Recently, the creators of a popular fan-made Doom spin-off game were served a cease and desist letter by the owners of the franchise, asking them to remove any ZeniMax Media Inc. trademarks from their website. After DoomRL’s nearly 15 years of existence, this letter has come as a shock to many. However, it is this very confusion which obligates ZeniMax to act here, highlighting an aspect of trademark law that few consumers understand: the duty to police.
A trademark is a word or design that signals the source of goods or services to consumers in the relevant marketplace. Trademarks provide more accurate information to users about the nature of potential purchases, and they also help the creators of those products better enjoy the fruits of their own labor, benefitting both the public at large and private innovators. For example, when you purchase a piece of Apple hardware, you probably expect it to feature a user-friendly interface and a sleek, modern design. That expectation represents the goodwill that Apple as a company has worked hard to foster and meticulously curate over a number of years. Moreover, that expectation also represents the value of the brand, which is in many ways one of the most significant products of any company – Nobody got trampled on Black Friday over a Samsung Galaxy Note 7, if you know what I mean.
However, even the most valuable trademarks can be lost. In fact, often the most widely used trademarks are at greatest risk for losing their rights. Did you know, for instance, that “videotape” was originally owned by Ampex Corporation? Probably not, and that makes a lot of former Ampex employees very, very sad. As a source signifier, when a trademark can no longer be used to distinguish the goods or services of one company from those of another, it ceases to perform its intended function. When this occurs, and a mark begins to indicate a type of thing rather than the source of that thing, the loss to the company can be devastating. This process is called genericide, and trademark holders like ZeniMax must actively and continuously police their rights in the marketplace in order to avoid it.
Here, there is a clear urge on the part of observers to sympathize with the developers of DoomRL, even to the point of characterizing ZeniMax as a bully. In part this outrage stems from ZeniMax’s recent endorsement of another fan-made, retro homage, Brutal Doom 64, in connection with The Game Awards just a few days before. While this behavior may appear to send a mixed message, keep in mind that Brutal Doom 64 is a modification of an existing game made by ZeniMax, in contrast to DoomRL, which, while admittedly derived from Doom, has a style markedly different from games produced by ZeniMax. If consumers are confused as to source, they may begin to think ZeniMax has started creating roguelike games, or attribute errors in DoomRL to Zenimax. Furthermore, the creator of DoomRL, Kornel Kisielewicz, has recently started referring to himself publicly as “the creator of D**m, the Roguelike,” increasing the potential for brand confusion. In light of ZeniMax’s ongoing duty to resist the dilution of the DOOM trademark in the video game marketplace, a cease and desist letter begins to look more reasonable.
While the desire to protect free expression and defend the rights of “the little guy” are certainly noble sentiments, remember that the overwhelming majority of games industry Goliaths started small. It is intellectual property rights that provide small-time developers with the confidence and security to risk making something truly original in the first place. Keeping that in mind, let’s stop sharpening the pitchforks and lighting the torches every time a studio enforces them.