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thomascalc

Mentioning another product (brand?) in a testimony for my product

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Hello,

 

I'm developing a website for my upcoming game. One of my friends (a manager at a software dev company) allowed me to add his quote about my game as a testimony to the website. His quote, however, mentions an existing brand (Dragon Age).

 

On my website, this would be the quote:

"A real jewel for us who loved playing Dragon Age."

- John Smith, directer of sales, Example Company

 

I'm not affiliated with Dragon Age in any way, and I don't want legal issues. But it's a quote, so this should be nominative use, right? And thus it's absolutely OK, isn't it? Any chances chances that I'll get into trouble? Can I lose money, or only get a warning (with highest probability I mean)? 

 

The whole webpage would contain a single mention of Dragon Age, and only in my friend's quote. 

 

I know, I know: one can be sued for anything. And the big companies are much more powerful. But I want to know the chances. (For example, if my site had a forum, and a user wrote the same thing in a topic, it would be practically 0% that I get sued for his post comparing my game to Dragon Age.)

Edited by thomascalc

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Any thoughts? (I won't take it as legal advice, just give me some info please.) Tom, you usually used to give me very uself info.

 

Thank a lot in advance

Edited by thomascalc

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> But it's a quote, so this should be nominative use, right?

Probably.

> And thus it's absolutely OK, isn't it?

Not "absolutely OK", but possibly okay.

> Any chances chances that I'll get into trouble?

Yes.

> Can I lose money, or only get a warning (with highest probability I mean)?

Yes, you can lose quite a lot of money. Even if you give in with the first C&D demand letter, you're out some cost in terms of time and money. And you know up front it is an unnecessary risk, which might not be allowed. The risk is not ultra high, but why do it in the first place?

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frob: Thanks a lot. Why would even a first C&D cost me a lot of money? The money I lose with time is fine, we are a small indie team. I can still remove the quote from the website as soon as I get any warning/C&D, can't I? (Regarding your question: well, it's a complimenting quote, he compares my game to Dragon Age.)

Edited by thomascalc

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Every Cease and Desist order takes time to evaluate, and that is a cost.

If it is a legitimate letter and not some sort of bulk spam mail, you need to have your lawyer review it, which costs time and money.

After discussion with your lawyer you can decide what to do, from ignoring the letter to responding to the letter and doing what they want, to doing the opposite of what the letter demands, publicly mock the letter, and use it to generate over $100,000 for charitable causes. I wouldn't choose any of those options without talking to a good lawyer on the matter, which is a cost.

If you take some action you are best to send a reply to tell them you are doing what they requested, and the wording should be careful, needed a lawyer to handle, which costs time and money.

A C&D order is not legally binding itself, but it is a small legal action and a normal precursor to bigger legal action. The exact wording of the letter and the reply, and the wording of other comments (like these on this site) can be used against you in court. When companies are serious about wanting you to change your behavior, they may start with a C&D and if they aren't happy they may move on to bigger proceedings. That will cost LOTS of money.


So assuming the company does come after you, and they put the quote into Google to see where it comes up, then this conversation will appear -- either directly, or in the comment history if you attempted to somehow hide it, or on sites like Google's Archive and Archive.org and other major sites that are continuously archiving the web if the site hides it. The Internet doesn't forget, and there are plenty of archives available. (You can even browse the web like it was 15 years ago using Google's archives!) And from those archives, they'll be able to read that not only was your use deliberate, it was calculated based on the risk and potential cost of a lawsuit. That sort of thing does not impress judges (at least, not in your favor).

Personally I would not use that quote. If he wants to write on his own site comparing your game to Dragon Age, as his own opinion, then let him. If he wants to put that in a review on a major review site, fine. If he's a writer for a major industry site and wants that as the headline for everyone to see, great. His site, his opinion, let him do it.

But the topic is not his speech. The topic is YOUR own speech (quoting him), done for you, on your own marketing materials. No way would I want that line about comparing my product to Dragon Age on my own marketing materials unless my company name was BioWare and the lawyers and marketers at my parent company EA approved it.

In advertisements you see comments like "9000x better than the competitors", or "Just as good as the industry leading brands". It is a rare thing for those competitors to be mentioned by name, and when they are, it is usually followed with an asterisk and a bunch of disclaimers the lawyers required. Again, those footnotes carefully written by lawyers, which has a cost.

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Can you ask your friend to change his quote into something without a dragon age reference?

 

Like rephrasing it to "A real jewel for us who loved playing recent open world RPGs."

 

 

I know the quote loses some of its impact, but I would avoid using competitors game names in marketing blurps as much as possible. Instead try to describe it with a more general statement like "open world single player RPG" or something like that. IMO, avoiding legal issues is worth loosing part of the marketing impact of a statement like that anyday.

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frob: I see, thanks. Actually, I could just do the following (yes, now that I write it, this would make my situation much worse, but since I don't intend to do it, I'll write it):

 

I could open a public forum/guestbook on my site, let my friend post there, and then keep the post highlighted on the main page. It would be user-generated content. I know it would be risky, but if I hadn't written about the trick here, they would have a difficult time proving my intent. Actually, highlight a user-generated content from your site is also an important part of freedom. So it would be interesting lawsuit IMO (if I hadn't written the actual intentions here now). There could be further tricks as well: e.g. we could solve that the most rated post is shown on the main page, and make the post most-rated artificially. (Yes, this is kinda cheat, but if I hadn't written it here now, they would have no way to prove it.)

 

By the way, I'm European, so law is a bit different here. But I don't doubt that a big US game publisher wouldn't have a problem preparing and organizing their lawsuit properly.

 

 

Gian-Reto: thanks. In the meantime, indeed we changed it to something more general, but still specific enough. It now doesn't mention any product name, and designates a few games where Dragon Ago is necessarily included (it's obvious from the context).

Edited by thomascalc

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