On Friday, a Californian court denied notoriously litigious Edge Games boss Tim Langdell's attempt to gain a preliminary injunction against EA's use of the name 'Mirror's Edge.' In a scathing report, the judge also revealed that Langdell had submitted falsified evidence to support his trademark of the word 'edge' and various derivatives. So what does this really mean, both in terms of Langdell's action against EA, and the longer-term consequences for the infamous 'trademark troll?'
GamesIndustry.biz spoke to Jas Purewal, lawyer and author of Gamer/Law, for an explanation of what has happened to Langdell - and what might happen next.
What does the denied injunction actually mean?
This isn't necessarily the end of the lawsuit altogether. The way in which it worked was Langdell started this lawsuit claiming of course that EA's use of Mirror's Edge infringed on his trademarks. He's got a whole range of trademarks which are all 'edge'-related, and he sought an injuction which is standard practice. It attempts to stop the other side from using the thing that you're complaining about until the litigation can be resolved, so it would just stop them from doing anything with 'Mirror's Edge.'
If that works, it's a real boost in your favour, and quite often what you'll see is the other side will settle - because what are they going to do? They can't sell their products. If it fails, however, it is going to cause you a lot of difficulty in proceeding with that lawsuit in the future. That's exactly the problem that Langdell is now faced with. He went very quickly for this preliminary injunction, he tried to stop EA from using it, but now that EA has been very comprehensively vindicated, while technically he can continue with the lawsuit, I'm not really sure what there is to do, because the court has come down so comprehensively in EA's favour, largely influenced by the fact that he quite clearly had doctored most of the evidence which he had put forward to try and claim the trademarks in the first place. I mean, he just made things up.
Is there much precedent for people pulling the wool over the patent office's eyes like that? How did he get away with it for so long?
From time to time, it does happen across the board. The problem is that while in many different countries, the authorities will of course ask for evidence and will conduct enquiries, unless they've got anything that makes them think that there are potential issues, they're not going to conduct a forensic enquiry. So when, for example, Langdell put forward a cover from Edge magazine in 2004 and said it was his, no-one there in the US decided to look at what the actual Edge magazine cover in 2004 had been. But when EA put evidence of that forward, it was quite clear that it had been doctored. So it does happen from time to time - though this is the first time that I can recall this happening in a games industry case - and the consequences are always going to be severe. In this particular case, the court has come quite clearly against Langdell. It's going to be difficult but not impossible for him to continue the lawsuit. I think more importantly for Langdell, it's going to be quite difficult for him to commence other kinds of legal action regarding his claims over the edge trademarks, because anything he tries to do that against is simply going to point to this case and say 'you didn't do very well, did you?'
But more seriously than that, the judge was so far in EA's favour that he even raised the possibility of criminal action against Langdell and Edge Games, because they had falsified evidence. He said that the record contained numerous items of evidence that Langdell had wilfully committed fraud against the US patents and trademarks office in obtaining and maintaining registration for many of the marks, possibly warranting criminal penalties.
What are the likely consequences for Langdell?
There are three potential consequences we could see coming out of this. The first is action against Edge games, stripping them of their trademarks, if actually they prove to be completely made up as EA alleges, and the court seems to agree.
Number two is action against Langdell personally. Whether that be civil action or, number three, potentially criminal action for lying to the court. It is just speculation at the moment as to whether that will actually happen.
Who would the onus for pursuing that be on?
On the IP side, it would most likely be the IP authorities. But for civil and criminal action, it would potentially be by law enforcement authorities directly - against Langdell or against Edge Games. All that we can say is this document was published on October 1, and on October 4 there was another, very short court document which requires EA to make available its evidence regarding the misrepresentation by Langdell. Now that's obviously going to be in connection with something, but we don't know what. I would imagine in the next few weeks we will see further developments on that front. EA may step out of the picture, but the regulators, the law enforcement authorities might step in. And that's pretty serious. This guy has been around in the industry for a while, he was formerly on the board of IGDA.
I don't know what kind of chilling effect this lawsuit has had on others in the games industry wanting to use 'edge', but I would imagine that if there was any such chilling effect, people not doing things just in case, then that will have gone now. What this shows is, for a start, Edge Games is going to be in trouble regarding its IP claims, no question about that. Langdell potentially is in trouble as well. It should also serve, I think, as a message again to the games industry that trademarks are a very important part of the legal protection of games, and sometimes you have to go to court in order to protect them. But you have to do so on a proper legal basis, because in this case Langdell clearly didn't, and there are now very serious consequences for his business as a result. This shouldn't be done lightly.
Are there broader implications for the games industry, as to how enforceable trademarks are?
I think you can never exclude the possibility that there will be two games in the future which have very similar names, and that you could have exactly the same kind of issues. And when they do, people will refer back to this lawsuit, but I don't think it sets any kind of big precedent or watershed moment. Trademarks have been around for a while, trademark lawsuits have been around in the games industry and tech generally, but this is a timely reminder that games are essentially intellectual property and when it comes right down to it you need to go back to things like trademarks and copyright if you actually want to protect your game.
Will this affect the other games which Langdell has enforced name changes upon?
Formally speaking, no, but commercially speaking, as a matter of reality, does Langdell still have the appetite to go after other people, even despite this very clear setback? If he was to try, any and all of the people (in the US at least) could point to this and say he didn't do very well. But that's not necessarily going to stop him. I don't how he's paying for this - that lawsuit won't have been cheap - but this may not stop him.