If you can find out we'd certainly appreciate it.
Right now we're working on differentiating our game sufficiently from Descent that it can be our own IP... but if it does turn out Interplay couldn't legally use that C&D (and if we can prove it, that's probably important
) it wouldn't be very much work to put the Descent assets back in the game, revert the story and etc.
Whatever happens, we are going to finish this game. The most Interplay can do is stop us from using Descent's world as the setting, with all the stuff that entails. They can't stop us from making a game.
I put a massive post on the SC website - I'll repost it here to save you having to looking it up.
PM me if you want to know more, or need more tips on how to approach things...
17/10/2014, 03:01 UTC
WHOA WHOA WHOA – MAX – HOLD THE PHONE!! You’re based in Germany! I didn’t know that, that is very important information!!
Max – I am not a lawyer, but I really WAS the SVP of licensing of an Entertainment IP licensing firm for 6 years. I left the firm in 2013, I’ve successfully negotiated licensing deals for entertainment IP across multiple territories, I still work in the field and I really do know a fair amount about this subject. That being said – what I am about to tell you is general information only and you should consult a dedicated IP legal firm in your home country to check the veracity of everything I’m about to say.
MAX – Assuming that Germany is the home base for your operation, unless Interplay have registered their Descent trademarks in your home territory of Germany – **there’s not a damn thing they can do to stop you!!**
Interplay is a US company, but you are not bound by US law, unless you live in the US or a US territory, or are visiting one. For Interplay’s trademarks to be binding on you and your activities, those trademarks have to be registered in the same country you do business in. If Interplay registered their trademarks in the US, but did not submit their trademarks for international registration through the Madrid protocol (or any other similar international IP registration framework), then you’re not covered by Interplay’s trademarks. It’s an empty threat!
Registering a trademark via Madrid take two years, and the trademark can be challenged numerous times over that time which can drag out proceedings even more. It’s along, arduous, expensive process and if the rumors about Interplay’s financial position that are posted around the internet are true then I highly doubt they went to the trouble and expense for what is effectively a dead title and abandoned IP (more on that later).
Granted, they can still try to take legal action against you in Germany but they won’t get very far unless they can prove you have broken German law, and that their existing copyrights (which they failed to demonstrate any chain of title over in their letter) are applicable in your home country. Besides which – taking legal action over alleged breeches of IP rights in foreign territories is both extremely expensive and difficult to do.
Please note your game is quite definitely a derivative work of Interplay’s original “Descent” game in the eyes of the law, and if you were sued you could not successfully argue that your work was an original piece. But it’s still up to Interplay to prove that they own all the trademarks and copyrights in question in every territory that you wish to distribute your game into, and that if you made your game that there would be sufficient confusion between their product(s) and your version to mislead consumers as to your product’s origin – good luck with that one Interplay!
As for their claims of copyright over the Descent “story” that’s total baloney! You can’t copyright a story or an idea – it’s impossible! You can only copyright an expression of an idea which has been made concrete in some manner.
Plus their whole “commercial protection” argument is pretty thin in my opinion. There are numerous existing derivative versions of Descent in existence that are free to download and use. These other descent versions have existed for over a decade (Eg: DXX, D2X-XL, Core Decision and so on). Interplay has knows about these free products existence for over ten years – there’s plenty of Descent-game developers out there who can vouch for that one – and Interplay has not attempted to close down any of these other versions down whatsoever. They are therefore unfairly singling you out. Any competent IP lawyer could make a very strong argument for abandonment of the IP by Interplay, in any court or jurisdiction you care to mention.
Plus as I said earlier, Interplay released a lot of the original Descent source code into the public domain years ago. The extent to which any existing, provable copyright or other IP (that Interplay still has indisputable chain of title over) could be separated from that source code is far from clear. Your game is clearly a derivative version of public domain artworks in my view so the issues are not so clear cut.
It is my own personal opinion that the only reason you got a letter alleging breech of trademarks is because your FREE product has a good chance of widespread success… and the only reason Interplay are now not responding to your letters is that you went public with their little “IP bluff” and as you’re not a US citizen, and their trademarks have effectively been abandoned they probably don’t have a leg to stand on.
My personal advice is you send Interplay a letter in reply insisting that they demonstrate a clear and unequivocal chain over title over the Descent copyrights they mention – and that they also provide you with documented evidence supporting their claims of trademark infringement in your particular territory and category. If they can provide this information to a legal certainty then of course you should discontinue development of those elements of your game immediately.
Once again I must remind you that I am not an IP lawyer and I cannot accurately tell you what the IP laws are in your particular territory. You must view my opinions as general advice only and you should consult with a specialist IP lawyer before you take any action whatsoever.
Please feel free to email me if you want further information on either IP registration or entertainment licensing.
17/10/2014, 03:04 UTC
When I said “Core Decision” above, I really meant to say “Into Cerebron”
Core Decision is a totally separate game – it has elements in common with Descent, but it is not a Descent clone.
Sorry for the confusion.