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53marine
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Old February 16th, 2010, 12:38 PM
Rob,

After reading your responses in this thread, I wanted to give you a thumbs up. I felt that you explained yourself well and that you were very gracious considering the maturity level of some of the responses that you received.

I wish you the best in your future efforts to educate people on the realities of the real world.
53marine is offline   #21
Mr_Rose
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Old February 16th, 2010, 01:33 PM
Quote:
Originally Posted by Duggan View Post
My apologies for venting my spleen overmuch. I let myself get worked up too readily. Mr. Rose, I'm not entirely certain I follow the intent of the article you posted. Although I certainly hope that the people posting comments about thinking the page was the actual Facebook page were being facetious...
The point was to reinforce the "people don't think" angle with suitable evidence. And, no, for the first couple of pages at least, those comments are entirely genuine; they are in fact the reason the bold, indented fourth paragraph of the article was inserted after the article became the top result for "facebook login" on google.
If you look carefully, you can actually see when the first hints of mockery start.

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I've always wondered about the first person that saw a lobster and said, "You know what? I'm going to eat that."
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DrD
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Old February 17th, 2010, 06:05 PM
Posted from the comments portion of the episode.

Honestly, was the "Trademark Law" segment even necessary? Although it was delivered as an opportunity to "educate" gamers about the finer nuances of trademark law, it appeared, to me at least, as an underhanded attempt to allow Lone Wolf, unabashedly a paid sponsor of the D6G, a venue for backpedaling in order to justify their comments and actions.

One crucial part of this debacle that was conveniently downplayed was the actual tone of the letter sent to Privateer Press. In it one can reasonably infer that Lone Wolf was seemingly dictating that Privateer Press' "forum users must be educated about the term Army Builder" and that failure to cooperate could potentially result in "interruption" to the detriment of Privateer Press' forums. This lack of tact was dismissed by Lone Wolf as simply legal ignorance, but the actual intention is clear.

Moreover, Lone Wolf ends on this delightfully diplomatic note: "so your assistance in getting forum users to utilize appropriate terms will benefit us all." How, prithee, does this benefit Privateer Press, let alone the nebulous community of "us all"? If anything, it imposes the tedious task of requiring the forum moderators to filter the words "Army Builder" from countless posts and monitor future uses of the term. This is imposing a very inconvenient detriment on Privateer Press completely devoid of any perceived "benefit."

But the crux of this argument revolves around Trademark Law. As a 3rd year law student (3L) with a number of courses in Trademark law under my belt, I will direct you to the Trademark Dilution Revision Act of 2006, H.R. 683. H.R. 683 was (obviously) enacted to assist in the prevention of trademark dilution. However, congress tailored the act to be applicable to a select class of truly prominent, distinctive and renowned marks. The act defines a famous mark as one that is "widely recognized by the general consuming public of the United States." Congress, in part, expanded the law in order to prevent so-called "niche fame", where a mark is famous within only a narrow sub-community. Arguably, the term “Army Builder”, a trademark which is comprised of two generic terms common to the war gaming genre (unlike "Xerox," "Coca-Cola,” or "Rollerblade," which are universally recognized marks ), would likely not fall under the umbrella of dilution protection, unless Lone Wolf’s legal counsel could articulate a valid argument that the term "Army Builder" could be recognized by the general consuming public of the U.S., and not just the (niche) gaming community. This is highly unlikely. Also, the 9th Circuit held that “niche fame” is longer valid under the Lanham Act and CA State law; this is very telling as the 9th Circuit was one of the strongest supporters in favor of “niche fame” marks.

In summary, this was bad PR on the part of Lone Wolf, both in regard to reputation and (arguably) legality. Please don't let the D6G, the BEST gaming podcast out there, be residually affected by Lone Wolf's actions.

Original Post from Lonewolf in a letter to Privateer Press:
"There are two things that need to be done. First of all, improper references to the Army Builder trademark on the forums must be addressed. This can be achieved in either of two ways, or potentially a combination of both, at your discretion. The first option would be to remove such posts. Since this could appear harsh and potentially disrupt forum discussions, an acceptable alternative would be to revise such posts to utilize a generic term (e.g. “roster construction tool”, “list createor [sic]”, or “points calculator”) in place of the “Army Builder” name.
The second thing that needs to be addressed is that your forum users must be educated about the term Army Builder being a trademark and only applicable to our brand of products. This is necessary to avoid an ongoing problem and mitigate the future need for removal of improper posts. I’m sure you would also prefer that the forums continue to run smoothly and without interruption, so your assistance in getting forum users to utilize appropriate terms will benefit us all."
Source: http://www.tabletopgamingnews.com/2010/02/01/33231

H.R. 683 Trademark Dilution Revision Act of 2006, http://www.inta.org/images/stories/d...ionact2006.pdf
DrD is offline   #23
rob
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Old February 18th, 2010, 04:39 PM
I moved your post into this thread to keep discussions of the topic centralized for everyone following this issue.

First of all, I find it odd that you felt the need to re-post this exact same text in numerous places (at least three that I'm aware of). Isn't it more appropriate to simply post this on the d6Generation discussion forum (i.e. the audience you're apparently appealing to) instead of using a shotgun approach?

Anyways, the responses from Russ on the d6Generation forums pretty much addressed all of your claims over there. However, many of our readers might not also read those forums, so I'll comment where required below.

Quote:
Originally Posted by DrD View Post
Honestly, was the "Trademark Law" segment even necessary? Although it was delivered as an opportunity to "educate" gamers about the finer nuances of trademark law, it appeared, to me at least, as an underhanded attempt to allow Lone Wolf, unabashedly a paid sponsor of the D6G, a venue for backpedaling in order to justify their comments and actions.
Russ at d6Generation already planned to do the segment on intellectual property, since it's an integral part of the industry and something that many gamers don't have any familiarity with. They asked us if we wanted to come on to answer questions, assuming that we would say "no". We said "yes", since we don't have anything to hide. That led to the interview, wherein there was no "backpedaling" involved - only explanation. In addition, the d6Generation guys clearly acknowledged our sponsorship connection leading into the interview.

You can characterize this however you wish, but most people who listen to the podcast have come away with a very different opinion from yours (according to Russ' comments).

Quote:
Originally Posted by DrD View Post
One crucial part of this debacle that was conveniently downplayed was the actual tone of the letter sent to Privateer Press.
The issue of the "tone" was clearly discussed on the podcast, and different members of the podcast took different positions in regards to their interpretation of the tone - some positive, some negative. You are entitled to draw your own opinions, as is everyone else out there.

Colen clearly stated that we tried the super-polite approach when contacting multiple sites in years past. Every time, that approach netted us zero response. So we followed up those polite emails with something much more insistent that clearly indicated there would be ramifications if we didn't get a response. At that point, people responded. If the polite approach had worked in the past, we'd still be doing it. Since it has proven to be a waste of time, we stopped it in recent years. If you look at companies like Games Workshop, they go straight to the lawyers all the time and don't even bother with an informal email. We believed we had found a middle ground that was working until the Privateer blow-up. Now we'll be doing most everything through the lawyers, which is unfortunate, but apparently necessary.

Quote:
Originally Posted by DrD View Post
Moreover, Lone Wolf ends on this delightfully diplomatic note: "so your assistance in getting forum users to utilize appropriate terms will benefit us all." How, prithee, does this benefit Privateer Press, let alone the nebulous community of "us all"? If anything, it imposes the tedious task of requiring the forum moderators to filter the words "Army Builder" from countless posts and monitor future uses of the term. This is imposing a very inconvenient detriment on Privateer Press completely devoid of any perceived "benefit."
This one's easy. Multiple Privateer Press players had created their own tools and portrayed them using our trademark. We had to send those players C&D notices. Similarly, posts on the forums referring to those tools needed to addressed by Privateer. By educating the user community on the trademark, Privateer players who create their own tools in the future won't make the same mistake. That means we won't have to send future C&D letters to the now-educated players and we also won't have to ask Privateer to fix trademark infringements on their forums in the future. The net result is a definite benefit to everyone involved, including Privateer and their players.

Quote:
Originally Posted by DrD View Post
But the crux of this argument revolves around Trademark Law. As a 3rd year law student (3L) with a number of courses in Trademark law under my belt, I will direct you to the Trademark Dilution Revision Act of 2006, H.R. 683.
It seems you didn't read the explanation and apology letter that was posted nearly two weeks ago. It's readily available here on these forums and addresses this very topic, as well as others that you have brought up here. You'll find it at the link below.
http://forums.wolflair.com/showthread.php?t=9753

If you have further comments that you'd like to make, please read everything that has been posted first. That way, we can hopefully avoid the need to re-hash details that were put to bed two weeks ago. If there are new topics, please post them here and we'll respond as appropriate.
rob is offline   #24
DrD
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Old February 18th, 2010, 08:09 PM
I'm well aware of your apology letter. However, I agree with the sentiments expressed by Mike Masnick on Tech Dirt.

Quote:
Update: As pointed out in the comments -- and in a friendly email from Lone Wolf's lawyers -- Lone Wolf has backed down a bit and sorta, but not really, apologized. The guy claims that he's not a lawyer (though, whoever emailed us said they were a lawyer representing the company), and didn't quite realize what he was doing (and it showed). They still claim they want to block "potentially confusing and infringing uses" but our commenters raised some serious questions about the descriptive nature of the mark, and whether or not it should have been allowed in the first place. Still, let this be a lesson to folks, yet again, that acting as a bully tends to backfire.
The onus is not on Privateer Press to retrospectively and prospectively monitor their forums for alleged improper use of the mark "Army Builder," nor are they legally responsible for "educating" their forum users that they may be infringing. The fact of the matter is that the programs (Forward Kommander and a number of others) are not sponsored nor endorsed by Privateer Press, nor are they pecuniarly invested. The fans of PP who made these programs, on their own volition, decided to share their program on the forum. Mandating that Privateer Press take direct responsibility for the actions of their forum users, lest they face future injunctions and legal action, is absurd. I highly doubt that any federal jurisdiction in the U.S. would establish the precedent that forum hosts are legally responsible for the alleged trademark infringements that occur on their forums. Do you realize how onerous this is?

Further, I take issue with the fact that you justified your apology on the basis of legal necessity and poor word choice (i.e. the use of improper v. infringement). The law is not entirely in your favor, as I've outlined on DakkaDakka.

For a full response to Russ' post(s), please see the thread.

http://www.dakkadakka.com/dakkaforum...3.page#1343931
DrD is offline   #25
rob
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Old February 19th, 2010, 03:52 PM
We feel we would be remiss if we did not respond to statements which imply that Lone Wolf Development (LWD) "does not have much of a legal leg to stand on" or that the law is not favorable to our type of mark. Thus, for the sake of putting our side of this issue on the record, I spoke to our attorney, who has 21 years of trademark litigation experience. The following is a summary of his, and by extension LWD's, position on these matters.

The Army Builder trademark is in fact a Federally Registered mark, and as such has been held by the US Patent and Trademark Office to not constitute a generic or descriptive name. Registration creates a prima facie presumption that a mark is distinctive as opposed to merely descriptive. This presumption becomes incontestable, under Section 15 of the Lanham Act, after 5 years of continuous use in commerce, which is the case with the Army Builder trademark.

Our lawyer also points out that under trademark law, there is a very heavy burden placed on anyone seeking to declare that a trademark has lost its distinctiveness. Indeed, section 14(3) of that Act reads that "a registered mark shall not be deemed to be the generic name of goods or services solely because such mark is also used as a name of or to identify a unique product or service." To put this in simpler language, the burden of proof on a party asserting that a trademark has become generic is considerable, and courts are very loath to strip a trademark owner of its rights. In this regard it is well settled that trademarks are looked at as a whole against any potentially rival mark. They are not, as has been suggested, dissected into their component parts.

Furthermore on this point, a trademark does not become generic simply because it has some significance to the purchasing public as the common name for a product. To become generic, its principal significance, that is its significance to a majority of the purchasing public, must be that the trademark denotes the class of the product rather than the product itself. Some courts have gone even farther, holding that a party alleging genericness must show that to the relevant public the term has lost "all" its trademark significance or that a registered mark should be protected unless there is "conclusive evidence" of its having become generic.

This is certainly not the case here. Any search of the term "army builder" on the internet will find, for example, people inquiring about "army builder data files". In the vast majority of cases that we have reviewed, the responses indicate a clear understanding that what is being sought is data files for LWD's product.

Despite the strength of the Army Builder(R) trademark, if LWD wishes to maintain the Army Builder mark, it must police its use and educate the public on the correct usage of the mark. In this sense, LWD is "legally required" to take action. We certainly do not mean to imply that anyone is legally obligated to assert their rights, however failing to do so does have potential legal ramifications. Thus, to the extent that LWD was also aware of misuses of the term in a generic manner, it also sought to educate the public as to the proper use of its mark. This is consistent with the manner in which Xerox, Google and other companies routinely seek to instruct the public that a trademark is a proper adjective which modifies a noun and should not be used as a verb, etc. To say that LWD is absolved of this duty because we are a small company and not in the same league as Xerox or Google is just bad legal advice. The same laws apply to us as to them.

LWD is fully aware that descriptive terms are available for use by the public to describe their products and services in marketing them, provided that the words are used in their primary or descriptive sense and are not used deceptively or untruthfully. Thus, LWD has no beef with anyone claiming that their product's function is to "build army lists." On the other hand, naming a rival program "Joe's Army Builder" or "Army Builder 2010" would be considered an infringing use and be subject to legal action.

The fact is that LWD sought Privateer Press' permission to use Privateer's forum to instruct the public on these issues, or to be advised whether Privateer would prefer to do that job itself. LWD in no way requested, demanded or agreed with the "drastic" policies that Privateer Press claimed it was being compelled to implement. To the extent that any ambiguity existed on this point, LWD followed up its initial letter with several clarifications. Some were sent privately to PP, while others were posted on PP's forums, the latter of which were immediately deleted by PP, presumably to preserve its narrative of what happened.

We note that PP did not in fact take many of the drastic actions it claimed it was being compelled to take. As a search of the PP forums will show, the term "army builder" is not in fact being filtered and/or replaced with another term. This is just as well, as LWD does not endorse or condone the actions that PP claims it was being required to undertake.

On the other hand, where infringing use of the Army Builder mark is taking place on a public forum, LWD does reserve the right to contact the forum owner and demand that such uses be addressed and corrected. Although internet law is constantly evolving, we believe the law is clear enough that, where a forum owner has been placed on notice of a particular violation of trademark rights, the forum owner is obligated to do something about it or risk liability for contributory infringement.

On a final note, we again wish to point out that none of LWD's claims rest upon the Trademark Dilution Act. Therefore, our position is that any arguments against LWD's ability to avail itself of rights created by that act are irrelevant to this discussion.

Hopefully, the foregoing clarifies our position in regards to the developments with Privateer. We also hope is sheds further light on trademark issues in general as they pertain to our industry and hobby. Thanks to everyone for taking the time to listen.

Note: A substantively similar post has been made within the dakkadakka.com thread identified above, since many of the claims are being made in that thread.
rob is offline   #26
rob
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Old February 19th, 2010, 04:00 PM
Everyone has made their points on this matter, and our opinions have been fully expressed, both earlier in this thread and on other forums.

Further discussion isn't going to change anyone's mind at this point, so please consider the subject closed.

Just to be clear, posts that discuss a matter in general are perfectly acceptable. Posts that argue or question legal nuance and/or interpretation are not acceptable. If someone really wants to argue legal nuance and interpretation, they are welcome to hire an attorney for that purpose and then the matter can be taken up with our attorney. We intend to focus our energies on continuing to enhance our products.

Last edited by Colen; February 20th, 2010 at 08:02 AM.
rob is offline   #27
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