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Hail to the lawyers, baby!
November 30th 2000, 19:51 CET by Andy

Time for a quick update on 3DRealms' trademark shenanigans...

For those who don't know, the phrase "Hail To The King" was used in an Evil Dead film. (It was also used by Elvis, and no doubt a few real kings too, but that's beside the point.) The guys at Apogee/3DR liked Evil Dead so they took the King line and gave it to Duke Nukem. Then they decided to claim "prior use" and trademark the line, which pretty much everyone agrees was a sucky legal stunt.

Back in July we reported that the "Hail To The King" trademark was owned by THQ, publisher of the Evil Dead computer game, despite Apogee claiming otherwise in their intellectual property license.

Apogee's Scott Miller said that although THQ's claim was listed in the US patent office database, it would be challenged by Apogee, and of course he expected THQ's registration to be overturned.

Four months later, THQ's registration is still listed, but another two have turned up. Both are 'owned' by Apogee, or rather, they're owned by: "Apogee Software, Ltd. composed of the following general partner: Action Entertainment Software, Inc., which is a corporation organized under the laws of the State of Texas." They were actually filed before we covered the story in July, but weren't listed in the database at that time.

One registration is for "Hail To The King" in the categories of videos and laser discs, television, "computer games provided and played through a global computer network" and "performances by a musical rock group". (THQ's registration covers the general category of computer and console games.)

The other registration is for the full "Hail To The King, Baby!". It covers a huge range of products in over 30 categories, including computer games, mouse pads, magazines, children's colouring and activity books, "news sheets and news bulletins featuring computer game characters", greetings cards, newspaper comic strips and clothing. And stick-on tattoos. And bathroom tissues. And a lot more.

It's not known if Apogee's challenge to the THQ's ownership of "Hail To The King" has either failed or succeeded yet, or how it's progressing. As for why Apogee believes it has a claim to the full "Baby!" line in the other categories, especially TV and video cassettes with a first use date of April 1998, that's anyone's guess...

Apogee/3DR declined to comment on any of these points. George Broussard said: "We are not going to discuss ongoing business issues. These matters are simply nobody's business but ours at the moment." (In the context of the e-mail exchange yesterday, that wasn't as curt as it may appear.)

If you know of any other strange or controvserial trademark/patent claims by games or software companies, let me know. Everything apart from One-Click please. :-)
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Home » Topic: Hail to the lawyers, baby!

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#1 by "Speed"
2000-11-30 19:51:52
speed@pandora.be
First
#2 by "Speed"
2000-11-30 19:54:57
speed@pandora.be
Does anyone actually care about this patent stuff except for lawyers and companies ?
#3 by "shek"
2000-11-30 20:04:29
shek@iastate.edu
Ok, I think this horse is far beyond dead.  This horse is nothing but just some bloody goo.
#4 by "Fortyseven_BTEG"
2000-11-30 20:32:33
47@apple2.com
reĚdunĚdant
adj.
  1. Exceeding what is necessary or natural; superfluous.
  2. Needlessly repetitive; verbose.
  3. Of or involving redundancy in the transmission of messages.
#5 by "Chromag"
2000-11-30 20:32:45
chromag@planetcrap.com
Browsing trademark databases is a source of endless amusement.  Try it sometime.  People will trademark anything.
#6 by "AmbushBug"
2000-11-30 20:36:31
ambushbug@portalofevil.com
Hail to the king, Baby! Bathroom tissue... obviously 3DRealms has the bigger picture in mind and deserves the license.
#7 by "12xu"
2000-11-30 20:52:47
mswitzer@insync.net
I for one would gladly wipe my ass with any 3drealms product...

12xu
out
#8 by "DukeNukem"
2000-11-30 21:09:22
scottm@3drealms.com
Yawn...
#9 by "Balwen"
2000-11-30 21:21:43
spoole2@austin.rr.com
Sounds like allot of collective BS to me.
Hope they feel better when they get the bill for the lawers and realize how much this this cost them.

One promotes the other, which helps them both.

Just proves money cant buy common sense.
#10 by "None1a"
2000-11-30 22:21:25
none1a@home.com
Hail to the king, Baby! Bathroom tissue... obviously 3DRealms has the bigger picture in mind and deserves the license.


They had a bathroom tissue one for Duke as well at one point (it went unrenewed).
#11 by "asspennies"
2000-11-30 23:03:58
asspennies@somethingawful.com
Suck it down was hilariously reported on old man murray to be copyrighted by Ion Storm a while back, because the must have felt it so incredibly important in their quest to sell 2 million copies of Daikatana...
#12 by "ChrisJohnson"
2000-11-30 23:15:15
cjohnson27@hotmail.com
Suck it down was hilariously reported on old man murray to be copyrighted by Ion Storm a while back, because the must have felt it so incredibly important in their quest to sell 2 million copies of Daikatana...


If you have a copy of the infamous "Bitch" ad, check it out near the bottom I believe... "Suck it Down (tm)" is readily seen, and in the fine print "Suck it Down" is listed as a registered trademark.

But that news, like this "story", is a dead horse. ;)
#13 by "DukeNukem"
2000-11-30 23:49:28
scottm@3drealms.com
Funnily, "suck it down" was first used in a game we released, Rise of the Triad.  When we saw Romero's use, though, we decided not to bother stopping him, which we had the legal right to do.  We just didn't view "suck it down" as having any value.  ;-)

Scott
#14 by "WarrenMarshall"
2000-11-30 23:57:35
warren@epicgames.com
Funnily, "suck it down" was first used in a game we released, Rise of the Triad. When we saw Romero's use, though, we decided not to bother stopping him, which we had the legal right to do. We just didn't view "suck it down" as having any value. ;-)

That's insane.  So if a game has phrases like "I'm going in!", "Cover me!" or "Attack!" in it and another game at a future date includes those same lines they can be stopped from using them JUST because they were in your game first?  In that case, there must be a long backlog of lawsuits waiting in the courts ...
#15 by "DukeNukem"
2000-12-01 00:20:46
scottm@3drealms.com
Warren, it generally has to be a distinctive, unique phrase, or one not associated with the class being registered (as is the case with us using "Hail to the king" in the video game class).  I hate to get into all the gory details, though, because it just confuses people like Andy to no end.  ;-)

Scott
#16 by "EvilivE"
2000-12-01 00:21:24
satanas@worldmailer.com
It's obvious where Duke got all his cool one liners.  The Evil Dead films.  I'm not a lawyer and I could care less what 3d Realms says or thinks.  They ripped off the Evil Dead movies to give Duke his 'personality'.  Plain and simple.  

So they own the rights for television and laser discs too.  Does that mean they will try to sue Sam Raimi for his Evil Dead movies?  Even though they all came way before Duke.
#17 by "Morn"
2000-12-01 00:32:50
morn@planetcrap.com http://www.planetcrap.com
On an only slightly related note: did Epic Megagames ever run into any trouble for using the name of a Psygnosis game ("Unreal") back from the very early 90s (I think... maybe it was late 80s)?

- Morn
#18 by "Ergo"
2000-12-01 01:05:28
stu@dsl-only.net
I seem to remember that a few years back Origin attempted to trademark the roman numeralization of games and their sequels, i.e. Ultima I, II, III and so on. Any truth to this idiocy?
#19 by "Zachack"
2000-12-01 01:16:23
zcrounds@earthlink.net
What was Unreal (the psygnosis one)?  I worshipped them like dark gods back in the amiga days, but I don't remember anything called Unreal.  I remember Awesome, though.  Lived up to the name.
#20 by "Ergo"
2000-12-01 01:25:01
stu@dsl-only.net
I remember Unreal for the Amiga, but I can't quite remember what the game was like. RPG?
#21 by "GeorgeBroussard"
2000-12-01 02:19:03
georgeb@3drealms.com
I think Unreal for the Amiga was a side scroller (kinda like Shadow of the Beast).  Trademarks are either defended or abandoned.  I assume that nobody at Psygnosis cared, or that the team owned the trademark and didn't care.  Also that was a UK game, and it's likely they had not trademark in the US.  No idea though.  It's just likely nobody cared.
#22 by "mcgrew"
2000-12-01 02:31:48
mcgrew@famvid.com
Elvisd lives down the street from me. Honest. I met him at the neighborhood watch meeting.

He's an elderly black man who runs a local antique shop.

Hail to the king, baby. And suck it down, biotches!

George, you need a new lawyer, yours has no imagination.
#23 by "toadwarrior"
2000-12-01 05:06:42
toadw@uplink.net
I enjoy 3Drealm's games but they're a bunch of peckerheads for trying to claim ownership of someone else's work.
#24 by "Milamber"
2000-12-01 05:27:32
milamber@amoeba.com.au
I think Unreal for the Amiga was a side scroller (kinda like Shadow of the Beast). Trademarks are either defended or abandoned. I assume that nobody at Psygnosis cared, or that the team owned the trademark and didn't care. Also that was a UK game, and it's likely they had not trademark in the US. No idea though. It's just likely nobody cared.


So what would happen if they now discovered that they had the trademark registered in both the states and the UK and wanted to produce a sequel to their original game. Would they have a case?
#25 by "GeorgeBroussard"
2000-12-01 05:42:39
georgeb@3drealms.com
I enjoy 3Drealm's games but they're a bunch of peckerheads for trying to claim ownership of someone else's work.  


How is it any more their work than ours?  They didn't invent the phrase 'Hail to the King'.  We're not the ones making a Duke Nukem game called "Army of Darkness" or "Evil Dead".

So what would happen if they now discovered that they had the trademark registered in both the states and the UK and wanted to produce a sequel to their original game. Would they have a case?  


Not sure if there is a statute of limitations on something like that.  I'm sure Epic ran "Unreal" through the lawyers to make sure it was ok to pursue before releasing the game in any case, so it must have not been an issue.
#26 by "CreoleNed"
2000-12-01 05:47:37
cned@telus.net
Milamber, I doubt they would have a case because they have never defended the trademark and Unreal (the Epic game) wasn't exactly an obscure blip on the gaming industry radar that might have gone unnoticed. :)
#27 by "JMCDaveL"
2000-12-01 05:57:37
jmcdavel@mailandnews.com
I think its a sad commentary on the world that we have the ability to "own" words.

--jmc
~owns you~
#28 by "gnoleb"
2000-12-01 06:15:03
gnoleb@pacbell.net
George Broussard mumbled:
How is it any more their work than ours? They didn't invent the phrase 'Hail to the King'.


You thieving, lying whore. You would have NEVER used that line if the Evil Dead moves had not been made. You can try to dispute that, but everyone knows it's true.

We're not the ones making a Duke Nukem game called "Army of Darkness" or "Evil Dead".


Nope, you are just stealing catch phrases and ideas. And then trademarking them. Nice work.
#29 by "mister_pianist"
2000-12-01 06:30:00
alex@evilemail.com
#25 wrote:
"How is it any more their work than ours?"


Well, they did it first, you did it second. Then you called it your own.

Kids in my elementary school got beat up for doing that.
#30 by "Glock"
2000-12-01 06:50:38
glock17@tampabay.rr.com
You thieving, lying whore. You would have NEVER used that line if the Evil Dead moves had not been made. You can try to dispute that, but everyone knows it's true.


Note To Self: Don't work for 3D Realms if you are not willing to be called a whore. ;)
#31 by "CharlieWiederhold"
2000-12-01 07:17:10
charliew@3drealms.com
Note To Self: Don't work for 3D Realms if you are not willing to be called a whore. ;)


Or be one.

We are whores... how much money you got? I'll have sex with you if it's enough. Unf Unf! George gets paid *really* well to do this special trick with his tongue and pony tail. I get pretty good rates for the "Frat Boy" look and Brandon makes most of his money in the satanic and goth crowds.

Charlie Wiederhold
#32 by "CharlieWiederhold"
2000-12-01 07:22:09
charliew@3drealms.com
You thieving, lying whore. You would have NEVER used that line if the Evil Dead moves had not been made. You can try to dispute that, but everyone knows it's true.


You think they would have used it if the British or Elvis (sometimes I have a problem telling the difference) hadn't used it first?

*shrug*

As for it being sad to own words... you have a limited grasp on the reasons for trademarks don't you? Should it be ok for me to make a soda and call it "Coca Cola" and make commercials saying "Always Coca Cola!"? Or some shoes and call them "Nike" and have ads everywhere that say  "Just Do It"?

Charlie Wiederhold
#33 by "Johan"
2000-12-01 09:48:45
johan@innerloop.no
#31:

We are whores... how much money you got? I'll have sex with you if it's enough. Unf Unf! George gets paid *really* well to do this special trick with his tongue and pony tail. I get pretty good rates for the "Frat Boy" look and Brandon makes most of his money in the satanic and goth crowds.

Hehe, didn't know you guys had a sense of humor... I wouldn't have guessed it from looking at the average "Andy vs. 3DRealms" PC thread. =)

Seems to be two sides to this "Hail to the King" coin. On one side, Duke's general style and several of his phrases seem eerily similar to the Evil Dead guy's. On the other side, how can this possibly hurt the Evil Dead copyright holders? Probably most of the people who end up buying the Evil Dead game are long-time fans anyway, and they'll certainly know that Ash (I seem to recall that's the name) said it first. It's all very unethical and everything, but hey, this is the games biz, where scandals happen every day - if one were to believe Andy.

As a long-time 3DRealms fan, I'm looking forward to DN4E. Hope it comes out this millennium.


Peace,

-Johan
#34 by "Hulka"
2000-12-01 15:24:21
Sgt_Hulka@Hulka.com
Charlie, you're a funny person.  You make me laugh!

Also, I just submitted an application to trademark the phrase "Player Died", I'm already counting my future royalties! Bwahahahaha!!!
#35 by "DukeNukem"
2000-12-01 15:53:59
scottm@3drealms.com
gnoleb:  >>> You thieving, lying whore. You would have NEVER used that line if the Evil Dead moves had not been made. You can try to dispute that, but everyone knows it's true. <<<

And id would have never made a game called Wolfenstein 3-D had there not been a gamed named that already.  ;-)

The problem is that trademark law is very complex and takes years to understand, which is why many attorneys specialize in intellectural property rights--in fact, the firm we use has a department of over 40 such specialists.

A major problem for people who are not educated on trademark law is that they do not understand the class system, in which the same mark can be owned by many different entities in different classes (and even within the same class -- the word "Star," for example, is trademarked over 2000 times, and there are less than 100 classes).  For each class there's automatic trademark protection for first use, which we own with "Hail to the king," dating back to 1996.  There are many, many other complications and factors (dilution, expansion, distinctiveness, secondary meaning, goodwill, commercial use, registration, abandonment, on and on), but I'll leave it for the gentle reader to explore.  :-)

Scott
#36 by "Finn"
2000-12-01 17:14:07
finnberry@hotmail.com
How about "Hail to the Queen"
or with that upset Duke ;)
#37 by "Ergo"
2000-12-01 17:40:24
stu@dsl-only.net
So if Sam Raimi decides to make another Evil Dead movie, with Bruce Campbell as Ash, he'll need to get permission in order for Ash to say "Hail to the King, baby!"?  A phrase that the character Ash originated?

That's pretty fucked up, you have to admit.
#38 by "DukeNukem"
2000-12-01 18:29:48
scottm@3drealms.com
Ergo:  "So if Sam Raimi decides to make another Evil Dead movie, with Bruce Campbell as Ash, he'll need to get permission in order for Ash to say "Hail to the King, baby!"? A phrase that the character Ash originated?

That's pretty fucked up, you have to admit."

It's only fucked up if your example and conclusion is correct, which it isn't.

Scott
#39 by "DukeNukem"
2000-12-01 18:35:22
scottm@3drealms.com
Hulka:  "Also, I just submitted an application to trademark the phrase "Player Died", I'm already counting my future royalties! Bwahahahaha!!!"

I know your smarter than that, but just so no one else is misled, "Player Died" is a phrase that has prior use within the game industry and also would likely fail the distinctiveness test.  So, I would be shocked if this is a phrase anyone could legally trademark.

Scott
#40 by "Ergo"
2000-12-01 18:57:19
stu@dsl-only.net
How is my example incorrect? Are you saying that 3DR wouldn't object to the "unauthorized" use of the phrase in a new movie?

You can bury readers here in a ton of legalese and ambiguities, and gently chide us on our lack of knowledge of copyright and trademark law. However, I think the point that's trying to be made here is that trademarking phrases smacks of corporate greed. I'm sure you'll disagree, Scott, but then again, you're not exactly an unbiased third-party.
#41 by "DeusIrae"
2000-12-01 19:45:05
russo@its.caltech.edu
Sigh.

Ergo, I'm pretty sure your example doesn't work because the catchphrase isn't trademarked by 3D Realms for movies.

And llet's all try to be sane for a moment.  Why do you think 3DR used all the Evil Dead and Army of Darkness stuff in the first place?  Maybe it might be because they actually like the movies?  If they thought it was cool enough to rip off lines, they probably aren't going to be interested in being dicks and going to court over any future Evil Dead stuff.

In my opinion, of course.  Maybe 3D Realms really is a gigantic evil spider-monster, spreading its tentacles of vileness through the gaming industry and trademark offices.  I don't really see it, though -- most of their decisions seem to make sense and not be motivated by a desire to screw gamers deeply and repeatedly.  Unlike, say, Derek Smart.
#42 by "averagejoe"
2000-12-01 20:07:06
joe_dilworth@mentor.com
The problem isn't that they showed their love of the movies by using the lines (which Bruce Campbell and Sam Raimi both have publicly denounced on the web) but that they then went and TRADEMARKED the phrase.

All I see the 3dRealms here is justifying themselves by saying that other people do it and they are ok legally.  Show some backbone, guys, and at least tell us why you did it and then why you would be asses by legally wrangling with a game company that's making a licensed Evil Dead product with the original character and actor, not some cheap rip-off.  Not being creative enough to come up with your own lines is one thing (hey, you're hacks, no big deal.  Entertainment is full of rich hacks.  Good going guys.), but ripping off lines from a popular movie and then claiming them for your own and attacking a company that's licensed to use the source material?  Bad juju, man.
#43 by "Ergo"
2000-12-01 20:16:55
stu@dsl-only.net
I'm no expert in trademark law, I know. It just really bothers me that corporations run around trademarking everything they can these days. One can rarely read anything without encountering a TM or copyright symbol every third word.
#44 by "Ergo"
2000-12-01 20:25:26
stu@dsl-only.net
I also don't think 3DR is out to screw anyone, either. I just wish they'd actually release something ;-). As for Derek, he's not evil either. His ego jusr gets in the way of his common sense sometimes.
#45 by "DukeNukem"
2000-12-01 20:40:33
scottm@3drealms.com
DeusIrae:  "Sigh.  Ergo, I'm pretty sure your example doesn't work because the catchphrase isn't trademarked by 3D Realms for movies."

Bingo.  :-)

Scott
#46 by "Andy"
2000-12-01 20:58:01
andy@meejahor.com
The trademark doesn't cover movies?

This is the "goods and services" text from Apogee's registration:

IC 041. US 100 101 107. G & S: Entertainment services in the nature of the production of pre recorded video cassettes, video discs, and laser discs; entertainment services in the nature of the production of live-action and animated motion picture films for television; entertainment services in the nature of computer games provided and played through a global computer network; entertainment services, namely, live performances by a musical rock group. FIRST USE: 19980400. FIRST USE IN COMMERCE: 19980400

Suppose Sam Raimi wanted to make an Evil Dead cartoon or TV movie called "Hail To The King". Wouldn't this give Apogee the power to stop him?
#47 by "DukeNukem"
2000-12-01 21:04:53
scottm@3drealms.com
"The problem isn't that they showed their love of the movies by using the lines (which Bruce Campbell and Sam Raimi both have publicly denounced on the web) but that they then went and TRADEMARKED the phrase."

That's because we want to protect ourselves from having other game companies use this phrase.  For example, let's say Raven releases a game with an action hero who says "Hail to the king" and "Come get some," etc.--that wouldn't be right, would it?

Trademarks protect intellectual property that has value to the company that used it first, within a specific trademark class.  Anyone who doesn't believe in trademark protect doesn't understand it.  It's that simple.  Without trademark protection, then I could release a game called DOOM and a drink product called Coke, and use the phrase "Just do it" to promote my line of shoes called Nike, and so on.  Trademarks are the defining traits of a product or service, that allow it to be distinguished from other similar products in consumers' minds.  They've been around since the USA was founded, and in other countries long before that.

Patents, trademarks and copyrights, all three, are the bedrock of a entrepreneurial, capitalistic system, in which people and companies who create something can then reap the rewards without fear of their creations being freely stolen, copied or reproduced.  Once again, the more knowledge you have of this system, the more you appreciate it's value over any other system yet devised.  It's this system, more than anything else, by incentivising people to create innovative new products, that has allowed the US to become the most enterprising, technological leader of our world.

Consumers benefit equally well via this system, whether they understand it or not...and many do not.

Scott
#48 by "JMCDaveL"
2000-12-01 21:09:08
jmcdavel@mailandnews.com
I think the real issue here is that in the past 3dReams (Hulkaesque there) has taunted that they could get the Evil Dead game makers in trouble by enforcing their patent if they wanted to.

--jmc
~Suck it down, baby!~
#49 by "DukeNukem"
2000-12-01 21:10:11
scottm@3drealms.com
Andy:  "The trademark doesn't cover movies?  This is the "goods and services" text from Apogee's registration: ... "

Now you're getting into complex territory, known as "secondary meaning."  This I will not explain, but leave it to others to learn on their own if they care.

Here's a hint, though:  Every line from a book or movie or any other work can not be singled out for copyright or trademark protect.  The line must be made special in order to qualify for trademark protection (more specifically, for prior use protection).

I'll leave it at that.

Scott
#50 by "Hulka"
2000-12-01 21:23:01
Sgt_Hulka@Hulka.com
Scott Miller "I know your smarter than that, but just so no one else is misled, "Player Died" is a phrase that has prior use within the game industry and also would likely fail the distinctiveness test. So, I would be shocked if this is a phrase anyone could legally trademark."


Hey, you don't have to be snippy about it!  ;)  Yes, I was only kidding.  God!  Some people.
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