Sony's Attempt to Trademark "Let's Play" Foiled in U.S.

 Pages 1 2 NEXT
 

Sony's Attempt to Trademark "Let's Play" Foiled in U.S.

Sony Computer Entertainment of America's attempted trademark of "Let's Play" has been refused by The United States Patent and Trademark Office.

Sony of America recently tried to trademark the phrase "Let's Play," only to have its efforts rebuffed by the USPTO. The reasons given were not because the phrase itself is so vague, or because it is already the title of countless YouTube videos, but because another company already owns a similar copyright.

Let'z Play of America, a company out of Georgia that gamers with gaming events, has held their copyright since 2013. The Trademark Office found the two claims to be "confusingly similar."

Just about every gamer has heard the phrase "Let's Play" before - many of us have even uploaded "Let's Play"s of ourselves. The users who create these videos, where they play through video games on camera while offering commentary, have had a difficult and complex relationship with the people who make and publish these games.

While we don't know what Sony's purpose was with the trademark attempt, it seems like it's another phase in the tug-of-war between fans and trademark holders. Nintendo has come under fire in recent years for its treatment of Let's-Players, eventually compromising with the controversial "Affiliates Program."

Of course, there is much going on here that I can't claim to understand. It may seem obvious to us that leaving the Let's-Players be is the best option for any game company, but we should consider that there are motivations beneath the surface that are just as obvious to the ones who hold them.

That being said, I'll open the floor to the Escapists. What are your thoughts on all this?

Source: USPTO

Permalink

I did think this would fail but I thought it would be for the reasons given in the article.

Glad they didn't succeed either way.

So yeah, if people could... not... take down my LP content, that'd be great, thx.

I view LP'ing in the same light as sampling in music - LPers put out an entertaining product through their own effort, and end up boosting the work they used as a base. It makes it easier to put out that type of content, and if the sampled work looks interesting to the viewer, they now have a reason to seek it out and play it. I don't think it's to anyone's advantage to restrict it, market-saturation or not.

Even if they did copywrite the name, users would just rename their stuff to 'I'm gonna play' or 'Playing...' or one of billion combinations. Sony would eventually have to copywrite the entire English language. But we'd then just start using other languages. Sony can't beat us. So why they even bothered to begin with is bemusing.

I doubt they wanted to copyright strike every LP on YouTube and cash in... that sounds like a scheme of a 80ies Bond villain.
It is much more likely that they have plans for a service and wanted to connect to their PLAYstation brand by giving it a proper name.
Or they wanted to use it as marketing slogan.

Sounds less crazy don't you think?

Take note guys, Sony was filing a TRADEMARK.

This is distinct to copyright.

Given that, even if there wasn't another group with a "confusingly similar name", Sony would have to defend against a pre-emptive distillation of term that trademarks can suffer, nullifying any legal bite their trademark may have had. All it'd take is 10 seconds on youtube to point out the millions of videos dubbed 'Lets Plays' to show that the term is already a generic one, and Sony has no concrete hold on the term.

https://en.wikipedia.org/wiki/Trademark_distinctiveness

Let's play the patent/copyright/trademark drinking game. Every time a news outlet misuses the term "copyright" when they are actually discussing trademark or patent, take a shot. In this article, for example, you would take three drinks (plus maybe another half shot for the Nintendo Creator's Program mention which is, in fact, copyright and uses the term correctly, but is also utterly irrelevant for that very reason).

P.S. Thanks

Areloch:
Take note guys, Sony was filing a TRADEMARK.

This is distinct to copyright.

Given that, even if there wasn't another group with a "confusingly similar name", Sony would have to defend against a pre-emptive distillation of term that trademarks can suffer, nullifying any legal bite their trademark may have had. All it'd take is 10 seconds on youtube to point out the millions of videos dubbed 'Lets Plays' to show that the term is already a generic one, and Sony has no concrete hold on the term.

https://en.wikipedia.org/wiki/Trademark_distinctiveness

Okay, but why did they even bother, then? Is there that much money to make out of a hypothetical "Let's Play" trademark?

I'll add that in some ways, I understand why they did that. The PS4 has been established as a platform focused on play, as opposed to its biggest competitor, the Xbox One. They tried going for the everything-but-the-kitchen-sink approach, and we know how that turned out. Considering, this move strikes me as delayed gloating or the attempt to use a catchphrase on the platform's benefit. As if "Let's play!" struck most ears as meaning "Let's play on my PS4!"

PatrickJS:

That being said, I'll open the floor to the Escapists. What are your thoughts on all this?

My first thought was: Everybody hang on something on the wall! There's no floor anymore!!!

OT: Copyrighting "Let's Play"? What the heck is wrong with those men in suits!? That's reaching King (Candy Crush) level of absurdness! I wonder what they were planning to do once they got the copyright. I hope it wasn't going to be something shitty like striking every Yotube video with "Let's Play" in the title. But I'm totally OK that they didn't get away with it.

IamLEAM1983:

Areloch:
Take note guys, Sony was filing a TRADEMARK.

This is distinct to copyright.

Given that, even if there wasn't another group with a "confusingly similar name", Sony would have to defend against a pre-emptive distillation of term that trademarks can suffer, nullifying any legal bite their trademark may have had. All it'd take is 10 seconds on youtube to point out the millions of videos dubbed 'Lets Plays' to show that the term is already a generic one, and Sony has no concrete hold on the term.

https://en.wikipedia.org/wiki/Trademark_distinctiveness

Okay, but why did they even bother, then? Is there that much money to make out of a hypothetical "Let's Play" trademark?

I'll add that in some ways, I understand why they did that. The PS4 has been established as a platform focused on play, as opposed to its biggest competitor, the Xbox One. They tried going for the everything-but-the-kitchen-sink approach, and we know how that turned out. Considering, this move strikes me as delayed gloating or the attempt to use a catchphrase on the platform's benefit. As if "Let's play!" struck most ears as meaning "Let's play on my PS4!"

I'd wager that, if anything, they were hoping that anyone that had an issue with them trying to take over the term wouldn't have the money to put up any kind of legal resistance.
As you say, no doubt they were hoping to retool the term to be PS4-centric.

Patrick:

You seem to be using the terms Trademark and Copywrite interchangeably. e.g.
"Sony's Attempts to Copyright "Let's Play" Foiled in U.S.

Sony Computer Entertainment of America's attempted trademark of "Let's Play" has been refused by The United States Patent and Trademark Office"

I assure you, these are two entirely separate and distinct things, quite different from each other. And in fact to me it's making your article a little tricky to understand. I get the impression that Sony was attempting to Trademark the name (a MUCH more evil thing to do than copywrite it).

I don't know if Let'z Play of America actually hold a trademark or a copywrite from this article (I suspect the former?? Otherwise I don't think it could be used as an argument for not giving Sony the trademark, since copywrites are beyond easy to get [in actual fact, EVERYTHING you write/create, if it's an original piece, is AUTOMATICALLY copywrited without you having to do anything further, though you can take it a step further and register that copywrite if you wish to]).

If it's true that Sony is attempting to Trademark a commonly used name for showing gameplay, it makes me wonder what their intentions were. Conceivably they could have caused quite a bit of chaos in the YouTube community (which perhaps was their goal? Maybe not, but it wouldn't mean anything good for that community).

Just a suggestion, you might want to clarify the article a bit :)

Trying to trademark the phrase "Let's Play" was most likely done for marketing purposes, making preparations for a new marketing push for their Playstation platforms.

Would be dickish if they were granted the trademark and people would have to start calling their let's play video's something else.

At first I thought this was about a patent or at least related to one - As far as I understand, PS4 controllers have a broadcast button to make LP's on the fly, so it'd make sense to put some sort of claim on this technology by branding it with a trademark as well.

Another possibility might be doing something similar to what Nintendo has done, trying to make it easier to take over monetization of videos with their games.

Chances are though, that it's something innocuous and just related to ads or a campaign...

Rooster Teeth LLC, specifically one Geoff Ramsey, already owns the title and trademark to Let's Play.

lacktheknack:
So yeah, if people could... not... take down my LP content, that'd be great, thx.

I view LP'ing in the same light as sampling in music - LPers put out an entertaining product through their own effort, and end up boosting the work they used as a base. It makes it easier to put out that type of content, and if the sampled work looks interesting to the viewer, they now have a reason to seek it out and play it. I don't think it's to anyone's advantage to restrict it, market-saturation or not.

It could have been a nefarious attempt to ruin Lets Play's, but I think it's far more likely that they were just trying to cash in on a well known video game phrase. They were probably going to use it as a slogan for a new service. Kind of like how Disney copyrighted Seal Team Six after Bin Laden died. It's still kind of scummy, but I doubt their intentions were actively nefarious. If Sony was serious about cracking down on Youtube Lets Play's they probably would have done so by now.

But they're a corporation, so who knows?

How do you even get something so generic trademarked? Why not go after "lets drink" "lets party" "lets meditate" while you are at it?

I guess we can just trademark any two word phrase we didn't even invent huh?

KoudelkaMorgan:
How do you even get something so generic trademarked? Why not go after "lets drink" "lets party" "lets meditate" while you are at it?

Is "fuck off" already trademarked?

Let's not forget that a few years ago they attempted to trademark P.S. Thanks, and then proceeded to not do anything with it. Sony loves frivolous trademarks.

P.S. Thanks

Other than Rooster Teeth/Achievement Hunter, I tend to use Let's Plays as a sort of "Show me the first hour of the game", and it has actually led to a few purchases.
(As for RT/AH, I pretty much watch 85% of everything they put out because it's great).

If they really want to feed on YouTube content they should take the Nintendo way. Copyrighting LPs is a harder battle.

They should have gone after the word "PLAY" instead, just to make it bit more simpler. Remember candy crush SAGA...

2xDouble:
Rooster Teeth LLC, specifically one Geoff Ramsey, already owns the title and trademark to Let's Play.

Curious as to where you got this information?
Rooster Teeth in no way started the term "Let's Play", the merely own a youtube channel called Let's Play which they bought/acquired from someone else.
Actually checking their trademarks they don't have one for "Let's Play"; in fact there are over 200 Let's Play trademarks out there and neither Rooster Teeth or Geoff Ramsey own a single one.
https://trademarks.justia.com/owners/rooster-teeth-productions-llc-1650155/
https://trademarks.justia.com/search?q=let%27s+play

So yeahg, they didn't attempt to copyright anything.

bluegate:
Trying to trademark the phrase "Let's Play" was most likely done for marketing purposes, making preparations for a new marketing push for their Playstation platforms.

Would be dickish if they were granted the trademark and people would have to start calling their let's play video's something else.

The problem here is that, as has already been mentioned, such a trademark is unlikely to hold up, as the term has to be sufficiently generic at this point. I'm having trouble picturing a use that wouldn't interact with gaming in such a way as to be generic on arrival.

Zydrate:
Other than Rooster Teeth/Achievement Hunter, I tend to use Let's Plays as a sort of "Show me the first hour of the game", and it has actually led to a few purchases.

This is largely what companies hate, though. They don't see the sales they get, they see the "lost sales."

Though, TBH, if I have t o look up a LP of your game, I'm not going to buy it if I can't find one.

Something Amyss:

Zydrate:
Other than Rooster Teeth/Achievement Hunter, I tend to use Let's Plays as a sort of "Show me the first hour of the game", and it has actually led to a few purchases.

This is largely what companies hate, though. They don't see the sales they get, they see the "lost sales."

Though, TBH, if I have t o look up a LP of your game, I'm not going to buy it if I can't find one.

Yeah, that's the thing for me though. I don't really browse the gaming market or anything. I don't consume much, if any, of the pre-game material they create to promote a game, and I don't actively browse the various sites devoted to informing the gaming community of upcoming titles. So for me personally, I'd say about 95% of games go past my radar entirely, because I'm simply not watching the displayed blips. So Let's Plays are actually a large source of my gaming input, that I use to decide if I want a game. I'm fairly skeptical of most of the presented material from the producers of the game, and assume they're showing me all the flash, without the flop. So having someone play the game, and see how the game actually plays out, is very informative. Sure it doesn't always work, for example I bought the Thief reboot based on TotalBiscuit's review of it, and I ended up hating that game a lot. But for the most part, I find them most useful, as well as just entertaining.

So while I can't speak for them as a whole, if they are earning companies more money than costing them, but I can say personally, that a lot of companies wouldn't have seen a penny from me, if it hadn't been for some Let's Plays of their game.

My guess is that they were planning to use it as their slogan. Like... "PlayStation?: Let's play.?" Keep in mind that trademarks are very limited in scope, and are in no way an attempt to claim complete and total ownership of a word or phrase (unless you happen to be King). It's why, for example, "Delta" has been at various times the name of an airline, a faucet company, a PC manufacturer, and the protagonist of a video game, and it didn't cause any problems. Hell, isn't there some car company whose slogan for a while was literally just "Drive."? I don't know if they actually trademarked it, but if they had, all it would mean was that no other car company would be allowed to use that as their slogan, not that other car companies would be prohibited from using the word anywhere in their marketing, as some people seem to think.

Even if Sony had somehow been able to wrangle a trademark on that phrase as their company slogan, Google would not be obligated to take down every single Let's Play video on the YouTubes just for having that phrase in the title... nor would Sony have any desire to make them.

Areloch:
Take note guys, Sony was filing a TRADEMARK.

This is distinct to copyright.

Given that, even if there wasn't another group with a "confusingly similar name", Sony would have to defend against a pre-emptive distillation of term that trademarks can suffer, nullifying any legal bite their trademark may have had. All it'd take is 10 seconds on youtube to point out the millions of videos dubbed 'Lets Plays' to show that the term is already a generic one, and Sony has no concrete hold on the term.

https://en.wikipedia.org/wiki/Trademark_distinctiveness

Yes, this has been corrected in the headline. It is a trademark, not copyright.

So as long as it's been brought up: What IS the difference between a trademark and a copyright? I tried looking it up myself, but I couldn't find a description of trademarks that was in plain English, and I don't really have the time to take a 3-year course so that I can understand the technical business lingo that every page I checked assumes I can speak. So what's the bottom line? What exactly would Sony have been able to do with a "Let's Play" trademark?

WhiteTigerShiro:
So as long as it's been brought up: What IS the difference between a trademark and a copyright? I tried looking it up myself, but I couldn't find a description of trademarks that was in plain English, and I don't really have the time to take a 3-year course so that I can understand the technical business lingo that every page I checked assumes I can speak. So what's the bottom line? What exactly would Sony have been able to do with a "Let's Play" trademark?

A trademark is to keep other business in the sorta same competition with each other from using names, slogans, logos and some minor other things so consumers would not be confused or tricked into buying something from the wrong company. Trademarks have to be actively used or a company can loose a trademark after 5 years, however if it is actively used, then there is no limit on how many years a company can keep a trademark. Trademarks are mainly keeping other business from using trademark intellectual property.

Many people are familiar what copyright material is. Copyright grants the rights to who ever owns the intellectual property to stop other people from using that Intellectual Property. With the exception of some fair use in copyright law(and unless you have studied fair use in a law class, you probably have a misunderstanding of fair use), the only way to use it whether a business or an individual can use it, is from a license, point of sale, or other form of permission from the owner. Copyrights do have have a limited number of years they can be copyrighted, and even if the owner is not actively using the copyright, it still belongs to them, or their descendants for those number of years.

If Sony had gotten the Let's Play trademark, it probably would not have have wiped out all the youtube videos that have the words Let's Play in them. However since Roosterteeth runs the "Let's Play" channel, they would probably have to stop using it. No other video game company besides Sony could advertise anything as a "Let's Play".

Something Amyss:

Zydrate:
Other than Rooster Teeth/Achievement Hunter, I tend to use Let's Plays as a sort of "Show me the first hour of the game", and it has actually led to a few purchases.

This is largely what companies hate, though. They don't see the sales they get, they see the "lost sales."

Though, TBH, if I have t o look up a LP of your game, I'm not going to buy it if I can't find one.

I don't get it. Game was bought. Usually LP's pop up within the first week, which is where a lot of sales statistics come from.
Hell, this is how I bought Fallout 4. I was iffy (But largely because my computer is crap and was afraid it wouldn't even run) but I watched a LP on the ~4th day after release and then I just went and got it anyway.

KoudelkaMorgan:
How do you even get something so generic trademarked? Why not go after "lets drink" "lets party" "lets meditate" while you are at it?

I guess we can just trademark any two word phrase we didn't even invent huh?

It was probably just for advertising purposes, that's what I'd use it for instead of going after let's players since it's too much trouble. Still stupid though, move along, nothing to see but corporations doing something stupid and getting laughed out of court, yada yada.

Zydrate:

I don't get it. Game was bought. Usually LP's pop up within the first week, which is where a lot of sales statistics come from.
Hell, this is how I bought Fallout 4. I was iffy (But largely because my computer is crap and was afraid it wouldn't even run) but I watched a LP on the ~4th day after release and then I just went and got it anyway.

Game was bought.
LP goes up during crucial sales time.
Some people don't buy game.
They see that.

The game being bought doesn't even have anything to do with it.

WhiteTigerShiro:
So as long as it's been brought up: What IS the difference between a trademark and a copyright? I tried looking it up myself, but I couldn't find a description of trademarks that was in plain English, and I don't really have the time to take a 3-year course so that I can understand the technical business lingo that every page I checked assumes I can speak. So what's the bottom line? What exactly would Sony have been able to do with a "Let's Play" trademark?

The shorter version: copyright protects a book, trademark protects certain characters in the book. Trademarks are about branding of goods (like a game console) and services (like, say, PlayStation NOW): PlayStation, Xbox, and Wii U are all trademarks.

A trademark's power relies on its scope. Sony went incredibly broad, seeing that the documents cover pretty much any gaming event as a Let's Play. Given the wording of their application, I suspect they were trying to brand their own version of LPs as others have said, but the way they applied would give them power over the term in most or all of gaming.

As was previously mentioned, trademarks are only valid as long as they are actively defended. This would mean they would have to, by law, come into conflict with other LPers or lose their trademark. Even if this wasn't the intent, it would be the outcome, and provide issues for people who have been doing LPs for years. Fortunately, the mark was rejected because it would confuse their branding with other brands.

Something Amyss:

As was previously mentioned, trademarks are only valid as long as they are actively defended. This would mean they would have to, by law, come into conflict with other LPers or lose their trademark.

I'm not sure this is actually the case, and might in fact be...well I don't know if urban myth would be the correct term. I'll have to do a little digging later but I was speaking to a friend of mine on this very subject of trademark issues, and he said that it's not true. The part about them being obligated to defend it against every case or they lose their trademark. I'll speak to him later today and see where he got his information on this.

Happyninja42:

I'm not sure this is actually the case, and might in fact be...well I don't know if urban myth would be the correct term. I'll have to do a little digging later but I was speaking to a friend of mine on this very subject of trademark issues, and he said that it's not true. The part about them being obligated to defend it against every case or they lose their trademark. I'll speak to him later today and see where he got his information on this.

In the most technical sense, they don't have to defend against every case. However, such cases constitute brand dilution, and that is exactly how you lose your trademark. Harvard Law's page on it makes mention that courts consider whether it was defended or not as a factor to trademark recognition.

In other words, for the purposes here, what I said is absolutely correct. It is simplistic, but simplistic for someone who asked people to effectively dumb it down. Defending one's mark is a de facto state because of the nature of trademark relying on strength and novelty.

also, I never said "every" case. But given the prevalence of LPs, this is still going to put them in conflict with Let's Players. Or would, if not for the "confusion" rejection and extant dilusion.

So, Sony's frankly dystopian attempt at destroying the content of countless youtubers has been foiled, not because people saw through them or because of enormous moral outrage, but because there just happened to be another copyright for a completely benign purpose that sounded too similar to this horrifying power grab.

Well, God's absurdist sense of humor seems to be as sharp as ever.

Happyninja42:

Something Amyss:

As was previously mentioned, trademarks are only valid as long as they are actively defended. This would mean they would have to, by law, come into conflict with other LPers or lose their trademark.

I'm not sure this is actually the case, and might in fact be...well I don't know if urban myth would be the correct term. I'll have to do a little digging later but I was speaking to a friend of mine on this very subject of trademark issues, and he said that it's not true. The part about them being obligated to defend it against every case or they lose their trademark. I'll speak to him later today and see where he got his information on this.

May you ask him his opinion about the case of Nyan Cat & Keyboard Cat creators vs. Warner Brothers? The mentioned trademarked characters have been used countless times for free in memes and videos without asking any permission to the creators. But when WB included them in their Scribblenauts game without permission, the creators sued WB successfully.

CaitSeith:

Happyninja42:

Something Amyss:

As was previously mentioned, trademarks are only valid as long as they are actively defended. This would mean they would have to, by law, come into conflict with other LPers or lose their trademark.

I'm not sure this is actually the case, and might in fact be...well I don't know if urban myth would be the correct term. I'll have to do a little digging later but I was speaking to a friend of mine on this very subject of trademark issues, and he said that it's not true. The part about them being obligated to defend it against every case or they lose their trademark. I'll speak to him later today and see where he got his information on this.

May you ask him his opinion about the case of Nyan Cat & Keyboard Cat creators vs. Warner Brothers? The mentioned trademarked characters have been used countless times for free in memes and videos without asking any permission to the creators. But when WB included them in their Scribblenauts game without permission, the creators sued WB successfully.

From the synopsis you just gave about this one example, it doesn't sound like it applies, or in fact actually supports my statement. What I said was basically that "a trademark holder doesn't have to defend their trademark in order to maintain it." Since your example is of people who had a trademark, and didn't defend it for years, allowing people to use them for free without any issue, and were then still able to win a lawsuit, it seems like you are supporting my stance. If it was the other way, they would have lost the suit because they didn't defend against all of those other claims that you mentioned. So, yeah I'm not sure how this example applies? Unless the "WB was using it for profit, compared to free memes" is the single key factor in the discussion, which I could see. And thinking back to my discussion with my friend, I think that might have been a distinction he made? That if you are doing it without making a profit, it's ok? Or maybe he was talking about copywriting. I dunno, the discussion was like a year ago, and was done as a tangential discussion about other things, and we started talking about free pdf's of roleplaying sourcebooks. I'll have to get in touch with him later and pick his brain about what exactly he said.

 Pages 1 2 NEXT

Reply to Thread

Log in or Register to Comment
Have an account? Login below:
With Facebook:Login With Facebook
or
Username:  
Password:  
  
Not registered? To sign up for an account with The Escapist:
Register With Facebook
Register With Facebook
or
Register for a free account here