Re: Steamy, a new game distribution platform for Hentai Games!
(DISCLAIMER: IANAL, but I believe yours suck.)
See my earlier response above about trademark law and the recount of my conversation with legal experts in IP, trademark, and adult entertainment law.
This?
Second, regarding our name. We are, of course, concerned with the legal ramifications of the project name. As a result, we have consulted with legal experts who specialize in adult entertainment on this matter. Under US trademark law, there is something called the "spectrum of distinctiveness" for a trade/service mark. Valve's "steam" is what's called an arbitrary mark. That is, the name does not describe the service/product. The mark "steamy" is what's called an "allusive" or "descriptive" mark, because it describes the actual service that is being provided. Any trademark infringement case must prove one of the following: 1) likelihood of confusion, as defined by the dupont factors 2) blurring via either dilution or tarnishment. Valve has dubious claims on any of the above, considering the distinctiveness of our logos, and the lack of public visibility of our service. A lot of people focus on the legal issues of the "steamy" name itself, but our legal consultants point out that the name is not even the biggest risk. Rather, we are hosting content that stands on the knife's edge of the law. Second, contention with any sort of legal issue is not a matter of whether we have a defensible position, so much as it's a matter of whether we have the legal budget to defend ourselves at all. At this point, "steamy" is the codename for the project, and not necessarily the final name. We are discussing alternatives, and will have more information to share soon.
You do know
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came from, right? DuPont wanted to register a trademark Rally for car polish (Hey, it's allusive! Rally cars! Get it?), but was blocked because Horizon already had the same trademark for an all purpose cleaner (Aha! Arbitrary trademark!).
In any case, Valve has strong claims to both claims. Courts use several sets of criteria based on previous cases (
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,
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,
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to determine the likelihood of trademark confusion. But generally, the criteria used are similar, despite being obfuscated behind a curtain of legalese. I'm going to quote MarkLaw, as it's easier to understand(by other readers), and the criteria boil down to:
1) Whether or not the goods or services using the same mark compete with one another. Marks that are used on similar or related goods or services are more likely to confuse consumers as to the source of those goods or services. Even where the plaintiff's products are not exactly similar, the court may in some cases consider how likely the plaintiff is in the future to sell similar products.
You are going to sell games on a digital distribution platform, like Valve. Sure, you can argue that both lines of products
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, but well...
Dismey exec: Your honor! Both Disney and Dismey sell "animations", yes, but Disney targets the 'family-friendly' market while we cater exclusively to adult customers in search of pornographic materials! The likelihood of confusion is low, and we do not
compete with each other!
Yeah... doesn't sound good.
2) Whether or not the goods or services are so closely related that they are being marketed through the same stores or channels of distribution.
Both digital copies of games. Both use the Internet to distribute their games (Yes, the Internet counts as "a channel of distribution").
3) Whether or not the alleged infringer intended to trick consumers in order to "cash in" on the plaintiff's business good will.
Okay, intention is subjective, and I'm going to give you the benefit of the doubt and assume you're going with Steamy as a 'fun' play on words, but they are ways to prove intent in court (even if it's not actually
your intent. Similarities in distribution and business model... oh and the puns and allusions made by forum users...
Imagine we get Achievements!
New achievement unlocked! "You've been fucked by tentacle monster!
While describing Steamy to a friend today, the easiest correlation to make is that it's Steam for adult content, and it just makes me wonder.
They can argue that you have benefited from Steam's publicity by your actions (making a similar distribution platform with a similar name), and that's enough to establish intent, whether you intend or not (since they can't very well hook someone up to a mind reading machine).
4) Whether the marks are similar in appearance, phonetic sound, or meaning.
Spelling is similar (one letter difference), sounds similar, similar meaning, yep. Sure, you can argue that your logo looks entirely different, but that didn't help DuPont (Rally) or Polarad Elect. either.
5) How careful the consumer is likely to be prior to purchasing. The more sophisticated the consumer (e.g. business owners versus children), or the more expensive the product, then the more discriminating the consumer is expected to be, and the less likely confusion will be attributed to them).
Steam sells games to children and adults. A lot of game sold there are cheap. Adult games are also generally cheaper than AAA titles (and AAA titles with bells and whistles [read:collector's edition/all DLC bundle) are also considered 'cheap' from a legal perspective, since they aren't cars or appliances).
Yes, I know that gamers can often be discriminating buyers, but the law doesn't look into that. Heck, the courts probably has a prejudicial view that gamers are unsophisticated plebians or something.
6) Whether or not the companies are accessing overlapping customer bases. If the companies both sell largely to senior citizens, to teachers, or to home-based business owners, there is more likely to be consumer confusion.
You both cater to gamers. Sure, you cater to a specific subset of gamers, and (hopefully) underage gamers will be excluded, but there is still significant overlap, from the point of view of say, an 'expert witness' with a 'marketing' background.
You might be able to counter this somewhat by using sales figures and market research (along with sales figures from Valve during discovery), but well, it's not going to work out well.
7) The legal strength of each of the marks. The greater the public recognition of a mark as a source identifier, the more likely that similar uses will be confusing.
Valve's trademark is strong and has great brand recognition, and theirs precedes yours.
8) Whether there has been any actual confusion. If so, this is not conclusive evidence of likelihood of confusion, but must be weighed together with the other factors.
Okay, here's the way it works. To prove confusion, Valve is going to commission somebody to do a poll (with the usual leading questions) to gauge confusion. Naturally they're going to pick the results which favor confusion. Also they may trawl the Internet for videos, forum posts, blogs and some such for evidence of confusion, even if it's taken out of context. Like this (again):
While describing Steamy to a friend today, the easiest correlation to make is that it's Steam for adult content, and it just makes me wonder.
Generally, the easiest way to show a lack of confusion is to demonstrate that you've been selling products under a similar mark for a period of time, and that no (or minimal) confusion occurred during that period. The longer the period you're able to sell your product unmolested, the stronger your position.
Valve, naturally, wouldn't want your business to even take off as it weakens their trademark claim against yours. They will get to you at the first opportunity, the moment someone in their legal department hears of you.
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Trademark dilution has even weaker standards of proof than infringement. Generally, they fall under "blurring", the weakening of a trademark's association with specific goods and services, and "tarnishing", the weakening of a trademark through "unsavory" or unflattering associations. The former is not applicable (because you both sell similar products), but the latter... well, let's say most companies won't want their trademarks associated with porn. Also, porn games are generally of lower quality than non-porn games (just compare DLsite/DMM to Steam), another potential source of tarnishment.
Generally, the laws and precedents for dealing with dilution (and "tarnishment") is less clear-cut than infringement, but Valve will still want to go after at you at first opportunity, because they don't want Steam associated with porn. Or even bad games (despite how shitty their policing [or lack of] of Early Access has been)
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And here's the crux of the matter. Even if you don't believe me that this is a open-and-shut case of copyright infringement, I've believed I'd made a clear case that Valve will go after you at first opportunity once they hear of your name and distribution model. To do otherwise will weaken their trademark, and they'll risk losing it. As you say, the issue "is is not a matter of whether we have a defensible position, so much as it's a matter of whether we have the legal budget to defend ourselves at all." With other potential legal problems (on hosting pornography) that you might face, do you really think riling up Valve would be worth it? And that you can afford it?
