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Ep 49 is a big show: Trademark Law, gaming mods for the blind, painting tips, and how to build an old west building are all cramed togeather and somehow make sense. (we hope)

Up first: Tactica Trademark! Recently one of our sponsors came under fire for sending out C&D letters regarding their trademark. Since we actually have a lawyer on staff here at the D6G we thought it would be interesting to go through the ins and outs of Trademark and copyright protection for companies in our industry. Why do they do it, why should we care, and when should we call foul?

We also have Colen McAlister on from "Lone Wolf Development" to discuss the recent Internet flap over their C&D letters.

Later, Total Fan Girl interviews a physics student who came up with an innovative way to modify Settlers of Catan for sight impared players.

Finally, Craig takes control and gives us a bunch of great painting tips focusing on building terrain. He even gives step by step instructions on how to build a simple "old west" style building.

All that and our usual 'not too horrible' humor, with features such as:

•The Hollywood Minute
•Rapid Fire
•What's in the News
•Achievements in Gaming
•& More


Link to the Episode: http://www.thed6generation.com/index.php?post_id=581439

Please let us know what you think!

I'd just like to say its your fault and Craig's fault I now own 3 Firestorm Armada Fleets.

I'm just listening to the trademark segment. A most interesting discussion.

About the GW cease-and desist letters. I've found a link that might be interesting: Link

It's a letter from GW explaining why they sent the said letters. They don't seem to be too draconian in their thinking.

Great episode as always!

I really enjoyed this episode, especially the painting and modelling section.

A quick question about painting plastic figs for board games -- I usually prime my resin and metal figures with latex gesso (brush on), do you know if this works well for the soft plastic figures of board games?

duncana wrote:I really enjoyed this episode, especially the painting and modelling section.

A quick question about painting plastic figs for board games -- I usually prime my resin and metal figures with latex gesso (brush on), do you know if this works well for the soft plastic figures of board games?

Never tried paint on primer, but I'd imagine if it works on metal/resin, it would work on BG plastics. I really don't treat board game stuff any differently then other mini's, I spray prime 'em and paint 'em.

Bigger the better, I'm usually disappointed if it's less than 3.5 hours.

First off...Congratulations Craig and Karen!! We're expecting too, our second little future gamer, due April 1st. (yeah I know)

Second... So you guys use my idea for the contest and I don't even get a little credit?
From the thread about episode 47

Jack of all games wrote:Oh and no offense to the Drago gal, because it was cute for a while, but it is getting a little old. How about a voicemail contest for the new "loyal listeners" credit?

RussWakelin wrote:I like the idea of another audio contest with the prize being a sound bite in the intro. That is brilliant.

I suppose I should give you guys a pass because you were all excited about Temple Con, but a little "Thanks to Jack of all games over on the Dakka forums for our new contest" would have been nice. (Note- I'm not really upset and mostly just busting your chops)

In all seriousness though, another great episode. The Lone Wolf segment was very interesting and enlightening. It was great to have Raef put on his lawyer suit and tell it like it is. Colen did a good job of explaining their side too and I do feel better about the whole thing, which is good because I was pretty much in the anti-Lone Wolf camp, for a lot of the same (and perhaps unreasonable) reasons that were brought up. For that very reason, I appreciated the thoroughness of the questions. Great job on a difficult subject.

The power you guys have over my personal finances is uncanny !
I have had my eye on Descent for a good long time now... but kept my cool. The fact that you all bought it pushed me over the edge, and I had to order it right away.... Along with a bunch of the hirstarts "dungeon builder"(tm?) molds . (it's like Lego... but for grown ups yey! )

No problem with the podcast running long here either.

The feature on copy rights and trademarks was a good call. I like that you take the time to comment on what happens in the gaming community, and help straighten out such issues a bit.

As for the painting/modelling segment. I find it very useful when you talk about your own experiences and what techniques/tools works for you and what doesnt.

All in all... not too horrible

Congrats to Craig and Karen. Best wishes! I wonder whether the "OCD Gamer" status will survive the advent? I'm betting it will, but not if there's a second one at some point!

Great segment about copyright. I do feel a little more sorry for LW now - they probably wouldn't have garnered so much poo if they hadn't been preceded by GW's heavy handedness. At least they seem to have tried to lighten the tone and negotiate and compromise.

I do seriously think now that ALL companies in the gaming world need to think VERY carefully before issuing C&Ds, however mild, when it involves fans and volunteers etc. Sure they "have" to protect their IP. But really? Do they? From their fans? Are their activities really threatening the future of the company or brand? Are you absolutely certain? Because if you are not and you C&D your fans and they turn against you, you WILL really harm your business right now, and not in some hypothetical possible future, but this quarter! You risk having to lay off your staff right now, this quarter, rather than at some highly unlikely future date! Think very carefully!

I guess its obvious that I'm an accountant by trade and not a lawyer...

The problem I see is that if I am a guy, who builds armies, am I a lower case army builder? What if my lists are the best, can I not be called the best army builder?

I think the issue is that they chose a generic term. This isn't like Xerox, who invented a term and it came into common usage. These are two common words which could end up next to each other at any time for any variety of reasons.

I think trying to get a forum admin to stop people from using these words next to each other is a quick way to get a filter on said forums to change the phrase 'army builder' into 'douchenozzle software'

Well, firstly, thanks for the well-wishes, guys. As the curse goes . . . interesting times . . .

Glad the painting segment is helping people. I don't think I'm quite as egalitarian as Russ is claiming to be, board game minis vs war game minis, but I agree with what he says: if it works for metal/resin, it should work with plastic.

And you're right, Jack, we totally stole your idea and should have thrown you a bone, there. No promises, but we'll try to rectify that in Episode 50 (which is going to be a scheduling nightmare, so like I said, no promises).

As for Elijah's comments, I think a lot of this was actually dealt with, both by us and by Colen. The term Army Builder 15 years ago wasn't a generic term in the usage in-which we're seeing them today. As for the request for PP to police their forums, they've already admitted that was a mistake and apologized. Odd, I'll admit, that they didn't post that apology on the PP forums, but that's a different issue.

We didn't even get into GW using C&D letters inappropriately as illegal fishing expeditions much, thus throwing gasoline on the fire, but that's interesting too.

First, let me say that it was very interesting hearing you guys talk about "real world stuff". I found it more enjoyable than I would've thought before having listened to the episode and only reading the episode title. Perhaps you might consider doing a spin-off podcast, "The D6G Report" or some such. I know that'll it'll never happen but it's neat to get a closer look into the lives of other gamers outside the gameroom.

I've been a current customer of Army Builder for 3 years. I find it a very useful tool and will continue using it as long as I play. But after having listened to the discussion on trademark and Colen's interview, I still can't help but feel there's some serious spin control going on. I honestly don't think anyone begrudges Lone Wolf for protecting their trademark. I think the root problem is the tone of the original e-mail sent from Rob to Privateer Press. Russ described it as a "Hey, can you guys help us out..." and "Let's talk about it..." type of letter but that's not really what it was. Let me quote a few of passages from it since I have nothing to do at work today...

Unfortunately, there are active references to other tools on your site that misappropriate our trademark. In addition, this misuse by others has led to multiple posters on your forums using the term "army builder" to describe the category of tools. This needs to be remedied, and, under the Digital Millenium Copyright Act, we require your assistance in doing so.

Emphasis mine. Lone Wolf didn't so much ask as they demanded.

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", or "points calculator") in place of the "Army Builder" name.

To which Privateer Press complied. Lone Wolf recieved what they required. There should be no problem with PP's response.

Assuming that the improper references to tools using the name "Army Builder" are rectified and you confirm to us within 72 hours that you have done so, we will assume that infringement was unintentional and consider that matter closed. In the event that we have not heard back from you within the prescribed timeframe, we will have no choice but to refer this matter to our attorneys for further legal action.

So... yeah... About that claim that they'd thought someone from PP would contact them the following Monday to discuss the issue... Say it with me: -

No where in this e-mail did Rob mention anything about discussing it further. An ultimatum was given and a silly one at that.

If you are interested in understanding this issue better, there is an excellent article on wikipedia (see http://en.wikipedia.org/wiki/Genericized_trademark).

Referencing Wikipedia on a supposed legal matter? Really??

Sorry, but this was not the "friendly" e-mail that Colen said it was. You can read it for yourselves on PP forums for as long as PP keeps the link (which probably will not be much longer). I agree with Craig that if they were going to persue this course of action, they should've let the lawyers handle all the contacts. I imagine that the reason they didn't was simply to save money on legal fees, but it likely would've avoided the PR mess that LWD finds itself in now. One word of advice though - I know you guys praised Colen for coming on the show and being "open" to discussing it, but right now LWD should really STFU about the whole thing and just let it lay. Something else will come along to stoke our nerdrage and it will be forgotten.

I was very interested to hear that they've kinda-sorta worked with game companies through the third party datafile writers. Seeing as how some games are better supported than others (some games haven't had datafile updates in a loooooong time) why not work with those game compaines in licensing deals to get datafiles direct from the game company? I think that would be a win-win-win for all involved (LWD, game companies and the consumer). All that being said, I still enjoy using their product and I hope they've learned something from this.

Off to listen to the rest of the episode while I stare at the clock...

Master-Terraformer wrote:Odd, I'll admit, that they didn't post that apology on the PP forums, but that's a different issue.

The Privateer policies strictly forbid us from posting on their forums, so we instead sent the apology directly to Brent Waldher, who is the person in charge of all this a Privateer. We found it odd, and quite disingenuous, that Privateer elected not to post the apology publicly.

This gets a bit more interesting. Privateer's actual actions on their forums don't remotely match the "drastic" response they claimed they were "compelled" to take. In fact, the actions taken on the forums appear to be directly in line with what we intended - address the infringing uses. There are still dozens of threads using the "army builder" trademark incorrectly, although instances of actual infringement have been corrected. This can be verified by simply doing a search for "army builder" on their forums.

Yes, I messed up on this thing. And we're going to be using the lawyers for all this stuff in the future. Lesson definitely learned.

And with that, I'm going to step out and let you resume your discussions....

Master-Terraformer wrote:And you're right, Jack, we totally stole your idea and should have thrown you a bone, there. No promises, but we'll try to rectify that in Episode 50 (which is going to be a scheduling nightmare, so like I said, no promises).

Can't ask for anymore than that!

Now I just need to come up with a pithy soundbite for the contest... Hmm.

Great Episode!

Loved the Tactica Trademark as well as the fangirl segment.

Again, congrats to Craig and Karen! All I can say is that with the changes in your life Craig, I doubt you will ever get around to updating your website but it would be cool to seem some works in progress shots to match your building instructions; that way I know which part of the building to use the sander on. This episode spawned my new favorite line, "Raef was right-you can cut off your finger!"

Defintely a great episode that covered several interesting facets of gaming. Not to sound like a Raef fanboy but it was good to have him come to the fore-I realize he is in the background most of the time because he is not physically there.

Finally, good job by Russ putting it all together. Sorry to hear his Jedi Mind Tricks aren't playing out the way they should be.

Thanks for the response, Rob. That was the one question I kept meaning to ask Colen, and then I forgot.

As I've said before, I do think PP's responses exacerbated the whole situation. Knowing that they received the apology and didn't post it reinforces that opinion.

We even heard from someone in GW corporate, writing as an individual and not a representative, who wanted to let us know they felt we had dealt with the situation fairly.

Given some of the things we've said about GW in the past, my reaction to finding out that they were paying attention was . . . mixed . . .

I've been very heartened, given our take on the events, by the number of responses from industry insiders we've received, all of which have been supportive of the intent behind LWD's actions.

It has been neat to be involved in real world events . . . but I'm looking forward to getting back to games in Episode 50.

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 no 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/downloads/trademarkdilutionrevisionact2006.pdf

Master-Terraformer wrote:Given some of the things we've said about GW in the past, my reaction to finding out that they were paying attention was . . . mixed . . .

I wouldn't be surprised, in the small pond world of tabletop gaming publicity, theD6G is deservedly regarded as a significant opinion former. While GW generally is lambasted as being unconcerned about its online image, but my experience is otherwise. I have good cause to know that GW (unofficially) are well aware what the online community is saying about them. And I am sure that "they" give appropriately greater weight to the lucid and attempting-to-be-fair opinions of a highly-regarded and long-lasting podcast, than to some random rant on a bullettin board.

Of course what they do with that information and how they weigh it against the opinion of the so-called "silent majority" is a discussion for another day.

Welcome to the wonderful world of "thought leadership"!

Wow, Paul . . . do we get a special ID, or at least a decoder ring?

And sorry you feel that way, DD. I honestly think we treated the whole thing fairly. Since the letter was all over the forums and easily accessible, I don't think, after apologizing for the letter in depth, that it would be required in a fair discussion that it be brought up again verbatim. That sounds a bit like getting into a fight with your girlfriend, you apologize for something that gave offense, and then, AFTER the apology, she still wants to go over the offending statement word for word.

But obviously everyone's entitled to their opinion. It was risky for us to do this, obviously, with the chance that some people would interpret the events just as you did. However we do like to get a jump on the latest trends, and had intended to cover the events long before LWD agreed to come on.

Obviously each gamer will make their own mind up and act according to their understanding and conscience. We only hoped to give wider context and more concrete information for those decisions.

Ciao!

Hi DD,

Thanks for listening!! I don't know if it was a 'necessary' segment (let's be honest, no part of our show is 'necessary') however it is something that gamers talk about ALL THE TIME so we thought it would be an interesting topic. If major media can have spokes people on from Toyota explaining what went wrong with their cars then why shouldn't we have a guest on from a company that is in the spotlight in our little corner of the world?

You make some good points and we know that there is no way around the perception that we're biased because LW is a sponsor, but we three do honestly believe everything we presented in the show.

You mention "tone" which is tricky when reading a letter. We even discussed this on the air when I read the PP response letter and Craig was critical that I was not capturing the correct tone. The point is it can be hard to determine tone. I wouldn't read to much subtext into every word that LW wrote, or into every word in PP's response.

We all agree, including Lone Wolf, that the letter they sent to PP was too demanding. LW has publicly apologize for this error both on their forums, blogs (like TTGN), and on our show. They screwed up, they know it. Not sure what else we (as gamers) can ask from them on that front.

The Law: I'm not a lawyer. Raef is. In addition to Raef, we've spoken to other lawyers about this both directly regarding the LW issue and about similar events in the past with other companies over the years. There are more lawyers involved in gaming than I ever expected, which may explain where the term 'rules lawyering' really comes from... but I digress.

In any case, I think you'll find you are in the minority in your legal position that the registered trademark "Army Builder" is not defensible, and/or that it is not in the best interest of the company to defended it.

It might be a fun extra credit project to take this scenario to some of your professors and see what they think?


Again thanks for listening and for your thoughtful comments,

Russ

RussWakelin wrote:Hi DD,

Thanks for listening!! I don't know if it was a 'necessary' segment (let's be honest, no part of our show is 'necessary') however it is something that gamers talk about ALL THE TIME so we thought it would be an interesting topic. If major media can have spokes people on from Toyota explaining what went wrong with their cars then why shouldn't we have a guest on from a company that is in the spotlight in our little corner of the world?

You make some good points and we know that there is no way around the perception that we're biased because LW is a sponsor, but we three do honestly believe everything we presented in the show.

You mention "tone" which is tricky when reading a letter. We even discussed this on the air when I read the PP response letter and Craig was critical that I was not capturing the correct tone. The point is it can be hard to determine tone. I wouldn't read to much subtext into every word that LW wrote, or into every word in PP's response.

We all agree, including Lone Wolf, that the letter they sent to PP was too demanding. LW has publicly apologize for this error both on their forums, blogs (like TTGN), and on our show. They screwed up, they know it. Not sure what else we (as gamers) can ask from them on that front.

The Law: I'm not a lawyer. Raef is. In addition to Raef, we've spoken to other lawyers about this both directly regarding the LW issue and about similar events in the past with other companies over the years. There are more lawyers involved in gaming than I ever expected, which may explain where the term 'rules lawyering' really comes from... but I digress.

In any case, I think you'll find you are in the minority in your legal position that the registered trademark "Army Builder" is not defensible, and/or that it is not in the best interest of the company to defended it.

It might be a fun extra credit project to take this scenario to some of your professors and see what they think?


Again thanks for listening and for your thoughtful comments,

Russ

Hi Russ,

Thanks for responding to my comments. The reason I posted this response is that your Trademark Law segment seemed all too convenient in legitimizing Lone Wolf's actions. And in regard to their "apology", Lone Wolf's argument was that their actions were "necessary" because "trademark law is very clear on this," which it obviously is not. A simple "I'm sorry" would have sufficed rather than a lame apology made under the guise of legal necessity and poor word choice. Your segment was nothing more than a podium for them to justify their comments in hopes of reaching a wider group of gamers, but the message was the same.

In regard to tone, Lone Wolf has made a number of posts that makes it rather straightforward to infer a valid tone. That tone, to me, is one made out of authority and condescension. Indeed, Lone Wolf really has no right to call Privateer Press' decision not to post their apology letter "disingenuous," given that they started this entire ordeal (see 6 or so posts back in this very topic). Given the huge backlash over the interwebs there are a good number of people who share this view.

Now, I'm studying the law in order to become an Intellectual Property lawyer. While I'm not the sole authority regarding trademark law, I know enough to be able to clarify your segment. First and foremost, my position certainly is *not* in the minority. Federal courts throughout the country were mixed in regard to issues of trademark dilution/blurring (i.e. genericization by dilution) like the 9th Circuit court in favor of "niche fame". Congress enacted H.R. 683 in 2006 which clarified their position on mark dilution, which expanded protection but limited protection to a number of marks recognizable by the general public. By enacting H.R. 683, Congress has essentially overruled precedent in those jurisdictions that are in conflict with the statute. In fact, many courts have yet to even address issues of "niche fame" mark dilution through the lens of H.R. 683, given how recently the law was passed.

Secondly, I'm not saying that "Army Builder" is not a defensible mark nor is it not in the best interest for Lone Wolf to defend it. However, what I am saying is that Lone Wolf should have given more thought before throwing C&D's around like they were candy, and then backpedaling and justifying their actions as one of legal necessity. To me, it is "disingenuous" for Lone Wolf to even compare a generic niche mark like "Army Builder" with legally and universally recognized marks such as Coca-Cola, Xerox, Rollerblade, Band-aid, Walkman, ad infinitum. The protections afforded to those brands are clear. The protections afforded to a niche fame trademark comprised of two generic terms common to the niche war gaming community are not clear. This is the crux of the debate.

I'm a big fan of the show and I've been a listener since the very beginning. I don't think that segment was beneficial to your podcast because it seemed to stir up the drama once again that had already begun to settle down. More importantly, the segment gave me, and I'm sure many other listeners, the impression that the segment was conceived in order to appease your paid-sponsor. I just hate to see you guys get needlessly involved.

DD wrote:
Secondly, I'm not saying that "Army Builder" is not a defensible mark nor is it not in the best interest for Lone Wolf to defend it. However, what I am saying is that Lone Wolf should have given more thought before throwing C&D's around like they were candy, and then backpedaling and justifying their actions as one of legal necessity. To me, it is "disingenuous" for Lone Wolf to even compare a generic niche mark like "Army Builder" with legally and universally recognized marks such as Coca-Cola, Xerox, Rollerblade, Band-aid, Walkman, ad infinitum. The protections afforded to those brands are clear. The protections afforded to a niche fame trademark comprised of two generic terms common to the niche war gaming community are not clear.

To be clear, LW is not back pedaling from sending out C&D's. The mistake they regret is NOT sending a legal letter to PP, instead they tried to write it w/o a lawyer and got themselves into trouble.

Also, you might be a little disingenuous with the phrase "throwing C&D's around like candy". I'm not sure anyone got one that didn't deserve one. The only issue was the wording of the 'casual' letter to PP.

Oh, and I'm a little fuzzy on how the first sentence and the last sentence of your above paragraph don't contradict each other.

DD wrote:
I'm a big fan of the show and I've been a listener since the very beginning. I don't think that segment was beneficial to your podcast because it seemed to stir up the drama once again that had already begun to settle down. More importantly, the segment gave me, and I'm sure many other listeners, the impression that the segment was conceived in order to appease your paid-sponsor. I just hate to see you guys get needlessly involved.

One of the tenants of the show is to be 'controversial', we hope to get ourselves and our listeners thinking. Our very first episode focused on the debate about who is better PP or GW? So too we thought it would be fun to weigh in on the topic "Are all these C&D letters really necessary?" Not just Lone Wolf, but the ones that all companies (FFG, GW, PP, etc.) eventually do need to send out.

For the record LW did NOT call us and ask us to do the segment. I wanted to run a segment on this topic, and thought it would be great to have them on the show. I actually thought they would be nervous about being asked all the direct questions, but they were cool about it. I'm very thankful that Colen took the time to come on the show and try to address the complex issues.

While I'm sure that there are more than a few folks who agree with your opinion that 'there is an appearance of impropriety' we've also gotten A LOT of very positive feedback on the segment via e-mail and blog posts such as this one: http://gamerchris.com/2010/02/18/podcasting-highlights.aspx

Thanks again for the thoughtful comments!

Many of us over at the 40k Radio fourm appreciated the segment; it put gave us non-third year legal students some perspective on the matter and actually calmed some of the waters on the debate.

As for LWD's point, as the 15 year lawyer I used to work with liked to say, "There are three sides of every story, your side, their side, and the truth somewhere in the middle." We have gotten LWD's side, and I think Raef gave us an idea of what the middle ground looks like. Ideally we would have gotten PP's side; I'm not sure if that option was available. Since next episode they guys will get back to the business of running the gaming country, and many, such as yourself, seem to want the matter to go way, then it is probably moot.

Oh and one more thing DD... (I love Columbo ... which is probably a TM of some studio)

I THOUGHT I read in part of your argument against LW's trademark that generic terms, in combination are not defensible.

This would mean that trade marks such as "Time Magazine" and "Good to the last drop" are not defensible.

So I'm not sure I follow the point about the words "Army" and "Builder" being generic.

Hi Russ,

Let me clarify. What I am saying is that it is not a legal necessity, as Lone Wolf espouses, for them to defend their mark by sending Privateer Press a letter instructing them to educate their readers about "Army Builder" and require them to be retrospectively and prospectively forced to filter their forums, lest they face future legal action. Further, they are "backpedaling" by using the legal necessity and poor word choice arguments for the purposes of damage control in an order to mitigate the blatant outcry by the gaming community. I'm sure Privateer Press "didn't deserve" a C&D given that they aren't even the ones responsible for allegedly diluting their mark.

Lone wolf has every right to enforce their mark regarding "Army Builder," which they did. However, there are much more tactful ways to go about doing this. What's more, it is important to clarify to gamers that Lone Wolf doesn't have as much of a legal leg to stand on as they are leading others to believe, and that the law is not as black and white as they espouse. The key distinction is that they should tread lightly when issuing C&Ds given that the law is not favorable to their type of mark.

Further, comparing "Army Builder", which would be considered a "niche fame" mark under the law, with Coca-Cola, Pepsi, or even Time Magazine, IS disingenuous because those are recognizable by the general consuming public, which "Army Builder" is not. Further, in interpreting marks and their applicability courts are prone to deconstructing the individual words that comprise a mark in order to extract their plain language meaning within the confines of the niche they belong to. One would be hard-pressed to argue that "Army" and "Builder" in the war-gaming context are not generic terms. I'm not saying that Lone Wolf doesn't have an argument, as you stated, but that their argument is one that would face an uphill legal battle. Also, your "Good to the last drop" example is a trademarked slogan, which is entirely different and, in circumstances of "niche fame" marks, even worse for the holder of the mark.

I understand that one of the tenants of your show is to be controversial. However, controversy between PP and GW, two unpaid sponsors, is not the same as controversy between Lone Wolf, a PAID sponsor, and PP, an unpaid sponsor. Your comments in the segment are generally skewed in favor of Lone Wolf, likely, of course, because they are a paid sponsor. There is a difference here. Also, while your opinion may differ, I don't believe PP's comments were "snarky" given the inconvenience Lone Wolf imposed on them.

Anyway, Lone Wolf painted in broad strokes when they justified their actions based on legal necessity. There is much more to it than that. A simple apology would have sufficed.

-DD

OK, I'm feeling the need to jump in again for several reasons, rather than just let this die, which is my instinct.

DD, I think you've revealed your own bias in this latest post, where you clearly accuse of us consciously skewing our reporting towards the paid sponsor. I'd argue, with the preponderance of anecdotal evidence in support, that if anything, 2 of the 3 of us were giving PP as much of a benefit, vis-a-vis the doubt, as LWD. I take offense to the charge, and would argue that clearly you are not approaching this with 'no dog in the fight', as they say in the courts in Florida

Further, it wasn't Russ that said PP was snarky. It was me. And to be honest, I've solidified that opinion over the past couple of weeks, rather than mitigating it. The fact that PP was sent an apology letter that they did not so much as reference, after falsely claiming in their response letter that they had instituted a massive campaign of expunging every thread from their forums that so much as mentioned the words "Army Builder". Didn't happen. And then, to not post or reference the apology in any way? Sorry, but I can come to no other conclusion than that PP is purposely exacerbating the situation amongst their most rabid fan base. Sort of a "You insulted me in my house, you won't be saving face HERE" mentality.

And legalese or not, to argue that, within the community we are dealing with, Army Builder is not recognizable? That would be the definition of disingenuous, DD. Outside of the niche, I get it. If LWD were arguing against the use of the term in, say, military software, or whatnot, I think your argument would have merit. But WITHIN the niche? Just doesn't hold water in this current debate.

I think I'm pretty much all set with the whole topic at this point. I think we've all set out our arguments. We thought we did a good job trying to stay unbiased (have to shameless PP fanbois on staff was finally a strength ), and the vast majority of feedback bears up that impression. I'm sorry you were left with the opinion you clearly hold so strongly, but having given our rebuttal and not made a dent, I'm afraid we'll have to just leave it at that.

Grad school is tiny in my rear-view mirror, but if I could pass along a little observation? My fellow students, no matter how many years they had under their belts, often had a hard time in real-world analysis the more 'book-learnin' they had crammed into their heads. And a complete conviction of certitude was often the best indicator that we had missed something.

And with that, this being "our house" , I'm off to play some Malifaux. Hope we can all jump back on the gaming tables now and leave this little blip behind us.

Ciao.

Whether or not you consciously skewed your reporting, my point was that it gave the perception that you were biased. There is a difference. And explain to me why should PP be responsible for anything? The onus is not on them to clean up the mess that Lone Wolf started. Further, they replaced all mention of the words "Army Builder" with the term "iBodger" and retroactively deleted entire threads, so I don't see where you're coming from when you say they falsely instituted this "massive campaign of expunging." I'm pretty sure this was not convenient for them. Similar to me making the presumption that your podcast was biased to appease your paid sponsor, you seem to be making the presumption that PP consciously exacerbated their situation for ... what reason was that again?

My statements didn't say that Army Builder wasn't recognizable in the gaming niche as it certainly is; I've clarified this point several times. I simply argued that it constitutes a "niche fame" mark comprised of two standard and generic words common to war gaming. The legal protections afforded to a "niche fame" mark are almost non-existent in comparison to those marks recognized by the general consuming public (i.e. Xerox, Coke, Walkman). Comparing the two as if they were the same is disingenuous and misleading. Further, I mentioned that the courts take into account the plain language meaning of the word combination in determining whether the mark is legally actionable. Lone Wolf assumes that it is a legally actionable mark. I'm offering a fairly straightforward legal argument of why it is not. This is the key difference that you're failing to see. Now, if making this observation qualifies me as "the definition of disingenuous", then so be it.

I understand your Grad School analogy but the law is fairly straightforward given the fact that Congress enacted a federal statute to clarify issues of trademark dilution and standardize it across the board. If you would like, I can offer you cases from multiple jurisdictions that are entirely in line with HR 683 (for clarity's sake, trademark "genericization" isn't even a technical legal term; it is merely a form of trademark dilution, along the same lines as blurring and tarnishment). I figured that would be a little overkill. And regarding your "complete conviction of certitude" comment, it appears as if you have Rob at Lone Wolf and I confused, given that the justifications for his actions during this entire ordeal were that it was LEGAL NECESSITY for him to issue these C&Ds. I'm trying to offer the other side of the coin to give gamers more perspective.

-DD



Automatically Appended Next Post:
There are an overwhelming amount of people, many of them huge PP fans like myself, who are in agreement that Lone Wolf made a bad PR move in issuing ANY kind of C&D whatsoever, legal or non-legal, to PP. I've articulated reasonable and substantiated legal arguments as to why, which were casually dismissed as being in the minority (Russ) or came in the form of ad hominem retorts alleging that I'm incorrect simply because my "book-learnin" coupled with my "conviction of servitude" has made me out of touch with reality (Craig). Regardless, I've said my part.

I apologize if you were offended by my comments; I'm simply offering my opinion on the matter. Take it for what it's worth (not much, evidently). I truly do enjoy your podcast and I wasn't lying when I said I think its the best gaming podcast out there (my 5 star rating can attest to that).

-DD

DD, all you are giving "us" is high level gibberish to those not in the legal field.
I believe the saying is "a little knowledge is a dangerous thing".
You are coming off as someone who just read a law book and want to show it off.
And having found an opportunity, you intend to beat Dakka about the head and neck with it.

I do not appreciate someone coming into Dakka and using their first few posts to accuse three guys who have very good reputations of a bias due to sponsorship.
They have always been honest and do not sugarcoat when they discuss things on the podcast.

I happen to agree with Craig's assessment of the situation.
My feeling is that someone, Forum mod or company, decided to use the letter from LW as an opportunity to distance themselves from GW in the eye of the mini gamer.
And guess what, it worked for a lot of them. Just look at the locked threads and entrenched opinions.

skrulnik wrote:DD, all you are giving "us" is high level gibberish to those not in the legal field.
I believe the saying is "a little knowledge is a dangerous thing".
You are coming off as someone who just read a law book and want to show it off.
And having found an opportunity, you intend to beat Dakka about the head and neck with it.

I do not appreciate someone coming into Dakka and using their first few posts to accuse three guys who have very good reputations of a bias due to sponsorship.
They have always been honest and do not sugarcoat when they discuss things on the podcast.

I happen to agree with Craig's assessment of the situation.
My feeling is that someone, Forum mod or company, decided to use the letter from LW as an opportunity to distance themselves from GW in the eye of the mini gamer.
And guess what, it worked for a lot of them. Just look at the locked threads and entrenched opinions.

Attacking the person and not the substance of their argument is the new hotness these days. Classy.

Your feelings, which are obviously in agreement with Craig's, is the reason I came here in the first place as that was the overall impression I received listening to the podcast. I took offense that it was somehow PP's fault that this debacle spiraled the way it did.