Score one for the space marines.
Last month, a UK game developer, Games Workshop, complained to Amazon.com that an ebook, Spots the Space Marine, infringed its trademarks in the term “space marine.” Turns out Games Workshop sells a popular game, Warhammer 40,000: Space Marine, and has registered marks in the term “space marine” in connection with games. But Games Workshop lost all sense of proportion and decided that it also had trademark rights to the term in books. And thus a trademark bully was born.
After it received the complaint, Amazon promptly removed the book from its virtual shelves. When the author, M.C.A Hogarth, protested, Amazon initially refused to reinstate the book and instead politely suggested she resolve the dispute directly with Games Workshop.
Hogarth was understandably shocked. As many folks pointed out, “space marine” dates back to at least the 1930s, appearing in a variety of science fiction including works by Robert Heinlein. It is a science fiction icon. So the notion that any single entity, much less a gaming company, could have broad rights in the “space marine” is outrageous.
Hogarth tried to resolve the dispute in a friendly way, but Games Workshop refused to withdraw its complaint. So she reached out for help, including to EFF (and thanks to the many folks, including Wil Wheaton, Popehat, and Cory Doctorow, who helped spread the word). We were able to intervene and, to Amazon’s credit, the company reviewed the claim and restored the book. Let’s hope Games Workshop will now have the good sense to realize the bullying has to stop.
We’re pleased that Amazon did the right thing here, and that we were able to help. And we’re also pleased that so many internet users got involved to support Ms. Hogarth. Together, we sent a signal: Trademark bullies will not be tolerated online.
But the work is not yet done: this is just one instance of a much bigger “weakest link” problem that imperils online speech and commerce. Offline, most legal users can ignore improper trademark threats, because the bullies will probably have the good sense not to test the matter in court and have little recourse through third parties. In the Internet context, however, individuals and organizations rely on service providers to help them communicate with the world and sell their products and services (YouTube, Facebook, eBay, Amazon.com, etc.). A trademark complaint directed to one of those third-party providers can mean a fast and easy takedown – as it did here. After all, those providers usually don’t have the resources and/or the inclination to investigate trademark infringement claims – they’d rather stay “neutral.” As a result, a “neutral” provider generally means “you lose” to people facing bogus trademark claims. Moreover, because there is no counter-notice procedure, the targets of an improper takedown have no easy way to get their content back up even if they chose to fight.
This bigger problem is not going away anytime soon. Users, let’s keep standing up to trademark bullies, and helping others do so, too. Intermediaries: take a page from Amazon here, and take the time to help your customers protect themselves. An easy first step is to make sure your trademark takedown policies include easy-to-use counter-notice procedures.