Popularizing Formats For Sitting At a Table and Having a Spirited Discussion

Mediation has a surprising amount in common with the tabletop game Dungeons and Dragons.

1) Most people know very little about either one.

2) People who have heard of it often think it’s a waste of time, and may deride those who support it.

3) Neither are promoted in mainstream culture.

4) The formats bear some similar appearance: Several people sit around a table. One person seems to be “in charge,” but really, that person is just helping the other people at the table actually make meaningful decisions by providing structure and clarity for the process.

5) Neither one has a final, decisive ending that declares a winner. Rather, the purpose for both activities is to have a mutually satisfying experience and outcome; everyone wants to walk away from the table feeling like it was a worthwhile investment of 3 hours (… or 5 hours… or 18 hours…).

6) The enemy that must be defeated is abstract in both cases. For D&D, it’s the… well, the Dungeons and Dragons that must be overcome (it’s extremely clear naming). In mediation, it’s the conflict itself that is the enemy– not the other person.

More people than ever are playing D&D- and even filling theaters to watch professionals play it. Can mediation find the same increased acceptance in our culture?

 

The Wizardry of Brand Management

D&D surged in popularity in the last few years. The owner of the game and the brand, Wizards of the Coast (WotC), has rebuilt and redesigned the rules and format several times since taking over the trademark in 1993. When launching the 5th edition of the game in 2014, WotC leveraged social media to demonstrate how the game worked. The 5th edition was easier to understand, easier to play, and easier to watch than any previous edition. These changes made it more inviting for new players and also made it much more of a spectator event, which fit with the use of streaming services like Twitch and YouTube. Enthusiasts started to publish their own gaming sessions online, effectively turning their gaming product into a TV show—sort of a strange inverse of how most children’s cartoons worked in the 80s and 90s to sell toys. Like so many video games that now comprise the esports corpus, D&D became a game that collected an avid fan base and consistent spectators to fill streams and theaters. Podcasts, streams, and live performances have introduced thousands of new players to the game, as well as rekindled the imaginations of those who have not rolled a twenty-sided die in decades.

Despite their broad similarities, mediation has not exactly kept pace with D&D’s surge in popularity. Despite the overwhelming difference in cost, time, end (arguably) effectiveness, litigation remains the gold standard for dispute resolution in matters of legal consequence in the US.

Courtroom drama television shows, (and “procedurals,” generally) have done well in the US. A regular program centered on mediation could easily do as well as any long-running legal procedural show. Wizards of the Coast brought D&D out of derision and obscurity (even dismissing alleged satanic affiliations) by making it comprehensible and accessible. They used every possible tool to present an alien an esoteric game structure in a way that was engaging and entertaining, while at the same time gently informing viewers who simply watched the process.

 

Two Obstacles To Mediation’s Popularity

There is a snag in the economics of promoting mediation:  Wizards of the Coast is financially incentivized to promote their D&D product. A lot of wealthy people and companies are not necessarily incentivized to promote mediation as a primary form of dispute resolution. Trials can be incredibly expensive, and their complexity and cost often favors the side with more money to hire more experienced attorneys. Those with advantages of any kind, in any setting, are typically unwilling to give up those advantages. If the US legal system creates any advantage for those with power or wealth, it is easy to see why power and wealth would not be used to promote an alternative method of dispute resolution.

The other primary obstacle is the lack of cohesive ownership over mediation. D&D is a gaming product owned by a single company, and so decisions surrounding its brand management are made by a single entity. Mediation is a broad structure of dispute resolution, not owned by any particular body. Indeed, it is not the kind of thing that is subject to trademark or patent protection. There are trade groups and individual specialists who would like to see mediation increase in popularity, but there is no single entity with resources and authority over mediation. It is not comparable to the relationship of a company with its product. The lack of a trademark or ownership makes branding extremely difficult. Wizards of the Coast is able to manage D&D carefully, shutting down counterfeit products and distinguishing itself in the gaming market. Mediation is not the kind of thing that is subject to trademark protection.

 

The Cultural Boost for Competitive over the Cooperative

If popularity is about brand management, mediation seems condemned to obscurity because that brand can’t be effectively managed.

But how did litigation get popular without a trademark and a livestream? Perhaps the adversarial attitudes in litigation fit naturally with a competitive culture. Litigation so often becomes about beating the other side, rather than beating the conflict itself. Mediation is most successful when each side sees the obstacle as the conflict itself, and everyone works together to defeat that problem—not to defeat each other.

Despite the epithet of “rules lawyer” to describe many D&D players, a society that played more cooperative tabletop games would probably be less litigious. Taking a few hours to learn to work with someone who has different personal objectives from your own is an unusual activity in our culture, but learning to listen and cooperate might have value in an increasingly interconnected and networked society.

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“Extra! Extra! Trademarks Show Consumers Sources!” What Telecommunications Can Learn From IP Law To Combat “Fake News”

Formal news broadcasts play a role in a lot of games that focus on story: Deus Ex: Human Revolution centers itself around the news broadcaster, and the game culminates in the decision of which news story to broadcast. Starcraft II’s Terran campaign allows the player to explore the storyline by watching news broadcasts. Borderlands 2 allows players to follow news broadcasts from different sources as the main storyline progresses. In each case, there is always a gap between the news story that is presented and the information the player has. Whether the news is explicitly propaganda, merely biased, or simply missing information, each game underscores the fallibility of the news as a primary source for information.

Subjectivity, bias, and context can change the interpretation of a news story. Words themselves can also be subject to changes in context and intent. The term “Fake News” gained fame when used by Trump to accuse CNN of, essentially, being left-of-center. However, it has more recently been used to refer to Russian hackers spreading propaganda and disinformation on Facebook and other social media under the guise of non-biased, traditional-style newsmedia.

Trademarks: How We Know What is From Whom

The goal of trademarks is to reduce consumer confusion by establishing clear connection between goods/services and the manufacturer/provider. This consumer knowledge is considered essential to a healthy marketplace and – in many cases—to consumer safety. Applying the same fundamental concepts of trademark law to telecommunications law might have a positive effect on combating certain forms of so-called “Fake News.” By requiring each news source to register digital certificates with social media platforms, consumers could be more confident in the source of their information. The information may still carry the biases of the institution, editor, or author of the news piece, but the consumer would be aware of that possibility from the initial contact with the article or video. Just as trademarks do not enhance the quality of a good or service, digital certification would not ensure high-quality, un-biased news containing only perfect information. Similarly, even under robust trademark law, counterfeiting (and other violations) do occur. There would be a risk of various hacking attacks that would allow “Fake News” to be published under the name of a news source that did not actually produce it. However, such a hack can be addressed and corrected in ways that are not possible in a news marketplace without identifying information for news releases.

Trademark law may even be brought to bear directly on the Fake News problem. News outlets often develop their own styles and designs that remain consistent over time, eventually becoming associated in the minds of consumers with the outlet. This could be interpreted as trade dress, and a case could be made that this is a type of intellectual property subject to legal protection. Enforcement of this would likely be very difficult against foreign, anonymous violations, but creating a culture of more regimented, clearly defined news outlets would be beneficial in helping consumers spot outliers that don’t fit the known news providers—and treat such new providers with appropriate scrutiny and supplemental research.

 

 

Are Trademarks a Data Security Alternative to Sad, Weak, Outdated Copyrights?

If you’ve been on the web for a while, you’ve seen an advertisement that looks like the user interface of the website you’re viewing- or maybe an ad that has a false close button, and clicking it just navigates you to the advertised page. These are blatant ways to trick consumers into taking actions they don’t want to take. Sometimes, these inadvertent actions can create security vulnerabilities such as malware.

Despite all of the focus on applying copyright law to the internet, I wonder if there are hints of trademark and trade dress protections that could become relevant to data privacy issues. I will cautiously, even timidly, explore a few of those possibilities (which several others have explored over the last few years).

I. Trademarks: When it Comes to Data Privacy, Accept No Imitations.

Trademarks have a simple purpose: to let consumers know the origin of a good or service. Trademarks are often a word, phrase, or image (logo), but can also be a sound or smell (on rare occasion, it can get a bit more abstract ).

A major category of trademark infringement is counterfeiting. That $20 “ROLEX” watch from the guy in the alley? That’s a counterfeit (sorry), and one of the legal issues involved in the sale of that watch is the use of a trademark without the legal right to use it. There haven’t been a lot of counterfeit websites on the internet, especially since SSL and other authentication processes got better. However, there are plenty of imitation apps and games. One of the reasons such apps and games fail and are quickly removed from distribution is that they infringe trademarks.

However, some countries do not have the same standards regarding trademark (or copyright) enforcement. Consider an imitation League of Legends game, lampooned here. At the end of the video, the player says “Oh, and it’s also a virus,” as his security software reports malware after playing the game. This humorously underscores the point that many infringing* products pose a security and privacy threat. Using trademark law to limit the proliferation of readily accessible, easily confused programs is a valuable practice in maintaining computer security for consumers.

II. Trade Dress: No One Really “Owns” That Icon… But You Know Who Owns That Icon.

Trade dress is a sort of sub-category of trademarks. It’s rarely talked about or used, but it can be thought of as the totality of design and aesthetics that go into a product, place, or service that make consumers identify the source. Color palette, patterns, shapes, and other factors go into the evaluation of trade dress. Crucially (and perhaps fatally), elements of a trade dress must be considered “non-functional.”  For example, the major case in trade dress concerned a Tex-Mex restaurant that used the same colors and layout of another Tex-Mex restaurant.

Here’s the controversial idea I think deserves consideration: Could misleading, camouflaged web content be considered an infringement of trade dress? (Think of the kinds of ads that make you believe you’re not clicking on an ad, but rather some piece of actual content on the site- especially regarding navigation buttons that match the navigation icons of the site.)

The reason I look to trade dress for a solution is that icons and interfaces, even stylized ones, are not subject to trademark, copyright, or patent protections. Furthermore, websites are increasingly treated as the digital equivalent of stores and offices of businesses- so much so that designs and layouts can come to be the trade dress of that business. Thus, there is a gap in the legal protection of user interfaces, and a need to cover that gap.

(Treating websites as subject to trade dress might have the added benefit of discouraging UX and UI designers from fiddling with the location and arrangement of navigation tools every other month just to justify their paycheck. And that’s the kind of change this world really needs.)

Conclusion: Trademark Protection is Already Working, Trade Dress is Still Vague and Untested

Trademark law is already quietly making the digital ecosystem a little bit safer by eschewing threatening knock-off games and apps. I think there’s a case to be made for applying trade dress to websites and UIs, but it would be a novel application and courts may be hesitant to apply the law so creatively.

 

* “300 Heroes” Infringes both copyrights and trademarks, but it’s the funniest example.

 

Watching Over Copyrights and Brands, Part II

You can protect a brand in a lot of ways. You can wave the law around like a sword, or hide behind it like a shield. Or you can not worry about using the law to your advantage and just make a product that others can’t top. One of the most fun things about law school was learning about all of the ways around the law – not breaking or circumventing it, but bridging over the gaps and cracks. Gaps and cracks happen most when the law hasn’t kept up with culture or technology, which is where I think the law is most exciting and interesting.

One of the most genius aspects of the overwhelming media hype-package of Overwatch is the way it manages concerns for copyright and trademark infringement. Blizzard achieved a level of branding and promotion that reduces their concerns for infringement. Overwatch is inimitable. That doesn’t make it invulnerable, but it might be the next best thing.

I. “Junk” from “Rats” Can’t Hurt the Bastion of the Marketplace

Even before I ever visited New York City, I knew that people sold cheap, counterfeit Rolexes on the streets. Having this explained to me as a child is also how I heard about Rolex, incidentally – and learned that it was different from Rolo. I always thought it was interesting that everyone knew about this black market for counterfeit goods, but no one seemed extremely worried. I think one reason for the lack of concern is that Rolex knows they won’t go out of business because of cheap knock-offs.

The best games, from the biggest studios­, have less to worry about when their IP is infringed or “heavily borrowed.” Dominating the games market is less about legal force than it is about marketing and loyalty. For one thing, Activision can’t claim copyright over the concept of a military-shooter and force other studios to not make games that compete with Call of Duty. So Activision makes Call of Duty a brand, because brands command loyalty. A given Call of Duty game may be worse in every respect to a competitor’s game, but fans will still choose the inferior product because of its franchise. (This is one of two reasons anyone rooted for the Cubs from 1945- 2015.) Blizzard created something powerful: a genuinely superior product that commands tremendous brand loyalty.

II. Just Palette-Swap For A New Game! Sounds Pharah- don’t you McRee?

Of course, just because no one can succeed in really ripping off Overwatch doesn’t mean people won’t try. League of Legends had this experience, also. Generally, game knockoffs like these are about as much of a concern as e-mails from dispossessed millionaire Nigerian princes. It’s a reprehensible practice that creates clutter and will accidentally trick some people, but they aren’t going to displace the original.

Companies can compete with Overwatch, but they can’t replace it. The entire experience is too complete and interconnected. No parasitic effort can trick a gamer into thinking they have the real deal, no one can deliver a superior version of the same experience, and no one pull more brand loyalty in online gaming.

III. Leaving your Trace[r] Mei Show that You’ve been a [Road]Hog, and You’ll Get No Mercy

Although Blizzard won’t feel the financial impact of the feeble efforts of clones, there are things that can still undermine the game. For example, a company could make an add-on that allows players to cheat at the game. Of course, a company called Bossland did exactly that. Rather than simply ban the players who use this add-on (per violations of EULA and ToS agreements), Blizzard has gone after the makers of the program – who are super proud of what they do.

I am a little bit surprised that they cite copyright infringement in their claim. This is interesting because it seems well outside the scope of traditional copyright law, but copyright law has been slowly evolving in the last decade. I think the technical details of how Bossland’s program interacts with Blizzard’s game could be essential to determining if applying copyright law is appropriate. After the recent ruling in Google v. Oracle, courts are more likely to find infringement just from making two programs talk. (The fair use defense that saved Google is not going to help Bossland.) In this case, it seems extremely likely that Bossland had to access and take (or manipulate) some of Blizzard’s code, which may be enough for infringement. But the ways that 3rd parties can interact with programs is still an interesting question for copyright law to resolve.

Regardless of the copyright claim, I think the other claims made by Blizzard are plenty strong enough to win, so I don’t think a court will end up going into detail about it.

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.