It can be odd for those of us that are firmly entrenched in the culture of video games to realize how young the medium is when compared to other media fields. The landscape of video games is still greatly taking shape around us in terms of business models, property development, and the litigation of both. New genres and ideas of how games can apply the participatory experience of the player to storytelling and social interaction have gained prominence in recent years as the independent game development culture, much like similar cultures within music and film, gained more traction. The accessibility and tools provided by the internet and streaming technology empowered anyone and everyone to participate in this rising culture and share games, both new and old, and their experiences within these games in more engaging ways. The most prominent and prolific example of this new communal experience is the “Let’s Play” (LP) video.
While not every LP is created equal, each of them offers a play through of a portion or the entirety of a game that the player sharing the video felt a need to share, and every viewer felt a need to share in. These videos offer many advantages to game developers: free-to-cheap publicity, word-of-mouth sales, the resurrection of a project lost to the binary seas. They can be a double-edged sword, however. Games made by heralded developers as they were cutting their teeth that they would rather be lost to the ether have a tendency to resurface on the internet. Some titles representing the worst the medium has to offer are also very popular within the LP population as they provide plenty of fodder for players to unleash their snark and ridicule upon in order to garner laughs. Sometimes they are funny. More often they are insufferable. Regardless of audience reaction, there is still a reason why the best and worst of the LP genre needs to exist: it broadens the reach of video games as a medium, exposes fans to new experiences in which they might want to participate, and educates the populace as to what games might or might not be worth the price tag.
During the tail end of 2015, this ability met its ultimate threat: a large corporation tying up a communal intellectual property in its net of exclusivity. The incorporated culprit this go-around was Sony Computer Entertainment of America. Back in October, Sony filed a trademark claim on the phrase “Let’s Play” with the US Patent and Trademark office. They wanted to wrap up a term that entered the lexicon of the gaming community years before any paperwork was filed. While no information was released alongside this filing as to what Sony planned to do with their newly acquired trademark, the worst was undoubtedly expected by the highly critical internet-based video game fan base. Net-based communities have a predilection for expecting the worst. It isn’t without good reason though. The murky waters of fair use, copyright violation, and DMCA interpretation have always surrounded the metaphorical island of upload culture, and those waters have slowly eroded it. Adding to this dire outlook was exactly how Sony defined “Let’s Play” in their filing: “[e]lectronic transmission and streaming of video games via global and local computer networks; streaming of audio, visual, and audiovisual material via global and local computer networks.” Sounds awfully vague and all encompassing, right? A newly claimed trademark on a term used so ubiquitously and defined in such an open-ended fashion could cause a very large piece of this community to be lost behind a wall of litigation with only the Sony suits holding any method of penetrating it.
Luckily, none of us had to find out what the mystery truly held, because one December 29, 2015, the USPTO effectively denied Sony’s trademark claim. Hazzah! The internet jumped with joy and laughed in the face of its corporate foes. The term synonymous with annoying, insightful, and downright hilarious videos capturing unique gameplay experiences was saved! The tie-tacks would indeed not be usurping what grassroots gamers had made so popular and penetrating. A rare victory was had by all. A respite from the annoyance of YouTube copyright claims and other taxing battles involving the concept of fair use was had by all. The only thing that didn’t bring a smile to my face when the ruling came down was the reason why Sony’s claim was denied. It wasn’t because of the purveyance of LP videos and producers on the internet, the common usage of the term, or the fact that they didn’t develop or popularize the phrase itself. Sony’s trademark was denied because another company, Let’z Play of America, already held a trademark on the term “LP Let’z Play” and the USPTO cited a “likelihood of confusion” between the two as the reason for denial. Set jets to cool, people.
Despite my serious doubt that any educated member of the video game populace would confuse a “Let’s Play” video with this company, I’m glad to see that the USPTO was able to find a legitimate reason, albeit such a deep cut, to deny Sony’s claim. The problem, though, is that it pulled such a deep cut. Instead of basing their decision on the common acceptance of the term and its general use and existence for years prior to Sony’s filing, they reached into the doldrums of their own trademark library to find a previously filing that doesn’t represent a substantial defense to Sony’s claim. Finding an argument within their own trademark library isn’t out of the norm for USPTO examiners though. According to Ross Dannenberg, editor in chief of Patent Arcade and senior partner at Banner & Witcoff, “They have to look at a lot of marks, and it’s easier to search trademark records for a previous example rather than search on their own to see how the words are generally used. It’s gonna take the examiner hours and hours to do the latter, whereas they can just do a quick search in trademark records to dispose of case and work on something else.” This basis of denial doesn’t provide the satisfaction of finality being expressed by many in the gaming community at the moment in the slightest. Rather, it serves to only strengthen Sony to bolster their claim when they inevitably try to trademark the term again. Initial denials of trademark claims are not uncommon, and Sony has the ability to appeal the ruling any time before June 29, 2016. Six months is plenty of time for a company as large as Sony to research myriad paths to reach their desired end.
Even more foreboding, the USPTO’s grounds for denial displays either a lack of understanding of the highly visible yet niche market of LP video content or a lack of effort to truly research the use of the term “Let’s Play”. Both are somewhat infuriating and seem easy to rectify in the future, but the lazy reason for denial at least stops this unneeded advancement of Sony’s reach for now. Going forward, the USPTO will be entrusted to move past these assumed lacks in order to provide a more credible and concrete decision based on the generic and descriptive nature of the term, but that isn’t something that is guaranteed to happen during the next round of validation. “(I)f Sony somehow comes back and successfully argues that there’s no likelihood of confusion with Let’z Play, it’s unknown if the examiner will take necessary time to investigate underlying meaning of ‘Let’s play'," adds Dannenberg. Assuming the Let’z Play of America ruling doesn’t hold, the inability of the agency to properly investigate the term’s meaning and use would be an egregious act on their part. It would inevitably come off as slap in the face to the gaming community, but, more so than hurt feelings, it would represent a serious lack of due diligence paid to a strongly rooted field of media whose short history has been plagued by infringement claims they don’t have the means to fight. The USPTO offers the chance for the LP community to stand eye-to-eye with large corporate entities like Sony, but, without the agency’s full effort, the LP community, the gaming community as a whole, would barely come knee-high to Sony.
This is especially frustrating because similar terms that have come to acquire unique meanings in relation to media have already found protection from general trademarking in the recent past. Take the example of the budding art form of podcasting. When the USPTO denied a trademark filing for the word podcast back in 2007, they did so with this statement, “The mark immediately describes and names the characteristics and features of the goods.” The term podcast held no true meaning until it became associated with the budding field of on-demand audio, and that acquired meaning and its associated knowledge with the public is what ultimately protected it from being trademarked outright. “Since the term podcast has acquired a meaning of its own, no one can trademark it by itself when used in connection with podcast-related products or services,” adds Xavier Morales, one of the most experienced trademark attorneys in the U.S. Where podcasts were in 2007 is exactly where LP content is today. A clearly definable, burgeoning field populated by enthusiasts and entrepreneurs alike who are producing entertaining, informative content for an audience that is continually growing. If all the examiners are going to do is look among their own office’s past filings, maybe they will stumble across this one.
There are a lot of different ways this situation can go in the coming months, but what cannot be lost in this process is the actual effect that could be brought if Sony is successful. I reached out to Travis Hite and Joan Nobile; members of CBGP Games, a YouTube channel that posts LP videos, in order to better understand what Sony’s success could mean for the LP community. “(Sony’s potential trademark and definition of “Let’s Play”) opens up a lot of potential litigation, shutting down of channels, and copyright claims…that Sony could claim as their own if the ruling is reversed,” says Nobile, adding, “Which, in turn, could lead to a whole lot of people losing their income. Combine that possibility with the idea that the average consumer could no longer just stream or upload videos for fun, and you're looking at a potential community breakdown.” The loss in income and the ability to share and critique games within the community as a whole are dire results, but Hite offers a reaction from the community that has the possibility of being even more impactful for Sony as a business. “If anyone has worked with the online streaming community well so far, it's been Sony,” says Hite. He continues, “The problem is that whenever a company attempts to monetize or otherwise attempt to say how the Let's Play and Streaming community works they get a boat load of negative PR, and this is pretty high up on the list…further attempts will only go further to earn them a negative bead in the consumer's eyes, and I think they learned their lesson in what the hardcore consumer can do when irked with the PS3 launch.”
The other factor to look at in this case is Let’z Play of America itself. The Smyrna, GA-based company operates as a service that gathers gamers together for gaming sessions and tournaments around the Atlanta area in both online and offline settings. The name Let’z Play certainly fits. The issues with this company arise when you delve a bit deeper into the company’s public presence. If you go to their registered URL (www.letzgoplay.com), the site defaults to a 500 Internal Server Error page. The company’s Facebook page is completely devoid of any updates, comments, or events. There isn’t even a logo posted. The company’s Google+ account lists only a contact phone number, which no one answered when I called it. The company has listings on a few business profile sites, but each one has the company registered to a different address, three in total. All of the addresses are within ten miles of each other in Cobb County, GA, and include a house, an apartment, and a P.O. Box. There is literally no evidence of this company’s operations or existence on the internet, yet their yearly revenue, according to their listing on business credibility web site Dun & Bradstreet, is listed at $140,000. What’s more interesting is that the only name listed as a contact for Let’z Play of America, a Mr. Craig Wilson, is also listed as the primary contact for another company named We Play Nation, which purports itself to be a social networking site for gamers. Unfortunately, the company’s URL (www.weplaynation.com) greets you with the statement, “We are building something awesome!” and only provides a place to submit your email address in order to be informed when the site actually launches. We Play Nation reports a yearly revenue, according to Buzzfile.com, of $46,000, is registered to yet another address in Cobb County, GA (that’s now four, for those of you keeping score), and doesn’t seem to actually do anything. Can someone explain to me how a combined yearly revenue of $186,000 is produced by two companies that appear to be completely inoperable? It makes no sense.
The only sensible conclusion one can make is that the companies are dissolved but still hold their trademarks. The yearly revenue issue confounds me, but it could be chalked up to either claims on said trademarks or they could be simply powdering their numbers to attract new capitol and investors. Regardless, it doesn’t seem like the purveyors of Let’z Play of America don’t particularly need these trademarks anymore, which could provide the easiest route for Sony to circumvent the USPTO’s initial ruling. What would you do if you had a dead brand on your hands and a large corporation came by with buckets of money to leave on your doorstep in exchange for getting out of the way of its litigious desires? Exactly. You’d sell and dump those buckets over your head as if you were the vainest participant in the ice bucket challenge. Let’z Play’s lack of any definable presence other than some trademark filings makes it and its owners the single most important entities in regards to this issue presently. They’re the only obstacle between Sony and a trademark that will grossly affect millions of people at the moment, and, if the USPTO decides not to investigate the proliferation of the term “Let’s Play”, they could be the only obstacle. I reached out to Mr. Craig Wilson before the writing of this piece but have received no response to my request for comment as of this article’s publishing. The company’s position and thoughts on the issue remain just as mysterious as its business practices.
The prevailing doubt cast by Sony’s motives, the USPTO’s investigation practices, and Let’z Play of America’s status is one that will not be quelled until Sony’s appeal is filed and a final ruling is handed down by the USPTO. In the face of the unknown, we will speculate to our wits end, but we must remember what we do know and hope that that knowledge will allow for the best possible result for everyone. If Sony wants to trademark “Let’s Play” in relation to some new content program that is specific to itself without the general term becoming a lightning rod of litigation, have at it. I’m sure some kind of “PSLP” program with exclusive early content would be beneficial to new marketing strategies, but they cannot sacrifice the good will of their fan base by absorbing a term that fan base defined. For now, we as games enthusiasts must put our trust in the process despite our varying levels of confidence in it. We have just under six months to see how this whole thing ultimately shakes out, so stash your pitchforks and watch the skies for the moment, people. The clouds will part soon enough.