The Truth

Since I started writing this article, it appears Hasbro has indeed won its case, albeit not in a court of law. This is both a good, and bad, result. It's good, because it means even the smaller developers will now -- hopefully -- realise that being small doesn't mean the bullets will always miss you.

But it's also bad, because it still leaves the true legalities of the case as a grey area. Would a court have upheld such a position?

Diana [Gruber]'s article made some very valid points. There are precedents in some of the cases, and she was correct to point them out.

The most high-profile example of a copyright case failure is one that still haunts businesses today: a ruling, many years ago, meant that Hoover could no longer prevent other companies from referring to their vacuum cleaners as 'Hoovers' -- even in adverts. In the UK, where the word has long been a common short-hand for vacuum cleaners, you won't find them referred to as anything else. The courts ruled that the word had not been protected anywhere near enough, so it could legally be considered as being in the public domain.

"Bang!" went Hoover's biggest asset: their very identity. An identity, with an associated reputation, that they had spent decades, and billions of dollars, building up.

As you can imagine, no other business wants to suffer the same ignominious fate. Hence every writing magazine is loaded with warnings from a myriad companies threatening dire consequences if copyrights, trademarks and tradenames are not recognised as such in any article. (And this, in turn, is why you'll <>always see those little 'r' and 'tm' symbols after any trademark.)

Kleenex(R) are particularly insistent that all writers -- even novelists -- use that little symbol when mentioning their products. Make no mistake: no novelist would get away with treating 'Kleenex(R)' as a generic term for paper tissues.

These examples are for industries that produce physical, tangible products and are not all that reliant on abstract intellectual properties.

In an industry that relies 100% on abstract intellectual property, such as the games industry, losing a name today would mean losing millions of dollars worth of investment in design, development, advertising and distribution tomorrow. If Hasbro had lost their case, ANYONE could have called a game "PacMan(R)" and used the very cachet and success of the original game to increase sales of even a mediocre clone.

Conclusion