So I’m wondering if I might have the grounds for a lawsuit. Here’s the jist of it…
Last May I released a skee ball style game for the iPhone. A little over month ago I got emailed from someone claiming to be an attorney representing skee-ball inc (they had a hotmail address). I was told that I’m in violating of their trademark and that I needed to send them all this information about sales, etc. So I replied asking what specifically considered to be a trademark infringement, and what would be an acceptable change. I never got a response, but I got an email from Apple the app was being removed from the store until both parties had resolved whatever legal issues exist.
After it was removed from the store, I called the attorney. They were extremely nasty with me and seemingly unprofessional. She claimed that I was going to have to send them a check for all the money I had ever received. I asked what was infringing and they told me that they hadn’t looked at my game yet. WTF? They had my game removed from the store, and hadn’t even looked at it? I told them that I don’t quite understand why I’m expected to pay for an infringement that you can’t even define, but they said that’s how the law works. Well I’m no lawyer, but that defys common sense.
Flash forward to today, and I see that Skee-ball inc had just released their own iPhone game. It looks quite similar to my iPhone game and every other skeeball themed iPhone game. It seems to me that this may have been the act of unfair competition, where they used legal pressure to intimidate me into removing my app from sale. I was wondering if there was anyone in the community who has dealt with this sort of thing. Their might be an opportunity here for me to seek damages against Skee-Ball. Unfair competition isn’t usually taken lightly, and I would think this is a pretty clear case. I have the emails from the attorney and a copy of the email that the attorney sent to Apple. It even makes reference to other developers games as well.
The entire thing sounds like a bluff, but they’ve gone to Apple so straight away there’s now a financial burden on you to remedy the problem.
I’m not a lawyer
I think for the sake of making their lives hell, you post their email addresses and this story to Slashdot.org. Those guys love to make people’s lives misery
Lol, that sounds like the best option you have. And in the meantime I would repost it to the appstore and if the same thing happens or it is declined straight away, consider getting a lawyer and suing that guys ass.
I searched the trademark database on uspto.gov and see that Skee Ball is trademarked by Skee Ball, Inc. for “a game in the nature of a bowling game and parts thereof”, and I also checked the less authoritative wikipedia page on Skee Ball, which lists Skee Ball as the latest in a chain of companies that invented/owned the game.
So I don’t know if the categories/classes the trademark is registered for specifically covers video games, but it seems to me if Skee Ball, Inc is saying that your use of the name iSkiiBall infringes their their trademarked name, they probably have a strong case (which may account for why Apple approved their app while yours was in dispute, or maybe it’s just a case of one hand not not knowing the other - you could complain to Apple about their app and see what happens).
If there lawyer was any good, their complaint should have listed the specific trademark and how you were infringing it. But if it’s just a matter of your use of the too-similar name iSkiiBall and not any kind of patent or copyright, you can just rename your game, which might account for why they’re vague. Or maybe they’re just not very good at their jobs - I received a letter from an attorney alleging trademark infringement by Fugu Games and they didn’t even spell “Fugu” right. The wikipedia article, for example, mentions there’s a variation of the Skee Ball on a game show with a different name, something like Crazy Ball. And there’s at least one skee ball game in the App Store with a different name. I have one called Arcade Bowling Lite by Skyworks (I recall they were recruiting for Unity programmers before, so maybe it uses Unity).
I suppose you could rename it “arcade bowling” or something like that.
Likewise though, if these guys are anything like the lawyers that contacted me years ago on behalf of Apple and Adobe during the time I was dabbling in the rumor industry, they should be telling you exactly what it is you were infringing upon along with whatever terms are necessary to correct the matter before they’ll be forced to resort to litigation.
My guess is that they probably are bluffing you and was merely doing some dirty-pool form of house cleaning before releasing their version of the game.
You may want to at least speak to an attorney to get their advice on the matter just to be safe, but my thinking is that these guys probably won’t contact you again after their game gets it’s 15 minutes of fame.
I’m not a lawyer, but my guess is that the trade mark was their only valid complaint. It’s still enough to get the app pulled, but it’s easy enough to change.
As for any patent for the skee-ball game, if there is one, I doubt it would apply as it would more likely be a patent for the original game mechanism, and would not therefore cover a videogame simulation of it.
Copyright, well, who knows. Fact is they didn’t tell you what they had, so it’s hard to say for sure.
The best advice, I think, is to contact a good IP/commercial lawyer for a preliminary consultation and tell them what you have. Tell them what you had at stake with the game (the kind of sales it was making, possible sequels, etc.) and ask him/her if it’s worth it to pursue this. In order to decide what route to take, you need to know from a competent professional whether they think it’s worth the effort. If they say don’t bother, then it’s probably a waste of time and money to pursue it.
FWIW, I think you should contact a lawyer and get professional assistance. If you’re in California drop me an email and I’ll give you the name of the attorney we used and was very happy with the final outcome.
First thing to do is contact apple.
Tell them that the situation is not cleared and that said company was yet unable to define and violation.
Also make it clear that they seem to have missused apple to gain an unfair market benefit by having apple removing your app and that without ever proofing anything!
You should actually be in the position to get compensation for the lost sales if they aren’t able to proof any violation.
This whole thing sounds fishy. A “lawyer” emails you through hotmail, and basically demands information (and money).
I’m sorry but a lawyer will usually send an email through their firm or practice, that is if they decide to go through email. Most will usually get your physical address and send you an official statement (with official letterhead and all). Some states/provinces require a signed affidavit stating exactly what is infringing (with examples) from the “accuser” to be sent to the person.
I think your best option is to print out that email (including the email header with the originating IP address of the sender) and go to a lawyer.
I have a gut feeling someone was pretending to be a lawyer and were trying to basically scam you (especially since they asked for money without any proof or paperwork). Which I’m pretty sure falls under a whole slew of fraud charges.
Definitely fight back. You can sue for loss of profits and damages because they made a false claim without proof which made your app be pulled from the store.
But yeah, lawyer up, and have him/her do some digging …
Lawyering up is expensive and not guaranteed to produce any results. Even if you do decide to use a lawyer, why not rebrand the game and get it back on the store ASAP?
I am not a lawyer (obligatory disclaimer), but I agree with others that the name is probably the biggest issue here:
“Infringement consists of selling goods or services under the same or a confusingly similar name.”
You could get a lawyer and fight back (don’t try it on your own), or try to convince Apple that the other party is not cooperating, both of which seem like an uphill battle.
Btw, it looks like the app was originally called iSkeeball? That is not going to help your case…
Its best because I think there is more going on here. He said he was contacted by someone from Skee-Ball Inc, but the game was not made by them, it was made by Freeverse.
So its more of a question of who this hotmailer was. Was it someone at Skee-Ball or Freeverse?
Yeah thats not so good, since the Skee-Ball name is a registered trademark.
It is always easier and cheaper to consult an attorney early in the process rather than later.
If an attorney had been consulted prior to releasing the game, your total out of pocket might have been about 1 hour of consult time, during which you’d know in advance what to do if you received a letter such as the one you got.
Had you consulted an attorney at the first moment you had received notice from Apple or the claimant’s attorney, it probably could have been resolved by a couple of letters (probably a few hours of an associates time plus a half hour of the attorney’s).
If you wait until a lawsuit is filed, you’re looking at a minimum retainer of $30K.
I stand by my first advice and speak from experience.
You made a game, which was Skee Ball, and named it as such. You’re completely in the wrong, and if you have to give them the money, then at least you can take it as an opportunity to learn the lesson not to rip people off anymore.
Hardly stealing. When I released the game, I was under the impression that skeeball was a style. It’s a game that is been around since the 1800s. Also, the trademark applies to more than just the name. The trademark is their logo. The trademarked name is actually specifically “Skee-Ball”. I also purchased a ready made “Skee-Ball” model online. It didn’t use their logo though. So either that was a form of licensing which I doubt, or I’m not the only one who is confused.
Also, the way that the trademark damages work is that the infringing party is profiting due to purchasers believing they are buying something from the infringed company.
I’m not really concerned about putting the game back on. There are better skeeball games available now. 10Balls7Cups (made by another unity developer is way better) and even the Skee-Ball inc. game looks real nice. My only concern was what seems to be some fraudulent strong arm tactics. Just pisses me off more than anything else.
Either way, thanks for all the advice. I think on second thought I’m just going to let it go. It was nice to vent a little, but I think from a financial aspect it’s probably not worth pursuing. Though JTB’s idea of putting it on slashdot is tempting.
They probably just didn’t catch that particular instance. Their are a lot of small companies, including companies that essentially act as IP holders and licensors, that don’t have the resources for full-time attorneys, so you might have been just unlucky enough to have an app out before they planned an iPhone app. So if there contact with you didn’t seem professional it might have been by an attorney who’s not a trademark specialist or maybe not even an attorney at all, if say, the company owner saved some attorney fees and dashed off an email himself. And a company like that might be particularly keen on getting any money they think you might have made.
That’s all speculation, of course, but in any case, anyone who has a trademark has to rigorously enforce it or else watch their name gradually turn into generic usage. It is unfortunately the nature of legal communications to be confrontational and intimidating, whether are not they have a strong case. The letter I mentioned regarding Fugu Games was polite and threatening at the same time and had not much validity (they represented FUBU, makers of hip-hop clothing), and ironically due to me filing a trademark application - that involves a public review period where anyone can file an objection. I took that opportunity to get a free consult with a trademark attorney, which didn’t really tell me anything new but gave me some reassurance that they were bluffing, and now I have a contact I can use in a real case (so I second bigkahuna’s advice and would take him up on his offer).
It is important to find a good lawyer in this area. I had a previous case where a coloring book company called Digital Chameleon in Canada had their Washington attorney send a process server guy banging on my door at 7am to hand me a letter saying I had to give up my digitalchameleon.com domain name since they had the trademark. I looked up the domain name registrar policy and contacted our lawyer who took three days to look up the same information and advised us to cave. I regret that decision, especially since that company never used the domain name themselves and I’ve never been able to get it back.
This is one subject they should teach in college along with software engineering courses (or maybe even in high school). But as long as they don’t, it’s worthwhile picking up a book. I have a $20 Nolo book on trademarks that recommends when facing a situation that looks like it could get expensive, consider giving up but get some free publicity by complaining on public forums (mission accomplished!)
If they formed Digital Chameleon first and were in the same market, which can be defined by services and or geography, they pretty much were in the right. Generally, this has to do about confusion. iSkiiBall or such is so close, plus it is basically the same game, so that’s a non-starter. Although SkiBall which was about skiing and balls (somehow) would be more debatable.
Often, when looking through the App Store, I am shocked at just how much IP infringement happens. Some stuff, like derived works is normal, but games which outright use trademarks are all over the place. It is important for IP holders to actively pursue unlicensed use because failure to enforce counts as abandonment.
I don’t think Digital Chameleon had much of a case as far as general trademark infringement - they were a Canadian company offering comic book coloring services, although they did register the trademark in the US (and I assume, Canada). We were a California company offering 3D computer graphics software. So they weren’t telling us to change our company name (Digital Chameleon, Inc), they were demanding we give up our domain name, digitalchameleon.com. And at that time, Network Solutions was the sole registrar and their policy was to allow a trademark holder to claim it (although I don’t remember what would happen in the case of two trademark holders with the same name in different categories), by filing a claim with NS that involved a three-month transition period. So if I had to do it over again, I would have said fine, if you want the domain name, go ahead and follow the claim procedure, and apparently they wouldn’t have, since they never used the domain name after we gave it up. That’s a case of successful intimidation (that obviously still rankles)
