Trademarks: Developers Strike Back

There appears to be a new tactic in the war against content creators.

In case you missed it, I wrote about the recent victories on the front of copyright takedowns on YouTube, and the abuses that many content creators have been enduring. Well, as it turns out, Jim Sterling’s victory against James Romine was short lived.

No, Mr. Romine hasn’t found a way to fight back against Mr. Sterling. Instead, the battle has shifted from using copyright law as a justification for unlawfully taking down videos, to an unprecedented attempted abuse of trademark law to stifle criticism.

Airport Master

Recently, Mr. Sterling published a video that mildly criticized a completely unknown title, Airport Master by the developer StiCli.

Airport Master is a title in early access on Steam that looks to have a decent premise of putting players in charge of managing an airport, though it lacks polish and could stand to be a little more interactive. As it is right now, it’s a graphically represented spreadsheet game that needs to have get some work done on it to make it more presentable, and have some of the gameplay ideas fleshed out. It’s not the worst piece of garbage on the market, but it definitely has room for improvement.

But that is neither here nor there. The issue at hand is that StiCli’s response to Mr. Sterling’s commentary was to attempt to shut down his video, but not by using YouTube’s DMCA strike system.

This is where it starts getting a little ludicrous.

“Excellence In Details”

End User License Agreements (EULAs) are a staple of the modern gaming community, with many companies attempting to set rules for the use of their software as a condition of them being purchased and used by consumers. However, they are not bulletproof and are indefensible when they conflict with laws and regulations. That didn’t stop StiCli from attempting to circumvent and abuse the legal system to silence detractors though.

You see, StiCli has apparently tried to take their slogan “Excellence In Details” to heart, and slipped in some interesting provisions into their EULA in the attempt to give them the power to shut down anyone that speaks ill of their work.

Let’s start with the beginning of the EULA:

By downloading, installing, accessing or using Airport Master game (the Software), you agree that you have read, understood, and agree to be bound by this EULA and all of its Terms and Provisions. If you do not agree, you may not download, install, access or use this Software.

By this, they’re saying that by merely downloading the software, you’re required to abide by everything in the EULA or be seen as violating the provisions in the document. It’s a little shady in the first place to expect people to abide by a document that they may not know about, considering that the game doesn’t present you with this agreement to my knowledge, but I’ve come to expect this kind of behavior from the industry.

No, the issue is the conditions that the EULA sets for the user to have the right to use the software:

4. TRADEMARKS AND RIGHTS TO THE SOFTWARE
The End User recognizes that all of the rights associated with the Software as well as the rights related to the trademarks, royalties and copyrights, are the property of STICLI Games and are protected by international laws and treaties. Any use of Copyright Holder’s trademarks, imagery content, videos, graphical elements, names, plot in any activity (including but not limited to: producing [third] party video content, electronic and on-paper publishing (underlined for emphasis), creation of promotional content etc.) is only possible with prior written permission of Copyright Holder.

Basically what StiCli is trying to say is that they deem any use of their content for critical review, streaming, or for simply displaying the game as a violation of their trademark and copyright, and that coverage of Airport Master would be limited only to individuals and media outlets that ask for permission to review their product.

According to the EULA, critics would need to get written permission from the developer to create a review of StiCli’s game. That, my friends, borders on conflict of interest. If they even have an inkling that a review might not be favorable, they could deny permission to have a review written about Airport Master.

Don’t worry though, because it gets better:

9. NO REFUNDS
Except when required by law, the Licensor shall be under no obligation to issue refunds under any circumstances. The Licensor may issue refunds basing on Licensor’s own judgement and solely as a gesture of good will.

No refunds? On a platform that provides refunds with no questions asked? StiCli doesn’t get to make the rules here. A refund on Steam for Airport Master, which StiCli is not able to dispute, will result in money being deducted from the StiCli’s account or denied to StiCli for future sales.

Barring the fact that StiCli apparently doesn’t handle details very well (despite it being a slogan of theirs), they apparently want to make sure that even if you buy the game and install it, but never play it, you’re still not allowed a refund under any circumstances.

So, they’re basically using entrapment as a way to keep profits made on the game. This EULA is an attempt to control the conditions that Airport Master is portrayed, outside of the bounds of any laws protecting Fair Use. Glad we got that out of the way.

What Is Trademark?

Let’s disregard the insanity in the EULA for a moment and focus on the issue at hand though; StiCli tried to use their trademark rights as a means to assert their right to control their image. That’s fair, right? I mean, that’s what trademark law is for; to maintain the image of a brand.

Well, not exactly. You see, trademark law is meant to prevent a company’s brand from being damaged due to misrepresentation or piggybacking on their name. For instance (because I like analogies), if a tech company designs their logo and it happens to be similar enough to Microsoft’s, Microsoft could file a trademark infringement lawsuit against that company for violating the claim they have on their own logo’s design.

Basically, trademark law is used to protect a brand from becoming confused with another company or individual’s product. It’s used to make sure that consumers are able to recognize brands.

But what does this all mean?

Trademark Takedowns

StiCli’s takedown of Mr. Sterling’s video was not carried out on the grounds of copyright infringement. Instead, they claimed he violated their EULA’s provision that videos made about the game without their express permission are a violation of their trademark rights.

Except there’s no way that he infringed on their trademark. He wasn’t showcasing a game of his that could cause confusion with their title, or attempting to deceive potential Airport Master buyers into purchasing another product instead of StiCli’s. He simply posted a video that criticized their game.

Was his video a violation of Airport Master‘s EULA agreement? Yes, it definitely was. Is Airport Master‘s EULA defensible in a court of law? Not likely.

The defense of Airport Master‘s EULA would require there to be a legal right of the StiCli to shut down videos and content depicting their game. Previous cases (like Romine v Stanton), have already more or less proven that courts would likely side with the content creators in this argument, and that very well may be why the charge of trademark infringement was used instead of copyright infringement.

The EULA is, plain and simple, just a flimsy attempt to circumvent the legal system entirely in order to make sure that any negative attention is silenced as quickly as possible. However, what these developers apparently don’t understand is that this kind of action will only work with people that are afraid of these kinds of actions. People that aren’t informed enough to fight back. Furthermore, obvious attempts to stifle criticism like this aren’t viewed favorably by the gaming community (just take a look at the Steam reviews).

Now I’m by no means an expert on the subject of patent, trademark, or copyright law. However, I fancy myself capable of using basic logic to determine the legitimacy of claims made, and this trademark claim (as well as the asinine EULA) reek of bullshit. Something needs to be done, because these attempts to bully and silence critics is out of control.

Have you heard of this dispute? What are your thoughts on this new development?

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