In video games’ rumor mill, trademark filings are proof of nothing
Video games are a rumor-driven business, and for its fandom, chasing and chewing over teases and tipoffs is all part of the fun. But, says a lawyer — the guy who fashions himself as the “video game attorney,” in fact — maybe we should all cool our jets. Because sometimes government paperwork is exactly as boring and nonproductive as it sounds.
Yesterday, plenty of fans, writers and other video game enthusiasts noticed an incremental development in Electronic Arts’ Skate trademark. It looked like EA was abandoning it, which would, presumably, shut off the possibility of a Skate 4. EA’s last Skate title was 2010’s Skate 3, and the series is as well remembered and much loved as, for example, the NCAA Football title. So skateboarding game fans naturally have their ears up for any news.
But the reality was entirely the opposite of what was reported. Combing through the paper trail, it turns out EA was actually seeking even broader, and longer-lasting, rights to the word “Skate” for video games, and was disposing of an outdated mark as part of that process. So: no abandonment, but also no new game plans.
“Ninety-nine times out of a hundred, you’re dealing with a publisher or a major company that has in-house legal teams that are on monthly retainers that are just sitting there bored all day,” said Ryan Morrison, a founding partner of the Los Angeles-based Morrison Rothman firm, which specializes in intellectual property law.
“They’re sending takedowns, they’re threatening clones on the app stores, but part of it also is filing trademarks for everything and anything they can possibly conceive or come up with, because why not?” Morrison said. “There’s no downside to doing it. Even if they file a Skate 4 trademark tomorrow, all that means is their intern needed something to do.”
Morrison is practicing attorney, but he’s also a video games fan, so when an insider story goes off the rails he takes both a personal and professional interest. His firm serves a lot of independent developers looking to protect their ideas, too. When he sees something in his news feed about Electronic Arts abandoning the Skate trademark, it’s like a sports fan reading that a football coach called the dumbest play imaginable.
“Saying that they’ve given up rights to the title ‘Skate,’ which is basically what was said [yesterday] is so irresponsible and it would cause so many problems,” Morrison said. “They still have common law rights and protections, unless they are expressly abandoning the mark and putting out a news release saying ‘We no longer claim ownership to the word ‘Skate.’’” And it would be ludicrous to abandon the trademark rights, in video games, to a word that broad.
What Morrison does advise for part-time Internet sleuths, games journalists and others stopping at the industry water cooler, is to look for totally, bona fide new trademarks that a recognizable company or developer has asked for. Though these are still not proof of a new game in the pipeline, they speak more to publisher or developer intention than the maintenance of an existing franchise name — however tantalizing it is to the idea of a sequel.
“Everything is not some tell or tip of the hand,” Morrison said. “There’s a reason lawyers spend a lot of money going to school, and charge so much when they talk to you; it’s because the legal system is over-complicated and dumb sometimes. Just because lawyers are making maneuvers means nothing for the business side.”