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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8 thoughts on “Trademarks: Developers Strike Back

  1. I’ve been watching this develop with interest over the past few days. If nothing else it’ll be fun to see it all implode when the developers realise this is completely unenforceable as was as a complete misunderstanding of what a trademark is.

    Liked by 1 person

  2. First of all, excellent post. Secondly, I’m pretty torn about this whole thing honestly, I personally don’t think the way StiCli is going about things is right at all, especially the no refund part and the fact that they can hand pick their critics. However, I tend to side with devs a lot on these issues, its not easy to make a game, especially when its still a work in progress, and having a guy with as much pull over a gaming audience like Jim Sterling shit on it can really be detrimental to the game. Now from what I’ve seen of StiCli’s game is that yes, its far from finished, and it probably isn’t quite ready for early access either, but, who knows what predicament that team is in, there a lot of unknown factors, and at the end of the day I don’t want to gang up on any developer, even if they’ve made a few PR mistakes like the nonsensical rules they thought they could apply to their game. I just feel that content creators should have a little more understanding to what the devs go through, its easy to shit on things online, but just because you can, doesn’t always mean you should.

    Liked by 1 person

    1. I watched his video on the game, and he really wasn’t that critical of it. In fact, many of the commenters on the video were defending the game, saying that it has definite potential and it’s clear that the developers know what they’re doing in regards to knowing the ins and outs of airport operation.

      StiCli is clearly a company that needs a PR firm to handle their image though. Shutting down any critics doesn’t earn good will, and overly negative critics are generally weeded out of the pool of useful opinions, just like overly positive ones. Just look at Metacritic and Steam user reviews.

      I can see where you’re coming from though. A developer can get bombed by a strong personality with a large following. I don’t think that’s necessarily what’s going on with Mr. Sterling in this case however. If anything, the game would’ve been unknown for the most part if StiCli didn’t pull this stunt.

      You bring up an interesting point however: the role and impact of a critic.

      Thank you for taking the time to comment. I’m going to need to think about this.

      Liked by 1 person

  3. Didn’t know about this. But I think find you are a game creator, and whether you release it for early access, or final release and it’s in the hands of people, then it’s subject for criticism. Otherwise it’s shady stuff because if you hide all the bad review yet only show 1 or 2 that are good, you’ll have some pissed off people and that’ll just make the developer look bad still.

    Early access or not, people release games early to get feedback so they can improve it. If the developer can’t handle negative feedback maybe they are in the wrong industry.

    Liked by 1 person

  4. Interesting post. Honestly, if you’re going to put something on the internet, though, you need to have a bit of a thick skin about it. And certainly if you’re creating a product that isn’t ready to be made publicly available, you should be willing to receive constructive criticism, especially if the criticism is presented professionally. I can imagine it’s hard to hear a big name put your game down, but I think if Jim Sterling said that this was early access, they were still working on it, it has potential (i.e., throw the devs a bone), StiCli should have just taken it, said thanks for the great feedback, and merrily gone on their way.
    Sometimes it’s your reaction to things that show your nature, and StiCli doesn’t seem to have a good one, in this case.

    Liked by 1 person

  5. “You don’t cut out a man’s tongue because he speaks the truth. You do it because you’re afraid of what he will say.” -Georhe R R Martin

    I could say a lot about censorship in regards to the above quote in these tumultuous times, but if a company is going to these lengths to silence someone because they didn’t like their critique of their work, it says far more about the company than the critiquer. Art thrives on criticism. It’s how it improves if the critiques be valid and useful.

    I’m a writer so I understand how a harsh one can sting, and of course there are trolls, but this here is pure and blatant censorship using your position to bully the little guy into shutting up. Like the article you linked (which I also commented on) you’ve perfectly hit it on the head.

    Liked by 1 person

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