[rob]

As the result of some illuminating discussions, I believe I now understand the crux of why some people have taken offense at our message to Privateer Press. I'd like to publicly address what appears to have happened – due to the complexities involved, a bit of explanation is called for.

First of all, I'm not a lawyer. I don't even pretend to play one on TV. I'm a software developer that also has to deal with business matters for a tiny company. Like many others, I don't always consult our attorneys on the text of every message before it is sent. The message to Privateer was not vetted by our attorney, and I didn't recognize a critical language issue in the message, which led to a major problem.

Last week, we sent a message to Privateer Press, in which we sought their assistance in addressing both abuse and misuse of our Army Builder trademark on their forum. Since Privateer owns the forum, contacting Privateer was the proper course of action. Specifically, there were two issues concerning the use of our trademark on the forum that we sought to address.

First, there were multiple references to tools that used our trademark in their official name. For example, one such tool was officially named the "Warmachine/Hordes Army Builder". Such tools represent an infringement on our registered trademark, and we're within our rights to seek help from a forum's owner in addressing such cases.

Second, there were instances where our trademark was used in a generic manner on Privateer's forum, such as "I'm looking for an army builder to do X". These posts represent an improper use of our trademark, but they are not an infringement. As such, we cannot reasonably expect assistance in addressing these uses, and we did not expect to have Privateer alter or remove them from the forum. We sought to educate the public as to the fact that "Army Builder" is a trademark, i.e., a proper adjective which modifies a noun, as in the "Army Builder® roster construction tool".

Referring to roster construction tools generally as "army builders" is improper, and if we fail to speak up about it, our trademark could become generic. Perhaps worse, we could potentially have to seek a future injunction against someone for unwittingly infringing upon our trademark. More importantly to Privateer players, awareness of the trademark would hopefully avoid its future use in fan-created tools, which would in turn avoid the need for us to seek removal of such tools.

The core problem was that, in the message to Privateer, I used the term "improper" in a few places where I should have been using the term "infringing". This transformed a perfectly acceptable request for Privateer to address the few infringing uses of our trademark (i.e. people using the name Army Builder in their own tool names) into a wildly unreasonable request to address merely improper use of our trademark. Not being a lawyer, I didn't catch that pivotal distinction when writing the message.

So why wasn't this problem recognized more quickly after there was public reaction? The intent had been for infringing uses of our mark to be addressed, and that's what I believed we had actually done. I even posted as much in a number of places discussing this issue, including on Privateer's own forum (prior to the thread being deleted). Consequently, I didn't notice the terminology error until now.

There were a few additional errors in the message due to misunderstandings on my part, for example, using the term "dilute" to refer to a loss of trademark distinctiveness, never meaning to imply a cause for action under the Trademark Dilution Act, and citing the Digital Millennium Copyright Act directly, when what was appropriate was to simply make an analogy to it. I also believe, in retrospect, that the language I used was unnecessarily stern. However, the core problem was using the term "improper" instead of "infringing".

Unfortunately, the interpretation that was clearly visible to others just didn't register in my brain, since I was stuck on what I thought I'd written and not what I actually wrote.

So, to everyone who took offense at the message, I sincerely apologize for this gaffe. It was an honest mistake, which turned a reasonable request into a very unreasonable one. I truly hope that this clears these matters up for anyone who took offense and that from here on we can keep any fighting confined to our respective gaming tables. I also hope that this explanation enables Privateer to understand that what we sought was a significantly more measured response than what they perceived as required.

Sincerely,
Rob Bowes
Lone Wolf Development