Bethesda has failed in an attempt to obtain an interim injunction against Mojang over its use of thephrase ‘Scrolls’ in its forthcoming eponymous game (via Gamesindustry.biz and tweets from Notch). But previous lawsuit experience from Bethesda suggests the battle *may* not be over…
The story so far
You can read more about my thoughts on the case more generally here. What happened since that post is that the war of words/legal letters between Mojang and Bethesda escalated into legal action by Bethesda, which is claiming that the forthcoming Mojang game ‘Scrolls’ infringes its trade marks in ‘The Elder Scrolls’. Specifically, they recently sought an interim injunction against Mojang.
Interim Injunctions #101:
An interim injunction is basically a court order prohibiting the recipient from doing something for a period of time – typically for as long as it takes for the court to work out who’s legally right and who’s legally wrong in an underlying legal dispute between two or more people. In this case, Bethesda wanted a Swedish court to order Mojang to stop using the phrase ‘Scrolls’ in its forthcoming game, presumably until trial, when the court would be able finally to determine whether the game ‘Scrolls’ infringes Bethesda’s trade mark in ‘The Elder Scrolls’.
In order to obtain an interim injunction, typically you have to persuade a judge that you have a good arguable case (sometimes you have to show that it’s likely to be a better case than the other side’s) and that you really need the interim injunction to prevent harm to your business (i.e. that being able to sue the other guy for financial compensation isn’t enough).
I can understand why Bethesda wanted the interim injunction – if they didn’t get one, then quite possibly Mojang would have already released Scrolls before a trial even starts. However, theydidn’t succeed – I don’t have access to the full legal details, but it seems that for whatever reason the judge wasn’t persuaded by Bethesda’s legal arguments.
This doesn’t mean Mojang has won yet
Bethesda has clearly suffered a legal defeat and Mojang has won a victory here – so well done Mojang. But that doesn’t necessarily mean the end of this lawsuit. Bethesda could:
(1) Try to appeal the court’s judgment, and/or
(2) Continue with the lawsuit regardless.
Ofc, neither option is brilliant for Bethesda I suspect. Regarding option 1, even if Bethesda is allowed to appeal the decision, that could take months – during which Mojang is entitled in principle to continue using the phrase ‘Scrolls’. As to option 2, Bethesda has been given an indication by the court that it preferred Mojang’s case to Bethesda’s – which is both a psychological blow as well as a legal problem if the lawsuit continues.
However, in my experience I’ve seen almost as many lawsuits fight on despite the failure of an interim injunction or other tactical legal skirmish as I have lawsuits which have settled after the failure of one. A recent example in the games industry is the Bethesda v Interplay lawsuit over the Fallout IP, where Bethesda has persevered against Interplay despite more than one failed attempt to injunct (i.e. temporarily stop) Interplay’s development of a Fallout MMO.
Of course, that’s not to say that Bethesda will definitely fight on – none of us know what will happen next. But the point is, legally they could fight on – maybe because they think there is still mileage in using litigation to protect their ‘The Elder Scrolls’ trade mark, maybe because they think all the PR damage has already been done to them, or maybe just for the principle.
Personally, as a gamer, I love both Bethesda’s and Mojang’s games so I hope that a mutually beneficial settlement can be reached. However, unfortunately I think this case serves as a good reminder that – in the games industry like in all other industries – legal requirements and business sense, not personal sentiment, are what govern lawsuits.
More when I know more…
Image credit: Mojang via Gamerant