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.

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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Just following up on my last comment, Fizzer responded:



So I hope people don't take my comment at face value. It's just my understanding of how this will play out. The defense's response to the plaintiff complaint will come out on Tuesday at the latest, so then we'll have a good idea of what their argument is and what they're going for.

Edited 6/7/2021 05:57:17

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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Since Fizzer appears to be pursuing a reverse confusion theory here, I just stumbled upon a case decided by the same court (Ironhawk v. Dropbox) on summary judgement that was very recently overturned by the Ninth Circuit Court of Appeals. I think maybe this one might go along similar lines?

https://www.theiplawblog.com/2021/05/articles/ip/the-sleekcraft-factors-and-reverse-confusion-trademark-infringement/
https://www.youtube.com/watch?v=35CK6zeIhrQ (this is the appellate court, on Zoom)

Edited 6/7/2021 05:57:24

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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Ficker’s attorney, Derek A. Newman, later sent a cease-and-desist letter to Activision, and the two parties began trying to settle the case. Ficker said his ask was 0.25% of Call of Duty Warzone’s profits.

- https://www.washingtonpost.com/video-games/2021/06/04/warzone-name-lawsuit/ (a WaPo puff piece from 06/04, clearly written with significant consultation from Fizzer and his legal team)

That's a flat-out 100% lie. I never sent a cease and desist. Activision's entire lawsuit is absurd.

- https://www.warzone.com/Forum/543174-activision-suing-?Offset=27 (Fizzer, this thread, 04/13)

I actually never sent them a cease and desist, they're lying about that. All I did was file opposition to the trademark, which I had to do or they could pull my apps off the app store.

- https://www.reddit.com/r/gamedev/comments/mq3as4/activision_is_suing_me_for_having_a_game_with_the/gueboou/ (Fizzer, again on 04/13, on reddit)

Activision is lying about the cease-and-desist. I never did that.

- https://www.reddit.com/r/gamedev/comments/mq3as4/activision_is_suing_me_for_having_a_game_with_the/gudmwr5/ (also Fizzer, also 04/13)

Edit to respond to your edit: I never sent a cease and desist. Activision is lying about that.

- https://www.reddit.com/r/gamedev/comments/mq3as4/activision_is_suing_me_for_having_a_game_with_the/gudli7g/ (also Fizzer, also 04/13)

04/13 was many months (at least 5) after Fizzer's attorney sent a cease and desist to Activision on his behalf. Did Fizzer's own lawyers just not consult him before sending the cease and desist? Quite a ballsy move to send a cease-and-desist letter to a 72 billion dollar corporation without running it by your client. I wonder how common it is for clients to not know about cease and desist letters sent on their behalf, months after they were sent. My guess is "never."



Edited 6/7/2021 05:57:31

Ficker acknowledged he never expected to get his initial ask, but said “I figured I needed to ask for something higher than I what I wanted because I expected they’d negotiate down from there.”

I've asked so many times whether you sent that cease and desist letter. You always said no, always claimed Activision was lying about that. I couldn't imagine Activision just making it up. Turns out they're not the ones making things up then. What's wrong with being truthful to your own community about this?

i like warzone cause it's a fun game, but i also really like skylanders, my favourite skylander is eruptor cause i think he looks very cool

I do not like this whole thing one bit.

And as a lifetime member, I definitely have a very strong interest and a desire to see this game survive.

But the layers to this whole thing are basically overwhelming, so I will be one of those who lets the professionals sort it out.

(Plus my income is roughly 11k USD per year, so I just can not see donating to a lawsuit, no matter how well intentioned.)

Even though I don't much like how most large game companies are run, and that definitely includes Activision.

Best wishes to Randy, Warlight/Warzone, and to all of you.

I might even see you on the battlefield. ;)

-- Dublin Warrior

so the way i see it either fizzer and his team are going to make a good defense and win or they won't and lose. everyone that isn't on his team should stop delving down the complicated tunnel that is trademark law.

regardless of how we got here it is in the best interest of fans of this game for fizzer to win. activision will do everything it can to shut it down otherwise.

Of course it's in our best interest if Fizzer wins. It's not great if he's untruthful to the community. The way it looks now is him trying to claim he didn't kick the hornets' nest and he's a poor indie dev being sued by Activision for now reason. Now, I don't know the details, but claiming multiple times that you didn't kick the hornets' nest while having sent a cease and desist letter demanding 0.25% (!) of their game's revenue does not make sense at all. Don't get me wrong, I want him to win the case. But I also want him to be truthful about it.

As much as I really wanted to believe Fizzer, there appears to be tangible evidence that what Fizzer said about not sending a cease and desist letter is untruthful.

You do more damage to your cause by being untruthful about the cease and desist, and having it come out later that you lied to the community, than being upfront on this in the first place.

-Aura

Edited 6/7/2021 20:18:46

0.25% (!) of their game's revenue

Profit, not revenue.

I supported Fizzer with the understanding that:
1) Warzone.com, LLC's objective in this suit was to simply protect the future of its business from an over-broad trademark registration by Activision
2) Warzone.com, LLC did not send a cease and desist letter to Activision
3) Warzone.com, LLC was not interested in shaking down Activision for money because they also happened to name their game Call of Duty: Warzone (like the 20 "Warzone"s that predate Warlight renaming itself)

We know #2 to be false, and it's hard to conceive of Fizzer not knowing about that on April 13th and later when he kept saying Activision merely made it up. Fizzer's comments on the Discord server and his initial demand (with whatever reason) of 0.25% of Call of Duty: Warzone's profits demonstrate to me that #3 is clearly untrue and that #1 is not the real objective of this case. Finally, I gave Fizzer the benefit of the doubt earlier, but the GoFundMe fundamentally mischaracterizes the case, misleading readers about what's at stake and what Activision seeks to achieve in court.

He made me look quite stupid, jumping through hoop after hoop to rationalize his actions and persuade people to support him. He took advantage of us.

I'm going to make a counterargument: as customers of Warzone (it's a business, not a charity- and before Math Wolf/Anonymous Moderator sends me another lengthy "non-threatening" DM, no it's not Fizzer's house and commenting critically on this thread is not like "p***ing on his carpet"), as customers of Warzone our best interest in that this company be owned, operated, and managed by an ethical, competent administrator responsive to user feedback and committed to a good user experience. GoFundMe fraud does not align with that.

Perhaps you should all imagine a future of Warzone.com beyond Fizzer.

Profit, not revenue.

Ah, correct. English isn't my first language :) For anyone else with this problem: revenue is before expenses, profit is after expenses (simplified obviously). At any rate, 0.25% of CoD: Warzone's profit is still a huge sum.

Another thing Fizzer specified in the article: there are over 80,000 players with a membership. Does this include free memberships? Because as far as I'm aware, the cheapest membership is about $4,- per month. Of course there's also people with a lifetime membership, but I imagine those are not the majority. When speaking about these amounts of money, I can't see how the $50,000 that was targeted for the GoFundMe could have that much of an impact, as we were made to believe.

All in all, I just want some openness. What impact does the money donated have? Why did you insist there not being any cease and desist letter to your community, who later had to read in the papers that there was? How did your lawyers ever agree to this story; do you even have a (competent) lawyer?

l4v.rov seems your letting your disdain for Fizzer fuel this troll behavior. Does it really matter in the end what did or didn't happen? Does this somehow hurt you? Doubtful. 100% even an uneducated sap like myself (who donated) knows that GoFundMe was put up in haste with little thought to legal ramifications but I donated anyway. Why? Because I like this game and it's simplicity yet challenging nature. 100% true CoD:Warzone has hurt this apps searchability and you would be ignorant to argue that... blah blah advertising yeah wj

when you have literal hundreds of millions to devote purely to advertising of course you will outspend and market the smaller companies but its not just Activision/Blizzard creating CoD:Warzone apps. There are numerous 3rd party apps devoted to aspects of that game which would push this game further down the list by the name alone. I only happened upon this game because of a fortunate mistake in the same fashion so his argument that confusion can occur is valid.