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Standup for Indie dev, resist AAA obliteration.

Summary

Activision sues small indie developer over a trademark, which the indie developer had legal rights to.

 

Quotes

Quote

 

 
Hello, my name is Randy, and I’m being sued by Activision for being an indie game developer.

In 2017, I launched my indie game Warzone. In 2020, Activision launched “Call of Duty: Warzone” and is now suing me to steal the name (banking on my limited resources).
 
I love making games and I've dedicated the last 10+ years of my life towards making exactly one game: WarLight, with a sequel named Warzone. It’s a multiplayer turn-based strategy and negotiation game inspired by Risk.

This game has been my full time job and only source of income for a decade.  I have no employees, I make Warzone all by myself and hope that I can continue to work on it for the rest of my life.

 

My thoughts

Do you feel Activision is legally justified or do they have no legal grounds to do this? Do you feel Activision is morally justified or not morally justified? The Corporate argument is that employees need a paycheck, and that for the greater good of employees and consumers AAA games must be made. The Indie argument is that corporate employees are underpaid and overworked so why contribute to that broken system? The Corporate argument is that indie devs are also overworked and underpaid. The Indie argument is that indie games have more content freedom, and able to satisfy gamers more. The Corporate argument is that AAA games satisfy gamers more because there are more workers and budget to produce higher quality games. Legally speaking, trademark is trademark. The Corporate and Indie argument is that artists should not have to follow trademark restrictions, if an artist has a great idea why should they not be allowed to pursue the idea? For example, lets say an artist has a great game vision, but that vision was created earlier by a shovelware game, should the shovelware game have exclusive rights to that vision? On the other hand, should Corporations be allowed to steamroll over hardworking indies who spent a lot of work making a non shovelware game?

 

Sources

https://techraptor.net/gaming/news/activision-sues-warzonecom-after-negotiations-break-down

https://www.rockpapershotgun.com/activision-suing-an-indie-dev-who-made-a-game-called-warzone-three-years-before-them

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@_princess_ I have removed the link from your post to the Gofundme. Only in very rare exceptions are they allowed when its something endorsed by LMG, which this is not. You should also gather additional sources beyond just the Gofundme page. This news has been out in the space for about a month now, so new articles should be easy to come by to link from. 

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This brings memories when Ford was butthurt about some F1 race car named F150. Because they didn't want people to confusion it with their F150 pickup truck. Yeah, like one is going to confuse a F1 racing car with a big ass pickup truck. This seems no less stupid. With one big difference that it's not two rich corps fighting with dicks, it's one rich corp bullying an indie dev who even had the product on market before them and on top of that isn't even related to it in any way and only includes part of the name. One is turn based strategy game, other is FPS game. Activision, stop being an ass and leave this dude alone.

 

There was also Warzone 2100 game some 2 decades ago. I'm surprised stupid Activision isn't chasing them too. Btw, Warzone 2100 is now open source free strategy game.

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I'll just post my response from the earlier thread:

  

Hmm. I don't agree with either side I guess. My two questions are

  1. Why is activision allowed to trademark "Warzone" when the game is "Call of Duty: Warzone"? That feels to me as if they could trademark "Duty" as well (but maybe I'm missing something about trademark law here regarding subtitles)
  2. Why didn't the Warzone developer file for trademark when he released his game?
Quote

Activision also says they first filed trademark for Warzone in June 2020, with the browser game company only filing for the trademark in October 30, 2020. The browser based game has been available since 2017, but the company behind the game never filed a trademark for it until Activision’s Warzone became popular.

This is my main point of contention and why this feels like maybe unfortunate oversight to me.

 

From Warzone's gofundme page:

Quote

It surprised me when Activision named their new game "Call of Duty: Warzone".

I find this a bit strange perhaps. I can totally imagine a COD game getting the subtitle Warzone and his game looks like just an online version of Risk. I see no relation with Call of Duty there, so I don't personally think there was ill intent at first glance.

Quote

It shocked me, though, that they filed for the trademark of "Warzone". That's the exact same name as my game!

Trademark law says that whoever uses a name first gets rights to it, just like someone can't make a game named "Minecraft" today. However, Activision thinks these laws don't apply to them.  They're suing to block me from claiming my rights to the Warzone trademark, even though I launched a game named Warzone years before them!

Per my number 1 above, why didn't they file for trademark if they were concerned about this?

 

I don't want to sound like a dick and say this is an attempt to wrongfully turn it into a "big studio bullies the little guy", but they maybe should have been more proactive? It feels reactionary to me where suddenly they were "oh shit" another popular game gets my game's tittle as nickname/subtitle, better trademark mine and then they found out the other studio has claimed trademark earlier.

 

As per my number 1, does this mean that "Wildlands" from Ghost Recon Wildlands could be trademarked? Would/could the developer of the VR game Wildlands and Ubisoft sue each other over that?

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10 minutes ago, tikker said:

Why is activision allowed to trademark "Warzone" when the game is "Call of Duty: Warzone"? That feels to me as if they could trademark "Duty" as well (but maybe I'm missing something about trademark law here regarding subtitles)

I'd guess because cod is a trademark unto itself, and thus warzone is anothee one because it's not part of the cod one.

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Yeah it sucks and it's lame. I also remember in general the part where a company is legally obliged to defend their tm IP if it's getting infringed. Obviously there's more to it, but yeah, what a world.

Though the funny thing how there are literal copies of cs and dota perfectly fine and adverties, so bad.

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2 hours ago, _princess_ said:

1. Activision sues small indie developer over a trademark, which the indie developer had legal rights to.

2. Do you feel Activision is morally justified or not morally justified?

3. Legally speaking, trademark is trademark.

4. The Corporate and Indie argument is that artists should not have to follow trademark restrictions

5. if an artist has a great idea why should they not be allowed to pursue the idea? For example, lets say an artist has a great game vision, but that vision was created earlier by a shovelware game, should the shovelware game have exclusive rights to that vision? On the other hand, should Corporations be allowed to steamroll over hardworking indies who spent a lot of work making a non shovelware game?

1. Given they didn't file for trademark until after activision, they did not have any legal rights to it.

2. I have not personally checked out the games in question, but in my opinion (outside of what the law is), if the concepts and/or themes of the game are different enough, then activision doesn't stand to lose anything from another game having the same word in it. People looking for Call of duty who get a google result for a board game, lets say, wouldn't suddenly fall in love with board games and start hating Call of duty video games. With no estimated loss or harm in question, I think they made a pointless decision in bad faith at least and malice at worst.

3. Correct, which is why activision will certainly win this if it goes through in court.

4. I'm not a dev, but I've never heard someone make that argument, and I can't see why anyone would. You might argue the extent of trademarks power over a single word in this instance, but protecting your ideas is absolutely important. If you can't protect your ideas, someone with more money can and likely will take it over and make all the money.

5. No one says they cannot pursue the idea, but when naming, calling it the same as someone else's idea can potentially take away from their business and do harm to them. I think the idea of a USP is important here. Unique Selling Point. Can anyone lay claim on any war based game, no. War is a broad concept. What makes Call of Duty unique in the war game market? Maybe gameplay, design, mechanics, maybe certain characters, or certain settings, or gamemodes. The unique selling point is what you want to protect. Anyone can make a war game, but not everyone can make a Call of Duty game. So you protect yourself, in this case the franchise name being so well known. They want to protect their title as it's how everyone finds them and knows them. Whether they made a good move or not here, they made a legal move to protect their trademark, simple as that.

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11 minutes ago, Jtalk4456 said:

1. Given they didn't file for trademark until after activision, they did not have any legal rights to it.

Doesn't matter if they filed after, if they were first to market they have what's known as "priority of use" or "first to use in commerce" and it's kind of like prior art for patents.

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3 minutes ago, Lurick said:

Doesn't matter if they filed after, if they were first to market they have what's known as "priority of use" or "first to use in commerce" and it's kind of like prior art for patents.

I agree.

 

 

 

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16 minutes ago, Jtalk4456 said:

1. Given they didn't file for trademark until after activision, they did not have any legal rights to it.

 

I disagree, says here that:

 

Trademark Law: first to use v. first to file

"In the United States, it is not registration, but actual use of a designation as a mark that creates rights and priority over others. Thus, the rule is that ownership of a mark goes to the first-to-use, not the first-to-file."

 

https://www.legalteamusa.net/trademark-law-first-to-use-v-first-to-file/

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34 minutes ago, Lurick said:

Doesn't matter if they filed after, if they were first to market they have what's known as "priority of use" or "first to use in commerce" and it's kind of like prior art for patents.

 

30 minutes ago, _princess_ said:

 I disagree, says here that:

Trademark Law: first to use v. first to file

"In the United States, it is not registration, but actual use of a designation as a mark that creates rights and priority over others. Thus, the rule is that ownership of a mark goes to the first-to-use, not the first-to-file."

 

https://www.legalteamusa.net/trademark-law-first-to-use-v-first-to-file/

OK so i was going based off the comment above that activision has the trademark already and THEN the indie dev FILED. In that assumed circumstance, I stand by my point but if they both just filed and neither HAS the trademark yet, then yeah it might go to the indie. Or depending on precedent, the court might throw both out saying you need more than 1 word to trademark

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1 hour ago, tikker said:

I'll just post my response from the earlier thread:

  

Hmm. I don't agree with either side I guess. My two questions are

  1. Why is activision allowed to trademark "Warzone" when the game is "Call of Duty: Warzone"? That feels to me as if they could trademark "Duty" as well (but maybe I'm missing something about trademark law here regarding subtitles)
  2. Why didn't the Warzone developer file for trademark when he released his game?

This is my main point of contention and why this feels like maybe unfortunate oversight to me.

 

From Warzone's gofundme page:

I find this a bit strange perhaps. I can totally imagine a COD game getting the subtitle Warzone and his game looks like just an online version of Risk. I see no relation with Call of Duty there, so I don't personally think there was ill intent at first glance.

Per my number 1 above, why didn't they file for trademark if they were concerned about this?

 

I don't want to sound like a dick and say this is an attempt to wrongfully turn it into a "big studio bullies the little guy", but they maybe should have been more proactive? It feels reactionary to me where suddenly they were "oh shit" another popular game gets my game's tittle as nickname/subtitle, better trademark mine and then they found out the other studio has claimed trademark earlier.

 

As per my number 1, does this mean that "Wildlands" from Ghost Recon Wildlands could be trademarked? Would/could the developer of the VR game Wildlands and Ubisoft sue each other over that?

Tbh if I remember correctly that is actually a thing in trademark law. You can't really trademark something that is a simple word to describe something. I mean you can but it can be stricken down.

 https://www.morse.law/news/generic-trademark

Now is warzone a generic term? I personally would say so. Now I am not a lawyer so take this with a grain of salt this is just my rudimentary understanding based on my conversations with my mom who happens to be a lawyer. It came up when I saw two brands of cereal that had then same name but the names themselves where a literal description of the product. 

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3 hours ago, Lurick said:

Doesn't matter if they filed after, if they were first to market they have what's known as "priority of use" or "first to use in commerce" and it's kind of like prior art for patents.

Is there not some time limit associated with this? (genuine question, I don't know) Because that would make sense to me. They waited three years to file for trade mark in addition to filing for it almost 4 months after Activision filed for it. I would see a valid argument for disinterest in the trademark or whatever the legal term would be.

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2 minutes ago, tikker said:

Is there not some time limit associated with this? (genuine question, I don't know) Because that would make sense to me. They waited three years to file for trade mark in addition to filing for it almost 4 months after Activision filed for it. I would see a valid argument for disinterest in the trademark or whatever the legal term would be.

The problem is that its likely that they did have a disinterest in the trademark because it is sorta a scummy thing to trademark to begin with. It really shouldn't need to be trademarked as its simply a generic name to describe the game. They likely wanted to trademark after they realized that if they didn't they would get sued by others that wanted the trademark. 

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3 minutes ago, Brooksie359 said:

They likely wanted to trademark after they realized that if they didn't they would get sued by others that wanted the trademark. 

Yeah it feels like this to me as well. I'm surprised Hasbro hasn't sued them yet for pretty much copying Risk.

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6 hours ago, _princess_ said:

for being an indie game developer.

First off, let's acknowledge that this is entirely not true. They are suing for using the trademark. Facts people, not opinions.

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8 hours ago, _princess_ said:

 Corporate and Indie argument is that artists should not have to follow trademark restrictions, if an artist has a great idea why should they not be allowed to pursue the idea? For example, lets say an artist has a great game vision, but that vision was created earlier by a shovelware game, should the shovelware game have exclusive rights to that vision? On the other hand, should Corporations be allowed to steamroll over hardworking indies who spent a lot of work making a non shovelware game?

 

 

 

 

Trademark has zero to do with concepts so bringing up the idea of indie games not being able to use an idea is sorta irrelevant. Game companies have tried to sue for copy of ideas in games many times with very few successful cases. Trademarks are completely different as they are simply stopping people from using names of their brand or their logo and such things.

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942771559_warzone_eidersoft1.gif.8cd9b692d49f52eefaac7920e0532094.gif216716520_war_zone_011.png.582813f42ac34433d2f178536b72684d.png

 

I found two other video games called 'Warzone' without even trying...

 

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This is as ridiculous as Yahoo Serious suing Yahoo

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On 5/15/2021 at 7:11 PM, tikker said:

Yeah it feels like this to me as well. I'm surprised Hasbro hasn't sued them yet for pretty much copying Risk.

And then people wonder why so many people are Commies.

 

I am pro-capatalism but so much of capitalism is the result of mallign evolutionary reflexes. I feel like some people would try to copyright a sandwich if they could, or like when Paris Hilton tried to get ownership of the name Paris.

 

Hasbro created a buggy broken game called Risk Factions for the 360, then a bland Risk game for Xbox One, then a decent but not as good as Risk Factions game of Urban Conflict. Preventing any loosely similar board games is a step in the wrong direction. It would be like Tic Tac Toe preventing any games that have a grid type pattern in the game.

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34 minutes ago, _princess_ said:

And then people wonder why so many people are Commies.

*hears ussr in the background and the final boss*

When it comes to the US, I guess one would want anything else as there is so much that will keep you down in one way or another.

Working with multi-million or billion worth corporations that doesn't pay some of their staff enough to eat at their own dining area.

So how we would know if they wouldn't sue this smaller dev at some point for just using the name too, and how people wouldn't know this big franchise already, unless they were impersonated like one can see in app stores.

 

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On 5/16/2021 at 3:41 AM, CerealExperimentsLain said:

942771559_warzone_eidersoft1.gif.8cd9b692d49f52eefaac7920e0532094.gif216716520_war_zone_011.png.582813f42ac34433d2f178536b72684d.png

 

I found two other video games called 'Warzone' without even trying...

 

Not just those. Inspired by this some more digging gave me:

  1. 1988 - Warzone (Amiga game, Paradox Software)
  2. 1991 - War Zone (Amiga game, Core Design Limited)
  3. 1999 - Warzone 2100 (PC game, Eidos and a bunch of others)
  4. 2008 - Gears of War 2 "Warzone" multiplayer mode
  5. 2011 - Anomaly: Warzone Earth
  6. 2015 - Halo 5 "Warzone" multiplayer mode
  7. 2019 - Warzone VR on PS5 (Sinn Studio Inc.)
  8. Various iterations of Warzone board games

Activision themselves adding to it:

Spoiler

tZcuDzg.png

Is he planning to sue/countersue all of those as well?

  

1 hour ago, _princess_ said:

And then people wonder why so many people are Commies.

 

I am pro-capatalism but so much of capitalism is the result of mallign evolutionary reflexes. I feel like some people would try to copyright a sandwich if they could, or like when Paris Hilton tried to get ownership of the name Paris.

 

Hasbro created a buggy broken game called Risk Factions for the 360, then a bland Risk game for Xbox One, then a decent but not as good as Risk Factions game of Urban Conflict. Preventing any loosely similar board games is a step in the wrong direction. It would be like Tic Tac Toe preventing any games that have a grid type pattern in the game.

The problem is at both ends in my opinion, in the mess that is copyright/trademark is and greedy developers. You perfectly illustrate why this is such a ridiculous lawsuit and a mess. It's as dumb as EA sueing Ubisoft over the word "Ghost" where consumers would apparently confuse Need for Speed with the Ghost Recon series, because the former was being developed by Ghost Studios. It's getting more and more difficult/annoying as well, because everything is becoming used up, especially generic terms like this.

If I dissect his gofundme page and play the devil's advocate a bit:

Spoiler
Quote

Hello, my name is Randy, and I’m being sued by Activision for being an indie game developer.

In 2017, I launched my indie game Warzone. In 2020, Activision launched “Call of Duty: Warzone” and is now suing me to steal the name (banking on my limited resources).

False. They're sueing over that the users will not confuse the two games after he sued them for damages. Companies sue for equally dumb or dumber shit than this, plus he started the lawsuit so don't cry if you get sued back. I also highly doubt Activision was looking for a COD subtitle and went "oh hey look at this random copy of Risk called 'warzone'. That has a nice ring to it, let's steal it."

 

Quote

I love making games and I've dedicated the last 10+ years of my life towards making exactly one game: WarLight, with a sequel named Warzone. It’s a multiplayer turn-based strategy and negotiation game inspired by Risk.

"inspired". I get that this is muddy waters as you can't copyright a general idea, only the implementations of it (IIRC). but come on. They literally advertise as "better than Risk!" and "if you like Risk you'll love this".  You're sueing a company for alledgedly stealing your (unrelated) game's name when your game is self-admittedly Risk with extra bells and whistles. How will they defend against hypothetical case of stealing Risk? Does saying "inspired by" justify that?

 

Quote

It surprised me when Activision named their new game "Call of Duty: Warzone".  

It shocked me, though, that they filed for the trademark of "Warzone". That's the exact same name as my game!

Right. So why didn't you file for trademark if you did not want this to happen? What about the other games called Warzone that came before his? I guess the trademarks of those ancient games have long expired, but see the above list. I bet all those other companies were equally surprised to see a game with "the exact same name as my game!"... no.

 

Quote

Trademark law says that whoever uses a name first gets rights to it, just like someone can't make a game named "Minecraft" today. However, Activision thinks these laws don't apply to them.  They're suing to block me from claiming my rights to the Warzone trademark, even though I launched a game named Warzone years before them!

Literally shot themselves in the foot here, because they are most certainly not the first.

 

Quote

Inconceivably, I get contacted all the time from people who are confusing our two games.

Sounds like they know they have no leg to stand on. I've never heard of him or his game before this and I'm willing to bet a large chunk of other people hadn't either. If you asked me if I knew Warzone, I would have guessed to COD game. Not act confused as to which one you meant.

 

Quote

People tell me all about how their xbox can't connect, or how their PS4 got hacked, how they wish they could carry teammates, etc.  My game isn't even on xbox or ps4.  I send the same reply to each of them: "Warzone and Call of Duty: Warzone are different games.  You should contact Activision."

I'm sorry, but simply searching "Warzone" on Google or DDG will give mostly COD results. Furthermore you are not even on playstation so get out of here saying that people specifically contact you because their AAA Activision made console game doesn't connect. This is an insult to customers implying they are to stupid to realise they are not even on a COD, Activision or PlayStation/Xbox associated website.

 

[Edit] Ok, I stand corrected a bit here, as a Twitch channel for Warzone.com had been set up that has been flooded with COD: Warzone streamers. I can see how they would get contacted about issues in this area.

He started this mess apparently:

Quote

The complaint filed Thursday in the U.S. District Court for the Central District of California said that Warzone.com had threatened to seek “massive damages” from Activision for trademark infringement, as well as orders blocking Activision from using the “Warzone” name or registering a trademark covering it.

https://www.reuters.com/article/ip-trademarks/in-brief-activision-sues-web-game-maker-to-clear-warzone-trademarks-idUSL1N2M22F8

so what I think is what happened:

  1. Guy (re)creates an online version of Risk and calls it "Warzone" in 2017
  2. Activision comes out with COD: Warzone in 2020 and trademarks it in June.
  3. Guy thinks oh crap, and tries to file for trademark on October
  4. Guy starts a lawsuit against Activision
  5. Activision sues back.
  6. Guy tries to play "big bad AAA company vs poor small indie developer" card

I'm happy to support indie developers, and am also aware that the big companies we love to hate on aren't always the nicest out there, but no. This unfortunately sounds like he's just trying to get money out of the situation. Now excuse me while I pack my bags to go sue Capcom over Resident Evil: Village, because I've been developing my city builder that has zombies and is called "Village" for the last few years.

 

 

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Goes to show that... Even if you don't truly care, you should still file a trademark registration for the thing you create. Because otherwise, big corpo can just come bulldozing through and steal your game's name, claiming it as their own by filing their own trademark.

 

Honestly, "warzone" should not even be trademarkable, considering there's plenty of prior usage of the word in terms of video games.

 

Really not sure what he hoped to do by filing for trademark months later and then attempting to sue Activision for it.

 

https://www.lexology.com/library/detail.aspx?g=3c8677aa-8f60-4cac-8b79-29f6b175a0cd

Spoiler

Activision, one of the world's largest video game producers, and the owner of the popular 'Call of Duty: Warzone' series of comfort games, filed a lawsuit in the U.S. Central District Court for the District of California, on April 8, 2021, against Warzone.com LLC which owns and runs a web-based strategy game called 'Warzone'.

The complaint relates to the use and the trademark rights vested in the title "Warzone", over which the 2 companies have been in dispute since the past few months. The origin of the controversy dates back to the year 2020, when Activision launched its game, “Call of Duty: Warzone” in March 2020 and filed applications for the registration of the trademarks: "Warzone" and "Call of Duty Warzone" in June 2020. On the other hand, Warzone.com had published the strategy game in 2017, however did not file application for registration of the trademark for its title until October 2020.

According to Activision, on November 20, 2020, the legal counsel of Warzone.com had issued a cease-and-desist letter, as well as controversial notices regarding the cease-and-desist letter for use of the marks 'Warzone' and 'Call of Duty: Warzone' by Activision, threatening to claim massive damages for the continued use of the same. Activision was originally set to submit its response to the US Patent and Trademark Office (hereinafter “USPTO”) on 12 December 2020, but had already submitted and received four extensions thereafter. The latest deadline for responding to Warzone.com was April 12, 2021, but as on date no such submission is available on the official website of the USPTO.

Activision has attacked Warzone.com's claims by pointing out that there are at least 16 other mobile games using the mark "Warzone" in their title, and realizing that the mark 'Warzone' is a phrase used in many video games and several other entertainment products that involve military warfare. It also denied the possibility of consumer confusion, saying that due to the completely different natures of the two games, there was no room for confusion in case of an ordinary consumer, since Activision's Warzone was played on game consoles, while the version of Warzone.com was a digital board game available on a website that has never been available for the gaming consoles.

 

Activision now seeks a declaratory judgment from the U.S. Central District Court claiming that it does not infringe upon any rights of Warzone.com LLC in any manner and that its own trademark applications may continue to be registered, and that Warzone.com is required to pay the appropriate attorney fees and costs to Activision in the present matter.

 

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3 hours ago, TetraSky said:

Honestly, "warzone" should not even be trademarkable, considering there's plenty of prior usage of the word in terms of video games.

Activision isn't tradmarking "warzone"...it's Trademarking "Call of Duty: Warzone" which is a distinct thing. Look at @tikker's post above.. the indie guy appears to have started this trying to get money off Activision based on his generic title....possibly hoping for a quick settlement payout.

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