f so, on this matter, aren't there ever been a similar legal issue in the past, that judges (and parties) could know and use to end (and not even start in first place) this case ? Or is Fizzer a first time ever on this matter ?

The World Wildlife Foundation sued the World Wrestling Federation for the use of WWF. World Wildlife Foundation won the case. Vince changed WWF to WWE.

In general (and this is not legal advice), how much weight the court puts on Warzone.com having prior commercial use of "warzone" hinges on the inherent distinctiveness of the "warzone" mark (whether or not Activision are able to argue that it's descriptive).

I haven't been able to find any legal precedent that perfectly matches this case. The closest I found was Ironhawk v. Dropbox, which is a live reverse consumer confusion case over "Smart Sync" going on in the same court and the only thing we know about it is that Dropbox's summary judgement win got overturned by an appellate court.

Regarding venue, this case is in the California Central District federal court, which is independent of the California state government. In fact, the presiding judge in this case is a Trump appointee, so not much in common with California at the state level.

If you're trying to look past legality and into what the "right" thing to do here is, it comes down to whether you think nobody or Activision or Fizzer has some sort of just claim to gate others' use of the word "warzone" in the future.

If you need a lawyer, do not call me. If you interpret my comments as legal advice, you do so at your own peril.

PS: The "sort of" qualification is there because Activision seems to believe the dozen other users, before either party, of "warzone" (some of which are still functioning businesses) are pertinent to this case. So I keep clarifying that neither party originated the use of "warzone" in video games, because it may be relevant to the outcome of this case.

Edited 8/6/2021 19:16:33

smartest post ive seen you make kynte!

edit: i think its safe to say 99% of us arent lawyers xD it is nice to talk about it tho

Edited 8/5/2021 16:56:45

Why was Warlight rebranded Warzone?

It was a name used by hundreds of games already, so it was abusable to get more visits by random users looking for other games

hundreds of games are named warzone? i am interested in how many of them you've played :)

On Sephiroth's note, a search for "warzone" on IGDb (IMDb but for games) yields some pretty interesting results: https://www.igdb.com/search?type=1&q=warzone

KEA Games' Warzone (a strategy game from 2017; https://www.indiedb.com/games/warzone2) gets mixed up on IGDb with Warzone.com's Warzone (https://www.igdb.com/games/warzone--1). The same thing happens with the Warzone made by Digital Dimension in 1993 (actual game is a duel game: http://www.gameclassification.com/EN/games/42075-Warzone/index.html; IGDb's entry mixed it up with this game: https://www.igdb.com/games/warzone--2) and for a few other entries.

It appears this error on IGDb threw off Fizzer's discount lawyers, because in their response to Activision's complaint [Document 14, page 4, lines 17-18], they state:

Defendant Affirmatively avers that Warzone by KEA Games is Defendant’s game.

("Affirmatively avers" in this case means that Warzone.com, LLC, affirms Activision's claim- from Activision's complaint [Document 1, page 7, line 21]- that Warzone by KEA Games, one of Activision's many examples of other companies using "warzone," exists, but further claims in response that this other Warzone is actually Warzone's own game.)

But... Warzone by KEA Games has nothing to do with Fizzer's Warzone.

It's a desktop-based indie tactical turn-based strategy game, released October 17, 2017. Fizzer's Warzone was launched November 13, 2017.

You can check out KEA Games' Warzone gameplay here: https://www.moddb.com/games/warzone2/images/warzone-kea-games1
And still buy it on Steam for $4.99: https://store.steampowered.com/app/712230/WARZONE/?snr=1_7_7_230_150_1

So:
- another indie developer, still in active operation, used the word "warzone" as the name of their turn-based strategy game, before Warzone.com (undermines the "first to use" argument for Warzone.com, LLC)
- over the past 3+ years, Warzone.com, LLC, has almost certainly made no attempt to enforce their alleged trademark (to the word "warzone") against KEA Games' Warzone (if you don't protect your trademark, that undermines it- see "jet ski," "elevator"- because it becomes less of a source identifier and more of a product descriptor)

Looks like there is indeed a lot of confusion going on in this case! Just not any actual consumer confusion.

Edited 8/6/2021 19:33:58

All that because Seph did a joke (to which he forgot to add that Fizzer was planning to go after every other warzone games and shut them down after he had the name registered)

....Couple things Knyte

- What do jet ski and elevator describe ? Sea scooter and lift respectively, which have various brands for these products ? If so, what would Warzone describe ? A turn based strategy game ? Is COD such a game ? A war game based on a map ? Do you think Warzone when you talk about Pubg (or Fortnite) ? If your answers are no then, there's still a chance on this descriptive matter.

Also, First to use may not be a valid excuse for Fizzer, but can you define Global recognition, which is the point of Activision right ? Is it having lots of customers, dispactched all over the world ? If so then Fizzer has a chance. If it's about whichever has the biggest one, then Activision has a say indeed. For the time being though. So every now and then, the brand would be granted to Activision or to anyone else coming and surpassing the popularity ? I doubt so.

Edited 8/6/2021 20:04:25

All that because Seph did a joke

Well, I checked IGDb because I wanted to see how close Sephiroth was, exactly. And then I dug more into KEA Games' Warzone because I remember being confused when Fizzer's lawyers claimed KEA Games' game was Fizzer's. The dots just connected. And I laughed. And I had to share it (after notifying Activision's lawyers first, of course), because it's so funny. There's just so much meme value if this dumb little detail helps end Warzone's trademark payday pipe dream.

What do jet ski and elevator describe

"jet ski" and "elevator" are generic, not descriptive; my bad, should've been clear. Just used them as worst-case examples of what happens when a trademark isn't defended and consumers start associating it with the product rather than any source.

To simplify things:
- "jet ski" and "elevator" literally describe the products they reference (like you noticed), and so they're generic
- in contrast, "battlefield," "rice thins," and (per Activision's argument) "warzone" are characteristics of the goods/products they reference, so they'd be descriptive (and not trademarkable absent secondary meaning)

I think if you scroll back a few pages I went into this into a little bit more detail. But you can also Google "spectrum of distinctiveness" or "generic vs. descriptive trademark" you'll get much better explanations (from actual lawyers!) with references to case law.

Also, First to use may not be a valid excuse for Fizzer, but can you define Global recognition, which is the point of Activision right ? Is it having lots of customers, dispactched all over the world ?

Just think of it this way (very oversimplified), like a flowchart or decision tree:

1. Is "warzone" inherently distinctive (suggestive or arbitrary)? If yes, the common-law trademark goes to the first to use (KEA Games? Warzone? Someone else?) and Warzone might be able to get the registration (not sure what happens here, since none of the prior users before Fizzer are in the ring right now- does the USPTO just ignore them and give the mark to the earliest-to-use who bothered to file? Or does the USPTO just not give anyone the mark?). If not, see next question.

2. Is "warzone" descriptive? If not, no one gets the trademark. If yes, see next question.

3. Has "warzone" acquired secondary meaning in relation with Activision's game? If yes, Activision gets the trademark (and already has the common law trademark). This doesn't mean "global recognition"- it's a US trademark. This means whether consumers think "warzone" in video games and immediately think of CoD:WZ. If not, no one gets the trademark.

For the time being though. So every now and then, the brand would be granted to Activision or to anyone else coming and surpassing the popularity ? I doubt so.

If Activision gets the mark, they have a lot of leeway to go after future entrants and prevent this scenario (but less leeway to go after innocent prior users like Fizzer). If someone else is able to claim "warzone" in the minds of consumers, most likely Activision just loses the mark and no one gets it because the word becomes more of a product descriptor.

Edited 8/6/2021 20:26:03

what is global recognition in an american court? xD :D are you serious?

I think Mike just mixed up "secondary meaning" and didn't realize that was the legal term, not just some generic idea of "yeah they're famous."

see for more context: https://www.bitlaw.com/source/tmep/1212.html

Also, as we reach these edge case questions, we're rapidly approaching (if we haven't passed it already) the limit of my legal knowledge. And we also run into questions that are best left to erudite judges, well-trained lawyers with well-researched cases, and the reasonability of a well-informed jury that might ultimately decide this case if it really goes all the way. (Judges generally try to focus on questions of law, while questions of fact get left to the jury.)

I'm already at the point where I bug acquaintances who have law degrees with questions about this case before saying anything to y'all, and I'd like to stop pestering them soon. So if you've got more questions, there's a high chance that my response will just be "🤷 I'm no lawyer, I'm just a normal guy who knows enough to catch the red flags here [albeit, a little bit too late]"

Edited 8/6/2021 20:44:31

Activision is big mean guy. He like use word, but we like use word too, and he won't stop using word. We try to be calm, and we simply demand he pay us lots of money to stop using word, but he refuse! He take us to court!

Him using word is bad because we don't know how else to compete. And we used word first!

So because he don't give us money, we have to take money from children. They agree we own word. They agree we are cooler than big mean guy. They google some stuff, so they are very informed.

Judge may think we are stupid. Whole world might think we are stupid. But we show them! We take money from children to pay lawyers! We are living the dream. Who care if judge laugh at us?

can anyone calculate how much fizzer would make of 0.35% of activison warzoens profits (I think he is asking for that much)

is it really only 1/3 a percent? jesus. he is entitled to more imo lol, they are playing it very safe


but anyway, i dont think there are any real concrete reports (Activision claimed to raise 500 million in a 3 month period. but overall i read it is around 3 billion.

1/3 percent is still 10 million dollars.

In case you couldn't tell from my very satirical post, Fizzer is entitled to nothing. My post is essentially about as strong Fizzer's legal claim is.

I would be very surprised if Fizzer's claim survives Activision's pending motion to dismiss and the motion for summary judgement it will surely eventually file. And even if it does, there is no chance he will get anything from a trial.

The only way Fizzer gets ANYTHING at this point, is if he survives the motion to dismiss, and Activision wants to settle so they don't have to go through discovery. This is really the only "winning" move for Fizzer at this point. If he had ethical lawyers that told him the truth, and didn't try to just drain his (and by extension, this community's) pockets, that's exactly what they would tell him.

There are various legal reasons why Fizzer will lose, but I'm sure as hell you guys won't read any of them. I wasn't going to make any legal conclusions on this, but this has dragged on far too long, and I don't want any more of you madlads wasting your money.

Edited 8/7/2021 16:34:04

1/3 percent is still 10 million dollars.

How could Activision's use of the word "warzone" have caused 10 million in damages to a business that has no chance of making anywhere near 10 million dollars in revenue in the first place? And if they were somehow making that much revenue, why is there a GoFundMe?

(btw it's 0.25%, not 0.35%, and that's just the initial demand that Warzone.com, LLC, opened with. Who knows what they're trying to go for now?)

Edited 8/7/2021 17:24:32

1/3 a percent is still 10 million dollars

u are forgetting that it's that percent of profits. activison may have made 3 billion but only got 500 million profit after paying staff and other technical stuff.

(thx for clarifying the percent l4v.)

Edit: I think the amount fizzer would of asked for would be around 1 million. 10 mil sounds too ambitious.

Edited 8/7/2021 17:39:42

Activision said millions, so maybe higher than 1mil

i don’t know exact profit lines but i’d think it’s more than 500 million easily

Yeah, it's somewhere south of $2B/yr since that's about the combined revenue of COD:MW and COD:WZ. Beyond that, we can only speculate. But going off of 0.25% * $2B/yr, Warzone.com, LLC's opening ask was less than $5 million/year. This was just their opening ask, though, and not an amount they can hope to win in court (because in court they're asking for 3 x the damages that they've suffered from Activision's alleged trademark infringement).

Once you get into the territory of "who's asking for how much?" it's just pure speculation. We only know that Warzone asked for 0.25% of CoD:WZ profits sometime in late 2020, that Activision offered $10,000 (unclear on what terms), that Activision claims Warzone at some point was asking for millions, and everything else is only known to the parties in the case and their legal teams. Past a certain point, we'd just be making up numbers.

The thing about cases like this one is that you very quickly run into the limit of publicly available information, as you wait for the next court document filing, and it's tempting but counterproductive (if your goal is to get informed + help others get informed) to try to push past that point. We honestly have no idea what's going on in the settlement negotiations at this point or if they're even still going on at this point.

yh ik what u mean. I was thinking of the bare minimum of what fizzer would want.