Nearly daily, I get an email from some well-intentioned reader sounding the alarm over a recent trademark filing. Can you believe so-and-so company tried to trademark THIS?! Ninety-nine percent of the time, its a misunderstanding of trademark law in general, and as such I usually just give them an its not as bad as it seems, and carry on with my day.
This time, however, it is as bad as it seems. Sony Computer Entertainment of America has attempted to trademark Lets Play, and the internet is rightfully outraged. Before I get too far into it, its important to remember trademarks are broken up into classes of goods. Each trademark cant be confusingly similar to another mark (you couldnt trademark Appel computers as its too close to Apple), and each mark cant be descriptive of the class of goods they are in (Apple brand computers is fine, Apple brand apples is not). That second point is where people usually get a bit confused. While Saga was a crazy mark to try and attain in the video game space, Candy was less so. One is used in nearly every fantasy/sci-fi series of the past 100 years, the other is arguably something that has nothing to do with games and a word that is associated with a certain brand, even though its a common word, like Apple.
Regardless, this time the alarm bells were sounded properly. Lets Play videos are one of the most popular genres of entertainment on Youtube, Twitch, and the other streaming servers out there. Its not a brand or small group of videos, its the name for the genre itself. It would be like someone trying to trademark eSports or First Person Shooter.
The application has been momentarily blocked, but only because it was found confusingly similar to aregistered trademark. However, it is blatantly wrong to say the United States Patent and Trademark Office has refused or denied the application. I filetrademarks constantly, and a lot of them have office actions that need responding to. Thats one of the major reasons websites like Legal Zoom have such a low success rate. They help you put in the application, but when you get pages of legalese in an office action, youre on your own. Dont be confused, those office actions are not a no. They are a we need to talk about some things before we say yes.
I assure you, if SCEA tries to circumvent the current office action holding it up, many attorneys (including myself) will oppose it. Im not worried about SCEA ever being granted this mark. What I am worried about is the application itself. It shows one of two things:
1. Someone at SCEA, in charge of filing trademarks, does not understand the gaming industry at all.
2. This was a sketchy (in my opinion) attempt to control a hugely popular genre of entertainment.
If SCEA was granted this mark, they could take down an endless array of videos all over the internet. They could arguably control who does Lets Play videos, what games they can use in them, and a bunch of other issues that cause obvious problems. I believe, however, this is much closer to the first issue.
You see, the government fee for filing a trademark is only around $300, and a lot of in-house attorneys will just throw a bunch of marks in and see what sticks. If they get bounced back, no big deal, a bunch of the others will go through. Its not unique to the gaming industry, but its something Im not a fan of. Here, thats probably what happened, but a simple google search (or any cursory search prior to the application) would have shown this was a terrible move.
I just wanted to write quickly to confirm that the angry mob is justified this time, in my opinion, and that the Polygon article I saw at the front of Reddit today was incorrect (and they linked a Trademark Electronic Search System resultyou cant do thatthose links expire in an hour). I love SCEA, Ive had nothing but good experiences dealing with their attorneys, but this was a mistake. Hopefully they withdraw the application sooner than later.