WotC WotC doesn’t own the trademark for Mind Flayer

[jgsugden]

Again, that's not how a trademark would work.

Just for starters, they are trying to claim that the first use in commerce was in 2021. The first use in Stranger Things was at the end of 2017.

While people might have their issues with the USPTO, as far as I know, there are no successful patents for time machines, and I doubt that anyone is going to get very far with claims that violate the space-time continuum.

US20090234788A1 - Practical Time Machine Using Dynamic Efficient Virtual And Real Robots - Google Patents

A method for time travel, which allows an object or a group of objects to travel into the past or the future, as well as a method to cut objects from the past or future and paste them to the current environment. The present invention, called the practical time machine, requires teams of super...

patents.google.com

Putting that aside, this is absolutely how all forms of IP end up getting used - nuisance cases. Trademarks are not as lucrative (usually) as patents, but there are trademark trolls.

https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1103&context=wlulr

Hunting down a trademark troll - IAM - Informing IP value

https://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=1204&context=facsch

How 'Trademark Trolls' Are Trying to Make the Most of the Pandemic | National Law Journal

More than 600 applications have been filed with the U.S. Patent and Trademark Office seeking to register marks related to COVID-19. And the number of applications continues to grow, with many appearing to be “opportunistic” trademark applications.

www.law.com

Trademark Trolls Causing Menace Around The World: How To Tackle The Problem?

Trolls" in the trademark industry around the world are a menacing force taking undue advantage of the trademark registration process by registering…

www.lexology.com

 

[Snarf Zagyg]

Putting that aside, this is absolutely how all forms of IP end up getting used - nuisance cases. Trademarks are not as lucrative (usually) as patents, but there are trademark trolls.

1. I completely disagree that "this is absolutely how all forms of IP end up getting used - nuisance cases." That's similar to saying, "That's how all real property gets used- as pig farms." Sure, some real property is used as pig farms, and it does suck to live near one, but the majority of the use of property isn't for pig farming. And people- lots of people, everyday people- protect their IP.

2. I appreciate that you quickly googled your position, but did you read the articles? Here's the meat from the first one- Most of these opportunistic applications won’t be approved because, unlike cybersquatting, registration requires actual use or a bona fide intent to use the mark. Most applicants will be unable to establish the requisite intent or simply will never get around to making actual use in commerce. However, for those opportunistic registrants, or potential “trademark trolls,” who have no intent to lawfully use the trademark, the current pandemic presents an occasion to financially exploit these marks. By seeking federal rights ahead of others, the registrant can stand in the way of legitimate businesses making use of these marks. This situation presents an unavoidable business hazard to entities using COVID-related phrases or expressions. With some advance precautions and a nimble response, exposure can often be minimized. After all, the threat posed by most of these trademark trolls is minimal.

For those of you who don't understand the gist, there are real and serious problems in the legal system that are presented by so-called patent trolls. Like ... it's a serious issue that is being addressed. Copyright "strike" suits, while not quite the same as "trolls," is also a problem. Trademarks? No. Not the same at all.

And conflating these different issues is what causes these REALLY STUPID articles and reactions. Good?

Good.

 

[jgsugden]

1. I completely disagree that "this is absolutely how all forms of IP end up getting used - nuisance cases." That's similar to saying, "That's how all real property gets used- as pig farms." Sure, some real property is used as pig farms, and it does suck to live near one, but the majority of the use of property isn't for pig farming. And people- lots of people, everyday people- protect their IP.

All forms get used - not all instances.

2. I appreciate that you quickly googled your position, but did you read the articles? Here's the meat from the first one- Most of these opportunistic applications won’t be approved because, unlike cybersquatting, registration requires actual use or a bona fide intent to use the mark. Most applicants will be unable to establish the requisite intent or simply will never get around to making actual use in commerce. However, for those opportunistic registrants, or potential “trademark trolls,” who have no intent to lawfully use the trademark, the current pandemic presents an occasion to financially exploit these marks. By seeking federal rights ahead of others, the registrant can stand in the way of legitimate businesses making use of these marks. This situation presents an unavoidable business hazard to entities using COVID-related phrases or expressions. With some advance precautions and a nimble response, exposure can often be minimized. After all, the threat posed by most of these trademark trolls is minimal.

For those of you who don't understand the gist, there are real and serious problems in the legal system that are presented by so-called patent trolls. Like ... it's a serious issue that is being addressed. Copyright "strike" suits, while not quite the same as "trolls," is also a problem. Trademarks? No. Not the same at all.

And conflating these different issues is what causes these REALLY STUPID articles and reactions. Good?

Good.

I did actually read these. I'm not a novice to IP or the law, my friend. I have not spent a lot of time in this realm recently, but I pulled up most of those from my notes, not Google.

That quote you mention was from the 4th article, not the first, by the way.

And the point is that they do happen. There are enough of these lawsuits that we have a term for it. Note the language you quoted: These situations are an UNAVOIDABLE BUSINESS HAZARD. It also tells you that you have to take precautions. Why take precautions? Because there is a threat.

And Washington and Lee Law Review takes offense at you calling their Law Review "Stupid Articles". They're not Princeton or Boalt - but show some respect.

 

[Gradine]

My favorite part in Stranger Things was when the kids were explaining what a Mind Flayer is to the adults and they're like "okay so how do you kill one" and then the kid launches into why you fight mind flayers with undead, because it really was the right answer.

Anyway I've been killing some version of mind flayer in jrpgs since like the late 80's; the ship has sailed.

 

[Zardnaar]

My favorite part in Stranger Things was when the kids were explaining what a Mind Flayer is to the adults and they're like "okay so how do you kill one" and then the kid launches into why you fight mind flayers with undead, because it really was the right answer.

Anyway I've been killing some version of mind flayer in jrpgs since like the late 80's; the ship has sailed.

Even then I think wizards uses Illithids.

Anyone can use the term Mind Flayer just if you use squid headed humanoids you might be in trouble.

 

[Snarf Zagyg]

I'm not a novice to IP or the law, my friend.

Great!

Then why don't you apply the sources you used to the actual issue. Go ahead and use the W&L Law Review article by Kenneth Port (unfortunately deceased). Explain how the finding there regarding the Lanham Act and litigation apply to what we are talking about.

Otherwise, I'm a little baffled as to what point you're making ... 'cuz it seems an awful lot like ... I don't know? You tell me! I have to admit, this is the first time I've seen someone versed in IP say that a random Chinese company that registered a well-known mark and admittedly didn't use it in commerce is a problem for other companies. But I love to learn.

Or we can wait for April ... I mean, the schedule is on TESS. You looked, right?

Spoiler

For those who are curious, you can look all this up on TESS. Lu Guoping (the person in China who registered the mark). The information about the registration- which shows, IMO, that is has serious issues. And that WoTC stated the cancellation on 2/22 and an answer is due on 4/4. WoTC is represented by Davis Wright Tremaine (of course). You can even see the filing when they come in- there just isn't much to see yet.

 

[MGibster]

I've registered a trademark for the word THE for the purposes of communication. Some of y'all are using my trademark without permission.

 

[Snarf Zagyg]

I've registered a trademark for the word THE for the purposes of communication. Some of y'all are using my trademark without permission.

I think you'll have to have a word with THE Ohio State University. Or maybe Marc Jacobs.

Or perhaps The The.

 

[MGibster]

I think you'll have to have a word with THE Ohio State University. Or maybe Marc Jacobs.

Or perhaps The The.

Your use of the word THE causes confusion amongst readers who expect any written statement using THE to be written by me. You'll be hearing from my attorney.

 

[jgsugden]

Great!

Then why don't you apply the sources you used to the actual issue...

Stop trying to be evasive.

Focus. My point should not be baffling. I put it out there in a couple sentences.

Someone is trying to perform a nuisance challenge for the Mind Flayer Trademark.

You said that is not how it works and the idea that someone could "swoop in and claim the name that is associated with someone else's business like this ... well, that's some ... LaNasa-level thinking. That's not a compliment."

I challenged your statement and said this type of thing happens in all types of IP (including trademarks).

You dug in.

I provided five different sources discussing how trademarks have been the subject of nuisance lawsuits over the past 2 decades. This is absolute clear proof that people do "swoop in ans claim the name that is associated with some else's business" is their IP and that they want their nuisaance payment to go away.

You get evasive and try to talk about the merits of the claims, etc....

Real basic approach here: I said people DO MAKE NUISANCE CLAIMS FOR TRADEMARK ISSUES. That is my point. We have law review and articles a plenty on it. It is pervasive enough to have established terminology. It does happen.

This thread is not the place for us to continue this - so I'm done. My point was that these nuisance claims do exist, and I've proven it.