Re: Co-designer wanted: B


4 Nov 1995 12:16:26 +1000

Joe Mason (joe.mason@tabb.com) wrote:

: Are you sure "Luke Skywalker" is copyrighted? The lead singer (lead
: rapper?) of 2 Live Crew (Luther Somebody) uses the stage name "Luke
: Skywalker". Otherwise, he doesn't mention the movie at all. Your
: statement sounds right, in general, though - if it *was* trademarked,
: you would have to write for permission.

Depends, if he could demonstrate to a court that he was using the name
(publically) first, and independantly, then he need not request permission
(though it is to his advantage to inform Lucasfilm. Lawyers can be dangerous
when startled). He may well _have_ written and requested permission. Or
Lucasfilm don't care (but that doesn't mean they won't care tomorrow)

: AV>_unique_ identifier, and the sole _property_ of the trademark holder. Even
: AV>if they let you use it (ie: give written permission. No other form is
: AV>legally binding) the trademark owner may withdraw that permission at any
: AV>time, for any (or no) reason regardless of the terms of the written
: AV>permission. (if they changee their minds after promising (on paper) that you
: AV>can use the names for, say, 5 years, they are not in breach of contract,
: AV>verbal, written or otherwise). If they promised you that you could use their

: If they just *give* you the permission, yes. But if it fulfills all the
: legal definitions of a contract, they can't withdraw their permission
: without being considered in breach of contract. The key definition of
: "contract" here is that there has to be an *exchange* of some sort. If
: you *pay* them something for the right to use their trademark, its a
: contract and you can't break it. If you get it free, its not a contract
: and they can withdraw their support at any time.

True. However do not be fooled into thinking that a contract obligates one
party to behave in the stated way. If a contract is entered into, with no
intent to carry it out as stated, then it won't be, and there's not a damn
thing you can do about it except sue for damages. Breach of contract (alas)
tends to be won by the guy with the most money and the best lawyers, and not
by the injured party. There was a very nice article on this in an early
computer magazine (discussing software contracts) and it still holds true
today.

: Also, you mentioned that if you make heaps of money off royalties on a
: game where you borrowed the trademark, they can order you to stop using
: the trademark and/or recall the products. Can they also order you to
: start paying them royalties?

They can make their permission contingent on it. Actally, they can make
their permission contingent on you painting yourself purple. You are using
(or have used) _their_ property. They can ask for royalties for units
produced (not sold, produced. You need not be making money to be charged a
royalty) to date, in exchange for permission to use the trademark in future.
Such agreements are not unknown.

They can (if they are feeling surly enough) insist on royalties to date,
without offering permission, simply by taking you to court and suing your
ass off. This is the most common technique. Some damn-fool company lawyer,
whose as bored as all get-out, is sick of the sight of his office, spots
a glowing five-star review of some PD adventure game called 'Star Wars -
The Rebels vs the Gremlins' and sees a chance to score a few brownie points
with the boss, impress that redhead in the next cubicle, and get out of the
office for a while. All in one go.

Next thing you know, Joe IF. Author has a guy at the door delivering a
summons.

*sigh*

D