Are planet names (fictional or not) trademarkable?

[Lisias]

Moved from another thread, as we were asked not to keep discussing it there.

  Pinging @Mr. Kerbin, @PDCWolf, @Gargamel and @Deddly as you are involved or reacted to the posts somehow.

 

2 hours ago, PDCWolf said:

Trademarking really does require much more unique stuff than "a rocky planet with rings named Ovin." <...>

Now, presenting these considerations would fare even worse against Debdeb, as that's a star... which is a much less unique thing than a planet, with much less possible unique features.

A Star called Debdeb to be used in games have the exactly same uniqueness as Tatooine® have uniqueness when used on Movies... or Videogames. Tatooine® is a registered trademark of Lucasfilm. And if they can register it, the future IP owner (if a USA company) can do the same on Common Law Trademarks.

Curiosity: the use of real Celestial Bodies names were trademarkable, and to prevent that all these names are published on a compendium called Gazetteer of Planetary Nomenclature that are Public Domain. Don't liked it? Sue the USA's usgs.gov.

 

2 hours ago, PDCWolf said:

They also don't want to be the ones taking a modder to court, much less a KSP modder, the falloff from that would be huge, and even worse if they happened to win. The KSP franchise is dead, they don't wanna make it deader if they pretend to make money from it.

Nintendo doesn't agree with you.  Nintendo doesn't agree with you ** (the right material this time) In fact, their profits appear to increase the more they sue people over their Copyrights and Trademarks.

WE DON'T KNOW who the next IP owner are and what they intend to do with the trademarks (registered or not). We don't know how they intend to monetize the Franchise (being dead or not) to recoup the investment. All we know is that someone is using money buying this thing, and more often than not people and companies buying assets want to make a profit from them.

So, answering again the user:

On 11/25/2024 at 6:17 PM, Mr. Kerbin said:

If I name a star Debdeb and it’s planets Gurdamma, Donk, Rask and Rusk, etc (the planned planets from KSP2) , will I be banned or sued?

Yes, they can. It's possible, unfortunately. They will? Probably not - but no one can affirm in honesty that they won't.

Anything can happen, including nothing.

But you can do your best to avoid giving them reasons to do it. They would not use money suing you without a reason - the less the reasons you manage to give them, less likely they will move against you.

And, again, even if they do the move, just rename the planets and relaunch the add'on. You still own your work, you only would be waving using names that they would own and not you. And Modding is allowed on this Forum.

=== == = POST EDIT = == ===

The link for the Nintendo suing someone called Mario was a parody. Damn, I fell for it.

But Zelda is trademarked. So if anyone uses the name Zelda on a game with characteristics that Nintendo considers to refer to them, they can sue.

Fun fact: In Brazil, names can be trademarked. A famous singer registered his name, and then tried to sue a business using the same name. Thanks God, he lost. But... The judge accepted the lawsuit, so he could had won.

https://www.conjur.com.br/2021-abr-22/vinculacao-rei-imobiliaria-roberto-carlos-manter-nome/

Edited November 27, 2024 by Lisias
Whoops...

[Mr. Kerbin]

I should have just made this a PM .

[Lisias]

9 minutes ago, Mr. Kerbin said:

I should have just made this a PM .

But, by them, only you would be informed about the issue. And no one would be able to correct me if I make a mistake.

We aren't derailing the original thread anymore, discussing this subject here is the right thing to be done.

@PDCWolf have his/her reasons to think the way he/she does. But I also have my own. The logical thing to do is to take what he had said, and take what I had said, and ask some lawyer about - it's not impossible that an obscure exemption exists somewhere beyound my sights.

And while you don't do that, better safer than sorrier: IMHO my proposal is safer: if I'm wrong, you lose nothing by considering it. And if I'm right, you may dodge a bullet if needed.

Edited November 27, 2024 by Lisias
Better phrasing.

[PDCWolf]

8 minutes ago, Mr. Kerbin said:

I should have just made this a PM .

No fun in that!

The fun would be in doing it and getting that C&D in the mail. Even Nintendo just settles for free if you just take the offending thing down.

17 minutes ago, Lisias said:

A Star called Debdeb to be used in games have the exactly same uniqueness as Tatooine® have uniqueness when used on Movies... .

Not really anywhere near on the same scale. Tatooine is home to characters, to a unique image and combination of cinematography rules to reproduce it as part of the franchise, it's also a physical place on Earth its scenes were filmed on in the early films. Debdeb is, at most, a specific number of pixeles with a certain rbg value acting as the star, and a specific lens flare acting as the corona. We don't know it's size, where it is, what it orbits, how its planets are aligned, and more importantly than any of that: It's never been part of a commercialized product. In fact, legally, no storefront selling the game has made a mention of debdeb, so it's effectively not ever used in the market.

21 minutes ago, Lisias said:

Curiosity: the use of real Celestial Bodies names were trademarkable, and to prevent that all these names are published on a compendium called Gazetteer of Planetary Nomenclature that are Public Domain. Don't liked it? Sue the USA's usgs.gov.

I think you can definitely understand the differences between the fuzzy concept of a star which was only shown in a single image and was never part of a commercialized product, and an object in the sky every human has looked at and the name of which can be traced back at least 10000 years. Sure, they "trademarked" it, but they know if they used any other license than public domain, every other country would've just laughed at them and told them to roll up the gazette and stick it where the sun don't shine. Once again, literal reading vs interpretation of law in real life.

23 minutes ago, Lisias said:

Nintendo doesn't agree with you. In fact, their profits appear to increase the more they sue people over their Copyrights and Trademarks.

Once again, you miss the point that everything Nintendo has marketed has been part of a commercialized product. This bit of information is crucial when the judge asks "okay, how do I know you thought of this first?" and then even if they could justify that with a single image posted to a forum (where it wasn't to be taken as part of a concrete thing that would one day be part of their product) they'd still have to justify that this mod made for free for use in their own product as a piece of referential homage is somehow inflicting their capacity to sell their own product, and is somehow disrupting the capacity to associate the name debdeb to the kerbal franchise (and here they'd lose horribly, since it's a mod for their own franchise no less).

Our dude here is not making a random game not related to KSP with a star named debdeb and a planet named ovin. He's making a mod for the same franchise they pretend to associate those names with.

27 minutes ago, Lisias said:

WE DON'T KNOW who the next IP owner are and what they intend to do with the trademarks (registered or not). We don't know how they intend to monetize the Franchise (being dead or not) to recoup the investment. All we know is that someone is using money buying this thing, and more often than not people and companies buying assets want to make a profit from them.

Of course we don't, but we do know the things that'd completely dilapidated whatever value the franchise holds: Starting beef with its own modding scene.

29 minutes ago, Lisias said:

So, answering again the user:

Yes, they can. It's possible, unfortunately. They will? Probably not - but no one can affirm in honesty that they won't.

I think the proper answer is: They could sue, but there's tons of arguments for credible defense, and another ton of arguments for them to not do it as it's shooting their own foot (Hey Lisias, why'd you think they didn't sue the mods that obviously required doing some certain thing with the game's code to be made?),  and there's a very thin argument for actually winning the case.

 

[Lisias]

38 minutes ago, PDCWolf said:

No fun in that!

The fun would be in doing it and getting that C&D in the mail. Even Nintendo just settles for free if you just take the offending thing down.

And this is not a "fight", it's a healthy discussion, @Mr. Kerbin,

To the best of my understanding I'm 99% convinced I'm right, but in honesty there's that 1% that I need to cope and, so, I concede that @PDCWolf may know something I don't (yet) and, so, he/she may be right about.

This argument exchange aims to see if that 1% is going to bite my cheeks today.

 

13 minutes ago, PDCWolf said:

Once again, you miss the point that everything Nintendo has marketed has been part of a commercialized product.

And you missed the point in which I used a parody site as argument. Crap.

Anyway, I found that Zelda, on the other hand, was registered by Nintendo. They can't sue anyone by calling their daughter Zelda, but they can move against someone using Zelda as a videogame character AFAIK.

And there's that singer case I mentioned on the (now edited) OP. This is how trademarks works at least around here where I live, and it can be both an evidence of you being right , but also me - depending in how we manage to "materialize" the object of this discussion: KSP2 is a good or a service?

The difference matters (and, yeah, I know - this is going to get incredibly messy).

 

15 minutes ago, PDCWolf said:

Nintendo has marketed has been part of a commercialized product. This bit of information is crucial when the judge asks "okay, how do I know you thought of this first?" and then even if they could justify that with a single image posted to a forum (where it wasn't to be taken as part of a concrete thing that would one day be part of their product) they'd still have to justify that this mod made for free for use in their own product as a piece of referential homage is somehow inflicting their capacity to sell their own product, and is somehow disrupting the capacity to associate the name debdeb to the kerbal franchise (and here they'd lose horribly, since it's a mod for their own franchise no less).

Unless they consider that allowing a free KSP¹ Planet Pack using KSP2 names would hinder they ability to sell KSP2 - and, as I said before, it also strongly depends of KSP2 being a good or a service.

You see: to be able to sue someone, the plaintiff must show evidences strong enough that he/she is suffering losses due the defendant using the trademarks unduly. (yeah, I'm finally finding my way on English legalese! ).

You are saying that they didn't materialized the game using the names yet, but my understanding on Common Law Trademarks is that "use-in-commerce" claim works in a way that they don't need to.

There's no "intent-to-use" claim n Common Law Trademarks, granted, but "The proof of use in commerce must also show the use of the mark in connection with the goods offered." All they need to do is to establish that they had connected DebDeb to KSP2 and so, they own these names when used in the videogame context - or, at least, in the Space Simulator one. And since they own the names, they may choose to prevent them from being used outside KSP2 .

They will do it? Who knows.

It would be a idiocy of epical proportions? HELL, YES.

But the Law doesn't forbids people and companies from being idiotic about their properties. People and companies are entitled to be idiots - some of them even profit from it, believe it or not. Again, Nintendo.

 

32 minutes ago, PDCWolf said:

I think the proper answer is: They could sue, but there's tons of arguments for credible defense, and another ton of arguments for them to not do it as it's shooting their own foot

Assuming that they would not make money by shooting on their feet.

Incredibly enough, Nintendo had proved again and again that you can shoot your own feet (both of them) and still make money from it. You can bet your favorite part of your body that I'll never, ever use any of my sweet money on Nintendo again (and if the need arises, I buy only if second hand to deny them the money).

But, apparently, Nintendo doesn't care about me...

History is littered with Companies destroying themselves on the long run in exchange of profits on the short run. Boeing?

And this is the reason I recommending caution from left to right - we just don't know what is going to come.

 

34 minutes ago, PDCWolf said:

Hey Lisias, why'd you think they didn't sue the mods that obviously required doing some certain thing with the game's code to be made?

Because they didn't figured out a way to make money by doing it, neither concluded they would lose money by not doing it - ie, the benefits (if any) don't outweigh the drawbacks.

Be absolutely sure this will change otherwise.

 

35 minutes ago, PDCWolf said:

there's a very thin argument for actually winning the case.

They don't need to win the case. It's enough to convince the defendant to do not defend him/herself by any reason, like not willing to foot the money.

And since we don't know how much the new IP owner values their reputation (not to mention what they consider "good reputation", again see Nintendo), I really don't think it's wise to put your eggs on this basket for now.