Show You All the Moves Like… Fatal1ty? Doublelift? Trick2G? Flash? MadLife?

Could you trademark behaviors of a professional esports player?

I came across an interesting question online a while ago (from Ryan Fairchild): “If an esports player did some recognizable set of actions at the beginning of each match, and fans could recognize who the player was just from those actions, could the player eventually claim inherent distinctiveness and claim trademark rights in those actions?”

My opinion is that it would be very difficult to get trademark protection for such “signature moves” in esports—but it would be very interesting to try.

1) What does a trademark need? Can this idea of “signature moves” meet the minimum requirements?

A trademark has to be connected to some good or service in commerce. It would be novel to present streaming and esports as the good or service, but not out of the question. You probably wouldn’t be able to stop other people from doing the same move, but you might be able to sue someone for using the signature moves if it makes people confused about the identity of the player and the impostor profits from it. (That’s not exactly the statutory requirement, but it’s the most favorable set of conditions for someone trying to sue in this case.)

Another important requirement is that the signature moves not have functionality. Optimized pathing, strategically advantageous positioning, etc. are all likely to be out of the question. Trademarks, generally speaking, cannot have a functional purpose. If something functional were protected by trademark, it could prevent people from using or accessing that functionality. Trademarks last indefinitely, provided that they remain in use in commerce and the registration is renewed, so any functionality would be protected indefinitely. Patents are the category of IP that is meant to handle functional subject matter, and patents have the shortest lifespan of the four primary categories of IP (about 21 years, depending on the patent type).

 

2) How does trademark law intersect with identity?

Trademarks are usually about brands, which have usually been associated entire companies. Trying to tie a trademark to an individual is somewhat more tricky, but not unheard of.

After popularizing a pose of kneeling and placing a closed hand against his forehead, athlete Tim Tebow registered his trademark in 2012, (but he apparently decided not to renew it, so it is now cancelled under Section 8—see trademark Reg. No. 4263370). From the perspective of trademark law, there was no confusion about whether someone else doing the Tebow-ing move was, in fact, Tim Tebow . The question was whether merchandise referencing the move was affiliated with or authorized by Tim Tebow. So, a signature move, by itself, really doesn’t qualify for trademark protection – whether it’s on the football field or on a screen depicting a football field. But Tebow’s main concern in getting his trademark had more to do with preserving some measure of authenticity. Because it was a deeply personal matter for him, he was trying to use trademarks to protect something about his identity, reputation, and public persona. It’s not the primary role of trademark law to offer that kind of protection, but there might be a way to make that work.

Fortnite cases drew a line about the copyright protections around dances- particularly length (and, even though the courts and copyright office didn’t say it, let’s say “complexity”). I still hypothesize that trademark protection had more potential, though it would require “building a brand” around the dance. For example, “The Carlton” is a dance actually known by the name of the character who performed it on a long-running tv series, and the performance of it generally evokes that character. In contrast, “flossing” doesn’t really evoke… backpack kid? Or whomstever?

 

3) Is the persona of the player/athlete a character? (Or Does it depend on a philosophical reconciliation of identities?)

There aren’t a lot of federal laws protection one’s right to public persona or right to likeness. But California and New York have a lot of celebrities, who tend to be the most frequently involved in cases about right to likeness.

So, here’s where the thinking gets experimental: What if we think about the persona of the esports player or streamer as both the mechanism by which monetization occurs, and as the likeness subject to protection? There is probably an entire thesis’ worth of content in unpacking the splitting and merging of identities, but I think that there could be cases where the identity of the streamer/player could be sufficiently closely connected with commerce to satisfy the requirements of the USPTO. This might be the best case for the necessary connection between “a good or service in commerce” and the “signature moves” that an esports player might be looking to protect by trademark. I don’t know how the USPTO might react to streaming as a good or service in commerce, but I think there is enough evidence to draw upon to present a sufficiently persuasive case for the point that streaming and esports meet the threshold of interstate commerce.

 

Conclusion

As far as I can tell, the real challenge to getting trademark protection for a signature move in esports is monetizing it in a way that satisfies the requirements for a trademark. I think the association and the distinctiveness are comparatively small challenges. There might be something to the idea of a special emote that only the members of a particular esports organization have—and then any use of it might reasonably be presumed to be an authorized use, which would help make the case for an esports organization preventing the unauthorized use of the emote.

Popping Caps in CS:GO and Cable Cutters

The big selling point for capitalism is usually “innovation and progress.” When folks compete in a free market, they try to make the best product at the lowest cost, and thereby win the customers and the money. The market rewards those who can find new ways to make a product more efficiently, or who can simply provide a better overall service. The winner is the one who can do the best job, and when your society is full of the best possible products and services, everyone is a winner.

But economists never count on some of the alternative strategies available. Sure, you can try to win more customers by making a better product—or you can surround your competitor’s store with lava. That’s another way to win.

Cheese or Cheating?

In the CS:GO quarterfinals of DreamHack 2014, Fnatic was losing a match to LDLC. Fnatic stunned the audience—and even the shoutcasters—when they performed a previously unknown “boost” maneuver that allowed them to see most of the map. Using this vantage point, Fnatic went on to stage an amazing comeback and win the quarterfinals round. LDLC filed a complaint with DreamHack administrators, arguing that the specific “boost” performed was not legitimate. DreamHack administrators eventually agreed, and determined that the match should be replayed (Fnatic declined to replay the match and LDLC advanced to the semifinals round, eventually winning the tournament).

The legitimacy of the boost remains an extremely controversial topic. Some argue that players should be permitted to do anything that the game allows them to do, provided that they do not modify the actual code of the game. Others argue that the effect of this technique gave clear evidence that it was a game flaw (to those who are familiar with the game), and Fnatic should have known that its use would not be permitted by the tournament rules. (Specifically, the use of the boost made some wall textures transparent and the boost was considered “pixel walking.”) Along with a lot of implications for game developers and esport tournaments, a central question here is: what is the difference between cheese and cheating?

Cheese is the use of an unorthodox or surprising strategy or tactic to attempt to win a game in a way that avoids the standard methods of play. It is often considered bad manners or unsportsmanlike, but finds some level of tolerance in competitive game play. (Cheese strategies are prone to backfire badly, as they often require a very drastic “all-in” decision which leaves little room for recovery if not successful.) Cheating also avoids standard methods of play, but does so through a violation of established rules.

Data Capping or Kneecapping?

Comcast supplies cable as well as internet. Thanks to the smorgasbord of entertainment options available on the internet, people don’t need 17,000 cable channels when they want to engage in one of America’s most popular past-times: doing “nothin’.” Many Americans are cancelling their cable subscription services (“Cutting the Cord“) because they can get the entertainment the need from the internet. Comcast might have noticed the drop in their cable subscriptions, because they started imposing data caps on some cities. The effect is that people can’t watch unlimited Netflix if they only get 100GB/month, so they have to go back to cable if they want to watch shows and movies. Comcast is using its power as an ISP to “leverage” its revenues as a cable provider—not by making its own product better, but by interfering with its customer’s ability to access a competitor’s product.

So, is Comcast bending rules or breaking them? There is no law against ISPs imposing data caps on customers. Comcast’s merger with NBC-Universal was approved by the Department of Justice. Comcast’s market conditions are not like the capitalist’s ideal free market: Comcast has the incentive to interfere with entertainment-content providers, and they have very few competitors who would prevent them from doing so. The effect might not be the kind of innovation that capitalists hope to see from competition, but it’s still led to an innovative way to undermine competition.

I imagine that either the FCC or the DoJ will have to examine this behavior and decide whether this constitutes a violation of antitrust law or is unduly harmful to consumers. It seems easy to make the case that it undermines innovation and competition, but because these regulators have approved all of the conditions that caused this activity, it will require a lot of regulatory untangling to explain why the natural result of several legal decisions turns out to be illegal.

How You Play The Game Doesn’t Matter If You’re Losing the Sport.

This year started with the gaming news that Blizzard bought MLG. With Overwatch in beta, Hearthstone and Heroes of the Storm enjoying steady, casual game play, and Warcraft capping off its gaming legacy with a transition to a different medium, Blizzard is in an interesting place to double-down on its efforts to dominate the eSports market.

I’m skeptical of the prospect of Blizzard creating the “ESPN of eSports,” of course. The NFL doesn’t own ESPN. If they did, who would get prime air time when football and baseball season overlap? Blizzard is incentivized to promote their own products over the products of their competitors. I don’t think there’s anything wrong or shameful about that, but it should be pretty obvious that there is a glaring conflict of interest in Blizzard prioritizing between tournaments for Overwatch and DOTA2 (owned by Valve).

 

Games: Sports :: Art: Entertainment. (Remember the SAT? Wait, they removed the analogy section?)

I’ve written a little about the distinction between art and entertainment before. While they can overlap, they really have different goals: art wants to explore or express something about the world, while entertainment wants to sell something (usually itself, sometimes also a sponsor). Games want to be played; sports want to be won.

Games* are meant to be fun in themselves, and they are played well whenever they are enjoyed by the player. Features such as scores and objectives can orient the player within the game, and provide context and direction, but a game need not rely on these features to achieve delight. Playing a game is, at its core, an aesthetic experience**, and how well you are playing can be judged largely by the extent to which you are aesthetically engaged.

Sports might be fun to play, but their raison d’être is “play to win.” The joy of sports is derived from victory, not from the mere act of competing in them. Features like scores and objectives are core to the experience, and their absence would be disorienting and entirely destroy the endeavour. The activity itself doesn’t need to be enjoyable, and there are right and wrong ways to play. A good sport might also function as a good game, but it must function as good entertainment in order to be successful. A stronger delineation between games and sports would allow developers to understand and focus on the proper goals and objectives.

 

2016: The Year of the Mouse?

With the year starting with some esports hype, and steady growth in esports for the last 5 years, will this year be the year of esports? No. It will be a year of esports, but not the year of esports. There are still the same barriers for eSports that Extra Credits noted almost 4 years ago, and an ESPN of eSports won’t solve those problems. Indeed, a true ESPN of eSports (with even half of that level of cultural penetration) can only be possible after overcoming most of those barriers. The photo at the start of The Guardian’s article is pretty telling: the photo itself clearly captures a massive logo that reads “ALL-STARS,” and the caption calls it the World Championship finals in Paris (not to mention that the Paris finals were held theatre-in-the-round style, which the photograph clearly does not depict). It’s a simple, harmless error, but I think it reveals two things about the mainstream relationship with esports at the start of 2016: 1) no one knows about it (to catch simple things obvious to anyone “in the know”), 2) no one cares about it (enough to do simple fact-checking). Esports will grow this year, but I’m not sure how much or in what ways.

EDIT:

After thinking a little more about it, I need to add something: Blizzard has some incentive to promote any eSport, because eSports is still relatively new. The NFL doesn’t get as much value from promoting other sports because most people know about traditional sports, which have over a century of history. Perhaps Blizzard could promote competitor’s games on the theory that “a rising tide lifts all ships.”

*Philosophers of Language have talked about the difficulty in defining a “game.” Wittgenstein also outlined a theory of language that treats language as a game, in which words are pieces within the game, and their meanings are the moves a piece can perform.

** Kant’s philosophy of aesthetics centers on the concept of “play” between the mental faculties of reason and imagination.

Mainstream Sponsors for e-Sports Begin to Arrive!

I’m excited by the concept of eSports. The very idea of watching competitive video game playing is so delightfully bizarre and futuristic- and I am awestruck every weekend when I watch professional gamers play. I am mostly enthralled by the social dimension of it- seeing announcers and crowds get as excited and wound up over a video game as others would get over physical sports (e.g., baseball, football, hockey, etc.). I am excited, then, to see a few “mainstream” companies (rather than niche video game peripheral companies) signing on to sponsor eSports teams: Nissan, Samsung, and Pringles.

The biggest question with eSports is whether it’s a passing fad or whether it will come to be a long-standing, mainstream form of entertainment (or even whether it will match or surpass traditional sports entertainment). I’m still not certain that eSports will rise to the level of traditional sports, but I think companies that invest in sponsorships will see rewards on par with the sponsorships of traditional sports.