The Learning Company, a subsidiary of Boston based educational publisher Houghton Mifflin Harcourt, has filed suit against social games giant Zynga Inc. in Massachusetts on the grounds that the latter company is infringing TLC’s trademark regarding The Oregon Trail. The story was originally reported by the Boston Business Journal.
In their complaint, viewable at the bottom of this article, TLC alleges Zynga of infringing on their “federally-registered, famous and incontestable trademark” of The Oregon Trail in relation to video games with their coming release of Frontierville’s Oregon Trail, which is scheduled to go live on May 30. It is alleged that TLC approached Zynga about developing a Facebook version of the game, and after Zynga received preliminary information, it was decided that the companies would go separate ways. The Learning Company eventually went with Blue Fang, LLC, and their Facebook version of the game launched in February, where it brought in 850,000 users in its first 40 days.
The Learning Company is hoping that negative press about Zynga’s business practices will work in its favour. The complaint made note of what they call Zynga’s reputation “as a willful infringer of others’ intellectual property rights”, and links to unfavourable articles by Business Insider and SF Weekly to drive the point home. The complaint asks for an injunction against Zynga’s game, claiming it will cause “irreparable harm”, as well as monetary damages.
The Oregon Trail was originally created in 1971, and saw wide commercial release in 1985, becoming a staple in American and Canadian schools throughout the 80s and 90s.
Zynga recently acquired its fourteenth company in a twelve month span when it purchased Casino City developer DNA Games.
Gaming Bus has asked Zynga for comment on the lawsuit, and has not heard anything back at press time.
Analysis: Second verse, same as the first for Zynga. The company has a noted history of blatantly stealing the games of others and bullying their way around the litigation that follows. At worst, it has to provide a seven-figure settlement, but usually makes more than that back in a week’s worth of microtransactions. For example, Mob Wars was released in September of ’08. In Novermber, the almost identical Mafia Wars was released by Zynga. Zynga paid about $8m as a settlement, but they have almost 20x as many users. It was basically a hostile takeover. So long as there isn’t a permanent injunction – and there hasn’t been yet, to my knowledge – Zynga couldn’t care less about any negative press that comes from their actions, and from the looks of their financial numbers – independent valuations of the company range from $7bn to $10bn, which recently caused Gameloft CEO Alexandre de Rochefort to proclaim that the social games business was in a “bubble” – their customers don’t care, either, which is all that matters to a company that’s looking to float an IPO. I personally think Zynga is the worst thing to happen to the games industry because they prey on the worst aspects of the industry and gamers, but what do I matter? I, and any press that criticize their actions, won’t cost them one cent.
One thing about Zynga, however, is that they’ve always picked on people that can’t fight back. Small Facebook game developers don’t have the financial muscle to lawyer up against them, and they know it. This is different in that they’re taking on someone who can fight back. Houghton Mifflin Harcourt is a big publisher, a name with heavy clout that has a lot of subsidiaries (older gamers will remember the name Broderbund, for example), and they have the capitol to keep this suit going for a long time should they choose to. It’s an interesting fight, and I wonder if Zynga’s bitten off more than they can chew here.
I have asked Zynga to respond back, and I don’t expect them to; they don’t talk to anyone unless it’s a large publisher who is going to fellate them. Therefore, I don’t know for sure how they’re going to fight this, but I can take a stab: they’re going to say that the trademark for The Oregon Trail is null due to the historical significance of the event. I’m honestly not sure how this is going to go. On the one hand, you have a trademark on a historical event. On the other, you have a company that has been selling games on that trademark for almost thirty years, and who has become synonymous with that trademark and the memes that spawned from it. I am not a lawyer and can’t speak definitively on how this is going to go, but I don’t see an injunction against the Frontierville game coming from this. Therefore, I don’t see this having much effect on Zynga’s bottom line, or their business model.