Streamer Consigliere Part II — Trademarks

Welcome back to Streamer Consigliere, part deux, providing helpful information about some of the legal aspects of Destiny (or any video game for that matter) content creation. But first, an important disclaimer. I am an attorney licensed to practice law in the State of Michigan, but I am not your attorney. This article is solely meant to provide helpful information; it is neither an advertisement for my services nor is it legal advice. I am not your attorney, and nothing in this article is intended as legal advice. Additionally, this information is specifically regarding laws of the United States. I would highly recommend you consult your own attorney for your own situation, but that person is not me.

Branding is important. You didn’t need me to tell you that. I watch everyone’s streams and YouTube videos. I listen to your podcasts. I know who you are, and a lot of you brand yourselves very well. Sharp logos, consistent font usage, unique overlay designs, slogans that started as an inside joke or a simple tweet that have grown into gospel within the Destiny community. Identifying to a consumer base who you are is an essential part of pushing and promoting your creative content. It’s equally important to protect who you are, because the more money you’re brand is worth, the more people will try to make use of it. This is where trademarks come in. Trademarks are used to protect your branding and prevent others from using them to create confusion as to where your creative content is coming from or who to pay for your creative content. Trademarks are also used to protect the goodwill of your business and prevent things outside of your control from ruining your reputation.

So let’s talk about trademarks, what they are, what they aren’t, and how and why you use them.

Trademarks Are Not Copyrights

Trademarks can sometimes be difficult to understand. Right off the bat, they are often confused with copyrights. They are not copyrights. If you start a business, you are not copyrighting your business’ name, logo, or slogan; rather, you are protecting them using trademark laws. Copyrights are for artistic expressions transmitted through some sort of medium (artwork, music, films, etc.). Trademarks, on the other hand, are something that signify the source of the goods or services you provide. That is traditionally a name and/or logo, but can also be a phrase, a slogan, a distinct sound, or even a distinct smell. Some trademarks can also be copyrights if they are artistic enough, and some copyrighted material can also be trademarked if they also signify a source of goods or services, but these are entirely different tenants of law. Here’s the most condensed distinction I can possibly make. And I don’t often get a chance to bust out a Venn diagram, so I’m really excited about it:

Okay, it’s not really called the “European Dead Zone” in the middle there. I’ve tried to lobby for it though. The point is that some trademarks can have a level of artistic design that qualifies them for copyright protection in addition to trademark protection. But the two are not the same, nor are they related. They are aspects of law entirely exclusive of each other.

The video game industry can be an absolute mess when it comes to these forms of intellectual property (known as “soft IP”), so if you look at a game like Destiny and get confused as to where trademark protection ends and copyright protection begins, don’t worry, that’s what I’m here for. Let’s do a little Destiny-related soft IP quiz and see how many you get right:

Copyright or Trademark?

Answer: Trademark, identifies source of video game products.

Copyright or Trademark?

Answer: Trademark, identifies source of video game product in particular — Destiny.

Copyright or Trademark?

Answer: Copyright, artistic expression through screenshot of gameplay. That warlock is about to have a bad time by the way.

Copyright or Trademark?

Answer: Trick question! Well not really, but this is a good example of something that blurs the line between copyright and trademark. In-game, it’s a “trademark” identifying the source of weapons. But (spoiler alert) the game is not real, so in real life the logo can only be subject to copyright protection as an artistic expression of an element of the game’s lore because you cannot purchase a Suros Regime in real life. So it’s just copyright. For now…

TM vs ®: Which One Means Trademark?

They both do. But they mean different things. For this to make sense, it first helps to understand what “common law” is. The best way I can summarize this is as follows: if a legal rule comes from something other than a legislated law (i.e. statute) or regulation, such as a judge’s decision in a case, it is common law. And there’s been a whole lot of cases with a whole lot of judges saying a whole lot of things, so in some respects common law can be more developed and clear-cut than actual codified laws which are impossible to comprehend (try reading the tax code some time).

So which one is trademark law, you ask? Statute or common law? It’s both. Cue heads exploding everywhere. Some aspects of trademarks are governed by the benefits of federal registration and some are governed by common law, just to make sure they can keep you thoroughly confused. You are not required to use one or the other; you can protect your trademark under the common law of trademarks, or you can use the statute (the Lanham Act) to federally register your trademark, which makes it stronger in the event you need to enforce it. That’s where the “TM” and “®” symbols come into play — these symbols signify which protection you are using. Let’s go to another very clutch chart to illustrate the differences:

I’m on fire with these visual aids today, although I regret not finding a spot to sneak “European Dead Zone” in this one.

Trademarks also come with a duty to police the mark, meaning that if you find people out there using your mark without permission, you risk losing your trademark protection if you sit there and let them use it.

If you were still wondering, “©” is for designating copyrights. That’s a discussion for Streamer Consigliere Part III.

I Have a Creative Content Thing Going. Do I have “IP?” How Do I Protect It?

You probably do. How much you want to invest in protecting it is up to you. There is nothing stopping you from going down the road of federal registration, but it is generally considered necessary where you are generating a lot of revenue from the brand and need the strongest form of protection. Most content creators will get by just fine with common law protection and use of the TM symbol.

Money wise, there’s no cost for common law protection. You claim it by creating your brand and doing business under its banner, and whether you truly have it will be determined if you end up in court enforcing your mark in an infringement action. For federal registration, however, that’s going to cost you some money. But there’s obviously benefits — you will no longer have to prove the validity of your trademark if you achieve registration, and the prosecution process itself will reveal if there’s anything preventing trademark protection for your mark, such as another similar mark out there already or the mark being too descriptive of its goods or services or flat out generic and unprotectable.

If you have something you are asserting to be a trademark, you also have a duty to police that trademark. How much effort you have to put into that has always been a nebulous concept; you typically don’t have to go into full troll mode, but if people are clearly ripping off your logo and you do nothing about it, it’s going to be difficult to make them stop in the future.

What Do I Have to Watch Out for as a Content Creator?

Most content creators out there within the world of Destiny aren’t too concerned with direct infringement of your content because it is clearly apparent to your audience who you are. No one’s going to fool King Gothalion’s stream audience by creating “King Guthalion” on Twitch, growing a beard, and wearing floral shirts. However, Goth has a distinct logo that he has invested heavily in and licenses that logo to Scuf Gaming for custom-designed Goth controllers. You can bet your ass if someone was buying plain black Scuf controllers, painting them to look like the King Gothalion Scuf design, and selling them, they would be in a world of hurt regardless of whether or not Goth federally registered his logo. He would also not be pleased if someone was using his logo on their own content to suggest a partnership with him or using it in a way to damage his goodwill and reputation.

That’s where Destiny content creators need to be mindful of how trademarks work. While it’s less likely that someone will cause confusion as to where to find your stream, podcast, or YouTube videos, they can easily divert alternate revenue streams and/or cause irreparable damage to your goodwill.

Pics or It Didn’t Happen, Bullman

Fine. Are you wondering if there are any examples of such concerns within the Destiny content creator universe? I’m so glad you asked. And it even involves federal registration. And it even involves Bungie. Allow me to put on my trademark lawyer tryhard pants.

Remember Destiny Community Con? Remember when it suddenly became GuardianCon this past year? That was a move by Bungie to protect the Destiny name from anything that could cause damage to the game they’ve heavily invested in, whether foreseen or unforeseen. They filed an application with the USPTO for federal registration (® protection) of the name “DestinyCon,” which, in effect, forced Destiny Community Con to change its name by substituting out “Destiny.” So what’s the deal? Does Bungie hate the Destiny community? No. Does Bungie hate Goth, Broman, and KMagic? No. Well, maybe. I don’t know. Does Bungie hate raising money for St. Jude? Definitely no. What Bungie hates is the crippling fear that a convention scaling at epic proportions to celebrate their game, which they have no control over whatsoever, could go horribly awry in some way and cause the general consuming public to think that Bungie had a hand in whatever disaster ensued and vow to never purchase a Bungie product. These are the nightmares you live in as a lawyer — freaking out about outrageous things that never happened and probably never will happen.

Obviously nothing terrible happened, and GuardianCon 2017 came and went in spectacular fashion. It was well-organized, professionally-run, and far exceeded everyone’s expectations in every measurable way. But the fear is still there on Bungie’s end. What if a giant fight breaks out and the security can’t handle it? What if one of the panelists goes on a ridiculously offensive rant during the live stream? What if $300K of the raised money somehow goes missing? I’m sure the GuardianCon founders themselves had some sleepless nights over some of these potential disasters, but Bungie was in the position where it had no control whatsoever over an event that had its crown jewel’s name — Destiny — attached directly to it. Big money causes really big headaches. So Bungie filed an application for “DestinyCon.” Not long after, Rare Drop LLC (the Con founders’ limited liability company) filed its application for “GuardianCon.” Here are the filings with the USPTO:

Bungie’s trademark application for federal registration of DestinyCon.
The Rare Drop’s trademark application for federal registration of GuardianCon.

Notice how the “Current Basis” and “Original Filing Basis” fields are different: GuardianCon says 1A and DestinyCon says 1B. That’s an important difference. GuardianCon’s “1A” filing means that the mark is currently in use, and it is certainly in use evidenced by the fact that they, well, actually held a convention and raised about $1.25 million for St. Jude. DestinyCon’s “1B” filing, on the other hand, it better known as an intent-to-use application. This means that Bungie isn’t using the mark and doesn’t have a convention yet, but is reserving the name. The reservation lasts for six months, but can be renewed consecutively for up to three years before the USPTO kicks the application to the curb. Bungie’s 1B filing doesn’t necessarily mean that it will be creating a convention for the Destiny community — they might just be buying time and let the application expire after three years. But, nonetheless, the filing is effective in preventing anyone from using the word “Destiny” for a video game convention so long as it’s pending as a 1B application.

The point here is that Bungie isn’t necessarily planning an imminent convention of any sort, but is rather taking a necessary step to ensure the protection of it’s brand. And the GuardianCon founders did it, too — one of the last things you want when launching a charity fundraiser is scumbags tricking people into thinking they are supporting the charity with a donation or purchase and then pocketing the money.

So How Does This Affect Content Creators?

From a trademark perspective, the things you need to look out for as a content creator are your alternative revenue streams and goodwill. If anyone is using your mark without your permission, especially to make money, you have a duty to either do something about it or risk losing your trademark protection down the road — it doesn’t much matter whether you federally registered your brand or not.

Chances are that, as a content creator, you already have trademark protected branding and maybe don’t realize it. You don’t need to get a federal registration to have trademark protections or enforce trademark protections. If you have an audience, your brand has value to a corporate sponsor. Don’t let anyone tell you that you can’t protect it — you hold the key asset if someone approaches you about licensing use of your brand, so you should know where your IP stands.

The answer is never clear when it comes to trademark protection. I think this rambling article thoroughly demonstrates that. But there are a handful of different things to consider when you sit down and take a look at your branding as a Destiny content creator, and it’s not all about just preventing knockoffs. If you’re making money as a Destiny content creator, you definitely have some brand power. That means you have alternate avenues to make money. And the more money you make, the more people will either try to put their hand in that revenue stream or simply disrupt that revenue stream. Consider trademark protection a titan bubble — always best to know how to effectively use it when a bunch of people are shooting at you.

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