Mythic v Mythica

The Wall Street Journal reports that Mythic Entertainment (makers of DAoC) have sued Microsoft for trademark infringement over MS's use of "Mythica" for their new MMOG.

Reports available via Google News.

Comments

[Gabe]

1.

Some more on the Mythic vs. Mythica story:

http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=SVBIZINK3.story&STORY=/www/story/12-22-2003/0002079705

(press release...)

- gabu

[Paul "Phinehas" Schwanz]

2.

Story is up on cnet as well.

http://news.com.com/2100-1043_3-5130723.html?tag=nefd_top

--Phin

[Ren]

3.

Interview (ok extneded quote) with Mark Jacobs CEO of Mythic about this is here:

http://ve3d.ign.com/articles/448/448290p1.html?fromint=1

And more news links than you can shake a stick at from Goolge news: http://news.google.com/news?hl=en&lr=&ie=UTF-8&num=30&newsclusterurl=http://www.theregister.co.uk/content/4/34647.html

So, anyone actually want to comment on the case?

ren

[Richard Bartle]

4.

Ren>So, anyone actually want to comment on the case?

I doubt MS were being mallicious. Whether they get away with it or not is up to the courts.

I did a consultancy a couple of years ago for a UK virtual world called Gladius Online. They had to rename it (to Roma Victor http://www.roma-victor.com/) after Lucasarts complained it had the same name as a game they were developing (http://www.lucasarts.com/products/gladius/). From what I heard, Lucasarts beat them to the name by about 2 weeks.

Aside: Roma Victor breaks the Virtual World mould in several ways (some good, some not so good). If they ever get the funding to finish it, it could be of particular interest to some of the readers of this blog.

Richard

[Greg Lastowka]

5.

Not much to comment on, really.

As everyone probably knows, Mark Jacobs is both a VW dev with a long history in MUDs *and* a lawyer. I think he knows what he is doing. According to the PC Mag article, he apparently asked some Microsoft staffers at E3: "I was thinking of calling my next game Microsofter, do you think Microsoft would mind?"

Federal TM statute here, if anyone is interested:
http://www4.law.cornell.edu/uscode/15/1114.html

The key thing to demonstrate in order to win a TM case is a likelihood of consumer confusion.

[Jeff Cole]

6.

Greg,

Yup.

Personally, I don't think there is much room for confusion. But I can see it easily going the other way.

I would imagine the parties will "settle" about the time that the marginal legal cost exceeds the marginal PR utility.

I also think "Mythica" and "Imperator" are neck-in-neck for dumbest game name.

Jeff Cole

[Paul "Phinehas" Schwanz]

7.

Is the argument weakened by the fact that Mythic is the name of the company and not the game?

--Phin

[Greg Lastowka]

8.

Phin, while I could probably answer that, I wouldn't want to apply law to specific facts in a way you might rely on at some point -- much as I would prefer to be able to speak freely.

See http://www.law.duke.edu/journals/dlj/articles/dlj49p147.htm

Btw, fwiw, this looks like it might be the Mythic TM registration.

http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=78124814

[ren]

9.

As IANAL and you'd be insane to take legal advise from me, so...

Phinehas> Is the argument weakened by the fact that Mythic is the name of the company and not the game?

That would seem to be the case, if DAoC were called 'Mythic' or even 'Mythic's DAoC' then one could image that a real consumer might get confused.

evil_marketing_ren-again:
I dont know but if a company was launching an MMO* that was the tinciest bit like mine i might think of all kinds of things to do to draw attention to the fact that i was running an pre-exiting MMO.

ren
www.renreynolds.com

[nowak]

10.

I think it's funny since Microsoft is suing Lindows over its name:
http://www.theregister.co.uk/content/4/34486.html

Microsoft quote:
"Microsoft will voluntarily dismiss all pending actions in Europe against Lindows.com and its distributors and will refrain from taking any further legal actions to enforce its trademark in Europe if you discontinue use of 'Lindows' in favor of a new, non-infringing name."

Hey, if Microsoft has a case there Mythic DEFINITELY has a case here.

[Tek]

11.

I think evil_marketing_ren might be right. Reading the stuff Greg linked to, I'd say Mythic has no chance. Could just be a grab for attention.

This section seemed relevant as well, particularly (C)(1):
http://www4.law.cornell.edu/uscode/15/1125.html

Microsoft, however, has a much better case.

[Greg Lastowka]

12.

1125(c) concerns dilution of famous marks, which is really a much different issue than conventional infringement.

I just rememebered that I actually published a pretty good 4-page nutshell description of trademark law in the Virginia Law Review a few years ago.

See http://www.chaihana.com/Metafor.pdf

In particular, see pages 838-842 for the basic background on TM.

[Jeff Cole]

13.

Greg,

"What's the Meta for?" Nice. Very nice.

Jeff Cole

[Ren]

14.

nowak
>I think it's funny since Microsoft is suing Lindows over its name:
>Hey, if Microsoft has a case there Mythic DEFINITELY has a case here.

But this is another case on about product confusion. Mythic is not the name of the product it’s the name of the company.

Ren
www.renreynolds.com

[Alan Stern]

15.

Greg, thanks for posting that link to the Duke Law Journal article. As a law student, I found it somewhat fascinating and will definitely keep that issue in mind in future postings.

One minorly interesting Trademark point. It looks to me like Mythic's trademark may be based on 5 years of use. (The dates look awefully conspicuous to me, 1997-2002, especially since I know Dark Age of Camelot has been operating since Fall 2001.) And even if not exclusively based on 5 years of use, Mythic has 5 years of use of the mark. Thus, even beyond the perks of registration on the primary register (incontestability, national notice, etc.), I'm pretty sure Mythic also has prima facie (de facto) evidence of secondary meaning. This would mean that a court would assume off the bat that "Mythic" has some secondary meaning or connotation in the minds of the relevant consumer population. In the face of such a presumption, the burden would then shift to Microsoft (the other party) to prove that there is no secondary meaning. This is a pretty heavy burden, especially in light of the circumstances of this case. Hence, at least in my limited but not legally-binding opinion, Mythic would trounce Microsoft if this case made it to court.

Granted Ren's point that these are two different items, a product name and a developer name, but they are both in the same field, that of computer games or, even more specifically, online games. Arguing that the relevant consumer group (people who buy and play online games) would be confused by the two is not very difficult nor stretching the imagination. I see no reason that this distinction should throw a wrench in things.

[Chris]

16.

Just to jump on this one with an interesting point, with Mythic Entertainment suing for the potential confusion between their company name and a game named Mythica... why have they also not sued the company Dark Age Games over their title Dark Ages which is MUCH more likely to be confused with Mythic Entertainment's title Dark Age of Camelot.

If they say they are doing this to protect their name, interests and repuation and it is not just about going after MS' deep pockets or the publicity, they should be suing Dark Age Games too.

Makes you wonder.

[Jon Greisz]

17.

"One minorly interesting Trademark point. It looks to me like Mythic's trademark may be based on 5 years of use. (The dates look awefully conspicuous to me, 1997-2002, especially since I know Dark Age of Camelot has been operating since Fall 2001.) And even if not exclusively based on 5 years of use, Mythic has 5 years of use of the mark. Thus, even beyond the perks of registration on the primary register (incontestability, national notice, etc.), I'm pretty sure Mythic also has prima facie (de facto) evidence of secondary meaning. This would mean that a court would assume off the bat that "Mythic" has some secondary meaning or connotation in the minds of the relevant consumer population. In the face of such a presumption, the burden would then shift to Microsoft (the other party) to prove that there is no secondary meaning. This is a pretty heavy burden, especially in light of the circumstances of this case. Hence, at least in my limited but not legally-binding opinion, Mythic would trounce Microsoft if this case made it to court."

You use Mythic, but the trademark is on Mythic Entertainment. Would that change your opinion?

[Greg Lastowka]

18.

OT, but I followed Jon's domain and Mythica has a pretty cool blog(ish) page...

http://www.mythicahq.com/

[Ren]

19.

Alan Stern > Granted Ren's point that these are two different items, a product name and a developer name, but they are both in the same field, that of computer games or, even more specifically, online games. Arguing that the relevant consumer group (people who buy and play online games) would be confused by the two is not very difficult nor stretching the imagination. I see no reason that this distinction should throw a wrench in things.

Not only IANAL, I have not read too much trade mark case law, so my ungrounded speculation is that given that the “relevant consumer group” is the target market for MMOs then it seems highly unlikely that in reality any of these would be confused between the two. So while a logical case could be made around connotations etc, I think it would be hard to make a programmatic case.

Was anyone here confused for a single moment (about this specifically not generally) ?

Ren
www.renreynolds.com

"Probability factor of one to one... we have normality, I repeat we have normality. Anything you still can't cope with is therefore your own problem."

[Jon Greisz]

20.

Greg,

Thanks for the link to my page. It's a fansite for Mythica so except for the trolls I would expect all coverage to be biased towards Mythica's side. :)

Ren,

Since Mythic Entertainment is the trademark not Mythic, do you think that affects what you put above?

[DivineShadow]

21.

"Was anyone here confused for a single moment (about this specifically not generally) ? "

Confusing the game Mythica for Mythic the company? It caused me no confusion. Although I can understand why Mythic is upset - I would be upset too.

And seriously, doing a search on the USPTO database is effortless and there are so many names one can conjure up this seems a little silly - Why not call the game Fantastica or Legendaria, it's not like the name matters that much in this particular case (ie: no pre-existing IP, license or messages to convey other than 'it's a fantasy world')

On the same subject what *did* cause me quite a bit of confusion was when I was reading about the games "Mankind" and "Face of Mankind"

[Trisha Thomas]

22.

I wasn't confused as to Mythica being anything other than a Microsoft title. Thinking about it, I don't remember ever seeing a MMORPG with the same title as it's developer so Mythica coming from Mythic Entertainment would have struck me as very odd. Besides, Microsoft has the trademark for "Age of Mythology" games and if it is close to any game, that would be it.

To your comment about "Why not call the game Fantastica or Legendaria, it's not like the name matters that much in this particular case (ie: no pre-existing IP, license or messages to convey other than 'it's a fantasy world')"

I would disagree about a name change because the point of "Mythica" is to be a mythical world based on Norse mythology and later on other mythologies for expansion packs so not just any name is going to fit well. In addition, not only Microsoft, but others (including fan sites) have gone to expense to build and promote Mythica. Granted Mythic Entertainment has the right to sue anytime they wish, but since they voiced their displeasure about the name 8 months ago at E3 it just seems like they would have filed then if it was an issue and not let Microsoft and others go through the expense and time to promote something while Mythic Entertainment sat on it's thumbs waiting for the "right" time to sue. Wondering now why I should have expected anything else out of Mythic Entertainment? *shrug* My New Year's resolution is to be more cynical; finally learning less disappointment that way.

[DivineShadow]

23.

"I would disagree about a name change because the point of "Mythica" is to be a mythical world based on Norse mythology and later on other mythologies for expansion packs so not just any name is going to fit well."

Strangely enough, Dark Age of Camelot, Mythic's popular MMORPG entry is itself based on Arthurian legends, Norse Myths and Viking lore.

So if I'm getting this straight, here comes a new entrant with a title that competes head-on to an established player and it wants to name it like the name of the company that makes the established player. That's either dumb or plain confrontational.

[Alan Stern]

24.

Chris> Just to jump on this one with an interesting point, with Mythic Entertainment suing for the potential confusion between their company name and a game named Mythica... why have they also not sued the company Dark Age Games over their title Dark Ages which is MUCH more likely to be confused with Mythic Entertainment's title Dark Age of Camelot.

That's a very good question. I did a quick search of the trademarks database for "dark age" and didn't see Dark Age Games or Dark Ages, only Dark Age of Camelot (plus some other irrelevant entries.). At a cursory glance it doesn't look like there would be competing registrations, merely infringement.

John Greisz> You use Mythic, but the trademark is on Mythic Entertainment. Would that change your opinion?

Nope. Not at all.

Ren> Not only IANAL, I have not read too much trade mark case law, so my ungrounded speculation is that given that the “relevant consumer group” is the target market for MMOs then it seems highly unlikely that in reality any of these would be confused between the two. So while a logical case could be made around connotations etc, I think it would be hard to make a programmatic case.

I agree except I doubt the TTAB or a court would either agree or reach that conclusion. The consumer confusion, although potentially low, is enough (in my non-lawyer-advice-giving opinion) to warrant an injunction. Plus there's a decent unfair competition claim. One could easily argue that Microsoft is attempting to trade in on the good will associated with Mythic's name. Not the world's greatest argument but strong enough (im-nlag-o again).

[Paul "Phinehas" Schwanz]

25.

The funny thing is that, although I'm very familiar with both Mythic Entertainment and DAoC, this lawsuit is the first I've ever heard of Mythica, and I now also know the url to a fan website for the game. It seems the possible scheme that evil_marketing_ren suggests could be backfiring.

IANAM (Marketer), but if I were Microsoft, why wouldn't I just capitalize on the Mythology series and call the game Mythology Online?

--Phin

[DivineShadow]

26.

Paul,

Evil Marketing Jujitsu 101, Lesson #7: You can pay for ads that no-one cares about and everyone blocks or time-shifts and hope and pray your target audience consumes them, or pay for lawyers and make the headlines which everyone you're targeting reads and suscribes to.

[Trisha Thomas]

27.

Paul,

Regarding your comment, "if I were Microsoft, why wouldn't I just capitalize on the Mythology series and call the game Mythology Online?"

They could, but they might run the risk like they did with AC2 that you alienate some of your current fan base when you set up the expectation (because of the name) that the next game will be at least reasonably like the previous one, especially when it turns out to be a much different game.

I agree, it does seem that the attention that Mythic Entertainment was going for with the lawsuit has backfired and has now positively influnced Mythica. The combined publicity has even made Mythica the #1 game on Gamespot.com and Gamerankings.com for at least the last few days.

[Ren]

28.

Phin> The funny thing is that, although I'm very familiar with both Mythic Entertainment and DAoC, this lawsuit is the first I've ever heard of Mythica, and I now also know the url to a fan website for the game. It seems the possible scheme that evil_marketing_ren suggests could be backfiring.

Possibly. It depends what assumptions we make about the market. If the Target Market is the same as the Available Market i.e. all people who would & can play an MMO do, then all this activity does is create substitution between worlds. But if we assume that there are still people who might play and MMO and who don’t then it might be the case that this kind of thing increases the size of the Target market and is for the good of all.

evil_marketing_ren’s current theory is that if Microsoft get into MMOs then the Target market will increase because more people will become aware of not only the existence but the nature of MMOs hence its in anyone’s interest who is in the MMO biz-game to some how ride the wave - and any tactic is fair in Love, War and Marketing, muhahaha….

However, even with MS the Target Market might not increase that much, as the nature of MMOs is such that the conditions required to really play them include a level of dedication and type of pleasure seeking (and all the other factors noted Richard's book) that seem still fairly narrow. It’s the MMO that can mix casual with hard core play in way that satisfies all player types and is and combined this with a workable business model (i.e. a revenue model that works for hard core and casual and is commercially sustainable) that will really expand the market – but of course if I or evil_marketing_ren knew how to do this I’d be telling a VC not y’all.

Then again ...http://terranova.blogs.com/terra_nova/2003/11/the_coming_mmor.html

Ren
www.renreynolds.com

[Edward Castronova]

29.

Trisha> The combined publicity has even made Mythica the #1 game on Gamespot.com and Gamerankings.com for at least the last few days.

Gamestop now lists Mythica as Mythica Online .

[Trisha Thomas]

30.

Edward> Interesting. I actually like the name Mythica Online. However, it doesn't look like anything is quite official (just yet anyway). ;)

Perhaps "Online" will be added with the intention for Mythica to be one of the first games to be played on Microsoft's new handheld, the Gametrac since it has "Bluetooth 2 and GPRS wireless networking for short-range and long-distance multiplayer games." All speculation at this point, but it would be nice to play a MMORPG from a handheld. More information on the new Gametrac is found at http://www.pcmag.com/article2/0,4149,1423637,00.asp

On the legal front, it doesn't look good for Mythic Entertainment after last year's Supreme Court opinion regarding dilution claims in Moseley v. V Secret Catalogue, Inc., 155 L. Ed. 2d 1, 123 S. Ct. 1115. "It is clear following the Moseley decision that in order for a FTDA plaintiff to be successful, direct or circumstantial evidence of "actual harm" must be established as a result of a defendant's use of a competing mark. What has also become clear following Moseley is that the Supreme Court has made it significantly more difficult for a plaintiff to prevail in a FTDA case unless a defendant's use of a competing mark is identical to that of a plaintiff." http://www.rkmc.com/article.asp?articleId=241

[Alan Stern]

31.

Trisha, to prevail on an FTDA claim, regardless of Moseley, Mythic Entertainment would have to prove they have a "famous" mark. That's a tough burden and I have doubts as to whether Mythic could meet it. Second, there's no reason for Mythic Entertainment to resort to an FTDA claim (especially a weak one) when Mythic has a valid trademark infringement claim in the first place. If Mythic is seeking an injunction and not damages (as I imagine they are), all they need is the infringement claim.

[Ren]

32.

Looks like we can put this argument to bed. Microsoft have stopped the development of Mythica.

From the official site:

Based on a careful evaluation of the competitive MMORPG landscape, Microsoft Game Studios has decided to cancel the Windows-based game “Mythica.”

Ren

[greglas]

33.

Our condolences go out to Jon and the other devs at Mythica. The game looked to be fantastic. Best of luck with your future projects.

[Ren]

34.

I should have added that the announcement goes on to say:

As a result of this effort, job eliminations within Microsoft Game Studios will take place, and up to 40 employees may be impacted.

[Edward Castronova]

35.

Note to the community: following this news, Mythica has been removed from the 'Worlds to Watch' list.