The Edge of Reason
Simon Parkin charts Tim Langdell's trademark battle that's had implications for anybody using the word "Edge"
This article was originally published on Eurogamer.net on August 3.
"It's painful, living with this constant threat. You go home for the weekend and it's all you can talk about with your friends, yet not one of them can help you. You feel alone and there seems to be no way out. It is hard to sleep and to concentrate. We do our best to stay positive but it's difficult. We're finding it hard to start work on our next game."
Eight months ago David Papazian was on top of the world. His company, Mobigame, had just released its first videogame for the iPhone. In the space of just a few weeks it had won two prestigious awards. The past two years of early mornings, late nights and tireless endeavour were set to pay off; the sacrifices had been worth it, the indie developer dream was coming true.
Today, he sits dejected and worn. Banned in the UK, USA and Germany, his game may be critically acclaimed but, for most, it is also impossible to buy. On 15th July, 2009, just one week after Apple nominated Mobigame's debut title as one of their 'Top 30 Favourite iPhone Games', it was removed from the App Store. Not because it's unfinished, or because it might damage your hardware, nor any of the usual reasons that software is removed from sale. Rather, it's banned because of its name: Edge.
This story begins in Covent Garden, London at the end of the 1970s. It was here that a young entrepreneur, Timothy Langdell, founded the game publishing company Softek: Masters of the Game. Softek hired young game makers, offered to bankroll their developments, publish their games, and then split the proceeds. The set-up worked well and, while Softek's releases could hardly be called blockbusters, they were successful enough to fuel the enterprise.
But Langdell was unhappy. The company name, chosen to reflect the young, fresh vibrancy of an emergent industry, seemed a little embarrassing five years down the line. So in 1984 Langdell changed its name to The Edge, simultaneously registering the trademark in both the US and the UK. In this moment the seeds of a thousand lawsuits were sown: nobody but nobody could use the words 'The Edge' in relation to a videogame-related product without first agreeing it with Langdell. Of that, he would make certain.
By 1990 Langdell was yet to file any lawsuits, but he was no stranger to the courts. That year Michael and Ian Jones, two programmers who worked for The Edge porting the arcade game Soldier of Light to Commodore 64, won a court battle against the publisher for withholding payments. But before they saw any money, Langdell and The Edge had relocated from London to Los Angeles. Langdell claims that the move had nothing to do with avoiding paying his developers. Rather, it was due to a combination of "the weather, an addiction to Pukka Pies and Mushy Peas and a deal involving several hundreds of thousands of pounds paid by Commodore International for The Edge to become a leading Amiga developer assisting with the launch of the CDTV". No one from Commodore was able to verify his claim. Nevertheless, one way or another, The Edge moved stateside.
Los Angeles, 1990
The move to the sunnier climes of Los Angeles brought with it more than an alleged windfall from Commodore. From 1990, perhaps realising what a valuable and wide-ranging trademark it had at its disposal, The Edge's primary business shifted from publishing videogames to vigorously pursuing companies whose products it believed infringed 'The Edge' mark.
From Namco's PlayStation release Soul Edge (which had its name changed to Soul Blade for the West) to Sony's PlayStation Edge to the UK's own Edge magazine, Langdell confronted anyone who used his trademark in relation to videogames. In every case the message was clear: change the name of your product, pay us a licence fee or face a court hearing. Some paid the fee quietly. Others, faced with legal threats that they believed were dubious, turned the tables and instead took The Edge to court. No matter what the outcome of these cases, Langdell's energy in protecting his trademark never faltered, even if the trickle of games that bore the name had long since dried up.
In 2007 David Papazian founded Mobigame with his associate, Matthieu Malot. For two years the pair worked on their debut iPhone title under the working title Cube, changing the name to Edge when they read previews of another developer's game of the same name. Edge was released in December 2008 to critical acclaim, winning the prestigious Milthon award for Best Mobile Game in Paris and the IMGA (International Mobile Game Award) at the mobile world congress in Barcelona. These accomplishments provided a ringing endorsement of Apple's emerging platform, proving that two men could turn a good idea into a global success without the backing of a major publisher.
But not everyone shared in the celebration. On 7th April, 2009, five months after its release, Papazian received an email from Apple. It stated: "We have received notice from Edge Games, Inc. ('Edge') that Edge believes your application named Edge infringes Edge's rights. Accordingly, please take steps to review your application to ensure that it does not violate the rights of another party."
Langdell had found Mobigame.
Papazian emailed Langdell directly, hoping to work through the issue amicably. On the 22nd April he wrote: "We chose the name Edge because it reflects the game's style: the cube you navigate through levels is always hanging on the edge. I did not know about your company or your games before. Please believe me that we did not intend to pass our game off as one of yours in any way."
Later that same day, Langdell responded, first assuring Papazian of his support of independent developers, before stating, forcefully, the need for financial resolution. "I am a strong supporter of innovation in games," he wrote. "It is not our intention to do anything other than encourage originality in games and to encourage new game makers. But the problem is that using the trademark 'EDGE' for a game is a direct infringement of our international rights. We have spent a lot of time (and a large amount of money) stopping everyone who tries to use the mark EDGE [for a] game. You wouldn't think of using 'Activision' as the name of a game would you? Even though there has never been a game called Activision. Or 'Electronic Arts' or 'Nintendo'? No, all these names are so closely associated with the name of the company, you would not be permitted to use them for a game without the express permission of the trademark owner... It is the same with EDGE."
Of course, the key difference between made-up words such as Activison and Nintendo is that 'edge' is a word with common meaning and in wide usage. But more worrying than this was Langdell's subsequent accusation, that Mobigame's Edge was, in fact, a direct copy of one of the publisher's earliest games.
"As to how original...your game is," Langdell wrote. "I have to differ with you. I think it is a nice game, well programmed, but it plays almost the same as many of our early games for which we are famous such as 'BOBBY BEARING'. Whereas in Bobby Bearing you play a ball rather than a cube, much of the game is rolling around looking for switches that move blocks so that you can get to the next section, or looking for objects you must roll over to get points... Indeed, we have been flooded with communications from people who think your game is made by us because we are so famous for our 1980s games which look almost exactly the same as your[s]."
Whether or not The Edge had been "flooded with communications" from concerned consumers, the accusation was a serious one, opening the way for Langdell to seek compensation for more than just a trademark infringement. He offered Papazian two ways out: "One: change the name of your game to something that does not contain the word EDGE in it within the next 7 calendar days. Two: License the right to use the trademark 'EDGE' from us."
But what appeared to be a straightforward offer turned out to be a more complex settlement as Langdell continued: "If you decide to take option 1, then we would need payment for your use of the trademark to the day you change the name. We propose 25 per cent of the revenues you have received from the game to the day you stop using our mark. If you decide to take option 2, then [you would need to add] a subtitle such as "EDGE: An Homage to Bobby Bearing" and to add our company name (EDGE Games Inc) immediately below yours in the opening screen."
The choice for Papazian was an impossible one: change the name of the game significantly, lose the brand recognition that name had accrued and pay The Edge a quarter of all past revenues. Or, alternatively, change the name a little, imply the game was a homage to something it was not and pay The Edge 10 per cent of all past and future revenues.
Understandably, Papazian didn't respond immediately. He needed time to weigh these options, to seek legal counsel, to find out whether this nightmare was in fact an immovable reality. 24 hours later, having had no response from Papazian, Langdell piled on the pressure: "We had hoped to see your reply by this time today," he wrote. "Will we be receiving it? Or will we be filing the court actions in the US and UK? Please advise."
Over the next few days, discussions between the two men became more fraught. Papazian was fighting a battle on two fronts, firstly defending the use of the word Edge in his game, and secondly deflecting accusations of plagiarism. Langdell rebutted every email, often replying in all caps and underscore: "STOP USING OUR TRADEMARK TODAY or ENTERING (sic) INTO A SETTLEMENT TODAY," and "YOU ONLY HAVE UNTIL THE END OF TODAY TO EITHER TAKE THE GAME DOWN FROM iTUNES ENTIRELY or CHANGE ITS NAME".
Papazian claims that Langdell always emailed on a Friday afternoon, setting an ultimatum for the Monday so that Mobigame could take no legal counsel over the weekend before responding. While that may have just been coincidence, the pressure was too much. Papazian removed Edge from the iTunes store. "We had to take a rest to think," he told me. "Langdell was threatening me personally with legal action, saying it could cost me millions of dollars. I had to find some space to think."
Los Angeles 2009
Timothy Langdell is a difficult man to speak to. My first attempt at contact is flatly ignored, a response finally drawn only when I mail his personal email address to point out that we'd spoken at length to Mobigame and were eager to hear his side of the story.
Claiming to be someone other than Tim (although never offering a name or position within the company) a representative from The Edge writes: "Tim will not be replying [to your questions]. This has already been distorted from an Edge Games issue into an attack on Tim personally. He is thus not having any involvement in this matter going forward and has not had a personal involvement in this issue for some time now." In a later email we're told: "This is entirely a corporate Edge matter: it is Edge that has had the contact with Mobigame. Not Tim." This despite the fact that every single piece of correspondence between The Edge and Mobigames I have seen is signed 'Tim Langdell' .
Refusing to answer our questions, the Edge representative repeatedly requests to see a transcript of our interview with Mobigame so he/she can "respond to specific accusations". We refuse. Eventually, the representative (who, by demonstrating an intimate knowledge of the facts and dialogue between the two parties was almost certainly Langdell himself) begins, slowly at first and then in longer responses, to answer our questions.
I ask Langdell to respond to critics who argue he is a trademark troll, seeking income from trademark actions rather than from selling games software. "We categorically deny we have ever acted as 'Trademark Trolls'," he replies. "We do not engage in the practice of waiting until people use our trademarks and then ask them for money (there is no evidence we have ever done that) and we have been actively developing and publishing games every year since 1979, and actively producing game hardware since the early nineties."
Visit the company's website today and their discography puts the total number of Softek/The Edge releases at 756 titles, a staggeringly high number of games, even for a publisher of their venerable age. Upon closer inspection, it seems as though they've counted different formats of the same game as separate releases. By contrast, Rob Fearon, who meticulously compiled a list of those games that could be verified as The Edge releases, counts the total at a more modest 70 titles, the most recent of which was released in 1990.
I ask Langdell to name three of The Edge's commercially released games from the past five years. He replies: "Edge has focused on developing mobile games in the past few years, with Bobby Bearing for a wide range of mobile handsets being a consistent good seller in the UK, Europe and America (three new versions of it in 2008, one new version earlier this year and the iPhone 'Remix' version about to be launched)." Other than this 30-year-old re-release, Langdell does not mention a single other commercially available game he has published in the past decade, despite my repeated asking.
I then turn to the Mobigames case, asking Langdell to identify when he first heard about the French developer's game. Papazian and others have claimed The Edge waited until the game was a well-known success before writing to Apple, when changing the name would have been too costly for the developer. "There is no truth to the unfounded speculation circling the internet that we deliberately delayed before notifying Mobigame of the trademark infringement." Langdell is adamant. "We first heard about Mobigame's use of our trademark EDGE shortly after the game was released on iTunes. We contacted Mobigame immediately pointing out we own the trademark THE EDGE and, as the law requires, asked them to cease and desist from use of our trademark."
I ask Langdell what would have to change for Mobigames to be able to once again offer the game for sale in the UK and US. "Edge has not retracted the settlement offer it made to Mobigame in early June for it to rename its game to EDGY (or such other new name that Edge and Mobigame can agree does not infringe Edge's trademark rights) and remains hopeful Mobigame will eventually respond to it so that Mobigame's game can once again go on sale."
When I ask Papazian about the proposed name change to EDGY he is quick to point out that this was something he suggested earlier in the year but that, at the time, Langdell flatly refused the offer. He sends me Langdell's email response to Mobigame's offer to change the name of their game to EDGY, sent on the 15th May: "[We] would very strongly oppose your use of EDGY which is clearly just adding the 'y' sound to the end of our famous trademark EDGE," Landgell wrote. "In fact, we won a case against someone who tried to use EDGY so we are confident we would win should you try to do that. You need to stop infringing our trademark EDGE and select an entirely different [original emphasis] name for your game which does not even suggest our trademark."
On the 16th May, the following day The Edge moved to register EDGY as a trademark in America. I press Langdell on the EDGY issue. He writes: "No proposal we have ever made to Mobigame regarding their changing the name of the game to EDGY has involved their paying us a licence [fee], or paying us any money at all."
But, if you had no intention of asking for licence fee to be paid to you for the use of EDGY, I ask, then why trademark the name the day after Mobigames first proposed the name change? "In hindsight it was a misunderstanding, probably in part caused by David Papazian's less than perfect English," he explains. "But at the point we were discussing the EDGY settlement in May we understood Mobigame was in agreement Edge would technically hold the EDGY registration and Mobigame would license it from us for free. This way Edge could use its legal team to protect Mobigame should anyone ever challenge Mobigame's use of EDGY".
This version of events is certainly not born out by the original emails. But besides that, why would The Edge want to protect an unrelated company for no recompense? Out of the goodness of their hearts? That seems unlikely, especially coming from a company run with Langdell's cutthroat business savvy.
Despite all of the half-truths and heated email exchanges, one key question resounds above all others: what exactly does Tim Langdell's trademark of The Edge entitle him to? Will anyone who wants to release a videogame with the word 'Edge' in the title have to pay his company a licence fee? Langdell remains adamant that they do. He clearly thinks he has done nothing wrong. This month, following Apple's banning of the game, Sheridans Solicitors in London have taken up Mobigames' case. I ask Alex Chapman, the lawyer dealing with the case the million-dollar (plus legal fees) question.
"Mobigame's position is that the trademarks owned by Mr. Langdell's companies are not enforceable against Mobigame or any third party in respect of the distribution of the EDGE game," he replies. "There are two main reasons for this. First, there is unlikely to be any confusion or association between them and Mobigame's game and secondly Mobigame's position is that some of those registrations are liable to be revoked ."
When I put this to Langdell he reponds: "At this point we seriously do not know whether to laugh or cry."
This is a story it's easy to choose a side on. When David faces Goliath, few people cheer on the giant, especially when he's wielding a club and a court order. Accordingly, much of the reporting on the story has been slanted against Langdell. That's understandable. His tone is fractious, his claims seemingly exaggerated and self-aggrandising and, in threatening a two-man indie developer with legal action that, in his words, will potentially cost them "hundreds of thousands of dollars in costs [plus] three times [their] revenues" he inspires no sympathy. He writes like a bully, regardless of whether he has the law on his side or not.
But until a legal team can systematically pick apart his trademark claims - as indeed Chapman intends to - Langdell has a case, no matter how unsavory you find his tone, his alleged use of shill forum accounts to add volume to his arguments, or the way in which he flaunts his licensee's products as his own. Langdell clearly believes he has done nothing wrong and that his energetic confrontations are something that trademark law requires him to do. Fail to protect your trademark and you lose it, he tells me repeatedly.
There's no denying that Langdell has made a great many enemies over the past 30 years and there seems to be a gathering conglomerate of interested parties who want to see him and his companies brought down. International development industry forum The Chaos Engine has even set up a fund to help finance Mobigame's legal expenses. Most of the people I spoke to off the record seemed eager to offer anecdotes that reveal Langdell's true character and motivations, but something stops them. Some companies were unwilling to even allow a "no comment" statement to be published in this article next to their names. Perhaps that's because they're scared of litigation, or perhaps they don't want to compromise a case that they intend to bring against his company in the future. Whatever the reason, where Timothy Langdell is concerned, everybody treads carefully: when you're this close to the edge, one slip up could prove costly.
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