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View Full Version : Lone Wolf Unironically Sends C+D for Copyright Infringement to PPS



Shavnir
02-01-2010, 01:43 PM
http://www.tabletopgamingnews.com/2010/02/01/33231/

The short of it is that now "Army Builder" is a copyrighted term and can only refer to the Lone Wolf product.

Thoughts?

Faultie
02-01-2010, 06:11 PM
It gets better. Now, they've got an employee on the Privateer Press forum actively defending them and one-on-one debating/replying to users (the ones the C&D says need educating). It seems like an incredibly bungled course of action.
Specifically, my reply to their representative was as follows:

I do appreciate what you're trying to do, lonewolfdevel(oper).
Really. You're out here trying to counteract some bad PR resulting from a course of action you decided must be taken to alter the vernacular of a gaming community. You felt it was necessary, and you're out here defending your actions (specifically, the actions of Lone Wolf, the entity).

The thing is, though, I think it's too little, too late. Or, to be more precise, it's a backwards process. You pursued legalese first, prior to making an appeal to the community, as you are doing now. Instead of a plainly worded post as lonewolfdevel(oper), one designed to engage the community (active on this forum, as mentioned in the C&D) with a plea for proper definition of "Army Builder" vs. alternate meanings, you went with a C&D to Privateer, a company known for the rabid devotion of its fans/customers. Could this have had any other effect? Especially worded as it was, with the implication that we, the people, must be educated, the dolts that we are, what did you expect was going to happen? Did you hope the letter would stay a secret? What exactly did you think would be the community response?

Nice try. Really. But I think you've blundered, and I don't see how just getting on this forum, and replying one-on-one vs. members (in need of being educated) is going to improve your situation. If anything it shall increase antagonism. I don't mean to be combative or dismissive, but what exactly was the realistic expectation of the course of action you chose?

Bigred
02-01-2010, 06:46 PM
That is so one of tomorrow's frontpage stories! Wow, I'm speechless!

Faultie
02-01-2010, 07:02 PM
Lone Wolf's Reply:

The message was sent to the forums administrator as a comparatively mild version of the formal letter that the attorneys wanted to use. That letter included little room for fixing things short of mass deletion. I'm sure PP is quite familiar with such letters, since they have no doubt had to send them from time to time.

I opted for an alternative message that would allow fixing the problem without requiring mass deletions. However, I also had to keep the gist of much of the legal text intact. What resulted was something written by a software developer with no formal legal training instead of a "delete everything or face the consequences" letter from the attorneys.

Yes, we could have sent one of those, but I'd prefer sorting this out amicably. After communicating with Brent Waldher on Friday about this, I thought we'd be discussing things today to reach an amicable resolution. I was stunned today to find that PP had announced drastic actions that are wholly unnecessary.

The reference to wikipedia was simply a pointer to an article that explains the situation in non-legalese, which is probably more useful to the forum administrators in understanding the issue than a barrage of legal text that makes little sense.

Perhaps we should have sent the formal letter from the attorneys. We chose not to. Either way, the situation is what it is. There has been an escalating problem on these forums with the trademark "Army Builder" being used in reference to other tools, and it needed to be addressed. The "education" of users in this regard has very visibly begun through this thread. The drastic actions that PP has announced are regrettable and unnecessary, but it is ultimately their call on how they choose to resolve the matter.

We are in a lose-lose situation here. Either we anger players or we risk losing the trademark. We can potentially recover from the former, but not the latter, since it happens to be our product name. So we really have no choice but to take these steps.
__________________
Rob Bowes, Lone Wolf Development
http://www.wolflair.com

My response:

With all due respect, you're creating a false dichotomy. The choice wasn't "send evil lawyer letter" vs. "send less evil lawyer/programmer letter". There were other options. Among them is your current endeavor.

What are you doing now? You're attempting direct PR by engaging with the community you hoped to influence. This could have been done before resorting to legal recourse, only issuing such a C&D, or further measure, if your public relations educational campaign failed to yield the results you desired. Alternately, you could have called Brent Waldher today, and discussed what you feel are valid concerns regarding your IP, prior to sending the letter (if indeed that would have even been necessary). It was not a lose-lose situation, but you have now made it so. To fatalistically state that you could either anger replaceable customers or lose your right to sell your product is a rather over-exaggerated statement, which is just a touch disingenuous.

But that is the past, we are currently at a now, and the tone you are taking, combined with the tone you took, is not endearing potential/past/current customers to you or your service. Already your exploits have spread to other websites, gaming news sites, etc., and yet you're here, debating one-on-one with consumers whose mind was made up the moment they saw a legal threat (however mild) directed at their preferred supplier of gaming products. What you should be doing, instead, is discussing, internally, a potential way out of this PR fiasco (one without lawyers). Playing the righteous 'lone wolf' forced into a position where you had no options but to act as you did is not endearing or genuine. "It does not improve the situation on the ground", as we would say.

gorepants
02-02-2010, 09:12 PM
As some one who is about to start blogging, I was wondering about the extent of trademark claims available under US law (although I'm not in the US, my blog will be hosted there). I ask this because reading the Wikipedia article on it seems that LW can't really ask forums to remove references to Army Builder except where it is being used to deliberately misconstrue the nature of something.

Wikipedia: Limits and defenses to claims of infringement (http://en.wikipedia.org/wiki/Trademark#Limits_and_defenses_to_claims_of_infring ement) (my emphasis)

...Fair use may be asserted on two grounds, either that the alleged infringer is using the mark to describe accurately an aspect of its products, or that the alleged infringer is using the mark to identify the mark owner...

An example of the first type is that although Maytag owns the trademark "Whisper Quiet", makers of other products may describe their goods as being "whisper quiet" so long as these competitors are not using the phrase as a trademark.

An example of the second type is that Audi can run advertisements saying that a trade publication has rated an Audi model higher than a BMW model, since they are only using "BMW" to identify the competitor. In a related sense, an auto mechanic can truthfully advertise that he services Cadillacs, and a former Playboy Playmate of the Year can identify herself as such on her website.[8]

Leaving asside the support and review aspects which are fairly self evident, the case of 'whisper quiet' seems to indicate that it is permissible to refer to an army builder that is not Army Builder (R). And from this LW is quite right to ask producers of army builders to remove Army Builder and Armybuilder from their products as this is using their trademarks, but while it may be a grey area to allowed them to describe their products as army builders (due to a possible implied relationship with the FW product), but that other people (such as forum posters, and other people not selling the product) are allowed to do so since it is a description of the product.

The problem I have is with this statement from LW to the PP forums (since is first is about actual trademark infringement and is unequivocal):


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.

and a further note from a repost on Tabletop Gaming News (http://www.tabletopgamingnews.com/2010/02/01/33231) of a post to the LW forum:


However, there is a second problem that has arisen. The problem stems from an issue called “trademark genericization”. If a trademark is allowed by its owner to become a household word that is used to generically refer to the domain of the trademark, then the trademark can be declared to have become “generic”. If that happens, the trademark is lost and absolutely anyone can begin using it. Familiar examples of this include such terms as aspirin, thermos, and yo-yo. Each of these terms was originally a trademark, but the company owning the trademark was deemed to have allowed it to become genericized, which resulted in the trademark being lost.

Here LW seem to be claiming they can stop people using the generic phrase 'army builder' to describe something that builds armies. Wikipedia (http://en.wikipedia.org/wiki/Genericized_trademark) seems to indicate there is nothing LW can actually do about this beyond asking people not to use it in a generic way. If this is the case the biggest problem LW has is that they have chosen a name this is purely descriptive and in no way differentiates their product from others that serve the same purpose. The above wiki article notes that Xerox managed to change encourage the use of photocopy over Xerox though a PR campaign but I'm afraid LW will have more difficulty since it requires them to say, 'Don't call our army builder Army Builder (R) an army builder, it is an army list construction tool.'

Anyone know any IP lawyers out there who can say how this actually works?* Wikipedia is good and all but I'd probably not use it for legal advice, and not being in the US I'm not really in with any US lawyers.

*And I realise this will have to be of the form 'This is a guide only and does not constitute legal advice. Please seek proper legal advice when required.' Or some such

Shavnir
02-03-2010, 10:34 PM
Ready for the real irony here?

Lone Wolf Development isn't a registered trademark near as I can tell.

EDIT : IANAL though, could be implicit in corporate registration or something.