Coleco strong-arming homebrew publishers and fan sites

[enoofu]

 

Didn't know that. Well, I have something to present here later today, maybe will add to that list...

Was discussed a few months ago in the Toxic CC thread, Here part of a lawsuit

 

"Defendant’s use of the PURITAN mark, in connection with its scheme to traffic in the marks and goodwill owned by others, is likely to deceive and cause confusion and mistake among consumers as to the source of origin of the goods"

"

24. Upon information and belief, RWB does not have any manufacturing or production facilities.

25. Upon information and belief, RWB does not actually make, sell, or distribute any goods.

26. While it maintains no capacity to make, sell or distribute anything, since 2002 RWB has filed no fewer than 121 intent-to-use trademark applications according to records maintained by the United States Patent and Trademark Office (“USPTO”).

27. An intent-to-use application permits a company, or individual, to seek protection for a trademark even though that person or company has not yet sold a product in commerce in connection with the trademark. Significantly, a required element of every intent-to-use application filed with the federal government is a sworn statement that the party seeking it has a “bona fide intention to use the mark in commerce.” Prior to the actual registration of an intent-to-use trademark, the party must also submit a sworn statement attesting to its actual use of the mark in commerce.

28. While RWB has submitted a sworn statement regarding its intent-to-use trademarks no fewer than 121 times, it has failed to file any statement of actual use in connection with more than half of those applications

Source:

http://propertyintangible.com/2008/07/who-owns-dead-mark-ask-river-west.html

[Keatah]

I'll be boycotting ANYTHING "officially" licensed by Coleco..

 

It won't affect anything. For every 1 boycotter there are 50 nostalgia-stricken newbies ready to part with their cash. Every company knows that.

[ValkerieSilk]

"Life is like a box of stupid"

[+KaeruYojimbo]

 

This is exactly right. But somehow Facebook removed those photos and they told me that they would not restore them without Coleco retracting their claims. When I asked Coleco to please retract their claims, they refused. WTF??!?!

 

There's Facebook policy, which typically seems to be "remove anything that has even the remotest possibility of getting us sued," and there's what is legally allowable. I'm not a lawyer, but I don't see how simply posting a picture that happens to contain a logo could be trademark infringement. If that was the case, most of the photos on the web would would have to be taken down because of what someone is wearing or because of a sign visible in the background. Unfortunately, taking Coleco and Facebook on would cost more than it is worth.

 

 

 

DO NOT BE FOOLED

As always the are two side to each argument. Concerns of this nature are typically petty in nature, so we don't wish to harp on the issues here.

The genesis of our complaints are the promotion of pornographic related games by an individual attempting to assert some type of authority over the Coleco Brand. Additionally, the use of other third party rights to games bearing our name. As you can imagine this may cause some concern for folks unrelated to either side.

This individual had been warred on a number of occasions that these actions were improper.

Over the years Coleco has embraced the home brewer, and more specifically in a number of interviews invited home brewers to submit their content in order to receive an official license to use the name. In some cases no actual dollars were requested.

This is unheard of in the industry and something that we do in order. We wish to continue this approach.

Additionally, Coleco typically offers game development projects first to members of communities such as Atari age as was the case with Rainbow Brite

Although this individual wishes to attempt to align this battle between

HIM + the Homebrew Community vs Coleco

This is NOT an accurate depiction of what is going on here. The accurate equation is

Coleco Vs. A man who promotes pornographic materials on a site that he uses for profit.

PLEASE DO NOT BE FOOLED.

Please do not be manipulated in a 'side' that is arbitrarily created by one individual whose Internet reputation is repulsive. We have not mentioned any names, but feel free to do your own research.

PLEASE NOTE that this character began making demands this morning based on this post. Either do as i say, or i will post disparaging info about you.

The individual was contacted and told that we would look into the concern. The concerns culminated into the following email that was send to this individual.

SIMPLY PUT we offered for the individual to continue their site so long as they agreed to post nothing PORNOGRAPHIC in nature.

The individual requested an 'unconditional' reprieve - nothing short.

Not only was this not handled in a professional manner, but the emails were borderline black mail in nature.

Coleco, a FAMILY focused company will not tolerate ANY products that share pornographic content.

Below is an email from the head of Coleco Mr. Thomann to the individual.

ONLY ONE DEMAND was made to this individual. ONE! And that was to stop posting lewd material.

Please note that COLECO's Stance has NOT and WILL NOT change when it comes to protecting families from suspect content.

5/19/2017 10:38:35 A.M. Eastern Daylight Time

R****,

I am simply trying to make sure there is no nudity on the site. I am fine with you publishing whatever you would like to publish as long as it is truthful. If you pledge to me that there will be no adult content associated with the Coleco and Coleco Vision trademarks, then we are aligned and no approvals are necessary. This is not an unreasonable request nor a "strong arming" tactic. I have always supported this community and will continue to do so. When you publish your statement, please include the following: "The owner of the Coleco brand, Mark Thomann, offered his full support of any and all Coleco/Coleco Vision fan sites provided that the content does not Include nudity as we continue to position the Coleco brand as the Family Friendly gaming brand that a parent can trust".

Mark

We are confident in our choice to stand up for our beliefs and feel as though we made a positive stance against someone with a reputation for being a bully.

Simply put, the bully finally picked on someone who is willing to stand up for others.

YOU CAN DECIDE FOR YOURSELVES.

 

 

If any of this is actually true, you're going about it in entirely the wrong way. Shutting down a fan site and claiming trademark infringement to do so smacks of trollery in the highest. If someone is actually infringing on whatever trademarks you do own, go after them, not a fan sharing pictures with other fans. The supposed concern over nudity comes off as nothing but a smokescreen to conceal your true motive, which is to shake down anyone who tries to create anything related to the Colecovision.

[dj_convoy]

Don't worry; much like the Chameleon fiasco, I won't be fooled. Nor will a lot of people.

[dj_convoy]

Guys I apologize. I just recently got re-interested in the Colecovision after seeing all the awesome new games available for it, and have pre-ordered the Super Game Module as well as started the process of purchasing homebrew games for it, so I'll have a nice collection to enjoy when I at last get my SGM. Coleco no doubt got wind of my plan and is doing whatever they can to screw me up.

 

I hear you; I just finally decided to order a Super Game Module this Tuesday. WE ARE TO BLAME

[NinjaWarrior]

Who owns the name Coleco anyways?

[enoofu]

Who owns the name Coleco anyways?

Mark Thomann who also owns Cingular Wireless,

[NinjaWarrior]

So he's the one doing this?

[128Kgames]

Mark Thomann who also owns Cingular Wireless,

 

Well, that says it all.

[128Kgames]

Is their Facebook site "ColecoToys"? I don't want to promote it with any links, I just want to know which site to drop a deuce on...

[NinjaWarrior]

I think this is like with Nintendo or something like that

 

Anything Nintendo, They want like 80% of it

[PikoInteractive]

I think I can weigh in some helpful information.

 

I feel like I am particularly familiar to this kind of topics for the nature of my role as a retro game publisher, and retro game community member.

 

Is this Corporate Greed or Fan/community entitlement? Well a little bit of both.

 

Unfortunately/fortunately We (or at least most of us) live in a country with a capitalist economy. Which basically favors whomever has bigger bucks and whomever thinks to protect/copyright/trademark/commercialize something first.

 

In this case River West Brands (at least it is my understanding) has gone through the legal means to claim and exclusively use the name/logo for Coleco and Colecovision. This is an asset for them (investment) that they want to protect etc.

 

So I understand if they want to shut down or go after projects that (may) infringes their trademark.

 

But in this case I do believe that Coleco is going after the wrong individual (if the right complete story is being disclosed) a community fan page has the right to post, review, show, yada yada yada any picture, product, opinion, comment in regards the colecovision. It is fair use, and it is their right to do so. Even if they show nudity, they can do it. Because themselves are not claiming or impersonating Coleco Holdings; They are a Colecovision Fan page/club.

 

What I do see is that the people that are commercializing these "Homebrew" games are at fault, and coleco should not take it out against the fan club; but against the people commercializing these games. Even though you can claim they are unlicensed or not sold by Coleco. They do show the popular Colecovision logo. That quickly will be identified as an attempt to fool consumers to think the product is being sold officially by Coleco. I am not saying that is what the publishers want to do, but that is the way an IP lawyer/judge is going to see it. So there are ways to promote/design your packaging in a way that you clearly show that the game is for the Colecovision console, but is not using the trademark without permission.

 

Additionally, about 60% of the games on the picture are pirate/bootlegs in my opinion because they are unofficial ports of games from popular publishers (MAPPY, GALAGA, etc) this is bad because:

1.- It is telling consumers that homebrew games are games that infringe in copyright, which are not (this is a whole other thread though)
2.- If those publishers see the bootleg, they can quickly assume that Coleco Holdings is approving/selling these games, and come after them for commercializing their IP without permission.

 

So my suggestion to the Fan Page, unfortunately, try to be less defensive and flexible to resolve an issue. I don't think you are at fault and should stand your ground to promote whatever you want to. However, I do suggest to try to promote homebrew publishers that develop and sell original content.

 

My suggestion to Coleco, if you go after the community, you will have a very bad time. You will exhaust yourself trying to go after every little thing. I would invest my time in educating those publishers in what they can do and what they cannot do. May be do a Style Guide for them, so they know what they can put in commercial packaging.

 

With Piko Interactive, I am very careful on how I approach copyright infringement. The more we grow and acquire rights of games, the more I have to ask "repro" makers and bootlegers to please stop selling the game, same with websites hosting roms. I try to be friendly and tell them they are not in trouble but they got to understand that we have invested a lot of money and we need to get it back. About 75% of the time they are cool and take it down and we go our ways, the rest of the time they get defensive and want me to provide proof. Which I tell them, I can, but he would have to talk to my lawyer. Usually those that get defensive stand down after that, and they go a head and try to burn me on forums and social media. However I try very much to be reasonable and not piss people off. But you can't make everybody happy.

Coleco is new to both the retro gaming scene and the gaming industry so I'd give them a pass this time and spend all this effort trying to educate the publishers on copyright ethics to avoid problems.

Anyways, this is my two cents

Edited May 19, 2017 by PikoInteractive

[_The Doctor__]

Cingular Wireless was a mobile phone company in the U S.. they are now owned by AT&T and AT&T mobility llc ... and is fully owned by AT&T

ugh

[+KaeruYojimbo]

Don't worry; much like the Chameleon fiasco, I won't be fooled. Nor will a lot of people.

A lot of the general public was fooled, at least initially. I had friends who were super excited about the Chameleon when the first news stories about it started popping up. Most casual fans were behind it until the Toy Fair con.

 

 

I think this is like with Nintendo or something like that

 

Anything Nintendo, They want like 80% of it

There's a fine line between genuinely defending an IP and frightening someone in hopes of profiting. Coleco is crossing the line.

 

If trademark infringement over the logo is the real concern, blur the Coleco and Colecovision logos in the photos and see what happens.

 

As for developers using the Coleco and Colecovision names, what sort of legal defense, if any, is provided by using disclaimers similar to what 3rd party developers used in the past? "Coleco and Colecovision are registered trademarks of River West Brand. Collectorvision is not affiliated with River West Brands" or something like that.

 

That said, I've always been uneasy about homebrew games that use other people's IPs. There seems to be this assumption that we're entitled to use them because we're fans or we're not hurting anyone or whatever, but that isn't the case.

Edited May 19, 2017 by KaeruYojimbo

[_The Doctor__]

It is a sad commentary that people actively dig up old marks and such and 'invest' as just trying to acquire the mark ... with no real product and hold it over the heads or people that do have a product. Wasn't there protections against this sort of practice enacted a number of years ago?

 

Just find a new name for the games... do the whole.... works with the 'whatever console' whatever console is a trademark of blah blah disclaimer.... like all the big boys do...

 

You can thank disney for the current ip law mess.... most of it is based on crap they dreamed up to protect what wasn't even their ip in the first place... most of what they produced was public domain redone..... and since then people figured it out... notice the newer renditions like the ones Universal put out The Huntsman ETC Snow White and the Huntsman... The Huntsman:Winters war

 

almost all games rip off each other it's all been done.... and in fact... legal arguments succeed many times when a game or object whether trademarked or not have a history of becoming a generic term.... The brand or tademark is often ruled against removed or de-listed and un enforceable... don't like it I have a kleenex for you. Brand and trademark genericide .... Death Punch: A Fatal Flaw Game...... etc etc

 

A company can lose a trademark due to non use....and a number of other reasons...if someone starts using a long dead Trademark and then another guy comes along and buys the mark after that the party started using the mark, the person with the mark in use retains the protections, the party trying to acquire the rights lose any claims as contested and the filing ultimately fails...

 

Your carve out might vary depending on your fame and who you know

Edited May 19, 2017 by _The Doctor__

[enoofu]

I think I can weigh in some helpful information.

 

I feel like I am particularly familiar to this kind of topics for the nature of my role as a retro game publisher, and retro game community member.

 

Is this Corporate Greed or Fan/community entitlement? Well a little bit of both.

 

Unfortunately/fortunately We (or at least most of us) live in a country with a capitalist economy. Which basically favors whomever has bigger bucks and whomever thinks to protect/copyright/trademark/commercialize something first.

 

In this case River West Brands (at least it is my understanding) has gone through the legal means to claim and exclusively use the name/logo for Coleco and Colecovision. This is an asset for them (investment) that they want to protect etc.

 

So I understand if they want to shut down or go after projects that (may) infringes their trademark.

 

But in this case I do believe that Coleco is going after the wrong individual (if the right complete story is being disclosed) a community fan page has the right to post, review, show, yada yada yada any picture, product, opinion, comment in regards the colecovision. It is fair use, and it is their right to do so. Even if they show nudity, they can do it. Because themselves are not claiming or impersonating Coleco Holdings; They are a Colecovision Fan page/club.

 

What I do see is that the people that are commercializing these "Homebrew" games are at fault, and coleco should not take it out against the fan club; but against the people commercializing these games. Even though you can claim they are unlicensed or not sold by Coleco. They do show the popular Colecovision logo. That quickly will be identified as an attempt to fool consumers to think the product is being sold officially by Coleco. I am not saying that is what the publishers want to do, but that is the way an IP lawyer/judge is going to see it. So there are ways to promote/design your packaging in a way that you clearly show that the game is for the Colecovision console, but is not using the trademark without permission.

 

Additionally, about 60% of the games on the picture are pirate/bootlegs in my opinion because they are unofficial ports of games from popular publishers (MAPPY, GALAGA, etc) this is bad because:

 

1.- It is telling consumers that homebrew games are games that infringe in copyright, which are not (this is a whole other thread though)

2.- If those publishers see the bootleg, they can quickly assume that Coleco Holdings is approving/selling these games, and come after them for commercializing their IP without permission.

 

So my suggestion to the Fan Page, unfortunately, try to be less defensive and flexible to resolve an issue. I don't think you are at fault and should stand your ground to promote whatever you want to. However, I do suggest to try to promote homebrew publishers that develop and sell original content.

 

My suggestion to Coleco, if you go after the community, you will have a very bad time. You will exhaust yourself trying to go after every little thing. I would invest my time in educating those publishers in what they can do and what they cannot do. May be do a Style Guide for them, so they know what they can put in commercial packaging.

 

With Piko Interactive, I am very careful on how I approach copyright infringement. The more we grow and acquire rights of games, the more I have to ask "repro" makers and bootlegers to please stop selling the game, same with websites hosting roms. I try to be friendly and tell them they are not in trouble but they got to understand that we have invested a lot of money and we need to get it back. About 75% of the time they are cool and take it down and we go our ways, the rest of the time they get defensive and want me to provide proof. Which I tell them, I can, but he would have to talk to my lawyer. Usually those that get defensive stand down after that, and they go a head and try to burn me on forums and social media. However I try very much to be reasonable and not piss people off. But you can't make everybody happy.

Coleco is new to both the retro gaming scene and the gaming industry so I'd give them a pass this time and spend all this effort trying to educate the publishers on copyright ethics to avoid problems.

 

Anyways, this is my two cents

Believe a lot of the Hate is that Coleco is a Zombie and a lot of those marks and IP are from the old Coleco which was bought out by Hasbro

Also some of these people were commercializing Coleco before River West Brands

[TPR]

So my suggestion to the Fan Page, unfortunately, try to be less defensive and flexible to resolve an issue. I don't think you are at fault and should stand your ground to promote whatever you want to.

 

Appreciate the thoughts and your candor! Trust me, this post was a "last resort" after a round of emails with both Coleco and Facebook to get everything restored. As I said earlier, I even went through the trouble to write the retraction email for Coleco so all they would have to do is copy/paste it and click send. I made it so incredibly easy for them to work with me on this issue. I had no choice but to take it public.

[spacecadet]

What I do see is that the people that are commercializing these "Homebrew" games are at fault, and coleco should not take it out against the fan club; but against the people commercializing these games. Even though you can claim they are unlicensed or not sold by Coleco. They do show the popular Colecovision logo. That quickly will be identified as an attempt to fool consumers to think the product is being sold officially by Coleco. I am not saying that is what the publishers want to do, but that is the way an IP lawyer/judge is going to see it.

Depends. As they say on Slashdot, IANAL, but I've followed cases really similar to this because I've done stuff similar to this. I do know that courts often take a dim view of copyright/trademark trolls who buy up rights, do nothing with them and then just go around suing people. It's one thing for Nintendo to sue someone who makes an NES game and puts the NES logo on it. Nintendo is Nintendo and not only are they the same company that produced the original NES, they actively were producing something bearing the NES name up until just a month or so ago.

 

But let's say someone buys up an old trademark, does *nothing* with it and then just starts going around suing people for infringement. The success of doing that has been mixed at best. Often courts will give them a loss on a technicality (like lack of proof of the rights for a specific use having been legally transferred), or they'll just declare something fair use that most people probably wouldn't think of that way. Courts have a wide latitude to decide that; the law gives examples but doesn't limit courts to them. I could even see a situation where a homebrew cartridge being sold with a logo on it could be called fair use, as long as you could reasonably argue that the money being made is just covering costs to develop and produce it. (A court would almost definitely allow you to assign a cost to your own development time.)

 

Coleco is somewhere between those two extremes. I probably wouldn't want to be on either end of that court case. There's a lot of risk on both sides.

[moycon]

What does all this mean for the folks producing and selling Colecovision homebrews right now?

[_The Doctor__]

neither party owns the trademark..... one claim was sold long ago, the other had a failed filing..... they were denied.... end of story. A search of the marks shows this... and since the Mark was allowed to expire... and others produced products using the mark long after expiration.... the claim may very well fall to the mark in use as it is today...... this has been my experience. Your courts may have a differing views... but most follow this precedent .....

 

A number of individuals like to claim, buy, or usurp rights under a brand like Pie Hole Games Interrelations etc.... but you can prove your use and rights in court or conference.. the scarey company name means nothing to whoever sits on and decides it...

Edited May 19, 2017 by _The Doctor__

[_The Doctor__]

What does it mean? nothing really...we go thru this every few years...... and normally prevail... Pie Hole interactive acquisitions usually passes into oblivion.

Edited May 19, 2017 by _The Doctor__

[PikoInteractive]

My comments are based of assuming Coleco Holdings or River West Brands went through the legal means to acquire the name/logo for Coleco. Not too familiar with the full history of Coleco and hasbro. But If Hasbro bought them out, RWB must have acquired it from Hasbro as Hasbro is still doing business and they are in the toys/games industry. Same with Galoob.

 

If they just applied for a dead/expired trademark and no one opposed it so they got it. Technically they own the mark and can do whatever they want with it; only entity that can come and cancel that mark is Hasbro. However, (and this is me saying something my IP lawyer mentioned), I think there is a 3 year period where if you do business as, or commercialize the mark etc etc. The actual owner would lose any right; it is basically considered abandoned and the new entity (or whatever) can keep using it.

 

I'm not a lawyer, I just talk to one I have in retainer.

 

I see 3 live trademarks for Coleco and one for Colecovision, Some for the logo, and some for typeface. Now I do see, on at least one that it was assigned from from Coleco Entertainment Corporation to Coleco Holdings/River West Brands.

 

http://assignments.uspto.gov/assignments/assignment-tm-4866-0566.pdf

 

So, that is at the very least the first thread to follow. Who was Coleco Entertainment Corp

You can search the corporation on this site:

https://icis.corp.delaware.gov/Ecorp/EntitySearch/NameSearch.aspx

the File number is:

4802369 - COLECO ENTERTAINMENT CORPORATION

 

 

But I wont waste 20 bucks to get tax history etc on this lol. have fun.

 

 

Edit: Also, just noticed that the Trademark for Colecovision is Typeface only. So if they didn't bought any assignment of copyright for the popular Colecovision logo. Technically you could use the logo to publish your carts.

Edited May 19, 2017 by PikoInteractive

[TPR]

Edit: Also, just noticed that the Trademark for Colecovision is Typeface only. So if they didn't bought any assignment of copyright for the popular Colecovision logo. Technically you could use the logo to publish your carts.

 

EXACTLY! And why this is such B.S. All of the images they flagged were for a logo they don't even own the trademark on anymore. Such a shady company. Please, anyone reading this, go unlike them from all their socials and don't ever buy anything from them again!

[PikoInteractive]

 

EXACTLY! And why this is such B.S. All of the images they flagged were for a logo they don't even own the trademark on anymore. Such a shady company. Please, anyone reading this, go unlike them from all their socials and don't ever buy anything from them again!

Well you never know, they could have an assignment of rights document giving them right to the popular Colecovision logo. They could have just filed for Typeface only to have a more general protection and save some bucks.

 

Publishers still need trademark notices ala Color Dreams, Wisdom Tree, Accolade, Tengen, etc.