This is a guest post by Jonny Mayner. Jonny Mayner spent most of his 20’s playing games and working in bookshops and the construction industry before getting down to the serious business of being a lawyer. He is currently a trainee solicitor at Osborne Clarke, soon to qualify and join the firm’s Intellectual Property Litigation team. He still plays games though.
Tim Langdell, the man behind Edge Games and long-time botherer of Edge Magazine (among others – read about his US shenanigans here and here) was dealt a critical blow by UK High Court last month, which we’ve just had a look at. In her judgement Mrs Justice Proudman pretty much flatly rejected much of Langdell’s evidence and ruled on various issues which will make it harder for him to assert IP rights in all things Edge-related going forward. (Jas: plus, now an English court and a US court have ruled that he is a Naughty Man.)
Why did they go to court?
Basically, not long after Edge Magazine was first published in 1993, Langdell issued legal proceedings against its publisher, Future Publishing, claiming that he had unregistered trademark rights in the word EDGE. This led to deals being done which (in addition to seeing Landgell receive £20,000 in 1994 and $275,000 in 2004) culminated in a formal division of registered trademark rights in the word EDGE and some promises that the parties would not use their respective trademarks in a way that was likely to confuse the public into assuming an association between them. Future brought the present case against Langdell for breaches of that agreement between the parties and also made claims of copyright infringement and passing off in relation to Langdell’s use of the EDGE logo. In addition Future sought to have Langdell’s remaining registered EDGE trademark rights rendered invalid through non-use. In other words, there was an almighty bust-up over their respective use of the EDGE name and logo.
What did the court say?
Langdell represented himself in court which (never a good idea in the High Court when you are up against a highly skilled legal team on the other side) and spectacularly failed to persuade the judge of his defence on just about every point. He was found to have:
• so fundamentally breached his agreement with Future so as to allow Future to legitimately terminate the contract rather than merely sue for damages under it;
• made up certain claims in support of his contention that he owns and uses the EDGE trademark (more on that in a minute);
• breached copyright by using copies of the EDGE logo on various websites and letterheads;
• been liable for passing off -having made statements and other representations which might confuse the public into assuming a connection between Langdell and Edge Magazine; and
• rendered his remaining registered UK trademark rights in the word EDGE as invalid through non-use.
All in all, not a good day in court then.
Fabrication of evidence (again)
One of the most curious things about this case is not that Langdell’s defences were roundly rejected but that he got off so lightly in view of the fact that he pretty much admitted to fabricating evidence (as he also did in similar proceedings in the US) which was intended to show that he in fact created the EDGE logo. For example, he relied on some poorly engineered fake floppy disks and some emails which were later showed to be very suspect indeed.
In the words of the judge: “Dr Langdell’s story is incredible” (“incredible” here given its literal meaning). He further tested the judge’s patience by again producing suspect emails at the last minute in the course of closing submissions after all evidence was supposed to have been submitted (although the clearly exasperated judge did not say these were outright forgeries, she attached no weight to them as evidence, so safe to say she probably didn’t believe they were real). Fortunately for Langdell, the judge decided not to construe his conduct as deliberate attempts to mislead the court, otherwise he would have an awful lot more to worry about.
(Jas: It’s unclear quite why the judge here was so lenient on Langdell, when similar conduct by Langdell in the US led – as far as I’m aware – to the judge effectively considering criminal investigation of him.)
What happens next?
Well, I suspect business as usual for Future and Edge Magazine for the time being. Langdell’s remaining EDGE trademarks in the UK will now be invalidated, making it harder for him to make a nuisance of himself in the UK. The court will also provide an injunction preventing Langdell from using the copyright EDGE logo in the future, however as yet the damages payable by him to Future have yet to be assessed. And that’s to say nothing about paying Future’s legal costs (a general rule being that the loser pays some if not all of the winner’s bills – so Langdell can expect another hefty legal bill at some point…)
The take home messages are. . .
- Never represent yourself in the High Court.
- IP rights such as trademarks and copyright are vitally important in the games business, whether you are talking about the product itself or the ancillary stuff like industry and consumer magazines and other media. Developers and other industry stakeholders need to ensure that IP in their work is adequately protected.
- If agreements about IP are not adhered to the consequences can be hugely damaging in terms of the costs involved and the reputational damage incurred. Even if you win in court the time and resources directed towards this distraction from your day-to-day business are difficult to quantify and compensate for.
Basically, you need to have carefully considered your options and the legal merits before you start a lawsuit, so if in doubt, talk to a friendly games lawyer. It could save you a lot of money, time and the sort of negative publicity which Tim Langdell is receiving…
POSTSCRIPT: Langdell has now given Eurogamer a “lengthy character defence” apparently, including reference to appealing this High Court decision. Watch this space…