Posts Tagged Sony
Originally Published on Techdirt.
Just when you thought trademark law couldn’t get any stranger, we have a new story that takes it to a whole new level. Most often, trademark law is applied to logos and names of goods and services, yet there is still some untested ground. This is where Sony comes in. Several years ago, in an effort to rebrand its floundering Playstation 3 brand, Sony created a fictional Vice President of the Playstation brand named Kevin Butler. This character and the ads he starred in became a gaming sensation and brought the Playstation 3 back into the limelight. Here is a sample of these advertisements.
Such success never lasts, and earlier this year, the contract Sony had with Kevin Butler actor, Jerry Lambert, expired and he has moved on to other contracts. One of these new advertisement contracts is with Bridgestone Tires. Unfortunately, Lambert has starred in one ad that now has Sony up in arms. This ad features Jerry Lambert starring as an unnamed Bridgestone engineer along side two other actors portrayed playing a Nintendo Wii. This ad has resulted in Sony going over the edge, so to speak. The entertainment and electronic giant is now suing Bridgestone and Wildcat Creek, the corporation set up to manage Lambert’s advertising career, for a variety of reasons, one of which is trademark infringement. You can view the original Bridgestone commercial at GoNintendo.
Sony Computer Entertainment America filed a law suit against Bridgestone and Wildcat Creek, Inc. on September 11. The claims are based on violations of the Lanham Act, misappropriation, breach of contract and tortious interference with a contractual relationship. We invested significant resources in bringing the Kevin Butler character to life and he’s become an iconic personality directly associated with PlayStation products over the years. Use of the Kevin Butler character to sell products other than those from PlayStation misappropriates Sony’s intellectual property, creates confusion in the market and causes damage to Sony.
This statement is a tad confusing on first blush. It reads as if Sony is claiming trademark on the Kevin Butler likeness rather than the character itself. As such, it would seem that Sony is making the claim that Lambert starring in any commercial could cause likely confusion among consumers, resulting in them thinking that Kevin Butler is endorsing another product. This is rather absurd though. Primarily because the character Labert portrays has no name and actors portray many different characters throughout their careers.
Thankfully, the Hollywood Reporter has provided some further clarifications on the matter. Here we learn a bit more about the exclusivity clause in Lambert’s contract.
According to a complaint filed in California federal court, the contract between Sony and Wild Creek was entered into on August 7, 2009 and contained an “exclusivity clause” that prevented Lambert from providing his services or his likeness to competing gaming system manufacturers like Nintendo.
This part at least makes some sense. A lot of contracts will contain language that prevents an employee or other contracted company or individual from working for a direct competitor for a specified time. However, to claim that the commercial with Bridgestone, a tire company, meets this definition is a stretch, even if the commercial features a Nintendo Wii. Sony then claims that Lambert’s work with Bridgestone is a breach of contract, unfair competition and tortuous interference. These are quite harsh accusations and Sony will have its work cut out for it.
Next is the claim of trademark infringement.
According to the lawsuit, “With the intent of unfairly capitalizing on the consumer goodwill generated by ‘Kevin Butler,’ Bridgestone has used and is using the same or confusingly similar character, played by the same actor, to advertise its products or services in the commercial.”
Having seen both a Kevin Butler commercial and the Bridgestone ad featuring Lambert, I find it hard to see the similarities beyond the superficial. The Kevin Butler character plays as an overly-serious and often hyperbolic character to its comedic levels. The Bridgestone ad features an excitable and fast talking character. Aside from that, Kevin Butler was built to be a VP while the Bridgestone guy is merely an engineer in an R&D department.
These differences are not going unnoticed by Bridgestone either. It has made the claim that not only are the characters different, but Sony has no actual claim on the Kevin Butler character at all.
“Mr. Lambert is one of the actors who appeared in the commercial as a Bridgestone engineer,” say the defendant. “Bridgestone denies that ‘Kevin Butler’ appears in the Bridgestone commercial discussed herein and thus denies that he speaks or does anything whatsoever in the commercial.”
Bridgestone indicates that it intends to fight the lawsuit by showing that Sony has failed to register any mark on “Kevin Butler,” that the character has not acquired secondary meaning and that there is no likelihood of confusion among consumers.
This is certainly not the first time something like this has happened. Many years ago, Wendy’s had a very successful advertising campaign starring Clara Peller as a little old lady asking a generic fast food chain the famous question, “Where’s the beef?” She lost her job with Wendy’s after she starred in a Prego commercial uttering the phrase: “I found it. I really found it.”
What these accounts show is that the ownership mentality of many corporations goes beyond logos and phrases, to specific actions, characters and the actors behind them. This is certainly a dangerous line of thought for anyone to take up. While Sony most likely has a vested interest in the Kevin Butler character, claiming that its interest in the character extends as far as the actor himself is certainly going to make Lambert’s career more difficult potentially to the point of halting it. If he cannot star in any commercial for fear of looking and acting too much like himself, then what point is there in continuing in an acting career?
A “day late and 30 minutes short” would be the best way to describe Episode 23 of the Super Podcast Action Committee as host Andrew Eisen struggles with being sick and co-host E. Zachary Knight rails against the wickedness of the state of Oklahoma keeping his preferred candidate off the ballot. In between these trials and tribulations Andrew and EZK talk about Kevin Butler being sued by Sony, Nintendo’s non-gamer ad, the latest poll of GamePolitics, and troubles at the drive-in. Download it now: SuperPAC Episode 23 (44 minutes).
As always, you can subscribe to the show on iTunes and use our RSS Feed to add the show to your favorite news reader. You can also find us onFacebook (where there’s an app that will let you listen to the show), and on Twitter @SuperPACPodcast. You can send us feedback on the show by dropping a note to firstname.lastname@example.org.
Credits: The Super Podcast Action Committee is hosted by E. Zachary Knight and Andrew Eisen, and produced by James Fudge. Music in the show includes “Albino” by Brian Boyko and “Barroom Ballet” by Kevin MacLeod. Both are in the public domain and free to
In episode 15 of the Super Podcast Action Committee Andrew Eisen and E. Zachary Knight talk about Harry Potter games, OUYA’s Kickstarter success and pre-order, a dehydrated teen, piracy, free-to-play spending, and Nintendo and Sony’s trouble getting third-party developers to love their hand-helds. Download Episode 15 here: SuperPAC Episode 15 (1 Hour, 5 Minutes).
As always, you can subscribe to the show on iTunes and use our RSS Feed to add the show to your favorite news reader. You can also find us on Facebook (where there’s an app that will let you listen to the show), and on Twitter @SuperPACPodcast. You can send us feedback on the show by dropping a note to email@example.com.
Credits: The Super Podcast Action Committee is hosted by E. Zachary Knight and Andrew Eisen, and produced by James Fudge. Music in the show includes “Albino” by Brian Boyko and “Barroom Ballet” by Kevin MacLeod. Both are in the public domain and free to use.
One of the worst pieces of legislation to hit the US this past year was the Stop Online Piracy Act. This bill, if passed into law, would allow for private companies and the US Attorney General to censor the internet, break its security and stop the growth of new internet technologies in their infancy. It does this all in the name of stopping piracy of US intellectual property online. I have been working on an article that discusses the games industry’s view of SOPA based on the information I have at hand, but I think I need to address one piece of that now.
Prior to the creation of SOPA, EA, Nintendo and Sony, along with a number of other businesses and organizations, signed a letter expressing interest in a law similar to SOPA.
We urge Congress to enact legislation which targets those who abuse the Internet ecosystem and reap illegal profits by stealing the intellectual property (IP) of America’s innovative and creative industries. These rogue sites—those websites dedicated to counterfeiting and piracy—put American jobs, consumers, and innovation at risk.
This is pretty much at the heart of SOPA. While this letter never named any specific bill, it would seem that these businesses would support SOPA as well as the general idea of it. However, this is the one and only instance we have of these three companies supporting anything SOPA like. They have yet to send a press release or make any public comments regarding SOPA itself.
What is really surprising to see over this weekend are a bunch of headlines around the internet stating that these three companies, EA, Nintendo and Sony, have dropped their support for SOPA. Some news outlets are coming to this conclusion based on the absence of these companies on the House Judiciary’s official list of SOPA supporters. While it is true that these three companies’ names are not found, excluding the Sony Music division’s presence on the list, they have never actually claimed to be in support of this specific legislation.
If they never officially expressed support for SOPA, how can we honestly say they dropped their support? As far as I can tell, they are still very much in support of SOPA like legislation, but have yet to get more specific than that. Can we honestly say that if SOPA were to pass that these companies would be indifferent or even against that? There is not enough information to be entirely sure.
However, we do have one other issue to contend with here, the presence of the Entertainment Software Association on the Judiciary list. The ESA is a lobbying organization that works on behalf of many of the major game companies including Sony, EA and Nintendo. Are we to really believe that if the ESA is still actively supporting SOPA that its member companies are not behind that? The ESA is not an entirely autonomous organization. Its member companies have a tremendous voice in the direction it takes. I doubt the ESA would take up such a position without the knowledge let alone the blessing of its member companies.
So with all this out there, can we really say that EA, Sony and Nintendo have pulled support for SOPA? I don’t believe so. Not without an official response from these companies. Until then, the only thing we can say for sure is that these companies support SOPA like legislation and their lobbying group still strongly supports SOPA. So why are we jumping to conclusions based on such weak evidence?
One of the most annoying things about modern consoles is the firmware update. I know of no gamer that enjoys sitting down to play a game, turning it on and being told that he must immediately download and install a firmware update. Sony has even found a way to make this process more painful by making most updates mandatory, slow and the only thing the console can do. Even with that track record, Sony has managed to make firmware updates even more annoying.
This past week has seen the launch of Sony’s new portable gaming system, the Vita. We have already discussed one of the more bizarre “features” of the Vita. So it really comes as no surprise that the latest unannounced feature is a day one firmware update. That’s right folks. As soon as you open that brand new Vita, you won’t be presented with the ability to play games until you take time to download and install updates. Why? Why was this not taken care of prior to launch?
What makes this even worse is that you cannot do anything with the Vita until the firmware is updated. As CheapyD from Cheap Ass Gamers found out, you cannot even tie your Vita to your PSN account until you download the update.
I pine for the days when a console worked right out of the box. When the console did not require an internet connection to function. Those were great days. Now is the time of Beta releases of games and consoles as if they were the final products. We are no longer customers but paying beta testers preparing the game for its “Greatest Hits” release, if it ever gets one. You would think that with all the money that game companies pour into these games and consoles they could afford a better development pipeline that can catch these issues earlier so that they can be fixed prior to launch.
If you thought you might get Sony’s new Vita handheld and share it with your family or friends, you are out of luck. Sony has told Wired that the Vita is designed with only one player in mind.
[The] PSN account is tied to the hardware and the memory card, not just the card, which means that if a second person is using your Vita, it’s not just a case of switching out memory cards, it’s clearing out all of your saved data on the Vita itself when you do the factory reset.
In other words, PlayStation Vita is intended to be played by only one user.
What in the world is Sony thinking? Are they really that dense to think that a father or mother would not buy one of these and share it with their kids or each other? Why would they think it is a good idea to limit the number of profiles to one? The PS3 supports more than one profile. Computers support more than one profile. Why not a handheld device? What this will do is limit the market for the device. I really don’t see anyone that has plans to share a device to buy one of these.
This post was originally published on Techdirt.
Last year, Sony removed the ability for all PS3 owners to install other operating systems onto its PS3 console. This came as a result of console modders attempting to use it as an avenue to jailbreak the console. As a result of the move, Sony received a lot of outrage from upset gamers. Part of this outrage was a class action suit brought on behalf of PS3 owners who felt they were cheated when they were forced to lose the OtherOS feature or lose the ability to access Sony’s Playstation Network and the ability to play future games that require a connection and the latest firmware. Many gamers reacted as if this was little more than the gamer’s version of ‘Sophie’s Choice’.
We now learn, via IGN, the presiding judge has dismissed the case against Sony. Back in February of this year, Judge Seeborg had dismissed all but one claim leaving the option for an amended complaint to be filed.
While it cannot be concluded as a matter of law at this juncture that Sony could, without legal consequence, force its customers to choose either to forego installing the software update or to lose access to the other OS feature, the present allegations of the complaint largely fail to state a claim. Accordingly, with the exception of one count, the motion to dismiss will be granted, with leave to amend.
The judge wasn’t convinced by the latest amended complaint and has completely dismissed the case stating that the PS3 owners failed to convince him that they were entitled to the OtherOS feature or access to PSN outside the PS3′s warranty period. That is an interesting point. Had the PS3′s been within the warranty period, would this case have gone the other way? That is certainly something to consider. After all, the OtherOS feature was part of the whole PS3. However, even outside the warranty period, are we really to just accept it when a manufacturer deliberately disables a function?
Perhaps responding to just such concerns, Seeborg stated:
The dismay and frustration at least some PS3 owners likely experienced when Sony made the decision to limit access to the PSN service to those who were willing to disable the Other OS feature on their machines was no doubt genuine and understandable. As a matter of providing customer satisfaction and building loyalty, it may have been questionable.
A questionable move indeed. Sony may have dodged a legal bullet here, but the bullet of continued frustration that Sony customers have with this addition to many many questionable business decisions has hit it between the eyes. How much longer will Sony customers put up with this kind of abuse? What features will it cut next? While we don’t know the answer to that, we do know one thing. Sony removed this functionality in order to prevent PS3 owners from jailbreaking it. However, if the EFF has its way this year, this dismissal will be moot.
When Sony announced the PSP Vita, I got flashes of the PSPGo all over again. The Vita is the next handheld in Sony’s PSP line. Much like the PSPGo before it, the Vita will be downloadable games only. This in and of itself is not a horrible thing as it follows the trends in the handheld market to move away from disks and cartridges. What makes this bad is that Sony is continuing the illusion that it will somehow be backward compatible with the original PSP.
Just like the PSPGo, Sony is promising that owners of current PSP UMD based games will be able to transfer those games to a digital format that the Vita can play. This would pretty neat if it didn’t cost money. You see, if you want to transfer your games, you aren’t really transferring them. You are buying the digital version at a discount. That’s it. This will not get a lot of use out of PSP owners who would rather just jailbreak their current PSP and download the ROMs.
On top of all that, not all game developers are on board. Absent from the list of participating developers are the likes of Capcom, SquareEnix and Konami. These are the developers of the games people really want to play. Yet, they won’t be available for transfer. This is another strike against the transfer program. If these developers don’t feel confident in their ability to make extra money through this then why is Sony even doing it?
The answer is probably in some inane need to retain what semblance of backward compatibility they have remaining. But that is not really a reason to waste everyone’s time with a program that will most likely be scrapped in a year after launch. They probably would have had more success just following a Nintendo Virtual Machine style program where the downloadable versions of older games are already discounted to a point that most people wouldn’t think twice about buying their favorites. That would be a far better proposition and would probably get more developers and gamers on board.