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
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
