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rob
Senior Member
Lone Wolf Staff
 
Join Date: May 2005
Posts: 8,232

Old April 23rd, 2010, 12:36 AM
I encourage you to go back and look at archives of numerous public forums, bulletin boards, and mailing lists from 13 years ago. Look closely at the terms that were in use back then. You will find that the common terminology at the time was to "write a list", "make a list", or "create a roster". The concept of "building" an "army" was used exclusively in those days for collecting, assembling, and painting the miniatures. The term "army builder" was simply not in use back then - at least not in any of the major miniatures gaming discussion forums.

With the release of the Army Builder product in 1998, that began to change. For many years, the general terminology remained the same as before, with people saying things like "I use Army Builder to make my lists". As the Army Builder product's popularity grew and it became an industry standard, the term "building an army" began to appear in reference to creating rosters as well as collecting and painting the models. Here we are 12 years later and the terminology has changed. This is due in substantively to the success and popularity of the Army Builder product.

This fact is borne out by a close look at the history and how the terminology has evolved. The US Patent & Trademark Office concurred with that interpretation as well. If you look at the details, you'll note that the Army Builder trademark registration was applied for and granted in 2003 - five years after we first released the product. At that time, the USPTO did a thorough search for the term and concluded that it uniquely referred to our product. Had the term been used widely in a generic manner, the USPTO would never have granted us the trademark, regardless of whether we had a product with the name. Over the subsequent 7 years, the Army Builder product has become a standard and the commonly used terminology has changed as a result.

The facts of the situation are exactly that - facts. If we had trademarked the term "Army Builder" last month, an argument against our choice of terminology would be valid. However, the reality is that we coined the term 12 years ago and our product's success is demonstrably responsible for the widespread change in terminology used by gamers today.

Now that our product's success has been established, other competitors want to write their own tools and use our product's name. It may be due to lack of awareness or it may be intentional so they can leverage the name recognition and associate their tool with a popular product. We can't know for sure, but we have to put a stop to it either way. If someone tried naming their new miniatures game "Jim's Warhammer Fantasy Battles" or "Fred's Warmachine", don't you think a couple of prominent companies in the industry would take exception? Our situation is no different.

The registered trademark provides us with legal protections. It also establishes clear rules for how we have to police the mark. Unfortunately, those rules don't afford us the ability to choose when to act. So we have to deal with a "small time software dabbler" the same way as with a large corporation. If you don't agree with that, then lobbying your congressman to change the laws is the proper course of action. Until the laws are changed, we are obligated to abide by them as they are written.
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