Mojang V Bethesda, Or I Hate It When Mummy And Daddy Fight

Since I just spent the weekend playing Minecraft, my thoughts have unavoidably turned to the ongoing dispute between Mojang (makers of Minecraft) and Zenimax Media (parent company of Bethesda, makers of Oblivion and Skyrim among many other games) over the trademark on the word "Scrolls".

For those not keeping track, the dispute began when Mojang applied for a range of trademarks for their new game Scrolls and Zenimax cried foul, citing their ownership of the trademark "Elder Scrolls." Notch, the anything if not vocal leader of Mojang, posted on his Twitter feed that the dispute was merely "lawyers being lawyers", and later proposed the two companies should sort out their difficulties over a game of Quake 3. Zenimax was apparently not amused. Last week the company served Mojang with court papers, which Notch almost immediately made publicly available via Twitter before he'd even had time to read the papers, or so he claims, but not before he took the time to research a 1992 court case against Zenimax CEO Robert Altman and posted the link to an article about the case (which Altman won) to his Twitter followers. According to the Washington Post, Notch later deleted the Tweet and apologised.

So, what to make of all of this? On the surface it looks like a mountain made out of a molehill, or the kind of dispute one would expect a company less reputable or successful than Zenimax/Bethesda to get themselves into. One has to assume that Mojang's relative inexperience in business matters (and Notch's inability to keep his mouth shut about anything at all) are at least partly responsible for the brash and sometimes tasteless remarks the company has been making in the press and on Twitter, but it's entirely possible Mojang knows they have no case and are simply trying to do as much PR damage to Zenimax as they can before they have to admit they applied for a trademark that will never stand against a serious complaint. They may even be thinking that if they embarrass Bethesda enough, the company will relent. After all, this would not be the first time we've seen someone take their grievances against a larger company to the court of public opinion (WINK).

Zenimax, for their part, has been nearly silent on the dispute. The company sent Mojang a Cease and Desist, which is the legal equivalent of a "WTF?" email, which Mojang ignored. Zeni then filed to bring the case to court in Sweden, where Mojang is based. The two companies will now be assembling their cases and will, at some later date, face each other before a judge. Or whatever happens in Sweden.

If one were to attempt to judge based solely on Twitter and the blogs, Zenimax would appear to be the bad guy here. Notch, perhaps attempting to bolster that perception, has put on his hurt face, claiming Zeni is "picking on the little guy." But after looking at Mojang's "Scrolls" patent application, I'm not so sure the case is as black and white as many would seem to believe. Specifically this part, referring to Mojang's claim of trademark on the use of "scrolls" for "radio and television programs and shows":

The application covers:

Entertainment services in the form of electronic, computer and video games provided by means of the Internet and other remote communications device; internet games (non downloadable); organising of games; games (not downloadable) played via a global computer network; education and entertainment services in the form of cinematographic, televisual, digital and motion picture films, radio and television programs and shows; preparation, editing and production of cinematographic, televisual, digital and motion picture films, radio and television programs; entertainment services in the form of electronic, computer and video games provided by means of the Internet, mobile telephone and other remote communications device.

In other words, Mojang intends to own the word "scrolls" in pretty much every form of visual entertainment media, not just in video games. This means that, if the trademark is upheld, the company could rightly take action against anyone else using the word "scrolls" in any form of media whatsoever. Now, that would only be a problem if you were a successful media company planning to use the word "scrolls" in some form of entrainment media … Oh wait … that's right. If you're Zenimax, this trademark f**ks you. Hard.

The section applying for trademarks on the use of the word "scrolls" in video games is similarly broad (and potentially harmful to Zeni), covering:

Computer games; video games; computer software; computer and video games software; computer software downloaded or downloadable; computer software publications downloaded; interactive entertainment software; data recorded electronically from the Internet; data recorded in machine readable form from the Internet; discs, tapes, cartridges, CD-ROMs and other magnetic, electronic or optical media, all bearing computer games software or video games; electronic amusement apparatus for use with television receivers; electronic games apparatus; home video game machines.

Here, too, the trademark application covers everything. Meaning that anyone making any kind of game that contains the word "scrolls" could be the target of legal action by Mojang. Including companies who've been using the word "scrolls" in their games for years. Yes, even Zenimax/Bethesda. And if you're Zenimax/Bethesda, as soon as you read that your balls start to creep into your throat.

Let's assume for a moment that Mojang knows that their trademark would give them leverage over Zenimax, and that they might actually be planning to take action by claiming trademark violation the next time Zenimax publishes a game containing the word "scrolls" in the title. FYI, that would be this Holiday season, when The Elder Scrolls V: Skyrim hits store shelves and is expected to sell millions of copies. If the trademark is valid, Mojang would be able to claim infringement and potentially take Zenimax to court. They might not win, considering Zeni's ownership of the trademark preceded Mojang's, but Mojang could force Zenimax to settle or face an injunction which would keep all of those millions of copies of Skyrim off of store shelves and out of the hands of gamers, depriving Zeni of many, many millions of dollars in revenue. Seem unlikely? Think again. Companies do this all the time.

This begs the question of whether or not Mojang would ever do such a thing. "Surely the cute and fluffy, fan-friendly designers of the cult-hit Minecraft would never play such a down-and-dirty trick," you might say, and I, for one, would love to believe that to be true. But if you're Zenimax, and you're sitting on a multi-million dollar video game franchise with the word "scrolls" in its title, you can't take that chance.

Besides, if Mojang were as naive and innocent as Notch claims, why the far-reaching trademark application? If one were being generous, one could assume that Mojang is simply attempting to cover all potential bases, which, for a game as potentially all over the map as Scrolls could make sense. But if we're drawing comparisons to the case of Tim "Edge" Langdell (and I am), it pays to remember that Langdell was the one who applied for broad and far-reaching trademarks on the use of a single word, who attempted to sue EA over Mirror's Edge and Future Publishing over Edge Magazine and many, many other companies large and small, and who, ultimately, was pilloried for obfuscation and fraud.

Mojang's "scrolls" application is similarly scattershot, attempting to cover TV shows, radio programs, movies, education materials, clothing of all kinds, video game consoles, toys, playing cards, puzzles, stand-alone game cabinets in addition to the video game. The application encompasses four separate trademarks over the course of its weighty 300 words. Zenimax's "Elder Scrolls" patent application, by contrast, is a single sentence: "Pre-recorded CD's and DVD's featuring fantasy games."

The strangest part of all of this is the "radio and television programs and shows" section of the Mojang application, which seems to have come out of nowhere. Notch has spoken of Mojang's plans for Scrolls to be an ambitious game, but if they have any plans for TV shows or movies, they've so far kept those under wraps. Interestingly, Zenimax previously owned the trademark on the use of "Elder Scrolls" in feature films, but abandoned it in 2009. It could be that Zeni plans to re-up that trademark and go for another try at an Elder Scrolls movie. Or they could just be attempting to pro-actively forestall any claims against their extremely successful franchise, which, frankly, just makes good business sense. Once you lose a trademark, it's gone. Zenimax would be in a world of hurt if they suddenly lost the rights to the game franchise they've been building for decades.

As a side note, the Mojang patent application also claims to cover T-shirts and other apparel ("Articles of clothing; footwear and headgear; t-shirts; shirts; trousers; sweatshirts; jackets; knitwear; hats; caps; neckwear; shoes; socks; garments for women; garments for men; garments for children; apparel parts and fittings for all the aforesaid") seemingly violating the trademark of one Regina Grogan, who applied for the "scrolls" T-shirt trademark (specifically for T-shirts with the last "S" in "scrolls" turned backward) in May of 2010. No word yet on whether or not Ms. Grogan plans to file suit.

Russ Pitts is the former Editor-in-Chief of The Escapist and former Producer of TechTV's The Screen Savers. Currently he is looking for work and tweeting at http://twitter.com/#!/russpitts. Republished with permission.

Top Image: ejwhite/Shutterstock

Comments

    Let's see what the Notch Defense Force say about this

    Sounds more like a conspiracy theory than reporting.

      So - gathering actual data about what Mojang are trying to claim copyright of the word "Scrolls" for (what was it, at least 80 different media and uses?), comparing it to the much smaller (one use) TM held by a XBAWKSHUEG company, and pointing out how such an exhaustive TM application is actually really unheard of and opine that it's a dick move - is a conspiracy theory.

      Also, pointing out the fact that if Zeni didn't do this, they'd then have to change the name of their series which has been running for more years than Notch has been selling beta versions of his game?

      Riiiight. Conspiracies everywhere, no reporting at all.

        Please read the article again. It is obvious.

        "Besides, if Mojang were as naive and innocent as Notch claims, why the far-reaching trademark application?"

          Sure - so that one sentence shows the entire conspiracy. Don't worry about all the other facts shown in the fairly lengthy article, and also don't worry about making your own conclusions based on them.

          That one sentence, man. Wow. How did the Alien Illuminati UN World Council Overlords miss that when they were editing the story?

            It is one thing to present the facts. "Mojang's trademark is overly extensive" and another thing to insinuate that Mojang is being dishonest.

              Nope, it implies that for a trademark on a card game,they're really stretching far far beyond that or related media.

              Seriously, trademark for movies? Computer games? TV shows? Fairly bloody extensive.

              By comparison - Zenimax, who being the big bad guy here are more likely to try and close down anyone every saying Elder and Scrolls in the same breath - only have applied and hold a TM on one form of media - computer games.

              Unless you want to say that Big Evil Corp Zenimax are trying to screw the little guy by only holding their TM related to computer games.

                Is it really that extensive? Have a look at what is out there for minecraft. Looking at just the offical minecraft store we have clothing, toys, computer games, stationary and magnets.
                Looking to other people selling minecraft merchandise we get stickers, USB devices, plushies and god knows what else.
                As for the TV shows / movies with the growth in online entertainment where does something like "The guild" fit in copyright law.

                maybe he just wants to protect his brand and keep control of this is it draws a community like minecraft

            It is one thing to present the facts. "Mojang's trademark is overly extensive" and another thing to insinuate that Mojang is being dishonest.

              Scope of the trademark is not integral to what I was saying. Sheesh.

              It is one thing to insinuate bias. It is another to insinuate a conspiracy theory.

              it's really that extensive.

              Here's the U.S. variant (which was denied and apparently will be deleted soon) http://www.trademarks411.com/marks/85323305-scrolls

              I do not know how to find the swedish version.

        Not taking this to court would be giving Mojang that extensive copyright. That would leave Zenimax in a vulnerable position. Sure, Mojang might never be dicks enough to pull rank and take it to court, but the fact remains that they COULD.

        This is like telling the guys you drink with at the bar that you never lock your front door and that you never get home from work before 8pm. They are probably not dicks enough to come in and copmletely ruin your shit, but they could. So you wouldn't do that. Because it would make you an idiot who deserves everything you get.

    Notch is a pretty cool guy, but this is pretty suss. At the very least, it seems like he hasn't even read the trademark application filed by his own lawyer.

    Well, I don't know if I agree with this (I'd just guess that Mojang are covering all of their bases in case scrolls takes off like crazy), but it is good to see a smart writeup looking at the other side of this suit.

    I think this will prove most interesting just because of Notch - if it was any other indie developer, they'd either cave or just stand their ground quietly.

    I think Notch can honestly seem a bit arrogant at times. Whether he is or not, I don't know - but he certainly can come across like a bit of a dick in some of his posts.

    I really don't think Bethesda (ZeniMax) has the right to dispute usage of the word 'scrolls', but I do think if it weren't so close to the release of Skyrim, they probably wouldn't care so much. I get the feeling that much like the recent Apple v Samsung, they're just trying to stall for time.

    Be interesting to see what happens, that's for sure.

    I'm pretty sure Notch said that they just applied for the copyright because that's what the lawyers said to do and then when the problem arose he offered to drop the copyright but they wouldn't accept. Someone made a very similar case to the article on reddit and Notch responded to it. I can't find the post but if anyone else read it then please post a link to it.

    I don't trust Notch at all and though I don't think he would do anything to the Elder Scrolls series, it's a pretty big risk to take from Bethesda/ZeniMax's point of view.

    Also, his "I'm the little indie dev" thing has grown old. You're not an indie dev anymore, Notch, you're just another rich developer.

    Good article. I had no idea about the details of the trademark. I had previously thought that this WAS bethesda picking on Mojang, but now it's made me reconsider

    Mojang will probably lose, then they'll rename it to scrolls in Swedish. :p

    Bläddra!

      That name actually sound kinda badass - +1 Bladdra

    Although there's a plural's difference, I hope the people that own Ninja Scroll gatecrash the party, despite the lack of the plural form, they'd still have a courtable case, that will be fun
    They would be fighting Notch too, but if they won they would more or less still be taking away the tv and radio rights from Zenimax in the process.

      Did you read the article? ZeniMax only have a copyright on "Elder Scrolls" for the purpose of "Pre-recorded CD’s and DVD’s featuring fantasy games.” and nothing specific to TV and radio shows.

        Sorry, that post was very hostile. I meant no disrespect

    from notch's twitter-

    "Reg:Scrolls trademark, we applied for it as part of a standard process. We told Zenimax we'd gladly drop it. They still sued us."

      I guess that's Notch's problem. It's not about being "willing to drop the TM claim".

      From the article above:
      http://money.cnn.com/2011/07/07/technology/apple_amazon_app_store/index.htm

      "Apple failed to prove its main points, she said, including: that Amazon's "Appstore" name will confuse customers, that it infringes on Apple and that it dilutes Apple's brand.

      In a twist of the knife, Hamilton seemed to imply that Apple could have won the case if it had better protected the phrase in question.

      "Apple did have substantially exclusive use of 'App Store' when it launched its service a little over three years ago, but the term appears to have been used more widely by other companies as time has passed," she wrote."

      How this applies here is Zeni own the TM. If they don't continually protect it with the force of a thousand suns, the next time it goes to court with someone, they can be ruled against for not enforcing it with Mojang.

    I don't understand the problem. "The Elder Scrolls" is very different from "Scrolls". I'm pretty sure "Scrolls" trademark including everything is pretty standard these days. I also don't see how the trademark "Scrolls" can impact anything other than the single word name "Scrolls". If this is not the case than copyright law is fucked up.

    Interesting article. Great to get some insight on both sides of the story. Good job.

    Actually the way Mojang have drafted their TM applications make perfect sense (well at least in trade mark law land).

    The date you apply is important - anything after that date can infringe; anything before does not. Because of this, you can't add anything to the services, but you can delete from them.

    It is standard practice to include everything you may use the mark for in the next 3 years, then remove items if they are objected to. Seems Mojang are just taking ordinary TM steps.

    Also makes sense for Zenimax to sue - in some countries TM owners have to enforce their mark to avoid brand dilution (SuperFred nailed it).

    Also 'trade mark' and 'copyright' are very different legal concepts. Copyright is barely relevant here.

    @matt_phipps

    this is such a biased article that it is ridiculous.

    Do you work for fox news?

    Both companies seem kinda out of line here

    What this article fails to mention is that the lawyers for mojang wanted them to file a trademark for minecraft and scrolls; when Bethesda complained notch offered a compromise to make it "scrolls: -insert name here-" and Bethesda carried on hatin'

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