The Legal Story So Far
We’ve been gone for a while, well not gone, but lurking, waiting in the shadows till the time was right to stand up once more and set records straight.
There was some recent confusion, the fireworks set off prematurely and people began to dance. It was fun to watch, a taster of what will come, but it was all too soon. Edge Games haven’t yet been defeated, and like Ganondorf at the end of a Zelda epic, you have to expect a few false endings before the trademark beast falls for the last time.
Since our last update EA has continued to pursue their case with the Trademark Trial and Appeal Board. Like any legal case it’s often difficult to grasp what’s going on thanks to the legal jargon, so we’re hoping that this break down will give people a better understanding of the events so far.
11th of September, 2009
EA files a Petition for Cancellation against five of Edge Games’ current trademarks. They allege that Langdell has threatened them with a trademark suit regarding Mirror’s Edge since September 2008, that on this basis they expect Langdell to oppose their use of the title “Mirror’s Edge”, and that therefore his trademarks are causing them harm.
EA’s filing disputes several important parts of Edge’s filings, made under penalty of perjury:
- The dates of “first use” of the trademarks
- That Edge was currently using the marks in commerce in the five years before its applications
- That the specimens Edge submitted with its applications were products that were actually on sale within the five years before the application.
- That some of the specimens Edge submitted with its applications were products that actually existed, e.g. the Edge mag
Essentially, EA argues that some of these marks were never used by Langdell in the first place, or have fallen into disuse, and thus the registrations are not valid. As many of these statements were made under penalty of perjury, the consequences could go beyond a mere trademark de-registration.
EA’s filing explicitly alleges fraud in obtaining the registrations in question.
27th of October, 2009
Langdell submits his response, a motion to dismiss. The much-discussed dispute between Velocity Micro and Edge is at the centre of this. In brief, Velocity Micro pursued Edge in a court in Virginia on similar grounds, accusing Edge of fraudulently obtaining its trademarks and of not using the marks in commerce. Before the case reached a stage where evidence would’ve been presented and legal matters discussed, Edge and Velocity Micro met in the Judge’s chambers and settled.
That settlement formally found that Edge had won on the merits of its case, and the case was dismissed “with prejudice”, i.e. a decision against Velocity. Velocity’s related disputes with Edge in the USPTO were also dropped, however because Velocity Micro withdrew outside of the correct timeframe, without written consent from Edge, the dismissal was also “with prejudice”.
Langdell’s motion to dismiss states that because of these results, “facts and arguments alleged by [EA] in the current proceedings have already been argued and ruled on” in his favour, and that there is no case left to litigate. Legal terminology is not used.
30th of October, 2009
Langdell files his certificate of service with the USPTO indicating that EA had been properly served with his response. It’s here that he uses the term “stare decisis” to describe the basis for his motion, i.e. that the court must respect its own previous decisions on matters of law.
6th of November, 2009
EA files its response to Langdell’s motion. They interpret his previous filing as being based on “collateral estoppel”, the legal principle that once properly litigated and decided one way or another, a matter of law or fact cannot be litigated a second time on the same set of facts. Their understanding of Langdell’s motion is that all the matters have been fully decided in the Velocity Micro case. Their argument is that regardless of the similarity of the disputes:
- EA was not a party in the previous case, while collateral estoppel in trademark disputes requires that both parties by the same (mutuality).
- The previous case was not litigated fully, because it never reached the “discovery” stage, much less an examination of the two sides’ claims.
On the same day, EA enters a request for a particular date for their own case’s discovery conference
9th of November, 2009
EA requests that a USPTO attorney be present at the discovery conference.
19th of November, 2009
Apropos of nothing and with no explanation, Edge submits a fax from the 26th of October regarding an overlooked filing for one of the trademarks.
22nd of November, 2009
Edge submits its own response to EA’s response, arguing that:
- There was indeed a basis for collateral estoppel. Langdell cites a previous case which found that the parties need not be identical, so long as the current parties were “adequately represented by someone with the same interests who [wa]s a party” in the previous case. Langdell interprets this as meaning “it is sufficient for just one party to be common to both issues”, i.e. Edge Games.
- The previous case “was litigated fully and as a result of discovery between the parties”.
25th of November, 2009
The day before Thanksgiving in the US, the USPTO pulls on the brakes, informing EA that the timing of the case would reset until Edge’s motion was settled, so they wouldn’t be getting their discovery conference yet.
11th of February, 2010
EA files a second case against “Edge”, 78981284. The case has a similar basis to the main case.
22nd of February, 2010
The USPTO returns its decision on Edge’s motion to dismiss, denying it. Based on Edge and EA’s correspondence, they interpret Edge’s motion for dismissal as one for summary judgement on the principle of res judicata, that a matter was already judged. This is a legal principle related to collateral estoppel. The USPTO rules on its own criteria for collateral estoppel and res judicata, that there are no grounds for dismissal.
- Their interpretation of res judicata and collateral estoppel requires that both parties be the same. They note the case Langdell cited. In that case there was “privity”. An aviation enthusiast lost a case, and an identical case was submitted by a friend represented by the same lawyer. As Langdell has shown no similar “privity” between EA and Velocity Micro, they do not consider this argument to be valid.
- They find that the matters were not actually litigated in the previous case at any rate.
The USPTO’s decision notes that EA’s allegations of fraud were not up to standard, because they fail to explicitly state the set of facts that lead them believe Langdell acted fraudulently, and did not allege an intent to defraud the USPTO on Langdell’s part. They ask that EA resubmit their case with this corrected within 30 days, or they will suppose that EA had dropped the fraud aspect. Regardless, Langdell has 60 days to file his answer to EA’s case.
19th of March, 2010
Langdell files a motion to reconsider his motion to dismiss, arguing that it was based on stare decisis, and not res judicata. He argues, in order, that:
- This was his intent all along, and that it was understood by him from the outset that a res judicata motion would fail.
- That under stare decisis, all the issues of fact and law in this case have already been decided in his favour in the prior cases, and thus the case must be dismissed, unless EA can show that the issues of fact and law are different.
- That EA’s allegations of his threats to sue are untrue, and thus they have not shown that there is any harm in his continued registrations.
- That by failing to continue to pursue its own “Mirror’s Edge” application, EA has conceded the matter to Langdell.
- That stare decisis requires that EA show that the previous decisions were erroneous.
- “Once the District Court determined that there was sufficient evidence that EGI had not abandoned any of its registered marks, it logically follows that no evidence the petitioners can now bring to the current proceeding can reverse that decision.”
- That EA has failed to show that it has a basis to clear damages, and has already conceded the matter by failing to pursue its own “Mirror’s Edge” application.
Throughout, Langdell uses the word “principal” in place of “principle”.
19th of March, 2010
Landell files his answer to the smaller case, denying any issues which are not a matter of public record, and in particular that it has abandoned its marks or that EA has a common law trademark in Mirror’s Edge. No motion to dismiss is filed.
24th March, 2010
EA files its amended petition, alleging fraud on the basis that Langdell understood that his filings were invalid, and that the USPTO would uphold the filings on the basis of the false information he provided.
29th March, 2010
USPTO again pulls on the brakes pending the resolution of the motion to dismiss requested on the 19th of March.
31st March, 2010
EA requests that the motion to dismiss is abandoned on the basis that the arguments put forward by Langdell have no basis in law or fact.
EA’s objection to Langdell’s trademarks was essentially that Edge no longer used the marks in question, had never used the marks in the manner requested in the registrations, or had misrepresented how long the marks had been in use. EA alleged that this was deliberate fraud, and that Langdell had been threatening to sue them since September 2008 over Mirror’s Edge, and therefore the continued registrations were doing them actual harm.
Langdell’s first defence was to move to dismiss the case, because similar accusations had been made in Velocity Micro vs. Edge. In filing his certificate of service, stating that he’d sent his motion to EA (a procedural formality overlooked in filing his motion to dismiss), Langdell used the term “stare decisis” to describe this motion. “Stare decisis” is the principle that the court must respect its own prior decisions on the interpretation of the law, so that the law is consistent. Of course one can still argue that a prior decision was erroneous or appeal it.
EA’s response was to state that his motion to dismiss was on the basis of collateral estoppel, also known as issue preclusion. This is the legal principle that once the court has made a decision on a matter of fact or law, it can’t be hauled back into the court to be decided again in a different case. It’s a principle intended to stop people merely re-litigating the same issue ad nauseum without making a new argument. Their understanding of Langdell’s case is that all of the issues raised by EA have already been settled in Langdell’s favour in the previous case, and therefore would be found in Langdell’s favour here, so there’s no point in continuing.
EA argued that among other things, collateral estoppel requires that both parties be the same (mutuality), and that issues of fact and law actually have been decided in the case. They point out that they were not a party in the previous case, and that the previous case ended before any issues of fact or law were actually decided by the judge (and in fact before any evidence was presented).
Langdell then filed his own answer, arguing that mutuality isn’t a requirement, citing a previous case, and reiterating the judge’s statement in Velocity Micro vs. Edge that he was found to have won “on merits”.
Mutuality’s actually a bit of a grey area, and varies depending on the kind of court and case. For example, it’s been found that if a decision between a bank and a customer has been made, the same decision holds between the bank and all its other customers in identical cases.
The Trademark Trial and Appeal Board responded by stating that they interpreted Langdell’s motion as one for a summary judgement on the basis of res judicata, an umbrella term encompassing issue preclusion, regarding decisions on facts and the interpretation of the law, and the idea of claim preclusion, regarding a particular legal claim such as seeking damages for getting hit by a car. In their view, mutuality is a requirement, unless “privity” is shown. In the example Langdell citied, privity existed because the two cases had the same defendant, and the two different plaintiffs were close friends connected by the issues being discussed in the trial and represented by the same lawyer. They also agreed with EA that no issues had actually been decided in the previous case.
In the same motion, the TTAB told EA that if they wanted to pursue Langdell for fraud, they must make explicit claims that Langdell intentionally defrauded the USPTO. EA was given an opportunity to do so. However the TTAB would continue address the validity of Langdell’s trademarks regardless of any allegations of fraud.
EA filed its amended claim with the allegations of fraud. Langdell has now filed another motion to dismiss, arguing that his previous motion was actually on the basis of stare decisis all along, and making various accusations regarding whether EA has actually suffered any harm from his registration or has any right to a trademark for Mirror’s Edge. However he has not stated any issues of law which have actually been decided upon on the previous case or that are in question here, which would be necessary for a motion of stare decisis.
So we’re left waiting again. For how long? Well, the last event like this back in November lasted for 3 months.
It seems that EA aren’t too happy with these delays. In a letter sent to the TTAB, they request that the case is continued and the current motion to dismiss, abandoned. In doing so they’re calling out Langdell, stating that his arguments have no basis in law or fact. Presumably here, they’re simply suggesting that Langdell’s actions are simply delay tactics, which is something that fits his previous legal battle M.O.
Keep on Truckin’
In the mean time we can stay vigilant, keep our eyes and ears plugged to the web and report any events that might help this case, or any of the other related cases for the future. For instance things like this:
A recent update to the EDGE Games website revealed a new link in place of the old store link. It’s a very odd piece for a number of reasons:
- Why does it show Edge Magazine’s logo looking less like Edge Magazine’s logo than Edge Games’ logo which was originally stolen from Future Publishings Edge Magazine? (Langdell loves to create this game of confusion)
- Why does it state that Edge Magazine is published electronically? – Edge Magazine aside from its website is a print magazine and has been since its launch in 1993
- Why does it state that it is done under licence from Edge Interactive when we believe that the trademark for the magazine is owned by Future Publishing?
- Does this have anything to do with the reports that Langdell was spotted roaming around GDC clutching on to a copy of Edge Magazine?
It’s things like this that we need to keep aware of, updates to that site never happen ‘just because’, there is always a reason. We’ll work this one out soon enough, but it’s important that the more people know, the quicker these quests are beat.
A second recent update to the Edge Games website is the move to start selling games on Amazon as well as the Edge Games Store. We can use the word ‘Games’ correctly here as what he’s selling is just about plural. You see, in order to confirm to the legal eyes and the world over that Edge Games is a world wide powerhouse of a publisher, Langdell is offering the sale of TWO games on Amazon, that is TWO Units, 1 copy of Mythora and 1 copy of RACERS.
I think it’s clear that EA now has a new battle on their hands, as does Activision, Ubisoft and all the other publishers out there. Just be ready to see those weekly charts burn up as Edge Games hits that coveted number 1 spot.
Speaking of RACERS, Langdell has also stumped up the cash to pay to get the game an ESRB rating in a move to attempt to legitimise the game.
It’s amazing that he’s gone so far to spend the cash to get the game rated, when its being sold (To ChaosEdge) on DVD-Rs.
And Tim, really, you can register all the domain names, ratings and trademarks you can think of, but nobody is buying this till we see ACTUAL copies of ACTUAL games for ACTUAL sale.
Say perhaps the PS3 version of Racers that was supposedly being released Fall 2009, where is it?. We know where it is of course, but we’ll let you be the one to answer that.
It’s Spring 2010 now, so expect us to start asking where our Xbox and Wii versions are soon enough. You can’t burn those on a home DVD burner.
Any other game missing?
2010 WANTED LIST
Bobby Bearing, the game that Edge from Mobigame ripped off (In Langdell and only Langdell’s eyes), the cause for so much upset and lost sales on the AppStore after the release of Edge. WHERE IS IT? Release date 2009? Looks like someone needs to get a new calendar.
Firebirds, release 2009/2010, what’s the delay? Can’t find enough art to steal to get the game finished?
To end this return of ChaosEdge, we’d like to give our continued thanks to everyone that’s commented, emailed and tweeted us so far. What we have here is a collection of work by each and everyone of those passed on links, bits of research and fine examples of Google-fu.
Until next time…