage in the title are “diluting their trademarks” by not challenging Bethesda, but I have a heck of a lot more respect for that. In the end, a trademark is just a trademark. We know that Rage isn’t the same thing as Fists of Rage (or whatever a game may be called) and as long as the people who own this potential Fists of Rage trademark, people can continue happily buying both games without anyone looking stupid. 

Might a lack of legal action bite them in the future? Maybe – but for a company selling products to the masses, public image should be more important. So what if someone makes a game called The Rim of Sky and Bethesda has lost their ability to challenge that? People would say that the makers of Rim of Sky are asses for trying to get a free ride on Skyrim’s popularity, and most wouldn’t support that company.

You’re as entitled to your opinion on trademark law as I am to mine on patent law, but the facts do remain, screwed up or otherwise, that not defending your trademark weakens it… eventually to the point of total dilution.

I’m frankly of mixed feelings on if there is sufficient similarity between The Elder Scrolls and Scrolls to cause confusion in the marketplace, nor am I entirely certain about the details of proving that standard but, alas, waiting until there is confusion in the marketplace and dealing with it then is worse for both organizations than settling it now.

Anyway, my main argument is that if you hate this, get out your stationary and start writing your congresspeople…  they’re the ones who make laws, not the lawyers.

I’ve heard all kinds of reasons for why it’s absolutely *necessary* for Bethesda/Zenimax to sue Mojang, and they all go down to “That’s just how Trademark law is.”

But look at this: “Scrolls” and “The Elder Scrolls [number]: [name]” aren’t remotely similar. The games aren’t remotely similar (one is a card game, one is an open world 3D action-RPG). The Elder Scrolls games aren’t even called “Scrolls” or even “Elder Scrolls”. So any reasonable person should see that there should be no conflict here. There is no risk of confusion between the names, no dilution of trademarks, no copying or stealing or whatever.

But people are telling me that Bethesda still HAS to sue Mojang, otherwise they are basically giving up their rights to their trademark of Elder Scrolls – according to US law. 

If that is truly the case – if a court can’t see that if Bethesda says now “We won’t contest their naming of their game – our names and games aren’t even remotely similar” shouldn’t mean that they aren’t allowed to protect their trademark when someone comes out with, say, an RPG called “Old Scrolls: The Rim of the Sky” or whatever, then things are screwed up beyond words. 

I have no respect for people who just shrug their shoulders and say “Well, that’s just how trademark law is. They are truly *forced* to sue a small developer on the other side of the world for a name that isn’t really similar, on a game that isn’t similar at all”. If things are truly *that* screwed up, all lawyers with a work ethic should rise up and say “We can’t work under these conditions! What kind of laws makes us do thousands of clearly spurious lawsuits? Things need to change now!”

But anyway, I think it’s all pretty bogus anyway. I don’t believe that things are *quite* that screwed up. I don’t believe that Bethesda/Zenimax are quite that “forced” to sue Mojang.

When Minecraft hit it big, some small developer made a remarkably similar game with the remarkably similar name Fortresscraft. Mojang didn’t sue, and the universe didn’t explode. Sure, they’re not in the U.S., but still. Bethesda publishes several games with one word titles (Brink, Rage, Doom) that occur in other game titles. I haven’t heard of the other developers suing Bethesda for their use and trademarking of those words – and the universe didn’t end.

I’ve also heard that Bethesda *has* to sue Mojang, otherwise Mojang could pull a Langdell and sue Bethesda. That really, Bethesda are the victims here!

Now that’s just silly. Sure, it could possibly happen – but even lawyers should be able to look at probabilities. The probability that Mojang (the guys who don’t sue companies that make very similar games with similar names) will sue? Slim to none. The probability that Bethesda loses face and looks like bullies if they sue over something like this? Big.

I don’t know what trademark law is in Sweden, but I do know that in the US, if you allow dilution of your trademark, it can be taken away from you. Like it or not, Bethesda HAS to demonstrate that they’re protecting the trademarks to The Elder Scrolls or they risk losing the protections to the very name of one of their long-running franchises.

That would be like me making a game named “Gathering” and being sued by WotC because their card game “Magic: The Gathering” includes a word in my title as one of it’s parts.

Bethesda has published a series of games under the series title “The Elder Scrolls: _(installment)_”.

I have never heard or seen anyone, ever, refer to any title in the series as anything but “The Elder Scrolls: _(installment)_” or (much more commonly) simply by the installment name (Arena, Morrowind, Oblivion, Skyrim, etc.). Bethesda isn’t the new Tim Langdell (of ‘EDGE’ trademark trolling), but only a lawyer would see the possibility of confusion.

What’s next, Bethesda suing any poker/gambling franchise that has “Vegas” in their name (in conflict with Fallout: New Vegas)? Okay, Scrolls is in vaguely the same genre, but come on, people.

And in response to @boingboing-8c19c8f5a3b029dbbb74fa00624201ed:disqus : yes, you’re correct but same point above applies. Mariner is not a generic word in the timepiece world.

There’s such a well of hatred for lawyers these days that utterly and unfairly dismisses their role as advocates for personal and corporate interests.  The assumption embedded in statements like “lawyers being lawyers” is that they’re acting in pure self interest, ginning up nonsense to keep the little guy down and line their pockets.  This represents such a small minority of lawyers in the world.  Most of them are good, honest people doing their job… namely representing their clients in matters of law.

You may not like the way trademark law is written, but for the time being it’s written in such a way that lawyers must act on situations like this or be negligent in their duties.

I’m not a lawyer, but vague common sense and cursory investigation of these matters isn’t so tough…  I guess it’s just so much easier to irrationally hate lawyers.

Also, p.s., there’s every indication that whatever his personal feelings, notch is, in fact, acting as a responsible business owner and mojang has it’s own lawyers involved, as it ought : http://twitter.com/#!/notch/status/103926706913546240

That or you could do like Berkley and build an Overmind-type bot solution to the problem.

Bethesda, if you are reading this, do it–then get your finest PR wonks on it pronto.  Both companies could make a lot of money and not hurt anything/one in the process.

Notch wrote a blog post about it:
http://notch.tumblr.com/post/8519901309/bethesda-are-suing-us-heres-the-full-story