Bethesda’s Interim Injunction against Mojang Denied


Early today, Markus Persson (Notch) tweeted that Bethesda’s application for an interim injunction against Mojang, regarding their upcoming title Scrolls, was denied:

We won the interim injunction! We can keep using the name “Scrolls”. ZeniMax/Bethesda can still appeal the ruling, but I’m very happy. 😀

 
 
As Notch mentioned in his tweet, Bethesda can still appeal the ruling but has only three weeks to do so. However, even if they do appeal, the outcome does not look to be in their favor based on the English summary of the decision provided by David Kaplan.

On similarity of The Elder Scrolls® and Scrolls, the Court states that there is a certain degree of similarity. However, as Mojang has argued, scrolls feature frequently in titles and as content in fantasy settings, and in particular fantasy games. The word scrolls therefore is considered to be common and therefore less distinctive and as a consequence less important. The distinctiveness of The Elder Scrolls® is therefore to a great extent considered dependent on the use of the trademark as a whole, meaning the risk of confusion with Scrolls is relatively low. The Court therefore, in its overall assessment, does not consider there to be shown probable grounds for trademark infringement.

As Alex Chapman of Sheridans, Mojang’s legal representative, explained to Eurogamer, the interim was denied because “probable grounds” for trademark infringement has to be shown for an interim injunction to be granted in a Swedish court. Chapman notes that, at this stage in the process, Bethesda had the greatest chance of decisions being made in their favor. The fact that this injunction was not granted means they will likely have a hard time winning this case should they choose to continue pursuing it.

Should Bethesda decide to appeal, the court must grant leave for appeal. If that is rejected, or if Bethesda chooses not to appeal and they still wish to pursue the claim, the summary notes that the proceedings will typically take one to two years.


Analysis: I’m actually somewhat surprised: it appears that Sweden actually has sensible people running its courts! This is refreshing news in an industry where people like Tim Langdell can enforce trademarks like Edge. But as stated in the summary, the word scrolls is a dime a dozen in fantasy setting games. It’s very similar to tome, grimoire, arcane, ethereal, and similar words which can be found anywhere from titles to items. It’d be like confusing Cross Edge with Mirror’s Edge, or Valkyrie Profile with Valkyria Chronicles. God forbid people use the same words in their titles! I should file a trademark for blade or tales and see what happens.

I’m willing to bet that this failure, and the reasoning behind it, essentially means Bethesda has lost any chance of winning their claim in court. The decision very clearly used the same reasoning Mojang is using for their defense, which is a good indication that the same reasoning will be used in the main trial. I’m hoping this is the case because frankly, broad-ranging trademarks of individual words are ridiculous. It’s fine to trademark a single word for use in media titles, as long as it does not exclude the word from being included in larger titles given the word is not unique. But trademarking a single word or series of them, and then using said trademarks to enforce a block on using those words regardless of how common they are, is stupid.

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Joshua Moore

About Joshua Moore

Joshua has been a gamer for a long time, starting back with the NES as a child. Since then his interests branched from game systems to general electronics; an avid fan of technology and computers, Joshua graduated with honors from the University of South Florida and now holds a degree in Electrical Engineering. His favorite games include Valkyrie Profile, BlazBlue, Left 4 Dead 2, and Ocarina of Time. Additionally, he attends various BlazBlue tournaments and tries to pick up other anime or air-dasher fighters whenever possible.