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Coleco strong-arming homebrew publishers and fan sites


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#1176 Great Hierophant OFFLINE  

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Posted Wed Jun 7, 2017 12:47 PM

Has anyone who was originally planning to go to the Coleco Expo in August decided to change their plans as a result of the recent controversy?



#1177 Keatah OFFLINE  

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Posted Wed Jun 7, 2017 1:44 PM

So is this another lie?

It states in the article that RWB/Coleco filed a photograph of something they didn't produce? So the new question is did Ben Heck have any deals in progress w/RWB? Personally I don't believe he did.

 

http://nerdlypleasur...ssues-with.html

 

"On December 9, 2003, River West Brands, LLC filed an application to register a trademark in the ColecoVision name.  ColecoVision had been previously registered by Coleco Industries, Inc., the actual makers of the ColecoVision in 1984 but the trademark was cancelled in 1991.  The trademark was allowed on January 3, 2006, Reg # 3490101.  The allowance triggered RWB's requirement to show actual use of the mark in commerce.  It obtained four extensions of time to file a statement of use, and during that time assigned the mark to Coleco Holdings, LLC.  On July 1, 2008, Coleco Holdings filed a Statement of Use and a photograph of the specimen product it intended to show as use in commerce:"

webcontent.jpg

"Now, have you ever come across a ColecoVision portable in the ordinary course of trade or commerce?  I sure have not.  However, if you search for "ColecoVision Portable", you will very quickly be brought to the website of the redoubtable Benjamin Heckendorn.  "Ben Heck" is a largely self-taught engineer who first obtained notoriety for building hacking home consoles like the Atari 2600 into portable consoles.  By no small coincidence, his ColecoVision portable looks identical to the one Coleco Holdings showed to the USPTO.  In fact the photograph with the hand can be found here : http://www.benheck.c...ision-portable/

Issues with Coleco Holdings Trademark Claim

Now, if you could obtain a trademark by pointing to anyone's use of a mark, then you could unscruptously reap the rewards of another individual's economic risk.  So, Coleco Holdings has a problem unless they can show that Ben Heck's use of the mark was authorized by them under license. I do not know if Ben Heck sought "official approval" when he made his portable or was financed by Coleco Holdings.  But Coleco Holdings has a bigger problem, namely the mark's use in the ordinary course of trade or commerce.  Ben Heck's creations are one-of-a-kind and he does not sell everything he makes.  Sometimes he does so for charity or as part of a contest drawing and I believe he may have done so for his ColecoVision portable.  His portables call for the sacrifice of original systems, so the number of portable ColecoVisions which could be produced in this manner would be very small in any event."


Edited by Keatah, Wed Jun 7, 2017 1:48 PM.


#1178 Swami OFFLINE  

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Posted Wed Jun 7, 2017 2:02 PM

This is a very interesting read: http://nerdlypleasur...ssues-with.html

This article: author seems book intelligent but disorganized. I do agree with his overall assessment, but some of his points trail off without resolution.

 

First, this is a claim against a tertiary fan doing a popular interest post, not a homebrew producer or advertisement (as Coleco adamantly claimed they were). I don't think he ever clarifies that or makes the transition clear, as most of the story focusses on the latter.

 

In the following paragraph about Niles the camel, it sounds like he begins talking about one thing and ends talking about something completely different. It begins with the junior user trying to accuse the senior user of infrigement and lay claim to the trademark. In the middle, he seems to establish that the court was sympathetic to various facets of the small, senior user and then ends with the senior user not being able to claim defamation since the junior user did not accuse them of piracy. But what about the initial claim of infringement by the junior user? That is not defamation of the senior user? And what became of the junior users claim of infringement? Did they win or lose?

 

Notwithstanding, in Coleco's case, the junior user is also claiming trademark infringement by the senior user. Homebrewers are a small, senior user, so the situation seems similar, but the blogger never finished answering his initial inquiry.

 

"Here, if Coleco Holdings has an inferior right to use the ColecoVision trademark compared to homebrew community, it may wish to nonetheless seek to block the homebrewers and claim that they were the infringers and lay claim to the general availability of ColecoVision trademark.  The facts of Peaceable Planet may help illustrate the concept.  Peaceable Planet made a plush toy camel called "Niles", a reference to the Nile Delta of Egypt.  It sold a few thousand of these stuffed animals.  Id. at 988.  Ty, Inc., the makers of Beanie Babies, later sold a plush toy camel called "Niles" and its sales were in the millions.  Id.  The Court recognized that unfair competition may exist when a larger company tries to shut out a smaller company.  Id. at 992.  It also recognized that a smaller company like Peaceable Planet may unjustly may be perceived as manufacturing a pirate product. Id. at 993.  The Court recognized that most consumers "would probably not care a whit" that an infringer may be selling pirate products, especially if the quality is identical to the lawful product.  Id. at 993-94.  It also acknowledged that highly ethical consumers may turn away from the pirate and his goods. Id. at 994.  However, a claim for product disparagement or defamation cannot be made unless the junior user (Ty, Inc.) was responsible for creating the false impression that the senior user (Peaceable Planet) was a pirate.  Id."

 

..I mean, anybody can "wish to seek" to do anything. So is this a case of sue and counter-sue and who was successful. He doesn't say, but I suppose the 4 1/2 to 2 1/2 in favor of homebrewers may answer that regarding the name "ColecoVision". Also, I believe the current situation has to do with the "Coleco" name trademark as well, for which he at one time claims the current Coleco had nothing to do with the old Coleco's decisions, so cannot get favor from them, but in #5 claims the Coleco name trademark is strong becuase of decisions made in the past.



#1179 ColecoGamer OFFLINE  

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Posted Wed Jun 7, 2017 2:05 PM

So... it's believed that Ben Heck was funded by Coleco to build a portable Coleco system? Does this mean Coleco will start butchering perfectly good Coleco systems for a limited run of portables?

#1180 Mindfield OFFLINE  

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Posted Wed Jun 7, 2017 2:07 PM

So is this another lie?

It states in the article that RWB/Coleco filed a photograph of something they didn't produce? So the new question is did Ben Heck have any deals in progress w/RWB? Personally I don't believe he did.

 

No.  Ben doesn't produce anything like that commercially.  He has done onesies and twosies for a few people on request for a fairly high price ($300-400+ or so for one of his custom portables) and with a lead time of several months, but it's a fun hobby for him, and a learning exercise, not an enterprise.  So yes, the specimen Coleco provided is completely bogus.



#1181 Keatah OFFLINE  

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Posted Wed Jun 7, 2017 2:14 PM

Yes. I meant the lie is on coleco/rwb's part. Not the article or BH.



#1182 Tarzilla OFFLINE  

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Posted Wed Jun 7, 2017 2:15 PM

The original post by Ben

 

https://www.benheck....ision-portable/

 

I wonder if people have communicated the article at:

http://nerdlypleasur...ssues-with.html

to Ben.

 

If Coleco Holdings used a stolen image as their reason for attaining the trademark...



#1183 Bill Lange OFFLINE  

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Posted Wed Jun 7, 2017 2:20 PM

Ben Heck has already stated that coleco/rwb connected him in 2008 about licensing the handheld he created in 2005 retroactively.  They had a "license deal".

 

 

 

 

 

Benjamin Heckendorn said...

Was sent a link to this article. Can offer a bit of information.

I built my one-off Coleco portable in December 2005. You can see my archived page here: https://web.archive....benheck.com:80/

In March 2008 River West Brands contacted me about "authorizing my use of their trademark". Basically coming to an agreement (posthumously) that it was OK that I used the logo a few years prior. I also gave them the files of my re-created Colecovision logo.

So yes they authorized my use of the logo, but over 2 years after I built a one-off item.
 

June 7, 2017 at 2:56 PM

Edited by Bill Lange, Wed Jun 7, 2017 2:20 PM.


#1184 128Kgames OFFLINE  

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Posted Wed Jun 7, 2017 2:22 PM

So is this another lie?

It states in the article that RWB/Coleco filed a photograph of something they didn't produce? So the new question is did Ben Heck have any deals in progress w/RWB? Personally I don't believe he did.

 

http://nerdlypleasur...ssues-with.html

 

WHAT

THE 

F*CK?

 

Are you f'ing kidding me?  They submitted a picture of Ben's portable ColecoVision to secure the Coleco name/trademark?  Something they had absolutely no involvement with?  A BLATANT LIE?

 

If that's not grounds to file suit against them to overturn this travesty I don't know what is.  

 

(Sorry for the language people, even edited.  I tend to curse a lot when I'm pissed off.  Or just in a sh*t mood.  Or now anything Coleco related...)



#1185 Tarzilla OFFLINE  

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Posted Wed Jun 7, 2017 2:28 PM

"The trademark was allowed on January 3, 2006, Reg # 3490101.  The allowance triggered RWB's requirement to show actual use of the mark in commerce.  It obtained four extensions of time to file a statement of use, and during that time assigned the mark to Coleco Holdings, LLC.  On July 1, 2008, Coleco Holdings filed a Statement of Use and a photograph of the specimen product it intended to show as use in commerce:"

 

 

So they "authorized" the use of "their" logo in March 2008 and yet they weren't approved for it (they were on their 4th extension)  but then used Ben's one-time retro-actively approved use of the logo as justification to file on July 1 2008 that they had in fact used the trademark in commerce?!?!?



#1186 Flojomojo OFFLINE  

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Posted Wed Jun 7, 2017 2:52 PM

Wikipedia says,

 

bottom feeder is usually an aquatic animal that feeds on or near the bottom of a body of water.[1] The body of water could be the ocean, a lake, a river, or an aquarium. Bottom feeder is a general term which is used particularly in the context of aquariums. Biologists often use the term benthos, particularly for invertebrates such as shellfishcrabscrayfishsea anemonesstarfishsnailsbristleworms and sea cucumbers. However the term benthos includes all aquatic life that lives on or near the bottom, which means it also includes non-animals, such as plants and algae.

Biologists also use specific terms that refer to bottom feeding fish, such as demersal fishgroundfishbenthic fish and benthopelagic fish. Examples of bottom feeding fish species groups are flatfish (halibutflounderplaicesole), eelscodhaddockbassgroupercarpbream (snapper) and some species of catfish and shark.



#1187 8th lutz OFFLINE  

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Posted Wed Jun 7, 2017 3:25 PM

This thread has me glued to the screen. It's like a daytime soap opera with Cardillio as the villian. What will happen next? Will Cardillo back off (which he should) or will he try to fight this until the bitter end?

BTW: Their Rainbow Brite game is a joke! It looks like a cookie-cutter NES game. :lol:

I wouldn't be knocking the game. The game has great potential, but I don't know if the audience exists for Rainbow Brite. I heard of Rainbow Brite back in the 1980's, but I never seen the show or got a toy from that IP. Being a kid of the 1980's, I was more into stuff like Transformers, Hot Wheels, match box cars as examples. 

 

The programmer is a victim in this mess because he didn't know what Coleco was doing behind the scenes. He already programmed for the game for 6 months before he announced the game.

 

The person who's doing the game actually did a Nes homebrew arcade port that I don't think is released yet. I've seen a youtube of the NES arcade port and it is a very good port.

 

He did a lot of Atari 7800 homebrew games through the years including Brentley Bear's Crystal Quest, Crazy Brix, Failsafe, Armor Attack 2 as examples. 


Edited by 8th lutz, Wed Jun 7, 2017 3:46 PM.


#1188 The Evener OFFLINE  

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Posted Wed Jun 7, 2017 3:49 PM

I've been following this thread with a mixture of confusion, frustration, and curiosity, I agree with you everyone that the less said about Coleco Holdings, the better.

I loved the care and attention that homebrew developers displayed when they created packaging for their games that imagined an alternative reality - one where the Greenburg family dodged the Crash, continued to lead Coleco Industries Inc, and released more "arcade quality" titles for our favorite system. Like everyone, I'm disappointed that the ham-fisted actions of a holding company has tried to high jack that incredible creativity with questionable assertion to trademark ownership, let alone proper demonstration and proof of use. If we all had deeper pockets and free time, it would be a fascinating excercise to continue "business as usual" and respond to any letters and threatened court action as necessary. Trademarks can be contested and trademarks may be found to be expired or abandoned in different national jurisdictions.

That said, this has sapped a lot of the creative energy and enthusiasm of this amazing community. Let's take our cue from former third party publishers like Parker Bros, Imagic, and others - the Coleco logo is cool, but it was always the games that made the ColecoVision our favourite system. Thank you homebrew developers for your passion - I look forward to playing more of your great titles.

Edited by The Evener, Wed Jun 7, 2017 4:44 PM.


#1189 Dauber OFFLINE  

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Posted Wed Jun 7, 2017 3:51 PM

Look, how about this:

 

Nobody is ever allowed to use the Coleco name, ever, in any context, period.

 

There. Problem solved.



#1190 Ikrananka OFFLINE  

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Posted Wed Jun 7, 2017 3:56 PM

So am I interpreting this correctly?

 

Coleco Holdings LLC duped the USPTO into believing that Ben Heck's portable CV was one of their products and was being commercialised by them thus enabling them to renew their rights to stay registered with and "own" the ColecoVision trademark.

 

So at best they intentionally lied to the USPTO and may be subject to some kind of disciplinary action and/or penalties and/or loss of the trademark.

 

And at worst they intentionally lied to the USPTO and may be subject to legal action and loss of the trademark.

 

Note that in both cases I state that they "intentionally lied" and this is because I wholeheartedly believe that, based on recent experience, this is exactly what they did.



#1191 shawnphase OFFLINE  

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Posted Wed Jun 7, 2017 4:01 PM

this continues to get more and more bizarre. how can this even be legal? better yet, how about someone explain how its illegal and lets go from there...



#1192 cybercylon OFFLINE  

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Posted Wed Jun 7, 2017 4:04 PM

Have you seen J. Fountaine's rap videos? 100% beauty over brains, every time... :P

 

*Disclaimer: I have nothing personal against the ladies in the video. I hope they were paid well and treated with utmost respect during the filming of the video...

 

PS... I'm a 36 year old dude. Where do I sign up to get my Coleco Girl Scout Fun Patch? :rolling:

 

PPS... Any New Jersey AAers should team up and attend flash mob style, print expose flyers pointing to this thread, and spread them around at the expo. Oh crap, this was s'posed to be a secret. Anyway, smell you laters fellow haters!

 

I still need to catch up, but who is going to bring their girl scout to a convention that will mostly be populated by middle aged men? I wouldn't.



#1193 TPR OFFLINE  

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Posted Wed Jun 7, 2017 4:06 PM

I still cannot help to think that every time this thread takes another interesting turn and opens another door revealing a new skeleton in the closet, how all of this could have been avoided had they simply just retracted the Facebook claims.  smh...



#1194 5-11under OFFLINE  

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Posted Wed Jun 7, 2017 4:06 PM

I still cannot help to think that every time this thread takes another interesting turn and opens another door revealing a new skeleton in the closet, how all of this could have been avoided had they simply just retracted the Facebook claims.  smh...

 

Simple as that.



#1195 128Kgames OFFLINE  

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Posted Wed Jun 7, 2017 4:09 PM

I still cannot help to think that every time this thread takes another interesting turn and opens another door revealing a new skeleton in the closet, how all of this could have been avoided had they simply just retracted the Facebook claims.  smh...

 

Momma always said "stupid is as stupid does" ...



#1196 enoofu OFFLINE  

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Posted Wed Jun 7, 2017 4:13 PM

this continues to get more and more bizarre. how can this even be legal? better yet, how about someone explain how its illegal and lets go from there...

Its because the USPTO relies on good faith

 

But Mark"stealing picture's" Thomann and Chris "bootlegger" Cardillo will violate that principle at any given moment

 

https://en.wikipedia...ood_faith_(law)



#1197 Keatah OFFLINE  

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Posted Wed Jun 7, 2017 4:46 PM

This has grown beyond a few facebook retractions. There is more at stake here.



#1198 The Evener OFFLINE  

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Posted Wed Jun 7, 2017 4:48 PM

Look, how about this:
 
Nobody is ever allowed to use the Coleco name, ever, in any context, period.
 
There. Problem solved.


I still want to be able to talk about Coleco and ColecoVision in a forum for ColecoVision/ADAM though :)

#1199 Benheck OFFLINE  

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Posted Wed Jun 7, 2017 4:50 PM

My Gmail purges anything more than 5 years old so this is all from memory.

 

The Colecovision portable was a one-off commission job for a private individual back in 2005. A long while afterwards River West Brands emailed me about it, saying it was their brand but they would authorize my use of it. (Checking my contact data (which doesn't get purged) it was Mark Thomann thanks enoofu for reminding me)

 

They also asked if I could email them the vector files of the Colecovision logo. At the time there was nothing usable on the web so I had re-drawn it from scratch.

 

That part might sound weird, but see, I used to be a graphic artist. You'd be shocked how many businesses have no logo art besides what's on their business card. And I don't mean the files used to make the card, but the ACTUAL CARD ITSELF. 

 

River West claimed to be the new holder of the trademark so I just figured they had no access to original materials. Was happy to help. I do have the Illustrator files of what I sent them, dated 3-16-08. This is how I know the general time when River West contacted me. A good two years after I built the thing.

 

I seem to recall there was an agreement drafted but can't remember specifics of it. I can't find said document in my project files or my collection of printed legacy contracts. I do know that I didn't actually pay the $1 fee.

 

This is all I can remember. If they still have the contract maybe they could produce it.



#1200 eebuckeye OFFLINE  

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Posted Wed Jun 7, 2017 5:11 PM

Ben is here!?!?!!   :lust:






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