Mojang v. Bethesda, or: I Hate it When Mommy and Daddy Fight [UPDATE]S

Since I just spent the weekend playing Minecraft, my thoughts have unavoidably turned to the ongoing dispute between Mojang (makers of Minecraft) and Zenimax Media (parent company of Bethesda, makers of Oblivion and Skyrim among many other games) over the trademark on the word "Scrolls."

For those not keeping track, the dispute began when Mojang applied for a range of trademarks for their new game Scrolls and Zenimax cried foul, citing their ownership of the trademark "Elder Scrolls." Notch, the anything if not vocal leader of Mojang, posted on his Twitter feed that the dispute was merely "lawyers being lawyers," and later proposed the two companies should sort out their difficulties over a game of Quake 3. Zenimax was apparently not amused. Last week the company served Mojang with court papers, which Notch almost immediately made publicly available via Twitter before he'd even had time to read the papers, or so he claims, but not before he took the time to research a 1992 court case against Zenimax CEO Robert Altman and posted the link to an article about the case (which Altman won. Editor's note: Altman also settled on some of the charges; details here.) to his Twitter followers. According to the Washington Post, Notch later deleted the Tweet and apologized.

Mojang v. Bethesda, or: I Hate it When Mommy and Daddy Fight [UPDATE]

So, what to make of all of this? On the surface it looks like a mountain made out of a molehill, or the kind of dispute one would expect a company less reputable or successful than Zenimax/Bethesda to get themselves into. One has to assume that Mojang's relative inexperience in business matters (and Notch's inability to keep his mouth shut about anything at all) are at least partly responsible for the brash and sometimes tasteless remarks the company has been making in the press and on Twitter, but it's entirely possible Mojang knows they have no case and are simply trying to do as much PR damage to Zenimax as they can before they have to admit they applied for a trademark that will never stand against a serious complaint. They may even be thinking that if they embarrass Bethesda enough, the company will relent. After all, this would not be the first time we've seen someone take their grievances against a larger company to the court of public opinion (WINK).

Zenimax, for their part, has been nearly silent on the dispute. The company sent Mojang a Cease and Desist, which is the legal equivalent of a "WTF?" email, which Mojang ignored. Zeni then filed to bring the case to court in Sweden, where Mojang is based. The two companies will now be assembling their cases and will, at some later date, face each other before a judge. Or whatever happens in Sweden.

If one were to attempt to judge based solely on Twitter and the blogs, Zenimax would appear to be the bad guy here. Notch, perhaps attempting to bolster that perception, has put on his hurt face, claiming Zeni is "picking on the little guy." But after looking at Mojang's "Scrolls" patent application, I'm not so sure the case is as black and white as many would seem to believe. Specifically this part, referring to Mojang's claim of trademark on the use of "scrolls" for "radio and television programs and shows":

The application covers:

Entertainment services in the form of electronic, computer and video games provided by means of the Internet and other remote communications device; internet games (non downloadable); organising of games; games (not downloadable) played via a global computer network; education and entertainment services in the form of cinematographic, televisual, digital and motion picture films, radio and television programs and shows; preparation, editing and production of cinematographic, televisual, digital and motion picture films, radio and television programs; entertainment services in the form of electronic, computer and video games provided by means of the Internet, mobile telephone and other remote communications device.

In other words, Mojang intends to own the word "scrolls" in pretty much every form of visual entertainment media, not just in videogames. This means that, if the trademark is upheld, the company could rightly take action against anyone else using the word "scrolls" in any form of media whatsoever. Now, that would only be a problem if you were a successful media company planning to use the word "scrolls" in some form of entrainment media … Oh wait … that's right. If you're Zenimax, this trademark fucks you. Hard.

The section applying for trademarks on the use of the word "scrolls" in videogames is similarly broad (and potentially harmful to Zeni), covering:

Computer games; video games; computer software; computer and video games software; computer software downloaded or downloadable; computer software publications downloaded; interactive entertainment software; data recorded electronically from the Internet; data recorded in machine readable form from the Internet; discs, tapes, cartridges, CD-ROMs and other magnetic, electronic or optical media, all bearing computer games software or video games; electronic amusement apparatus for use with television receivers; electronic games apparatus; home video game machines.

Here, too, the trademark application covers everything. Meaning that anyone making any kind of game that contains the word "scrolls" could be the target of legal action by Mojang. Including companies who've been using the word "scrolls" in their games for years. Yes, even Zenimax/Bethesda. And if you're Zenimax/Bethesda, as soon as you read that your balls start to creep into your throat.

Let's assume for a moment that Mojang knows that their trademark would give them leverage over Zenimax, and that they might actually be planning to take action by claiming trademark violation the next time Zenimax publishes a game containing the word "scrolls" in the title. FYI, that would be this Holiday season, when The Elder Scrolls V: Skyrim hits store shelves and is expected to sell millions of copies. If the trademark is valid, Mojang would be able to claim infringement and potentially take Zenimax to court. They might not win, considering Zeni's ownership of the trademark preceded Mojang's, but Mojang could force Zenimax to settle or face an injunction which would keep all of those millions of copies of Skyrim off of store shelves and out of the hands of gamers, depriving Zeni of many, many millions of dollars in revenue. Seem unlikely? Think again. Companies do this all the time.

This begs the question of whether or not Mojang would ever do such a thing. "Surely the cute and fluffy, fan-friendly designers of the cult-hit Minecraft would never play such a down-and-dirty trick," you might say, and I, for one, would love to believe that to be true. But if you're Zenimax, and you're sitting on a multi-million dollar videogame franchise with the word "scrolls" in its title, you can't take that chance.

Mojang v. Bethesda, or: I Hate it When Mommy and Daddy Fight [UPDATE]S

Besides, if Mojang were as naive and innocent as Notch claims, why the far-reaching trademark application? If one were being generous, one could assume that Mojang is simply attempting to cover all potential bases, which, for a game as potentially all over the map as Scrolls could make sense. But if we're drawing comparisons to the case of Tim "Edge" Langdell (and I am), it pays to remember that Langdell was the one who applied for broad and far-reaching trademarks on the use of a single word, who attempted to sue EA over Mirror's Edge and Future Publishing over Edge Magazine and many, many other companies large and small, and who, ultimately, was pilloried for obfuscation and fraud.

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Mojang's "scrolls" application is similarly scattershot, attempting to cover TV shows, radio programs, movies, education materials, clothing of all kinds, videogame consoles, toys, playing cards, puzzles, stand-alone game cabinets in addition to the videogame. The application encompasses four separate trademarks over the course of its weighty 300 words. Zenimax's "Elder Scrolls" patent application, by contrast, is a single sentence: "Pre-recorded CD's and DVD's featuring fantasy games."

The strangest part of all of this is the "radio and television programs and shows" section of the Mojang application, which seems to have come out of nowhere. Notch has spoken of Mojang's plans for Scrolls to be an ambitious game, but if they have any plans for TV shows or movies, they've so far kept those under wraps. Interestingly, Zenimax previously owned the trademark on the use of "Elder Scrolls" in feature films, but abandoned it in 2009. It could be that Zeni plans to re-up that trademark and go for another try at an Elder Scrolls movie. Or they could just be attempting to pro-actively forestall any claims against their extremely successful franchise, which, frankly, just makes good business sense. Once you lose a trademark, it's gone. Zenimax would be in a world of hurt if they suddenly lost the rights to the game franchise they've been building for decades.

As a side note, the Mojang patent application also claims to cover T-shirts and other apparel ("Articles of clothing; footwear and headgear; t-shirts; shirts; trousers; sweatshirts; jackets; knitwear; hats; caps; neckwear; shoes; socks; garments for women; garments for men; garments for children; apparel parts and fittings for all the aforesaid") seemingly violating the trademark of one Regina Grogan, who applied for the "scrolls" T-shirt trademark (specifically for T-shirts with the last "S" in "scrolls" turned backward) in May of 2010. No word yet on whether or not Ms. Grogan plans to file suit.

UPDATE from Kotaku: Notch has responded to this story, saying that Bethesda declined his company's offer to add a sub-title to their game and give up the trademark.

UPDATE 2: We've published a follow-up to this article, with Notch and Bethesda both telling their sides of the story (Bethesda, for the first time anywhere.) Read it here.

Russ Pitts is the former Editor-in-Chief of The Escapist and former Producer of TechTV's The Screen Savers. Currently he is looking for work and Tweeting at: http://twitter.com/#!/russpitts.

Republished with permission.

(Top Image: ejwhite | Shutterstock)