Words and symbols are funny things and some people attach particular significance to them. By some people I mean lawyers, obviously, and I also mean consumers. Trade marks are an important part of business and some times it’s amazing what has been trademarked – Intel has a common law mark in 5 musical notes and a famous, formerly British chocolate company has trademarked the colour purple. I don’t think I need to name the company because I told you their distinguishing trade mark – it’s obviously Cadbury’s. Although perhaps my sweet tooth is showing through there. You’re not allowed to wrap your chocolate bar in Cadbury purple and put it on shelves because consumers, fairly reasonably, would associate your product with the goodwill built up in the real Cadbury’s chocolate products and be confused into thinking that your product was a Cadbury’s product. Emotive writers would say it’s effectively using deception to steal their customers.
There are some exceptions in what you can trademark – there’s the Barcelona.com v Barcelona cases in which a city council tried to assert proprietary rights in the name of their geographical location. That didn’t fly and http://www.barcelona.com remains in private hands. But even very common things, like a sound or a colour or the first word you learn in school can be trademarked till the cows come home – just ask Apple Computer and Apple Music.
What about ’Edge’ ?
Therefore in principle there’s no reason why you couldn’t have a trade mark in the word ’edge’ and, in fact, quite a few people do. However one guy who almost certainly doesn’t is Tim Langdell who has suffered quite a substantial setback to his campaign of, a lot of commentators think, pretty ludicrous patent (technically also trade mark) trolling in the decision of Langdell v EA not to grant Langdell an interim injunction against EA’s rather successful video game ’Mirror’s Edge’.
The judge, unfortunately for Langdell, seems to have been persuaded by EA’s argument that this guy is kind of full of it. They showed a poorly Photoshopped cover of Edge magazine (presumably a trade mark of… Edge Magazine) which was used to show how Langdell had good will built up in the mark.
Pro tip: if your application for IP protection involves shoddily Photoshopped covers of magazines that belong to other people you should generally reconsider your business model.
He seems to have got by thus far by simply telling people who use the word edge in a product that he has something similar and it’s always been easier and cheaper to just buy him off. The something similar can be laughably poor, and often effectively taken from someone else and retrospectively licensed to him, but it creates enough doubt in the generally very small companies that he targets that the only thing to do is avoid a crippling intellectual property court battle and settle. It seems to have worked out really well for him.
The issues involved in working out if a trade mark has been infringed are complicated. You need to work out pretty exact figures for loss, confusion, competition, scale, distribution and so on. The general independent (indie) games producer just can’t afford to fund a legal battle as well as make a game that will sell and make the money spent on it back for the creator and it is a crippling thing. There is a company called Ad-droid which is being sued by Lucasarts for infringing on the Droid trademark they have from the Star Wars movies – ’These aren’t the droids you’re looking for’ etc – and that’s just hanging over the company because they don’t know what will happen and if they can afford it. You need to be a pretty large company just to be able to defend a full intellectual property case.
Fortunately Electronic Arts (EA) is one of the biggest games companies in history, certainly the biggest video games company, and they looked at this request to stop selling a multi-million dollar game and pay damages to him and decided they wouldn’t do that. Instead they took him straight to court where they’ve won a major (though not decisive) victory.
EA is also one of the most hated video games companies in history, so seeing them throw around their considerable corporate might in a David versus Goliath legal struggle and not appear to be quasi-monopolistic bullies must be a wonderful change for them. Please keep it up EA, this is really good of you.