EA vs Edge trademark case - GAME OVER! - read post #169

phisheep

NeoGAF's Chief Barrister
Let’s not get ahead of ourselves here. Several things happened recently, but not what the IndustryGamers report claims:

The litigation against EA over the use of the term “Edge” has finally come to a conclusion, IndustryGamers learned in court documents we received today.
No, it hasn't come to an end.

EA, who has long sought to get the case thrown out, and said Langdell was deliberately deceiving the USPTO, has successfully done so with today’s ruling.
Actually, EA has not been trying to get the case thrown out at all. They want (and need) to win it to get Langdell's marks cancelled.

And they haven't got it thrown out either.


Here's what has happened recently (newcomers may need to catch up in the previous thread)


1) Trial schedule set (Court order 30 Sept 2010)

The jury trial is scheduled for 24th October 2011. It's a whole year away.

There’s a whole host of intermediate dates: 15 Oct 2010 for initial disclosures; 31 Oct 2010 for amendments to pleadings (that’s important, as we’ll see in a moment); discovery cuts off on 30 June 2011 and the last date for dispositive motions is1 Sep 2011.

Until all that is over (or until something else happens in the meantime) nobody has won anything.

In particular, at para 17 in the order, the matter has been referred to the ADR unit for mediation between the parties (with the aim of settling before trial). I can’t see that getting anywhere, since mediation won’t be able to give the remedies on the counterclaim that EA is looking for – particularly the cancellation of Langdell’s trademarks.

2) Motion for Preliminary Injunction denied (Court order 1 Oct 2010)

This is what the report in the OP is referring to. Langdell had asked the court to stop EA from selling Mirror’s Edge prior to trial in order to avoid ‘irreparable damage’ to his business. The court declined to grant that injunction.

That does not mean that EA has won. It just means that they will not be prevented from using the Mirror’s Edge mark in the time running up to trial.

However, it is a very robustly worded order and it clearly suggests that the court is taking seriously EA’s allegations of fraud and is taking seriously the belief that Langdell may have been lying his arse off all the way through.

But, and it is a big but, this is scheduled as a jury trial. It will be for the jury, not the judge, to come to conclusions about these things. So there is still some risk, and as Langdell has nothing left to lose he may well push it all the way and take the chance.

Nevertheless, this order is a big blow to Langdell, and will probably be enough to stop him from getting away with his trolling activities in the short term if he tries this on anybody else. Anyone he harries will have good grounds for simply telling him to go away.

3) Langdell’s motion to dismiss EA’s counterclaim (dated 4th November 2010)

Now, pay attention. This is one of those twisted weaselly things.

Langdell is saying that EA have brought their counterclaim against the wrong company – against Edge Interactive Media rather than Edge Games Inc (or perhaps the other way around – I can’t remember which is which).

In essence he’s saying that one of these companies owns the trademarks and that EA have claimed for cancellation of the trademarks against the wrong one.

This all goes back to 2008 when Langdell assigned the trademarks from one company to the other. BUT it is part of EA’s case that that assignment of the marks was invalid (as an assignment in gross – without any goodwill attached). Depending which way that decision goes, EA might or might not be claiming against the right company.

The easy way around this would be for EA to amend their pleading to include the other company as a co-defendant.

But, and here’s the weaselly bit, the motion to dismiss is deliberately dated in advance for 4th November, which is four days after the last date for amending pleadings.

It is utterly bonkers and he won’t get away with it, but I do have a sneaking regard for the barefaced attempt!


Summary: nobody's won yet, but this is a heck of a blow to Langdell's chances.
 
chubigans said:
Thanks phisheep for the perspective...youre one of the best users on GAF.
Yes, thanks for keeping everyone up to date on this farce phisheep, it's very helpful having the complicated legal jargon condensed down into a format that everyone can understand and we appreciate you doing it.
 

SovanJedi

provides useful feedback
I thought I'd celebrate this by cracking open a bottle of Spitfire Kentish ale... only I realise that I hate ale. Whisky definitely has the edge over it for me.
 
phisheep is awesome.



Edit: By the way, is this some new function moderators have? To create a thread out of someone's normal post? I've seen a mod post this a few times now (even though the thread is here).
duckroll said:
New threads for major news.
 
You got me an A in my Ethics class Langy, now die in a (legal) fire.

The post dating of the Counterclaim is just so damn brazen it's great, very Langdell.

edit: Holy crap I just read the entire document. The amount of extended text about each of Tim's forgeries is amazing and hilarious. Seriously, legal dialog explaining games and comic books is always a fun read (see the case against Todd McFarlane).
 
Hell yeah, what great news to start the day with.

Hey Tim Langdell, go fuck yourself.

Edit: just read the chief barristers analysis, I guess my celebrations were premature
 
phisheep said:
However, it is a very robustly worded order and it clearly suggests that the court is taking seriously EA’s allegations of fraud and is taking seriously the belief that Langdell may have been lying his arse off all the way through.
And as a result, I liked this line:
As detailed above, the record contains numerous items of evidence that plaintiff wilfully committed fraud against the USPTO in obtaining and/or maintaining registrations for many of the asserted “EDGE” marks, possibly warranting criminal penalties if the misrepresentations prove true.
 
Phisheep, as ever you are a legend. Your commentary and explanations have helped me immensely whilst following this and I salute your. Pour yourself a beer, a quick trawl of the Internet suggests a pint of this:


Although it says low carb so it's probably foul. Also, I've never heard if it.
 

phisheep

NeoGAF's Chief Barrister
botticus said:
And as a result, I liked this line:
Yeah, but we have to be careful with this stuff. Remember that the court order is looking at the evidence as it is presented (and EA has done a very good job here) BUT these are not findings of fact by the court, they are findings only about the apparent strength of the evidence.

Anyway ...

As usual, let’s take a bit of time out to consider what this does to Langdell’s tactics.

First of all, it is important to realise that frankly it doesn’t matter a whole lot to Langdell whether he wins or loses the claim that he brought against EA (the claim in damages for trademark infringement by using ‘Mirror’s Edge’). I know this sounds stupid since it was him that bought the lawsuit, but remember the reason he bought it – it was to put a halt to EA’s action in the USPTO to get his trademarks cancelled.

The really dangerous thing is EA’s counterclaim to get the trademarks cancelled on the basis of fraud and/or abandonment, because if that works it takes away his source of income and the entire asset value of his companies not to mention the possibility of criminal action, actions for cancellation in other trademark jurisdictions, other lawsuits for damages against him.

That’s why he has put in this motion to have the counterclaim dismissed. But if the grounds for dismissal he has come up with are the best he has available, then he doesn’t have much hope of getting it dismissed.

The trouble is, if the counterclaim goes ahead, the trial will be very dangerous for Langdell. So does he have any room for a settlement? And is there anything that EA could be persuaded to settle on?

I think maybe there is.

You see, if Langdell settles on giving up the trademarks on the grounds of abandonment, but not of fraud (the two are not mutually exclusive) then he might have a chance of escaping further civil lawsuits (on the basis that he will not have any money worth chasing after) and criminal lawsuits (on the basis of lack of evidence). There would still be a risk of criminal proceedings, but the burden of proof would be a high one. In addition, he would still hold on to trademarks in other jurisdictions (like the UK).

EA might be persuaded to accept this (plus costs) in settlement. It would at least prevent any further trolling of anyone and preserve EA’s ability to use ‘Mirror’s Edge’.

Much would depend on the wording of the proposed settlement.

I rather hope that EA does not do this, but I would not blame them if they did as, frankly, their chances of recovering anything like the money they will have spent on going to trial seem pretty slim to me.

The alternative approach Langdell could take is to continue to muddy the waters, by providing incomplete disclosure, losing letters in the post, and generally messing things around until trial. I suspect that he is sufficiently irrational at this stage to try that. It will not go down well with the court.

I’m expecting to see some further shenanigans between now and mid-November. If nothing has happened before then it will probably all go quiet for about six months while the disclosure/discovery/ADR stuff goes on.

If that happens, it would be handy to have some GAFfer (preferably with a legal background) at the trial, as there is – I think – about a 30-day (or is it 90?) delay before I’ll be able to get my hands on the court transcripts.

Any volunteers?
 

phisheep

NeoGAF's Chief Barrister
no angel said:
Phisheep, as ever you are a legend. Your commentary and explanations have helped me immensely whilst following this and I salute your. Pour yourself a beer, a quick trawl of the Internet suggests a pint of this:


Although it says low carb so it's probably foul. Also, I've never heard if it.
Low carb? Light?

Very kind of you to offer, but no thanks.
 

phisheep

NeoGAF's Chief Barrister
Soneet said:
By the way, is this some new function moderators have? To create a thread out of someone's normal post? I've seen a mod post this a few times now (even though the thread is here).
It has been there for ages I think. I do remember Amir0x doing something like this 18 months ago shortly after being modded (modified?) - seem to remember it was a bit of a struggle but it worked.
 
phisheep said:
If that happens, it would be handy to have some GAFfer (preferably with a legal background) at the trial, as there is – I think – about a 30-day (or is it 90?) delay before I’ll be able to get my hands on the court transcripts.

Any volunteers?
Where's the trial based in?
 

phisheep

NeoGAF's Chief Barrister
faceless007 said:
Where's the trial based in?
North California I think - I'll check and come back to you.

EDIT:

A JURY TRIAL shall begin on OCTOBER 24, 2011, at 7:30 A.M., in Courtroom 9,
19th Floor, 450 Golden Gate Avenue, San Francisco, California, 94102
. The trial
schedule and time limits shall be set at the final pretrial conference. Although almost all
trials proceed on the date scheduled, it may be necessary on occasion for a case to trail,
meaning the trial may commence a few days or even a few weeks after the date stated
above, due to calendar congestion and the need to give priority to criminal trials.
Counsel and the parties should plan accordingly, including advising witnesses.
EDIT AGAIN, especially for anyone thinking of going: The date won't be confirmed for sure until the final pretrial conference on 17th October 2011.
 
phisheep said:
If that happens, it would be handy to have some GAFfer (preferably with a legal background) at the trial, as there is – I think – about a 30-day (or is it 90?) delay before I’ll be able to get my hands on the court transcripts.

Any volunteers?
Where are these trials taking place? Is it still that town in Texas that has a colored history with copyright claims?

edit: blah answered
 

phisheep

NeoGAF's Chief Barrister
Oh, for goodness' sake. Even Gamer/Law got it wrong

It was revealed today that Tim Langdell, the man behind Edge Games, has comprehensively lost his lawsuit claiming that EA had infringed his "EDGE" trademarks when it released "Mirror's Edge".
Load of tosh.

Trust me and Chaosedge. Nobody else.
 

phisheep

NeoGAF's Chief Barrister
Neuromancer said:
Someone should go and represent GAF
I have this vision of the entire public gallery wearing GAF lapel badges when Langdell walks in to give evidence.

Do they have public galleries in US courts? Guess they must have.
 
Can Namco sue him too now?

They can say "losing the original Soul Edge name lose them $500 billion dollars in revenue from the potential success of the first game and consequentially all sequels."

Please do it.
 

phisheep

NeoGAF's Chief Barrister
seady said:
Can Namco sue him too now?

They can say "losing the original Soul Edge name lose them $500 billion dollars in revenue from the potential success of the first game and consequentially all sequels."

Please do it.
Not as easy as all that. They'd have to prove deception and loss and causation and even then they'd have to be suing for the right thing, and since it doesn't appear that Langdell actually GAINED anything from Namco's change of name, that restricts their choices. He didn't for example gain any goods or services by deception. Blackmail perhaps?

So it's a maybe only.

Plus, wasn't the Namco stuff argued on the UK/EU trademarks rather than the US trademarks that are in issue in the EA case?

I think there'll be more waters to flow after this case is over.
 
Phisheep thank you so much! You explain it in lay-terms so well, you must be a great lawyer.

I hope this guy gets his, what a sleezebag. If this is holding up ME2 at ALL, I hate his guts.
 
phisheep said:
I have this vision of the entire public gallery wearing GAF lapel badges when Langdell walks in to give evidence.

Do they have public galleries in US courts? Guess they must have.
Usually, yeah. Some high profile cases may have restricted access but most civil and criminal trials are open to the public, as far as I know.
 
phisheep said:
It has been there for ages I think. I do remember Amir0x doing something like this 18 months ago shortly after being modded (modified?) - seem to remember it was a bit of a struggle but it worked.
I submit 'enmoddened'.
 

phisheep

NeoGAF's Chief Barrister
Just like to add a little word on footnotes. Usually footnotes - even in legal documents - give some additional explanation or authority to what is going on.

But it is still worth paying attention to them.

In the order dismissing the Langdell's claim for injunction, there are a few worth remarking on.

Page 8, footnote 1: Grants a request for judicial notice from EA - the court will recognise the stuff that EA submitted (a bunch of court orders from previous cases). It is, I think, a bit unusual to grant orders in footnotes. That means Langdell can't challenge them.

Page 14, footnote 4: gives us a tiny glimpse into the injunction hearing, where Langdell's lawyers attempted to explain away the fact you couldn't actually buy games from Langdel's website and got error messages instead. This clearly didn't go down all that well, since attention is drawn to it in the footnote.

Page 16, footnote 5: Langdell said he sent lots of letters to EA but has provided no evidence (like copies of the letters) that he did so. Again, it isn't usual at this stage to draw attention to lack of evidence - a sign that the court is not at all sure that Langdell is telling the truth.

Page 20, footnote 9: The court expressly says that it is not bound by whatever the USPTO has previously said (which is the crux of several of Langdell's arguments).
 

phisheep

NeoGAF's Chief Barrister
Xeno_Flux2113 said:
"According to EA, the two registrations obtained by plaintiff for the “EDGE” mark were soaked in fraud."
Awesome, pure awesome.
Gorgeous, isn't it.

I would LOVE to be the clerk who works for that judge if this is the sort of thing you can get away with!