Behind the scenes, people are moving about, reading papers and commenting on filings and jockeying around the words of a paragraph to make it "feel" nicer. We don't like using the word "community," one might say, because it is a sympathetic word, and we do not need sympathy at this hearing. Thousands of dollars an hour are thrown at the problem for however long the team needs to work on it. I bet there were a few nice late-night sushi orders.
These are the stars of the show -- two copyright and trademark filing teams, potentially backed up by a litigation team, positioning over the DotA trademark ownership issue. Last week on The Lawbringer, I gave a summary of what is happening between Valve, Blizzard, Riot Games, and the DotA community, concluding that the fight over who owns the DotA name has to be fought now because of a fight brewing for years as the genre grew.
In order to expand our minds just a bit and start thinking like we want to understand the problem, we need to build a framework around the DotA issue with questions about what this is all about. Let's boil the issues down to simple questions.
Why would someone want to trademark DotA?
Trademark is a powerful tool that allows companies, brands, businesses, and creators have control over the brands they create, fighting against brand abuse, unlawful fraud or copying, and diluting a brand's good name through imposters. We like trademarks because they let Coke have the Coke trademark and we, as consumers, know where to go is something is wrong with our Coke. Brands matter, which is why DotA matters.
Not only is trademark powerful in protecting brand identity, but it is supremely powerful in making the trademark holder a glorious amount of money. When you hold powerful and popular trademarks, licensing becomes a second-nature monetary explosion. The Blizzard logo is not cheap, people.
So, money, really. And rights and protection of your brand. But mostly money. Having a trademark also has the added side effect mega-bonus of not being available to your competitors, who are now forbidden to use a popular acronym and name when advertising their products.
Who owns whatever rights there are?
You would think that this would be a simple, open-and-shut, follow-the-paper-trail type thing and we could see who did what work on the original Defense of the Ancients and subsequent versions. Sadly, that's not the case. No one at DotA-Allstars, Guinsoo, IceFrog, or any of the developers, from what I could gather, thought to or sought to trademark the DotA name because it was the community's label. If anything, I'd have pegged the fight would be over the "DotA-Allstars" name, which is still very trademarkable and probably already is.
Who owns what rights? The judge is going to decide, because we don't know. Guinsoo made the popular map, but Eul made the first one. IceFrog took over development of the map but not of DotA-Allstars, Inc., the company founded by Steve Mescon to run the distribution website for DotA-Allstars.
The community, which recently have gained a strong ally in Blizzard, believes the DotA name is a genre descriptor rather than a proper name, game name, or otherwise. The DotA-style map descriptor is synonymous with the game styles of hundreds of custom maps all over Blizzard's games currently, as well as commercial successes Heroes of Newerth, League of Legends, and Blizzard's own upcoming Blizzard DOTA.
Does IceFrog, the DotA developer who took over the project after Guinsoo and many other developers went off to work on their own mega-project, have claim to the DotA name? He did take over development of the most popular map variant, but what rights were even available to him when he took over the reins?
My biggest concern over Valve's attempt to trademark DotA is that Gabe Newell doesn't even like the acronym. In an interview with Gamasutra back in August of 2011, Gabe Newell and Erik Johnson sat down with Christian Nutt to discuss DOTA 2. Here's where things get a little weird for me. First, Nutt asks Newell about the MOBA (multiplayer online battle arena) genre coming into existence, using the genre name that Riot champions for League of Legends. Gabe responds by saying he doesn't know what MOBA means, and that "action RTS" better describes the genre:
Gabe's confusion as per the genre name is understandable -- we have not come to a consensus as to what to call this genre besides DotA, which we have been calling it since the original DotA days. But what is surprising is that he doesn't even want to lump DOTA 2 in with the other guys' genres -- he has his own.
Gamasutra: Suddenly MOBA is a genre, right? Though I don't know if you guys consider Dota 2 MOBA -- that's what [League of Legends developer] Riot calls it.
Gabe Newell: We usually call it an "action RTS", just because that seems to make a lot of sense to customers. If you say that, they have a pretty good idea what you're talking about. I don't even know what MOBA stands for.
The next exchange is the poignant one. Gabe is told what MOBA means, and Erik Johnson acknowledges that naming a young genre is hard because it has to explain to gamers what experience they can expect. Gaming is all about experience control. Gabe professes his love for the "ARTS" acronym and then goes on to say the acronym doesn't matter as long as people know what you're talking about.
Gabe Newell obviously doesn't like the name DotA for the genre that DOTA 2 itself is a part of. If Gabe doesn't like DotA, why does he want DotA trademarked? Oh, right, brand recognition.
Gamasutra: Multiplayer Online Battle Arena.
Erik Johnson: I knew that!
Gabe Newell: I didn't.
EJ: But yeah, naming your genre, especially a young one, is just tool to kind of help explain to customers what kind of game you have.
GN: I also like the acronym for ARTS -- Action RTS.
Gamasutra: That's more charming, I think.
GN: I don't think the name of the genre matters -- as long as customers know what you're talking about.
Here are my two reactions. First, if Gabe doesn't like the acronym DotA because it doesn't tell you anything about the game from the title, which he obviously wants you to be able to glean from the genre descriptor, does that comment on his naming of the product DOTA 2? If DotA is so weak and easily dismissed as the name of the genre, why is it on the front of your box and on Blizzard's upcoming game?
My second reaction was that if DotA isn't a good enough descriptor of the genre, what is? Gabe doesn't even mention DotA as the genre descriptor. Is it action real-time strategy? Maybe. It doesn't feel that way to me. Blizzard DOTA had a very unique feel to it, for instance, utilizing similar mechanics and ideas but introducing vast new concepts that change the flow of the game completely. It's still a DotA-esque online multiplayer experience with hero/champion selection, item purchasing, and lanes of battle, just like everyone else, with a twist.
So DotA is a weak community descriptor of the genre because it does not say anything about what the genre entails or explains the gameplay experience, but is strong enough to warrant trademark protection, exclusive rights, a million-dollar tournament, and the faith of a devout community of gamers? Interesting.
In my opinion, fighting over the DotA name is incredibly foolish. Valve is only stirring up a very passionate group of gamers by trying to take this name. It doesn't matter if that's actually what's happening, but the perception is that Valve wants to take DotA.
Yes, the DotA brand is a money sack waiting to be exploited. We all know this. The problem is that it seems like, for the game's sake, this is out of character. This is really all about the game, right? Games rise and fall based on their gameplay, creativeness, and polish. Valve has proven time and time again that its original products, characters, settings, and stories drive us wild.
For some reason with DotA, however, Valve is fighting a war for legitimacy in the community, one that I don't think it needs to fight. Valve's DOTA 2 will stand on its own merits because it is a Valve-developed title, not only because of the name. Is this really about the intricate and storied lore of the Defense of the Ancients brand, with its rich tale between two ancient forces? No.
The name DotA is fleeting at best, an early descriptor of a genre that will become something grander in the future. Gabe is 100% in the right -- DotA does not describe anything and it will be gone in a matter of years. Smaller, free multiplayer experiences are kings of a growing kingdom. The name DotA is too constraining and in the past. Look forward, look to the future, because the name DotA only lasts as long as you keep using it.
Only one game used to use the name DotA because it was the only game in town. We don't live in that world anymore. Let the community have DotA.
This column is for entertainment only; if you need legal advice, contact a lawyer. For comments or general questions about law or for The Lawbringer, contact Mat at firstname.lastname@example.org.