this is about money and how Activision wants it for themselves. that is it.

I understand you have some misgivings about lawyers, especially with how they are portrayed in the media. Legal shenanigans are a real thing, but the law is about achieving public policy goals. You cannot simply state that everything is a legal shenanigan. Most of the law is routine, and common-place. And the law, as a whole, does achieve the public policy goals it intends to. You are looking at the exceptions and not the norm, perhaps out of some kind of resentment towards lawyers as a whole.

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TRADEMARK BASICS

About the legal problem at issue, I'll give you an analogy. Suppose you open a pizza store called "Bob's Palace" in Wisconsin. The store does reasonably well. But then, 2 years later, some guy named Bob wants to open a waterpark called "Bob's Palace" in Miami, Florida. The question for you is, can the first Bob stop the second Bob from using the name "Bob's Palace"?

Trademarks are specific, both in location and in scope. The fact that you open a pizza place does not mean you own the words "Bob's Palace" for all intents and purposes. Trademarks are designed to prevent "unfair competition." "Unfair competition" in this context would exist if a reasonable consumer would confuse the waterpark Bob's Palace with the pizza place Bob's Palace. Due to how different the two brands are and how unlikely it is that there is any market overlap between the two brands, you'd be hard-pressed to state that the waterpark is taking any business from the pizza place, let alone unfairly competing with them.

But you must not mistake "unfair competition" with normal fair competition. The unfairness is a requirement. Many of you correctly point out that Activision's actions may damage Warzone. But the mere act of damaging Warzone isn't sufficient to say they are "unfairly competing" with Warzone. In the above analogy, if the Bob's Palace pizza place started to lose sales because a new pizza place, Sally's Corner, opened down the street, would that be unfair competition?

No. Competition, by it's very nature, often involves one brand suffering at the hands of another. You need to cite specific bad or anti-competitive conduct to say the competition is "unfair."

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APPLYING THE BASICS

Now let me ask you another question. Let's suppose there was another "Warzone" game that came out before this one. But that "warzone" game was completely different; there is literally no commonality other than the name. Is Fizzer's version of Warzone" unfairly competing with these previous Warzone games? In other words, is Fizzer's version of the game stealing customers that this earlier game would otherwise have from the NAME alone?

I want you to keep this answer in mind, because it's no longer a hypothetical. It's reality. There were several games called "Warzone" that existed before this game. Now again, I ask you, is Fizzer's game of Warzone unfairly competing with them?

And lastly, I ask this: If you say that Fizzer's game isn't violating the trademark rights of the previous warzone games, how is Activision violating the trademark rights of THIS game? Do you have a logically consistent way of reconciling the two?

It seems to me that the only logically consistent way to resolve the two is to say that Activision's actions are worse because they are a large gaming giant. I know there is a lot of anger towards Activision for other valid reasons, and there is a fear that they are using their money to get an unfair advantage. But stop and think about it. If they weren't a big gaming giant, would there even be this much outrage? The fact that Activision is a giant company isn't reason enough to say they are guilty. If you think it is, then what you really want is class warfare, not any "fair" adjudication of the law.

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CONCLUSION

I'm not going to go into the actual legal analysis of this case because 1) I'm not on the bar yet, and 2) as someone who will be admitted to the bar, I have an ethical obligation to not make careless statements about pending cases. But I hope I have given you some things to consider. The major thing I wish for you to take from this is that the situation is much more nuanced and complex than you are making it out to be. And it certainly isn't just "legal shenanigans."

Edited 5/17/2021 08:15:26

you are saying since there were games called warzone before fizzer changed the name from warlight that future companies that decide to change their name to warzone has the right to claim it? if one of the other older games (still in business) had issue with this one than they win. if fizzer turned on an older company and said they are not allowed to use it anymore because he is bigger and can afford lawyers then he would be a huge turd and should lose in a court of law. Simple.

Or....that all of the warzone games have their own trademark rights but none of them are infringing on each other. That's what I was alluding to.

They can all separately have trademark rights and not infringe on each other if their bubbles don't overlap. You can't simply state that the first person to use a name period has exclusive rights to the name for everything. Like, if I own a store called "Burger", I do not magically own the word burger. Your statement quickly breaks down if you think about it.

I'm not saying that the bubbles do not overlap. I am saying that there is question if they do, and that's all I will say on the matter, as stated above. I tried my best to make my response as clear and explanatory as possible. All I request is that you seriously consider what I'm saying, rather than making knee-jerk conclusions.

God this forum is getting all formal :D

I love it

Edited 5/17/2021 12:56:52

If I were in your shoes, this is how I would read the enemy. They're suing you not with the intention of winning a lawsuit or even going through with the lawsuit. They've done this purely in hopes that you'll get scared and willingly change your game name, in which case, they've won for free. By not changing the name, you're calling their bluff. At this point they'll either step up the pressure (continuing with the hope that you'll change the name voluntarily) or they'll just drop it. I predict that at some point sooner or later, they'll just drop it. They can't win.

I once broke of dealings with an insurance company and several months later they sent me a letter stating I owed them some money with threats to send a collection agency after me. I called them and told them I'm not paying them and I'd gladly go to court and fight it if they want to press the matter. Never heard from them or any collection agency again.

They sent the threat just to see if I'd get scared and willingly send a cheque.

Moosehead, that isn't right at all. Please refer to my previous messages.

Also, the situation here is entirely different. They didn't send Fizzer a letter; they literally filed a complaint in district court. If your point is that they don't want to actually take it to court, they already did.

Why are you so convinced they can't win? Can you cite one reason for why you think that? If not, again, let's just try to support the game in the way we can and not spread misinformation.

well this isn't good

Mr Fizzer. I don't feel so good about this :(

maybe the name could return to Warlight?

Usually the issue with having these giant legal battles isn't that you lose the judgement but that you run dry of money before all the lawsuits close.

I hope they win. fix this game.

Fix game! But doesn’t say what’s wrong with it.

Here is the GoFundMe refund form if you feel you donated to this campaign in part or in full based on the misrepresentation that no cease and desist letter had been sent by Fizzer to initiate the fight: https://www.gofundme.com/contact/suggest/donor

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An Activision win can kill the game, not fix it.

The important part of this case is not whether Activision is able to register the trademark for "Warzone" (the word) in video games in general. Warzone doesn't need much to "win" here: they're fine if they can get the court to even say no one should be able to trademark "Warzone" (the word) that broadly, which even Activision's own arguments sort of lead towards. They can lose the rest of the case- the court could find that Activision does not infringe Warzone's trademark (because they pretty obviously don't), that Activision should get to trademark "Warzone" for FPS games, that Warzone can't trademark "Warzone," etc.- but still be fine as long as Activision doesn't get this broad trademark to a common English word used by dozens of video games before them and as long as Fizzer isn't forced to play Activision's legal fees.

With competent counsel and sufficient funds, Fizzer should be able to pull this off. But if he doesn't, then we're looking at an existential risk: Activision owning the "Warzone" trademark means that Fizzer's apps and search engine listing either live at Activision's mercy (even though the law would probably grandfather Fizzer in, this process would be going through kangaroo courts run by Google and Apple- and if you've use YouTube, you know those tend to side with the big guys more than with the law) or he goes through a possibly costly and risky rebrand for his entire business. Either of those things could nudge this whole enterprise to the point where it no longer becomes financially viable to maintain such a generous, user-friendly game.

It's not the most likely scenario, but it should be an uncomfortably high risk if you care about this game enough to complain about it.

Edited 6/7/2021 05:56:50

"(because they pretty obviously don't)"

it seems like they don't because they are 2 entirely different games, but I contend that they actually do.

Google "warzone" and look how far down our game is (like how is that even possible? warzone.com should come up first, like it used to pre-activision). we lose new players if they can't find us.

one thing fizzer mentioned in his GoFundMe is the twitch stream he was trying to run. it has been completely overrun by cod streamers.

another thing is fizzer routinely gets contacted by cod players asking for help or technical assistance on their game.

it's not that the two businesses rely on the same base of consumers, it's that the internet only cares about activision.

and for the record, I agree with everything else you said

Edited 6/4/2021 18:12:43

hello wannabe lawyers

We all thought that the worst case scenario is that WZ changes name and Fizz pays some $ ... actually worst case is Activation takes over WZ and wrecks it like so many other games.

Here is the GoFundMe refund form if you feel you donated to this campaign in part or in full based on the misrepresentation that no cease and desist letter had been sent by Fizzer to initiate the fight: https://www.gofundme.com/contact/suggest/donor

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Google "warzone" and look how far down our game is (like how is that even possible? warzone.com should come up first, like it used to pre-activision). we lose new players if they can't find us.

Being better at marketing and branding and SEO is not trademark infringement.

one thing fizzer mentioned in his GoFundMe is the twitch stream he was trying to run. it has been completely overrun by cod streamers.

I've tiptoed around this, but I really hate what Fizzer chose to argue in the GoFundMe. Apparently he ran it by his lawyers, which surprises me, but the arguments he made- Activision dominating search engines, people on Twitch using "Warzone" for CoD, people playing Warzone thinking it's CoD- would not fly in court and have no bearing on trademark infringement. In fact, someone playing Warzone.com thinking it was made by Activision is the exact inverse of the argument Fizzer would have to make if he wanted to demonstrate actual confusion.

Honestly, either I'm totally totally miseducated about trademark law (which may be the case) or the arguments in the GoFundMe grossly mis-characterize what trademark infringement actually is and make irrelevant arguments. Hopefully I'm wrong, because if I'm not I'd be quite worried that Fizzer's decision-making in this case would be predicated on a total misunderstanding of trademark law and what constitutes consumer confusion. It'd be like he's playing poker thinking he's got a pair of aces when his hand is garbage. Could backfire hard.

Let's walk back a bit and I'll share my (non-lawyer) understanding of trademark law (from taking some undergraduate law courses):

If I invented "Coca-Cola" and spent billions marketing it and hammering in consumers' minds that the product called Coca-Cola is tasty and refreshing, then it would really screw me over if someone else came in and started selling their product as "Coca-Cola" and stole my marketing. Consumers would be misled- or confused- into buying another product thinking it was mine or had something to do with me! This would defeat the entire purpose of building a brand.

The fix to this is that you are given legal protection for brands. The law prevents someone else from doing sketchy behavior and confusing consumers into thinking their product has something to do with yours.

The way it works is that you are allowed to trademark recognizable signs, designs, and expressions ("Eat fresh!" makes you think Subway, "I'm lovin' it" makes you think McDonald's) and prevent others from using it in the same industry as you. For example, you can't make a new soap called "Dove" or one that has the same typeface and packaging as Dove soap but is called "Love" or "Dover" or something else of that sort- an obvious mimic, that consumers might buy thinking it was made by the Dove soap company. However, you can make "Dove" chocolates because it's not in the same industry (Dove soap and Dove chocolates have nothing to do with one another, and neither is leeching off the other's brand).

Okay, so what can you trademark? You can't trademark something obvious and descriptive like "turn-based strategy game" because that's a literal description of what your product does, not really your own brand. Trademarks have to be source identifiers (tell you who made the product) rather than descriptors (tell you what the product is).

There's three types of strong trademarks:
- Arbitrary trademarks: what does "Apple" have to do with technology? Nothing. Okay, easy approve.
- Suggestive trademarks: "Coppertone" sunscreen, for example; you have to make a leap of imagination to connect it, and so it's clearly tied to that brand.
- Fanciful trademarks: made-up words, like "Clorox," are good examples here

And you can't trademark something descriptive ("sunscreen") or generic ("jet ski") because in the public's mind that is not a source identifier.

I think "Warzone" is clearly a suggestive mark: it has something to do with the product (a zero-sum competitive strategy game) but doesn't describe the product outright. The problem here is that suggestive trademarks aren't no-brainers. If it's such an obvious connection that it requires no leap of imagination (e.g., "Speedy Restaurant") and a bunch of people have independently come up with it before, then it's clearly not a source identifier.

Trademark law is about protecting source identifiers and making sure consumers aren't confused about the source of a product.

Before we get into the nitty-gritty details, I'm just going to ask outright: if you see a game named "Warzone," do you associate it with Warzone.com, LLC? You might, but would you expect the average consumer to?

Clearly not. When the "Warzone" name change happened, we knew dozens of other non-Warzone-related games had already been using the word. Clearly, the word "Warzone" is not sufficient- even in the domain of strategy games- to identify the source as Warzone.com, LLC. It's a common English word with a fairly obvious connection to zero-sum competitive strategy games. Activision's usage of "Call of Duty: Warzone" in no way tricks consumers into thinking that their product has anything to do with this one. Most have never even heard of this game and so the "Warzone" brand that Warzone.com, LLC, cares about so much hardly even exists.

Now, let's get into the legal stuff. There's two broad types of trademarks in terms of enforcement: you can either register a trademark with the USPTO (Patent & Trademark Office) or you have a common law trademark. Common law trademarks are narrowly scoped: they only apply to the places you operate in, etc. (For a real-life example, there's an old "Burger King" that owns the common law trademark for "Burger King" in a small part of Illinois: https://en.wikipedia.org/wiki/Burger_King_(Mattoon,_Illinois)#Name_dispute).

Fizzer did not file to register "Warzone" until after Activision did so (in fact, these competing trademark registrations are the inciting incident for this case and at its heart). So he has a common law trademark to "Warzone", at best. Most likely, he does not have a common law trademark to "Warzone" (the word), because it's such an obvious and common name, but instead to things like the Warzone logo and design (cause if you saw that style you'd think it was tied to Fizzer's work). And almost certainly he has no trademark to the word "Warzone" in the domain of first-person shooter games.

Why? Trademarks are about source identification.

If you saw a first-person shooter game with the word "Warzone" in it, would you- even you, a user of this site- for even a moment believe it had something to do with Fizzer? I don't think any of us believed for a second that Call of Duty: Warzone had anything to do with Fizzer. There was no confusion about source identification.

Before you talk about this in terms of a difference between the law and justice, remember that the purpose of trademarks is to protect source identifiers.

It's not a system of dibs where you can call shotgun on a common English word and prevent anyone else in the industry from using it. It's not a legal system that says no one else can name their product something similar to yours and succeed wildly in marketing to the point that consumers associate that word with their product, they bury you on search engines, they bury you on Twitch, they bury you across the board. They beat you- but they beat you the way anyone beats anyone in the market (it's got winners and losers).

Getting destroyed fairly in the market doesn't grant you legal recourse.

To get to the heart of Fizzer's gripes on the GoFundMe: in 2017, Fizzer gambled on building his entire company's gaming brand on a common English word. When he made that decision, he took the risk of Activision or someone like them deciding they would use the same common English word, instantly crushing him on branding. He gambled, and he lost.

Sure, the little guy lost to the big guy. But the big guy didn't break rules. It feels unfair because little tiny David got crushed by a Goliath steamroller, but it's just the spirit of market competition. Small companies inherently play on this field- they have fewer resources. It's how capitalism works. It's not trademark confusion.

I think Fizzer has done a massive disservice to the understanding of intellectual property law among people on this site. I think the arguments he made on the GoFundMe would get him laughed out of court, and if his lawyers are egging him on to do that, then he should fire them and get someone who doesn't take advantage of their clients. I check PACER every few days for his response to Activision's complaint, because I hope his side makes good arguments in court and doesn't let Activision trademark Warzone.

But I stand by what I said earlier: even if you dislike Fizzer, if you at all care about the game this case is important. If Activision somehow gets to broadly register the trademark for "Warzone" for video games or even online products in general, this game is in for a world of trouble. If you know anything about me, you know I'm not a Fizzer fanboy. You know I don't think he's smart or trustworthy, and I like making fun of the things he says because he says a lot of things I think are silly and laughable. So even if you feel like I do- like one of those people who constantly complain about the game- it's still EASILY in your best interest to back Fizzer 100% here in terms of legal resources and money and public support and whatever else, because the future of this game is at stake.

Edited 6/7/2021 05:57:06

https://www.washingtonpost.com/video-games/2021/06/04/warzone-name-lawsuit/ Washington Post has put together a long article detailing the legal battle and what has happened thus far. It's a good read.