An NFL team and an NBA team are duking it out over trademarks with the word “UPRISING” to be used with eSports.

What is eSports you may ask? It is professional competitive video gaming. Anyone with a teenager has probably heard of Fortnite. Fortnite is a world-wide phenomenon. Over three nights during TwitchCon (which is a Fortnite competition), Fortnite averaged around 65,000 viewers per day across Twitch, YouTube and Facebook. However, there are also numerous other video games such as Hearthstone, Tom Clancy’s Rainbow Six Siege, Star Craft II and Overwatch, among others. Indeed, Overwatch is related to the trademark dispute involving the owner of the New England Patriots.

The dispute involves the marks BOSTON UPRISING and NORTH UPRISING. Specifically, last month, the billionaire owner of the New England Patriots Robert Kraft’s company, Kraft Group, filed a Notice of Opposition against an application filed by the NBA’s Toronto Raptors for the mark NORTH UPRISING (stylized) in connection with clothing and other merchandise that is to be used with video games. The Kraft Group alleges that the stylized mark in the application is similar in stylization and font of its applied for stylized mark for BOSTON UPRISING.

Continue Reading The New England Patriots Are Ready To Battle Off The Field

If you’re a video game fan like me, you’re probably familiar with Blizzard Entertainment and their assortment of popular games, such as Starcraft, Diablo, and World of Warcraft. One of Blizzard’s newest games is Overwatch, a multi-player, first-person shooter game. One aspect of this game is the Overwatch League, a series of tournaments and live events involving Overwatch players around the world, eventually culminating in the Overwatch League World Championships.

Blizzard recently applied to register an Overwatch League design mark, shown below, for various goods and services, including entertainment services in the nature of organizing and conducting eSports and video game contests and video game tournaments.

Major League Baseball Properties, Inc. (I’ll abbreviate as “MLB”) decided to file a request for an extension of time to oppose Blizzard’s application, presumably based on their various Major League Baseball design marks, such as the one below.

Significant press coverage has followed this development, which is somewhat unusual, as this is merely an extension request, i.e., it simply buys MLB more time to consider whether to file a Notice of Opposition and/or to reach out to the applicant to attempt to resolve a dispute informally. Filing extensions of time to oppose are relatively routine in the trademark field. Often times, in borderline cases where a party might not necessarily follow through with an opposition proceeding, simply filing an extension of time to oppose slows down the prosecution of an application and provides extended leverage during informal negotiations between parties.

So this extension of time might not lead to any formal dispute. One might question how likely it is that MLB would really follow through with an opposition here based on the differences in the marks. Both marks have a two-tone background (though in different colors), split diagonally by a white silhouette of a figure. However, the figures are quite different, one being a baseball player about to hit a ball, the other being a figure leaping forward with some type of gun, apparently about to shoot someone (the species of the Overwatch figure is also unclear–Overwatch has a variety human and non-human characters, such as a genetically engineered gorilla).

On a quick search, I’ve come across several design marks with two-tone, diagonal color splits, and white figures in the middle, some of which are in related sporting or entertainment fields. As one obvious example, see the NBA’s well-known logo:

As another example in the video-game field, see the MLG (Major League Gaming) design mark:

I wonder whether the Overwatch League design will end up being of any significant concern to MLB. Perhaps the extension of time to oppose simply provides some leverage over informal talks between the parties towards modifying the Overwatch League design? What do you think?

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I’m a rules follower. Going back to the days of the Game Genie—a device that allowed gamers to play Super Mario Bros. with infinite lives or the Legend of Zelda with infinite bombs—I have always preferred the satisfaction of beating the IMG_0016game by its own rules.

 
Like the video games that have progressed since the Nintendo NES, the corresponding cheat codes have become increasingly more sophisticated. Bossland is a company that creates and sells entire programs dedicated to hacking and cheating in popular video games, such as World of Warcraft, Overwatch, and Diablo 3, all made by Blizzard Entertainment. Many of the Bossland programs allow users to create “bots” that play the game automatically without any user interaction so that the user can, for example, achieve a higher level character without the usual effort. This is a practice sometimes referred to as “botting.”

 
Blizzard has been fighting companies like Bossland for years. Since 2013, Bossland has sold approximately 118,939 products in the United States alone. Blizzard estimates that 36% of these products were cheats for Blizzard games. In June of 2016, Blizzard sued Bossland in the Central District of California. According to Blizzard, the Bossland cheats give users an unfair advantage, reducing the enjoyment of the game for other players. Blizzard alleged, among other causes of action, that Bossland violated an anti-circumvention provision of the Digital Millennium Copyright Act. The DMCA provides:

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—
(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

17 U.S.C. 1201(a)(2). Within its games, Blizzard has “technological measures” that operate to prevent users from using cheats and hacks, but the Bossland programs are designed to work around Blizzard’s measures. At first blush, Bossland’s programming seems like the very type of circumvention efforts that the anti-circumvention provisions of the DMCA were designed to protect against. But the DMCA was enacted in response to internet file sharing concerns. In 2009, Blizzard was involved in a similar lawsuit against another cheat company. Many were concerned that a ruling in favor of Blizzard would overly expand the DMCA to allow for recovery under any circumvention of any type of technological control. Jef Pearlman of Stanford University suggested that “because anything can contain copyrighted works,” a ruling in favor of Blizzard could suggest that “any access to anything becomes a DMCA violation.” Blizzard did win its 2009 case, and the judgment was affirmed on appeal to the Ninth Circuit.

 
Late last year, Bossland motioned to dismiss the lawsuit for a lack of jurisdiction over the Germany-based company. The district court denied Bossland’s motion. After that attempt, Bossland apparently stopped defending the suit altogether. As a result, Blizzard obtained from the court a default judgment against Bossland. The judgment awards damages to Blizzard based on available statutory damages under the DMCA. The DMCA allows a plaintiff to collect a minimum of $200 per violation. Blizzard alleged 42,818 violations of the DMCA, and because Bossland did not dispute any of them, Blizzard obtained a judgment of statutory damages to the tune of over $8.5 million.

 
Bossland maintains on its product websites that “Botting is not against any law.” While perhaps technically true, the circumvention of digital copyright safeguards is.