Company claims trademark on "Things"

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**Absolutionis**

The Kickstarted card game "Terrible Things" has been sent notice that they're infringing on "The Game of Things".

Link:
http://www.kickstarter.com/projects/terriblepeople/terrible-things-the-party-game-where-everyone-lose/posts/615622

Quinn & Sherry, in an attempt to upstage Games Workshop in how fundamental of a concept could be trademarked, decides they own "things"... the word... At least they're both in the same medium, but... things...

**Apple fox**

What I learn today is there is a lot of products with things in its name :0
I also didn't find there's until I started looking for things the game :p I wonder if it would be incontestable :0

**Snrub**

Urge to repeatedly bang head on desk rising.....

rising.....

RISING....

**Shandara**

Well unless they get pro bono representation and are prepared to spend some years (ala Chapterhouse) they got well bludgeoned into changing the name.

**Graphite**

Hasn't there been a Hordes of the Things based on DBA since roughly forever?

**Apple fox**

One of the commenters on the kick starter found 6 games with Things in the name before there's also.

**Kilkrazy**

Hordes of the Things 2nd edition was published in 2002 so it predates "THINGS".

I don't know how that affects the trademark situation.

**Saldiven**

I dunno if they really have a case to stand on. One of the aspects of trademark infringement claims is that the act by company A might make a consumer mistakenly believe that it is product by company B.

The Game of Things is a beer and pretzels type game like Cards Against Humanity or Apples to Apples (you write down the answer to questions and then everyone tries to guess who had which answer, or something like that). Terrible Things is more of a weird combination of charades, Trivial Pursuit, and Truth or Dare. The two have little to no similarity other than sharing a generic word in their title.

**rigeld2**

Saldiven wrote:
I dunno if they really have a case to stand on. One of the aspects of trademark infringement claims is that the act by company A might make a consumer mistakenly believe that it is product by company B.

The Game of Things is a beer and pretzels type game like Cards Against Humanity or Apples to Apples (you write down the answer to questions and then everyone tries to guess who had which answer, or something like that). Terrible Things is more of a weird combination of charades, Trivial Pursuit, and Truth or Dare. The two have little to no similarity other than sharing a generic word in their title.

And both being a game played with cards...
And both being party games...

It's not a stretch to think that someone familiar with THINGS would see Terrible Things and think "Oh, I liked that first one - this must be a second game by the same people!"

**JudgeShamgar**

Oddly enough Lucasfilm owns the word "Droid". If you look quickly at the bottom of a Motorola commercial, they pay to use that word on their phones.

Now I've never heard of Lucasfilm sending a C+D letter, and they are big enough to do it too. It just shows how a company with a little PR sense can work with other companies, and no one is the wiser. Perhaps the "Thing" folks and GW could take a page from Lucasfilm.

**Valkyrie**

My first reaction was to think "Oh how ridiculous, another stupid claim, similar to something GW would do" but after some thought, I can kinda see where they're coming from. If the games are similar format, which from the comments on here they seem to be, then I guess some confusion may arise between the games. However, I still think it's moronic to think that another game with a similar name will somehow damage their reputation. If this game causes "customer confusion" what's wrong with letting the customer decide which game belongs to who?
My opinion's just mixed. I can see their point on the matter, but I honestly can't imagine it being as big a deal as the letter makes it out to be.

**rigeld2**

Valkyrie wrote:
My first reaction was to think "Oh how ridiculous, another stupid claim, similar to something GW would do" but after some thought, I can kinda see where they're coming from. If the games are similar format, which from the comments on here they seem to be, then I guess some confusion may arise between the games. However, I still think it's moronic to think that another game with a similar name will somehow damage their reputation. If this game causes "customer confusion" what's wrong with letting the customer decide which game belongs to who?
My opinion's just mixed. I can see their point on the matter, but I honestly can't imagine it being as big a deal as the letter makes it out to be.

Owning a name is a big deal. It's exactly the same reason I can't go open a Micky Donald's using a funky font yellow M on a red background in my advertising.

**lord_blackfang**

rigeld2 wrote:
It's not a stretch to think that someone familiar with THINGS would see Terrible Things and think "Oh, I liked that first one - this must be a second game by the same people!"

I really liked Mein Kampf. This Mein Freund, Der Schlaf must be a sequel by the same person.

**rigeld2**

lord_blackfang wrote:
rigeld2 wrote:
It's not a stretch to think that someone familiar with THINGS would see Terrible Things and think "Oh, I liked that first one - this must be a second game by the same people!"

I really liked Mein Kampf. This Mein Freund, Der Schlaf must be a sequel by the same person.

It's almost like book titles and game titles have different laws...

**paulson games**

JudgeShamgar wrote:
Oddly enough Lucasfilm owns the word "Droid". If you look quickly at the bottom of a Motorola commercial, they pay to use that word on their phones.

Now I've never heard of Lucasfilm sending a C+D letter, and they are big enough to do it too. It just shows how a company with a little PR sense can work with other companies, and no one is the wiser. Perhaps the "Thing" folks and GW could take a page from Lucasfilm.

They don't send C&D's, they send out goon squads to knee cap people.

Back in the early 80's when Battletech first launched it was originaly called Battledroids. Lucasfilm didn't like that and threatened legal action against FASA and they promptly dropped the droid part of the name. Which is amusing as they only hold the right to droid as a single word not in two part combinations with other words like battledroid, or the sci fi staple of android. They may have trademarked battledroid with the newer clone wars series but I don't recall it ever being used in their original properties.

Now Lucasflim is owned by Disney, in the past Disney's lawyers have even gone so far as to go around to schools and demanded any depiction of their cartoons be removed even when it's just art projects or murals done by kids.

**Mr. Burning**

There's some hate going on on the Things website at the moment.

http://www.thingsthegame.com/

IMO I don't think this suit has merit but, as said above me, do the Terrible Things guys have deep enough wallets to laugh this off?

**RiTides**

What about "Horde of the Things"? I'm guessing it's safe because it predates "The Game of Things" perhaps?

Or more likely, it's a different market/genre (miniature wargaming instead of these which seem to be card-based games)

**rigeld2**

Yeah - different markets can't infringe.

**weeble1000**

Valkyrie wrote:
My first reaction was to think "Oh how ridiculous, another stupid claim, similar to something GW would do" but after some thought, I can kinda see where they're coming from. If the games are similar format, which from the comments on here they seem to be, then I guess some confusion may arise between the games. However, I still think it's moronic to think that another game with a similar name will somehow damage their reputation. If this game causes "customer confusion" what's wrong with letting the customer decide which game belongs to who?
My opinion's just mixed. I can see their point on the matter, but I honestly can't imagine it being as big a deal as the letter makes it out to be.

Lesson 1: Don't name your product "Things."

It does not matter whether the games are similar. "Things" A) isn't the trademark and B) would not be a strong trademark even if it were the actual registered mark.

For example, GW utterly failed in its claim against the CHS 'Jetbike' product because the mark GW asserted was NOT "Jetbike," it was "Eldar Jetbike."

The asserted mark is "Things..." which is both descriptive and generic. The mark literally describes what the product is, i.e. a game that involves things, and is completely generic, i.e. a game that involves things. Those three dots are pretty important, and serve to make the mark somewhat suggestive.

I find this bit very interesting:

"The TERRIBLE THINGS name incorporates the literal element of Quinn & Sherry's THINGS mark in its entirety..."

If you notice, this is the first time in the letter that the mark is written as "THINGS" instead of THINGS..." THINGS... is the mark, not THINGS. See what I mean. That link there is to the asserted trademark, registration number 2744357. It INCLUDES the three periods. So that sentence is patently incorrect. The TERRIBLE THINGS name does NOT include the asserted mark it is entirety, because the asserted mark DOES, as registered, include the three periods, which anyone can see is what makes the mark at all distinctive.

The accused game is not "TERRIBLE THINGS..." The game is simply TERRIBLE THINGS, without the three periods and including the word TERRIBLE. I do not believe the marks are likely to cause confusion, and any potential confusion is probably due to the grossly generic nature of the THINGS... trademark.

**Saldiven**

And that, ladies and gentlemen, is why we keep Weeble around.

Thanks for the cogent, as always, commentary on all things IP.

**weeble1000**

Saldiven wrote:
And that, ladies and gentlemen, is why we keep Weeble around.

Thanks for the cogent, as always, commentary on all things IP.

To be fair, I am not a lawyer [/obligatory remark]

One can see why Quinn & Sherry's is concerned about the Terrible Tings Kickstarter, but I find the way they have decided to handle it to be somewhat offensive.

People have a right to protect their intellectual property, but come on, Q&S decided to name their product "Things..." They made that decision, and they have to live with the fact that it simply is not a terribly strong or broadly enforceable mark (again, IANAL). I also find the incorrect statement at the end of the letter to be really annoying because at that point Q&S literally are not only asserting rights to a mark that they do not own, but to the word mark Things!

There's a reason Q&S put the three periods at the end of the registered mark, but they want to conveniently ignore that fact. Q&S are justifiably concerned about potential confusion in the market, but they decided to name their game Things... instead of something more distinctive. They are picking on Terrible People LLC in a moment of extreme weakness, during a Kickstarter campaign, and they opened up with a nasty worded C&D letter instead of a friendly phone call.

Q&S could have called up Terrible People LLC, discussed their concerns, offered to cover the costs of renaming the game, or offered a token license that would shore up their Things... mark. Instead they went right to nasty C&D letter with factually incorrect statements during a period when Terrible People LLC would have a tough time responding.

And this is the worst bit: it worked! Terrible People LLC did not want to make a huge mess of things, so they capitulated. They are being responsible, reasonable people, and are being crudely taken advantage of by jerks who thought naming a game Things... was a good way to create strong brand recognition. This is an instance in which the law is being wielded to get a result that is wildly inappropriate.

It is like a guy threatening to flip over the table while you're playing a game.

**fishy bob**

Mr. Burning wrote:
There's some hate going on on the Things website at the moment.

http://www.thingsthegame.com/

- THINGS... that just can't be true.
- Your trademark of the word "THINGS"

**Easy E**

Well, it is possible to copyright the term THINGS in the category of Games. Since this Kickstarter is also a game with the name of THINGS it could be valid.

In addition, the copyright is not retroactive, so older game system can bypass the copyright issue.

**Kilkrazy**

I think I shall register the trademark "Stuff" for all possible markets.

**Noir**

Kilkrazy wrote:
I think I shall register the trademark "Stuff" for all possible markets.

Just don't try to trademark O.J. as Gene Simmons already clamed it.

**weeble1000**

Easy E wrote:
Well, it is possible to copyright the term THINGS in the category of Games. Since this Kickstarter is also a game with the name of THINGS it could be valid.

In addition, the copyright is not retroactive, so older game system can bypass the copyright issue.

1: This is to do with Trademarks, not Copyrights. You can copyright anything that involves some minimal degree of creativity. Copyright is inherent, not retroactive. Whoever does it first prevails. The same thing applies to trademarks. Whoever uses the mark first has rights to that mark for so long as it is in use, and no other mark can cause a likelihood of confusion.

2: You can get a trademark on the word mark "Things." But the USPTO does not exactly investigate the validity of a mark too stringently when you register one, and registration has almost nothing to do with a mark's strength.

3: The trademark in question is not Things. The trademark in question is, precisely, "Things..." with the three periods.

4: The Terrible Things game is a product in the same product category that uses a mark with the word "Things" in it, but it does not have three periods and includes the word "Terrible." The relevant questions are first: is the Things... mark valid, enforceable, and owned by Q&S, and second: is the Terrible Things product likely to cause confusion among the consuming public?

There are eight factors to consider with regard to likelihood of confusion:

1: The strength of the asserted mark.

In this case the asserted mark is "Things..." How established is the Things... mark? I, for example, have never head of the game nor associate that mark with Quinn & Sherry's, a company I have never heard of. The mark does not make me think of a card game. I do not associate it with card games, or any games at all. I doubt very seriously if the market has much of a clue about Things... The game has 19 fans on Board Game Geek.

2: the degree of similarity between the two marks.

The asserted mark is Things... the accused product is called Terrible Things. The Things... mark is preceded on the packaging by "the game of." Its packaging includes the Parker Brothers logo. The Terrible Things product has the subtitle: "The party game where everyone loses," and the Terrible People LLC mark. Apparently, the packaging of the games is distinctly different.

3: the proximity of the products/services.

Virtually none. Terrible Things exists only as a funded Kickstarter campaign. Things... is available through big box retailers such as Wal-Mart, Target, Barnes and Noble, etc. However, one might say that Terrible Things could eventually be offered for sale at the same points of sale.

4: the possibility of expansion.

Are the asserted/accused marks likely to expand in similar ways? Is it possible that the marks will grow towards further competition rather than away from potential competition. Both products are card games, but Things... is little likely to expand. The game has no expansions of which I am aware, and Terrible Things is an adult-oriented game not really suitable for children. Things... does not have much room for expansion into other markets, neither does Terrible Things. However, and this is important, Terrible Things is strongly linked to the company: Terrible People LLC. Consequently, one might expect that the Terrible portion of the mark is what is important, more so than Things. And, in fact, Terrible People LLC, in an attempt to resolve the situation, are changing the name to something else with Terrible in the name.

In effect, Terrible Things is likely to expand away from Things... as Terrible is the more significant portion of the name. For example, an expansion might be Terrible Puns, or Terrible Party whereas expansions for Things... might be Things... Politics or Things... Ultimate Party.

5: actual confusion.

I sincerely doubt that there will be much, if any, evidence of actual confusion.

6: intention to palm off.

I also seriously doubt that Terrible People LLC deliberately attempted to draw parity from using the word Things in the name of the product. In fact, Terrible People seem to have used Things particularly in the context of its generic, ordinary meaning. The game is about terrible circumstances that happen, or Terrible Things, rather than guessing which Things... your wife puts in her mouth, or Things... you mother packs in your lunch, or Things... you registered as trademarks.

7: the quality of the defendant's product.

Both are card games likely offered at similar prices and of a comparable quality.

8: the sophistication of the buyers.

These games tend to not cost much, which weighs in favor of Things... Consumers are unlikely to be discerning when purchasing a 25 dollar party game.

Overall, most of the factors seem to weigh in favor of Terrible Things, especially things like actual confusion, intention to palm off, and strength of the asserted mark. In fact, the Things... game probably derives the majority of its sales via the Parker Brothers trademark.

**tiber55**

Not sure why this is getting pushback seems fine to me.

"Things" can be trademarked in a space like card games or board games pretty easily, imagine is someone tried to make a board game Absolute Monopoly, why is things any different from monopoly.

Adding an adjective doesn't really differentiate it enough in a given space.

**ClockworkZion**

Only a little off topic, but the theme is related:

So yeah. Companies get insane trademarks all the time.

**Easy E**

weeble1000 wrote:
Easy E wrote:
Well, it is possible to copyright the term THINGS in the category of Games. Since this Kickstarter is also a game with the name of THINGS it could be valid.

In addition, the copyright is not retroactive, so older game system can bypass the copyright issue.

1: This is to do with Trademarks, not Copyrights. You can copyright anything that involves some minimal degree of creativity. Copyright is inherent, not retroactive. Whoever does it first prevails. The same thing applies to trademarks. Whoever uses the mark first has rights to that mark for so long as it is in use, and no other mark can cause a likelihood of confusion.

2: You can get a trademark on the word mark "Things." But the USPTO does not exactly investigate the validity of a mark too stringently when you register one, and registration has almost nothing to do with a mark's strength.

3: The trademark in question is not Things. The trademark in question is, precisely, "Things..." with the three periods.

4: The Terrible Things game is a product in the same product category that uses a mark with the word "Things" in it, but it does not have three periods and includes the word "Terrible." The relevant questions are first: is the Things... mark valid, enforceable, and owned by Q&S, and second: is the Terrible Things product likely to cause confusion among the consuming public?

There are eight factors to consider with regard to likelihood of confusion:

1: The strength of the asserted mark.

In this case the asserted mark is "Things..." How established is the Things... mark? I, for example, have never head of the game nor associate that mark with Quinn & Sherry's, a company I have never heard of. The mark does not make me think of a card game. I do not associate it with card games, or any games at all. I doubt very seriously if the market has much of a clue about Things... The game has 19 fans on Board Game Geek.

2: the degree of similarity between the two marks.

The asserted mark is Things... the accused product is called Terrible Things. The Things... mark is preceded on the packaging by "the game of." Its packaging includes the Parker Brothers logo. The Terrible Things product has the subtitle: "The party game where everyone loses," and the Terrible People LLC mark. Apparently, the packaging of the games is distinctly different.

3: the proximity of the products/services.

Virtually none. Terrible Things exists only as a funded Kickstarter campaign. Things... is available through big box retailers such as Wal-Mart, Target, Barnes and Noble, etc. However, one might say that Terrible Things could eventually be offered for sale at the same points of sale.

4: the possibility of expansion.

Are the asserted/accused marks likely to expand in similar ways? Is it possible that the marks will grow towards further competition rather than away from potential competition. Both products are card games, but Things... is little likely to expand. The game has no expansions of which I am aware, and Terrible Things is an adult-oriented game not really suitable for children. Things... does not have much room for expansion into other markets, neither does Terrible Things. However, and this is important, Terrible Things is strongly linked to the company: Terrible People LLC. Consequently, one might expect that the Terrible portion of the mark is what is important, more so than Things. And, in fact, Terrible People LLC, in an attempt to resolve the situation, are changing the name to something else with Terrible in the name.

In effect, Terrible Things is likely to expand away from Things... as Terrible is the more significant portion of the name. For example, an expansion might be Terrible Puns, or Terrible Party whereas expansions for Things... might be Things... Politics or Things... Ultimate Party.

5: actual confusion.

I sincerely doubt that there will be much, if any, evidence of actual confusion.

6: intention to palm off.

I also seriously doubt that Terrible People LLC deliberately attempted to draw parity from using the word Things in the name of the product. In fact, Terrible People seem to have used Things particularly in the context of its generic, ordinary meaning. The game is about terrible circumstances that happen, or Terrible Things, rather than guessing which Things... your wife puts in her mouth, or Things... you mother packs in your lunch, or Things... you registered as trademarks.

7: the quality of the defendant's product.

Both are card games likely offered at similar prices and of a comparable quality.

8: the sophistication of the buyers.

These games tend to not cost much, which weighs in favor of Things... Consumers are unlikely to be discerning when purchasing a 25 dollar party game.

Overall, most of the factors seem to weigh in favor of Terrible Things, especially things like actual confusion, intention to palm off, and strength of the asserted mark. In fact, the Things... game probably derives the majority of its sales via the Parker Brothers trademark.

Nice post. I'm no copyright/trademark expert, so this was helpful.

**sparkywtf**

ClockworkZion wrote:
Only a little off topic, but the theme is related:

So yeah. Companies get insane trademarks all the time.

That is also a very specific color brown too. Which comes from a iron oxide pigment from a specific company in the U.S.