1978

You are wrong. And your own timeline proves it, while supporting my statement. As a result, my statement as was originally written, stands. So go back to July 18 and keep pondering from there.

1979

For entirely selfish reasons, I want to see this go to trial just to see what the lawyers and judge make of all of this. Copyright law makes my head spin.

While a settlement is the more likely outcome – and likely the better outcome for the parties involved – it’ll be unsatisfying to me because I’ll never get the technical legal answers to the claims being made by both parties.

1980

I agree with you 100%. From what I know, I don’t believe there’s going to be a settlement - at least not anytime soon. It’s all going to hinge on :

  • who has the money to continue this farce to a trial
  • who has the most to gain if it outweighs the loss at trial

Contrary to some beliefs, this isn’t some sort of war of attrition; nor am I of the opinion that P&F are engaged in a battle that they believe they would lose while Stardock gets a hollow victory. The latter would be patently foolish because the damages and legal bills in such a loss would be devastating to the point of bankruptcy.

Worse case scenario if this goes to trial is that both sides would win some parts, while losing others - all based on merits of the claims and the evidence presented. In that scenario, that’s where post-trial settlement would come in whereby the victor with the large win - and thus potentially larger financial damages awarded - would have the upper hand. Assuming neither side is dumb enough to appeal any such outcome.

1981

Stop conflating copyright and trademark under the blanket “IP” term already. Normally sure, they tend to go together, but this whole thing centers on the distinction between the two in this case.

1982

I am not conflating them at all. Because IP law covers both, and there is much overlap in how each is construed and interpreted, I have to defer to the underlying context because I’m not in a forum of idiots who can’t tell the difference, let alone the context within the discussion. If you’re confused, despite the fact that there’s much clarity in what’s written, that’s on you. I mean seriously, how hard is this?

1983

God, you never speak plainly, everything has to be a damn riddle doesn’t it?

Anyway, I think what you’re saying is that in the 3 days between the sale (July 18, 2013) and his posting online that Atari didn’t actually own everything (July 21, 2013) is when he found out that he didn’t own what he thought he owned, which you phrased as “get challenged on it” for some reason. Anyway, arguing pedantic things about the lawsuit is one thing, but arguing pedantic things about Derek Smart’s statements about the legal drama is a whole other level of time wasting, and I’m not even sure how you dragged me into it somehow.

1984

I think you must not have read the page I linked, because it talks about how trademark law explicitly disallows such “token uses” of a trademark that are done just to keep the trademark. I don’t think there’s any way that the Flash game wouldn’t be considered a token use, given how it was made.

Where? I already quoted that page’s discussion on the topic:

That’s far from saying that the abandonment is “100% reversible”.

1985

LOL!! I see what you did there, man :)

Bingo!

Which brings us to my statement (which was challenged) :

“someone buys something they believe they own fair and square, then get challenged on it”

If he wasn’t challenged (by P&F) there would be no lawsuit, right? Q.E.D

I had nothing to do with that :)

1986

It’s reversible for all the reasons stated in my article and the excerpt you posted. It doesn’t matter that each situation may be unique because that’s why the guidelines are specific. Also, because of case law precedent, there are cases in which courts not only expanded on the understandings of the guidelines, but also interpreted them as a matter of law. Hence the reason you are advised to also get a trademark attorney who would know these things. If everything written wasn’t subject to legal challenge and/or interpretation, there would be no lawsuits.

Don’t Do It Unless You Mean It — Voluntary Surrender of a Trademark Registration is Irreversible

How Do You Prove Abandonment Of A Trademark

1987

I’m not sure which “reasons” you’re referring to. You cited three defenses to argue that abandonment hasn’t happened in the first place, but none of them provide guidance for what happens if abandonment occurs, but then use resumes. The quoted excerpt certainly doesn’t say so; it basically amounts to a big “maybe…it depends”.

That’s about voluntary surrender of a trademark, and has nothing to do with abandonment.

That’s an example of a successful abandonment claim, and doesn’t say anything about the ability to negate an abandonment claim via subsequent use.

So far, none of the references you’ve provided actually address the issue of abandonment reversal; you seem to be reading that into them in your own interpretation. If you can find an article or piece of case law that’s actually on point, I’d love to see it.

1988

Because my intent was not to give the impression that I know more than an attorney or a judge, who are better equipped to pass such judgment. We’re all offering opinions based on our reading and understanding. And we’re all probably wrong.

The whole point - I thought - was to render an opinion based on our understanding. To that end, I posted the abandonment guidelines which is what would be followed by any court, while using precedent to guide a final decision. There is no way to determine which aspects of those guidelines would support the denial or approval of an abandonment claim because we don’t have all the facts.

Contrary to the opinions of several people in this thread, we don’t have all the facts (since we’re not a part of the discovery) which would otherwise support any such abandonment claims. We can only speculate and opine. Further, the merits of the case don’t hinge on abandonment because there are broader claims and causes of action to also consider.

Yes, I know. If you actually read it, then read the second one, you would understand why I posted both of them.

That was not the impetus for my posting them. I specifically posted that one because, like the previous one, it speaks to - and cites - examples of legal case precedents which can guide a case of abandonment.

Again, I posted the guidelines which would govern said abandonment in this Stardock case. To wit:

“The Trademark Act defines abandonment under 15 U.S.C. §1127. It states in part that a mark is abandoned, “[w]hen its use has been discontinued with intent not to resume such use. Intent not to resume may be inferred from the circumstances. Nonuse for three consecutive years shall be prima facie evidence of abandonment.” The burden of proof initially rests with the petitioner and once a prima facie showing is made the burden of production shifts to the trademark owner. The owner must show that the mark was used during the three-year period or that they intended to resume use within the reasonably foreseeable future. See Silverman v. CBS Inc ., 870 F.2d 40, 9 USPQ2d 1778 (2d Cir. 1989).”

I also said that abandonment is 100% reversible depending on the circumstance (e.g. voluntary is irreversible, which is why I posted that first article to explain that). To wit:

“In other words, later use of a trademark cannot retroactively cure a prior abandonment”

1989

Geez. You really have a knack for taking something you apparently agree with and trying to turn it into arguement.

1990

I fully expect @dsmart to argue about this point regardless of how much he agrees with it.

1991

Not an argument. It was mostly sarcasm (for stating the obvious). Sorry if that didn’t come across as intended.

1992

Yeah, I don’t think I worded that one as it sounded in my head. Basically, it was more of a “Gee, you think?” that I was going for. :)

1993

Text is a pretty poor medium for discussion, sometimes.

1994

Indeed. That’s why I get torched so very often. :)

1995

Well, there’s at least one other common factor. ;)

1996

Also, you’re a doo-doo head. :D

1997

There’s that :)