Reactions and “Buzz” from E3 Couldn’t Happen Without Trademarks

When Juliet famously mused “What’s in a name?” she meant to downplay the importance of names, contending that the thing which is named (say, a rose) persists beyond whatever we call it. The world of trademarks insists on the importance of names to help us understand the differences between roses in a flourishing garden. The current state of the video game industry illustrates this point well.

I didn’t do any dedicated E3 coverage this summer, but looking back, the entire conversation happens around trademarks. The video game industry has always made use of sequels and developing franchises, and one of the biggest reasons for this has to do with the philosophy behind trademarks.

Trademarks exist on the theory that the creator of a product, or provider of a service, has some consistency in their work. They might rely on the same materials or recipe, they might maintain a certain standard of quality, etc. Trademarks allow an owner to benefit from consistent quality. While trademark litigation is often an argument about preventing someone else from wrongfully benefiting from an owner’s legacy of quality, the norm is just the preservation of one’s own legacy.

In the world of video game developers and publishers, this legacy is reflected in the fan reactions. Why was there such elation over “Fallout 4”? Sure, the trailers looked visually appealing, and might have even hinted at a fun game—but many other games do that every year. Why is “Fallout 4” special? Because of everything it rests upon: Fallout 3, the Fallout franchise, Bethesda Game Studio’s demonstrated caliber of game production, ZeniMax’s proven management of product launches, game director Todd Howard’s numerous awards and consistent excellence in executing his game design philosophy.

The consumers in the game industry (“gamers,” one might call them) know many ways that a game can disappoint—but because of Bethesda’s history of developing and releasing great games, the consumers are steeled against the kind of doubt that would otherwise creep in to counter excitement over an E3 trailer.

In contrast, the games industry also shows how little excitement a tainted company can generate. The perineal whipping boy of the industry has been Electronic Arts for many years now. EA continues to be the foremost example of game industry failure because they (EA and any developer they ensare) seem sadly prone to incidents which only dig itself deeper into a pit of shame and universal contempt. After “Aliens: Colonial Marines,” EA will face increased difficulty in securing game pre-orders (or having consumers believe pre-release game footage trailers). After “SimCity,” EA will find it more difficult to have the kind of participation in a product launch that game studios often rely upon in their entire marketing campaign. But unlike Blizzard, who had their own launch fiasco with “Diablo3,” EA does not have many instances of excellent games and excellent player experiences in their recent history to restore consumer faith in their brand.

Trademark law is sometimes a difficult thing to explain. Intellectual property law is necessarily a little bit abstract, but copyrights and patents protect a concrete thing (a book, a painting, a movie, a chemical process, a mechanical procedure, etc). Trademarks are really anchored in the “goodwill” that a company generates though its products and services. The vagueness behind explaining trademark law can lead some to think it is not important.

Trademarks are rooted in the abstract, unquantifiable difference between the excitement over a new Bethesda game and the bitterness over Konami decision to let go of Hideo Kajima. Economists and businesspeople find that their models work best when every factor in their equations and algorithms can be carefully determined.  However, they have long understood that brand loyalty and social popularity or prestige of a brand can influence the market in ways that are difficult to mathematically predict. That weird, unseen, abstract force that pushes the market in ways numbers fail to predict is both the effect of brands and the reason for trademark law.

Victorious Remilia: Strats for Using a Lack of Regulation as Permission to be Excellent

I was extremely surprised by a blog post from Jerry Holkins (Penny Arcade’s Tycho) several months ago. It was jarring to hear a figure who is regarded as a gaming guru and internet maven seriously conclude, “I’m prepared to call the entire Web a net loss.” [I’m still not sure if the pun was intentional or unavoidable.] This man feeds his family only by the operations and functions of the world wide web, but he has done so while dodging death threats and wading through endless swamps of hate.

Any of us who spend time online see a great deal of hate and ignorance, even if it is not directed at us. The question to ask here is the same one King Théoden posed at the Battle of Helm’s Deep: “What can [we] do against such reckless hate?” While Aragorn’s solution was to “Ride out and meet them,” I see a more appealing option from the words of Coach Herb Brooks (played by Kurt Russel in the 2004 film Miracle): “Play your game.” The recent decision of Renegade’s support player Remilia illustrates exactly how to do that.

However, understanding which answer is better requires recognizing the problem in the speed at which technology appears in our lives.


A recent Op-Ed in the Wall Street Journal argued that the FCC’s increased regulatory measures over internet technologies would ultimately slow and stifle innovation. I disagree that this is entirely true, and to the extent that it is true, I do not think taking time to consider the impacts of new technologies is a categorically bad thing. We have already seen several kinds of unexpected results from recent technological improvements in our lives.

The most apparent set of challenges on the internet comes in the arena of public discourse on the internet. Whatever anyone thinks Gamergate was about, it was certainly characterized by the drama of extreme threats of tremendous violence in place of a public discourse about a social issue. John Oliver featured the problem of death threats and revenge porn on his HBO program, making particular note the difficulty in trying to explain to authorities a problem when they do not understand the medium in which it occurs. This, he observes, is like trying to explain that someone tried to drown you, yet the audience does not know what water is.

In addition to the horrible-tragedy-waiting-to-happen that is “Swatting,” social media has seen cyber-bullying that has led to suicide and the misreporting of information that caused a severe and sudden stock-market dive.

We also run into uncomfortable situations when we allow algorithms and software to take the reins. Flickr has caught flak for software that, as reported by WSJ, “tagged a photo of a black man with the word ‘ape’ and a picture of a concentration camp as a ‘jungle gym.’” Google’s photo-tagging software has encountered similar problems, and other automated processes have led to disparities in targeted advertising for jobs based on gender: “CMU researchers examining Google’s ad-targeting system recently found that male Web users were six times more likely than female users to be shown ads for high paying jobs.”

Other problems are more squarely in the field of economics and law. The Author’s Guild wrote a letter to the Department of Justice this month asking for an official investigation into’s potential antitrust violations, as they maintain the price of books at suspicious (allegedly anti-competitive?) rates. Meanwhile, some states have noticed a decrease in tax revenues as a result of declining sales of physical copies of music, movies, books, and software. Efforts to tax the digital alternatives sought by consumers (e.g., Netflix) have proven unsuccessful, resulting in lower tax revenues overall.

Remilia’s Example

Remilia faces no small amount of adversity for playing professional esports, particularly among a community that has built a reputation for vitriolic hatespeech, even within the context of a society known to offer some, well, sub-par treatment of women in digital spaces. I don’t have a reliable source to explain her decision to continue playing after qualifying for next year’s League Championship Series, but I imagine that at least some part of her decision was based on her desire to simply play the game, as she wants to play it.

Remilia hasn’t shied away from social media- she still streams almost every night-, but she’s making choices in spite of the technology without rejecting the technology itself. She plays the game she wants to play, the way that she wants to play it. There is room for regulation and innovation, the way there is room for discussion and disagreement- but in both cases, an excellent result requires that both sides be excellent. The internet will never be a useful tool for discourse if we learn to use it as a tool for venting frustrations and substituting sloppy assertions in place of careful conclusions. No technology can ever be any better than our use of it. But the bad use of technology by others does not require us to also make poor choices.

Even while on the receiving end of a bad use of technology, Remilia persists in making a better use of it. I imagine that a lot of her victory is attributable to a certain authenticity: she does not play “for wrath, for ruin, and the red dawn”; she just wants to play the game. By being sincere about her goals, she leaves no room for the kind of abuse that characterizes the trolls that would undermine her. If tech companies and innovators were as genuine and dedicated to their goals, I suspect we would all be in a better position to face a lot of the new problems we confront in the digital landscape.

I’d be happy if we started by addressing this problem in the digital landscape, which has apparently plagued humanity since December of 2001: “no-more-sweaty-mouse-hands”

The Tort of Throwing: Causation and the Reasonable Corki

This is a really emotionally difficult post for me to write, and I have to start with a hard, personal truth: I lost a game of ranked League of Legends, and it might have been my fault. … :(

Now that that’s out there, we can use my reprehensible failings at a video game to see how American tort law might view a claim about whose fault it is that my team lost. Corki’s poor positioning matters, but how can we parse out individual responsibility in a complex and interconnected situation?

I’ll keep the facts simple: I was valiantly leading my team to victory with my high-quality Corki play, and after more than 40 minutes of grueling effort and heart-pounding combat, both teams were in a position to win a game after just one convincing teamfight. As my team emerged from blue base toward mid, I expected that red team had just secured a 3rd dragon. A lone enemy appeared from around a corner. I saw an opportunity to pick off one opponent and thus gain a 4v5 advantage on the map, so I engaged. Then I found out that the rest of his team was behind him. I was immediately destroyed, and my team lost the ensuing battle. The game ended in defeat less than a minute later.

To their credit, my team didn’t rage at me. (Though perhaps this is not to their credit, as it may indicate that they simply failed to understand my error or the role it played in our defeat.) But if they were upset, perhaps they could have charged me with the tort of negligence. Negligence is a civil wrong resulting from a person’s failure to meet a “reasonable” standard of care. Most of the elements of negligence are easy to agree upon in the case of my Corki failure: I owed some kind of duty to my team, which I probably breached, harm or damages occurred (my team lost), and the harm was caused by my breach of my duty. (I’m stipulating that I had a duty just as a function of the idea of the game as a “sport,” which is a subject for another post.)

The most interesting part of accusing Corki of negligence is the question of cause. For all of the criticisms of our legal system as unreasonable, there is a common law requirement that someone be held negligent only if the person’s actions actually caused the harm. In tort law, the basic test for cause is the “but-for” test: “The team would not have lost but for Corki’s irresponsible engagement that got him caught and killed.” Corki’s defense here is to claim that the team may still have lost even if he did not get caught in a bad position: the team may have lost the fight anyway, the game may have continued for 10 more minutes before losing a different teamfight or losing to a split-push, etc. However, it would not be an adequate defense to claim that the rest of the team should have warded, or the rest of the team should have been in a better position, etc.  Those claims (no matter how true!) do not address the question of whether the caught Corki caused the catastrophic collapse of his team’s nexus.

An infamous feature of tort law is the “reasonable person” standard. It is infamous because it expects an uncommonly high standard—it imagines a person who behaves according to textbook, carefully thought-out behaviors, who takes every expert-recommended precaution, every time. The “reasonable Corki” would always maintain proper position, communicate with exactness with his team throughout the game, and would err on the side of caution in every engagement. This is a particularly controversial standard to apply in this case because delicate caution is not always the optimal strategy when playing a competitive sport, dependent on reaction-time and seizing opportunities quickly. Indeed, if Corki went to trial for his negligence, he would call expert witnesses* (professional players, Riot employees and shoutcasters, coaches, analysts, etc.) to testify on the subject of whether Corki’s aggressive positioning was “reasonable.” The plaintiff would call their own expert witnesses who would testify to the contrary. In most tort cases, there is some consensus about how the “reasonable person” would behave because there is some industry or government standard on the subject (even if most people do not abide by that standard, and the standard is presented in a 1950’s short film in which a 13 year old in a collared shirt says “Golly Gee” at least 5 times in 12 minutes).

Ultimately, it’s likely that Corki’s positioning will be found unreasonable according to the “reasonableness” standard in tort law, if only because it wasn’t the safest positioning.  However, remember all those claims about what Corki’s team could have done to prevent the loss?  Those claims might satisfy the possibility of contributory negligence, in which a harm may be found to have multiple causes and multiple defendants. Not all jurisdictions accept the doctrine of contributory negligence, but those that do may ascribe percentages of responsibility to multiple defendants, and make each pay according to their decided contribution to the harm. There is also the possibility of an argument for using the “substantial factor test” to determine cause in a complex system such as a game of League. (For this test, Corki would argue that the entire team’s actions combined an co-mingled to bring about the loss.).

*I imagine some testimony would look like this…

C9Sneaky: You have to be aggressive, especially if you’re the one with all the kills on your team. You have to carry, and if you’re the only one who can burst someone down quickly, you have to take that opportunity and your team needs to back you up. A fed Corki has a lot of burst, so you need to use that.
CrsCop: The ADC should be way back, stay safe, and just poke and kite back. Your job is to just stay safe and provide support, and let the team engage and fight.

CLGDoublelift: You just lost because you’re trash. Corki should never get caught. He’s so easy to play. Your positioning doesn’t even matter. If you can’t outplay while ahead, you deserve to lose.

Doublelift would not be a helpful expert witness.

Genuine Enthusiasm, Different Experiences, and “Fake” Geeks

I don’t really see people start playing video games very often. The people I know who play games have played them since childhood, like I have. Seeing a good friend start to discover games is a novel and interesting experience. (It’s also interesting to talk to older, adult-like folk who played games in their youth and have different attitudes towards games now.)

My friend, T, is getting more involved and interested in video games in her mid-20’s. I enjoy showing her games that I’ve enjoyed, or talking to her about other games she’s heard of or experienced. Like many people, T was very excited about the announcement of Fallout 4.  Unlike a lot of people who were excited about Fallout 4, she at least had an excuse for not knowing it was coming. (Seriously, I was excited about this almost 3 years ago- why are people so behind?) Both T and I were excited about Fallout 4, though we have very different histories with gaming, Bethesda products, and the Fallout universe.

I was very surprised by T’s excitement over Fallout 4 because she did not play Fallout 3. T doesn’t have the experience of walking out of Vault 101 and discovering a wasteland DC. She never pieced together Project Purity or found her father. She has not experienced the chilling surrealism of Tranquility Lane. She does not have fond memories of strolling through Megaton or that instant emotional bond of rescuing Dogmeat. These are some of the experiences that fuel my enthusiasm for the next Fallout game. T doesn’t have these experiences to draw upon, so it seems she cannot be excited for the same reasons I am excited.

But she is, in fact, excited for Fallout 4. Her lack of these past experiences doesn’t make her enthusiasm or interest any less genuine than that of the most avid, longest-addicted Fallout aficionado.

Some time ago, there was a particular uproar over “Fake Geek Girls.” I think the general sentiment was eclipsed and adopted by a lot of the hate and anger contained within Gamergate, so the claims that attractive females were entering Geek culture for male attention fell by the wayside to give room to more wrathful accusations. I found the claims interesting when understood through sociological notions of “Groups,” or social cliques and subcultures. There was a strange defensiveness about it, which seemed to implicate several social facets (not merely gender). I imagine there are many who would take umbrage at T’s excitement over Fallout 4, given her lack of previous game experience. I think this criticism of T’s excitement can be interpreted in a coherent way that still leaves room for the sincerity of T’s enthusiasm.

The excitement of long-time gamers and Fallout fans can be understood as a symptom of the ways in which experience drives perception. As we perceive new experiences, we connect them to past experiences. When a fan sees the latest Fallout 4 trailer, the fan’s perception (including the internal state of reaction) is actually different* than the perception of a non-fan. Fundamentally, this is no more controversial a claim than asserting that each individual has uniquely subjective perceptions and experiences. Accordingly, the challenges against the sincerity of non-fans are reducible to claims that different subjective perceptions draw upon different non-shared experiences; it is no more than claiming, “You cannot feel what I feel,” which is always already true for most definitions of the notion of “feel.”

So, T cannot be excited about Fallout 4 because of her memories or experiences in playing Fallout 3 (or 2, or the original). But T can still perceive an impressive trailer with exciting gameplay, glimpse an interesting and wondrous world, and want to have those future experiences.

One of the outcomes of the “Fake Geek Girl” accusations was the rejoinder that there is no certification test to become a Geek: Previous knowledge and experience simply isn’t requisite for participation in Geeky things. Though there are other relevant sociological implications in that sordid affair, I think it is safe to conclude that T’s excitement can be entirely appropriate and genuine without some kind of certificate of previous game experience. It may be that my excitement is different, in that it has a different basis, but no fact of my own experience can undermine the reality of another’s perception. To claim that T’s excitement is disingenuous because I thought Fallout 3 was one of the greatest games ever made is to claim based on that level of absurdity.

*Jerry Holkins and Mike Krahulik have commented a few times on the fact of their respective fatherhoods influenced their experience of playing The Last of Us. Would Fallout 3 be a more powerful game for someone who had recently lost their own father, or never knew him? Would anyone assert that a stable, reasonable relationship with my own father undermines my proclaimed love of Fallout 3?

Keep Data Secret, Keep Data Safe.

Privacy and Security are two different words, so it is reasonable to ask if there is a difference between “Data privacy” and “Data Security.” The terms seem to be used interchangeably a lot, but I think there is a difference that affects how we think about the issues and that guides how we approach solutions to protecting information.

The standard industry analysis is that Data Security is “confidentiality, integrity, and availability,” while Data Privacy is about the “appropriate use” of the data (I think this is better understood as asking “are only the right people seeing the data?”).

If you’ve seen the movie (and you should have), you remember this moment:

When Gandalf leaves Frodo with the One Ring, he admonishes him: “Keep it Secret. Keep it Safe.” Is this one instruction, or two? Are safety and security of a thing the same thing, or two different dimensions of protection?

  1. Secrecy as Privacy.

One of the most interesting discussions I had in law school began with a professor asking “What good is Privacy?” Some academics and jurists, like Judge Posner, have challenged privacy as inefficient; it is the right of criminals to hide their activities and avoid detection or evade conviction by concealing evidence. Advocates of this position assert that non-criminals do not need privacy, while privacy greatly advances the efforts of criminals.

However, privacy is also how we keep information away from criminals. In the digital world, information is everything, so keeping information away from criminals prevents harm. While non-criminals might not fear other non-criminals accessing financial information, certainly they would not want criminals to have the tools to access their bank accounts.

Privacy is an element of security, but it is not the same thing as security. One of the best ways to keep a secret is for people to not know you have a secret; people don’t rob vaults they don’t know exist. However, you wouldn’t leave your valuables unguarded and rely solely on the hope that no one ever finds out about them. Security is always a prudent consideration. (Though there might be interesting strategic choices in minimizing security to maximize secrecy…)

  1. Safety as Security.

I thought it was a little odd that the US government considers “integrity” one of three prongs of data security. “Confidentiality” makes sense (see the point on secrecy), and “availability” is an often over-looked part of security. Your money would be very safe if you shot your life savings into space, but that’s the kind of security plan we might call “not thought through to step two.” But why would the reliability and accuracy of the data be part of the security of the data? We don’t evaluate the security of a bank value on the basis of whether the currency it protects is undermined by inflation or monetary policy decisions.

I think this prong shows one of the dissimilarities between physical security and cybersecurity. We are rarely concerned about the sabotage of physical things we protect, just as we are not often concerned about physical objects being copied (as data can be copied). Data is subject to minor alterations that can corrupt it to render it unreadable or unsafe to use. In some cases, the fact of the data being shared might render the data less valuable (particularly for military intelligence).

  1. So, Gandalf has a pretty good privacy policy. By keeping a Ring secret, it is easier to keep safe; by recognizing the difference between safety and secrecy, he is able to give Frodo a more robust policy to guard the fate of Middle Earth.

Of course, if Gollum yelps out “SHIRE! BAGGINS!” the data will be compromised and new measures and methods will become necessary… But “The Fellowship of Data Protection” is a blog post for another day.

T[i]M[e] for Teemo!

Lots of times, people never ask me “Mr. Not-At-All-A-Lawyerman, how can the US Patent and Trademark Office’s filing system and database benefit ME, a humble urchin-child with a cockney accent and sooty cheeks?”

After pretending to check the time on a jewel-encrusted golden pocket watch (which doesn’t work because it’s plastic), I tuck the fob back into my waistcoat and playfully tussle the child’s wool cap and say “Well, Xavierathon, you like Teemo, don’t you?”

“He’s my favorite,” always comes the excited reply.

“Well, let’s go on a magical adventure into the Trademark Electronic Search System, and see if we can learn about Teemo.”

“But what can we learn about Teemo from a database of registered trademarks?”

Trademarks are very much about business. When business people want to protect their ideas, they can use copyrights or trademarks (or some other things that won’t help Teemo). Since Teemo has become such a mascot for Riot and League of Legends, the business people at Riot Games, Inc. decided to protect the connection between Teemo and their business. The way they decided to protect that connection was through a federal trademark registration:

Teemo 1A

The only thing I find surprising about this is that they didn’t file the registration until December of 2014. I suppose they wanted to wait until the world championship was all wrapped up. But this is only one of two registrations Riot has for Teemo, and the second one is tantalizing:

Teemo 1B

The tantalization is a two-parter: the filing basis and the goods description. The first registration was filed on the basis of “1A,” meaning the product (the video game) was already out in the market and Teemo was all over it.  This second registration, however, is filed on the basis of “1B.” That is the filing basis of “Intent to Use,” and the company registering the mark promises that they plan to use this mark in commerce in the next 6 months.

A trademark is always used in connection with some good or service. For the first Teemo registration, the good is the game and the service is the ongoing support of the game. For the second Teemo registration, the goods include a lot of clothing items and… “toy action figures.”

What important lesson do we learn from the trademark database?

Action. Figure. Teemo.

Just to be clear: This is all public information. You don’t need a special password to use TESS or read applications for trademarks before the USPTO. You don’t have to sneak into Riot Offices to find out about this. Trademarks are one way that you can read signals of a business strategy. As businesses depend more and more on brand recognition and good will, trademarks become another language of business, like finance or marketing.

The sad, hidden snag about this is that a 1B application isn’t a promise to actually make the product(s) described on the application; it is a promise that there is currently a plan to make the product(s). So this application is not exactly a promissory note for a Teemo Action Figure. It is more like a promise that Riot has seriously thought about it.
But that’s still exciting for little Xavierathon.

Patch Updates for Law; Words for Evil

Making a good game is surprisingly difficult. A good game needs to be balanced. It needs to be equally fair to play as any team, or have reasonable opportunities to overcome challenges and obstacles. Some games aren’t as concerned with balance issues, but many competitive multiplayer games have extensive metagame discussions about balance. Developers try to balance the game as carefully as possible before release. However, patches are inevitable and expected.

Making a good law is surprisingly difficult, as well, and one of the biggest issues is also balance. Laws exist to protect the rights and interests of multiple parties, often in situations where they may be competing with each other. The legislative process, like the game development process, tries to make the law as balanced and complete as possible. However, there is often a need for additional clarity or balancing after the law is enacted. In a common law system, this is usually done by appellate judges.

Both games and law have to balance carefully, thoughtfully, and slowly. Neither wants to make a quick change, only to undo the change in the next iteration. Competitive games and law both benefit from stability and predictability, and participants often react strongly to new balancing effort: both types of updates, if they make major changes, are likely to incite passionate debate.

For a game, updates and balance patches come up as the game company observes data from gameplay and theory crafting to identify and analyze imbalances within the game. Balance patches for law are also the result of identified problems that come before courts as disputes or complaints. However, for a game, the balancing is done as some function of the data within the game: numerical values of some kind are changed (distance, damage, time, etc). In law, the update is often a function of how a piece of language is understood. Language is for law what code is for a game. (There is good reason the different approaches to code are often called “programming languages.”)

Many parts of the law are collections of terms whose meanings are subject to a multitude of organic, unstable factors. Technological advancements challenge the meaning of what is “reasonable” equipment for a commercial ship, to how private citizens might understand their “right to privacy.” Ever-changing cultural norms will determine what “community standards” are applied in determining whether something is obscene.

I realized before writing this that a lot of my posts end up talking about language. I knew this post was heading there again, and I went ahead with it anyway. Part of my obsession is a bit idiosyncratic: a lot of my studies focus is on intellectual property, and the roles of language and meaning are even more pronounced in that area than most. Though any contract, will, corporate bylaw, lien, or criminal confession is ultimately about the words and meaning we draw from (or ascribe to) that glob of language. As foundational as language is to law, I think my interest in it goes beyond my studies. Language has to do with the human experience: how we think, how we know, how we connect, how we perceive reality and understand our fellow humans and ourselves.

“Words for Evil” is a simple game; the central mechanic is basically “Boggle.” You advance through the game by creating words using adjoining letters in a randomized grid. As you find words, your character will fight monsters or unlock treasure chests or evade traps. The underlying message of the game is the language, itself, moves you through the world. Just as in our daily lives, there can be problems in using language to affect the world around us. I have tried to input several strings of letters into the game which were rejected as words; I also made random, desperate guesses as to what might be accepted as language and was rewarded with success. We have the first experience in our lives fairly often: we say something but are misunderstood. The analogy of the second experience, I think, is more suggestive of some of the understanding of what language is and what it means to know language. I do not think we often make random, desperate noises and find that someone will understand them as a coherent expression and aid us according to our will. But if that has happened, I want to hear about it.