My Battle with MGM Over Wargames.Com
For the past three months I've been privately engaged in a time-consuming dispute with Nathan J. Hole, a lawyer representing MGM Studios who claims that Wargames.Com, a domain that I've owned since April 16, 1998, is the rightful property of the film company because it produced the 1983 movie WarGames and registered it as a trademark.
I received an e-mail this morning indicating that MGM has filed a legal complaint with the National Arbitration Forum to take the domain name away from me.
I registered the domain to sell military wargames like Axis & Allies and Battle of Britain and was able to realize these plans earlier this year. I've never run my own business, so figuring out sales taxes and licensing, finding suppliers, running a secure web server and setting up ecommerce software took around two years.
My store has nothing to do with the film WarGames or any other movie, but attempting to convince MGM there's no infringement has been utterly fruitless. I suspect this is because the film studio is filming a WarGames sequel for 2007 release.
Hole's an intellectual property attorney who appears to be making a name for himself by going after domain name owners using the Uniform Domain-Name Dispute-Resolution Policy (UDRP), an arbitration process that governs domain disputes. All domain owners agree to be bound by the UDRP when they register or renew a domain name.
In my research on the UDRP, I found that Hole has been the complainant's attorney on nine arbitration cases:
- Dell Inc. v. Innervision Web Solutions for the domain dellcomputersucks.com
- Dell Inc. v. SZK.com for the domains dellcustomersupport.com and wwwdellcomputer.com
- Dell Inc. v. David Wong for the domains dellwork.com and dellworks.com
- Dell Inc. v. Siims for the domains delldvr.com, delldvr.net, delldvrs.com and delldvrs.net
- Dell Inc. v. Superpennysaver for the domains dellsite.com and dellsite.net
- Dell Inc. v. Steve Kerry d/b/a North West Enterprise Inc. for the domains wwwdell4me.net, wwwdellcom.com, wwwdellcom.net, dell4mecom.net and wwwdell4mecom.com
- Metro-Goldwyn-Mayer Studios Inc. v. Michael McGreevy for the domain rocky.com
- Dell Inc. v. Dynamix Inc. c/o Dynamix for the domain dellpromos.com
- Alienware Corporation v. SZK.com for the domain wwwalienware.com
He's won all nine, but in six of the cases the domain owner didn't file a response, which gives the complainant the domain names by default. Most of them appear to be clear examples of cybersquatting, where a domain owner had no legitimate, non-infringing plans for the domain.
Fighting one of these arbitrations is expensive in both money and time, but I'm operating my store legally and have a well-documented history of owning domains in good faith -- as you can confirm with the Vatican. I've spent at least 1,000 hours developing Wargames.Com and have rejected dozens of offers over the years to sell the domain, including one for $30,000. My goal is to turn the business into something I can give my sons when they're old enough to run it.
I'll cover the legal battle here on Workbench. With the help of my attorney Wade Duchene, I'm learning how honest domain name owners can defend themselves from a grab like this, but you have to take steps to protect yourself before you hear from an attorney like Hole.
Once I received Hole's first letter on Sept. 11, the only actions that could end up saving my domain are the ones I took before that date.
Comments
Stick it to 'em. If they really wanted the name they should have bought it before you.
I'm having problems of my own with 'The Forum'.
All I can say is it's good that you have a lawyer, and good luck with this effort.
You've probably seen this, but just in case:
Sorry, one more time (you need comment edits)...
If you search on the following terms, domain dispute naf bias, you can discover a lot about the bias in domain disputes.
Did you know that Google uses NAF for its disputes?
Seems like a dumb fight for Hole to pick - once he loses this, he's going to be mocked by bloggers from Burbank to Bombay.
Rogers:
MGM should have to pay for the privilege of getting the domain. Are all trademarks protected to this degree?
Perhaps I misunderstood your ending but I was expecting some detail of the steps one should take before a similar letter arrives. Or is this a future post?
I'll be getting into that in future weblog posts. There's a lot of ground to cover.
I think you are well protected. Beyond the fact that you are actually doing something on topic with the domain unrelated to the trademark. Going a step further, Disney could ill afford the publicity.
Question. Did they give you an offer or just threaten?
YOu might also look into disputing the trademark since that term has been around a lot longer than the movie and is commonly used for other things. As most trademark resources will tell you, a trademark isn't like a copyright... it isn't given initially; it is earned. Ambiguous trademarks, or ones that are heavily associated with something else can be challenged. This may be your case here.
Sorry, not Disney, it's Sony and Comcast.
Did they give you an offer or just threaten?
The first time I heard from MGM was the Sept. 11 letter telling me to give up my domain. I can't further into specifics until they are spelled out in my attorney's official response to the UDRP complaint.
A sleazy lawyer (Hole) wants to play you like Stephen Cohen did Gary Kremen. Where are his offices, Tijuana?
Get your war-game on.
Actually, MGM's back catalogue was reccently purchased by Fox, not Disney, Sony or Comcast.
Just how much power will the world allow Rupert Murdoch to accrue? He's much better at money management than William Randolph Hearst.
"actually MGM's back catalogue was recently purchased by Fox, not Disney, Sony or Comcast"
So Rupert "The unBearable" Murdoch has set out to crush the notoriously lefty leaning RCade by suing over the domain name "Wargames".com?
Legal threats sent in a letter delivered on September 11th, no less?
By some ambulance chaser/ corporate lapdog named Snidely A. Hole?
Sorry, wots that? Nathan? Well, if you say so.
Jay? Maybe Later. Just wanna finish this thought.
First off, this is a bald faced attempt to legally strongarm a lot of domain squatters of all stripes including those who run sites wif potentially embarrassing names likes "dellsucks".com into complete and utter surrender, no payments, nada, squat, zilch, zippo.
"Compensation? Yer lucky we don't sue yer ass now go away li'l boy ya bother me" is wot this is.
Secondly, "Wargames" as a term is as generic as say "Board Games".
May as well try to copyright "Yer Fired" or sommat equally stupid.
Thirdly, "Axis and Allies" freakin' RAWKS!
Spud has played out every possible outcome to that game a few times now. It is a time-thief. Battle of Britain? Also good. Howsabout "Squad Leader"? That shit was trippy!
They're playing a legalistic version of chicken here, btw.
If yer legal boys say yer solid? GFI! Go Fer It.
Don't let the bastards grind you down!
"Do you want to play a game?"
In this life you choose yer battles wisely and you play to win.
Good luck. Keep blogworld informed if ya can.
Be Well.
Good luck, man. I hope you win.
I didn't know you were a war gamer. I'll have to check the site...and recommend it to others.
S
Spud, my point exactly. Wargames is a term that is used commonly outside of reference to the old movie. There is good legal precedent to fight the trademark itself on this basis. Trademarks have to be distinctive to the thing the represent.
Actually, Fox only has distribution rights to MGM's home-video releases, not the catalog itself.
Be thankful that your last name is Cadenhead and not Nissan (see nissan.com)
"a time-consuming dispute"
You shouldn't have written this -- it breaks the never-let-them-know-they're-getting-to-you rule. You probably shouldn't have posted about this at all, until it was resolved one way or the other.
We will wage jihad against the infidel attorney and his corporate running dogs!!! Parallax akbar!!!
On your wargames.com site, you stretch the normally rectangular images of game covers into a square shape. It looks really weird. Everything is out of proportion.
Why do you do this?
Milk this for all the publicity you can get for your store. The whole thing makes no sense to me, clearly "war games" is a generic term and that movie was not even all that popular.
Should the pentagon pay MGM everytime they engage in "war games"? Ridiculous.
I don't think they have a right to it at all, since what you are selling are wargames, surely they can take other domain names, like, wargames.net or wargamesthemovie.com or whatever.
A college society we had going had a set of forums and as soon as it's term was up, and the owner was no longer in the college we couldn't renew our site under the .net domain name, cause it was snapped up immediately because of the delay in tracking down the person who registered it years before, we didn't bitch about it and just swapped to .org
You may want to check out www.wipo.int
This whole thing is stupid, especially since MGM is not in the game business and thus, there is no trademark confusion. I sincerely hope that you win arbitration.
Stephen: "You probably shouldn't have posted about this at all, until it was resolved one way or the other."
No, no. What other leverage does he have in this game than to bring the details out into the sunlight? That's what makes it interesting, this "I'll blog about it" factor that, when played right, can trump the old legal guard's strategy of "I'll scare you, little guy." Like the Maine blogger and his righteous fight with the tourism board's agency.
A friend of mine went through something similar. His experience may be of use to you: http://theos.com/dispute.html. Good luck.
UDRP arbitration panel decisions are sometimes contrary to the rule of law. Although it sounds like you are in the right and should win your dispute, there are risks. If your attorney does not have direct experience with UDRP proceedings, I would highly recommend obtaining the services of one that does before submitting your response. A top attorney practicing in this field is John Berryhill, at www.johnberryhill.com.
If your response has already been submitted, hopefully you will prevail. If not, be sure to act quickly to file a court action before the domain name is taken from you. Going to court is not cheap but the domain name is well worth defending, and the cause is worth fighting for.
It looks like Hole has a long track record against domain names that incorporate previously copyrighted names that don't really have a secondary meaning. That is, "dellsucks" could be the domain name of a person who really hates dells, gullies, meadows, and Leprichauns, but it's much more likely that the domain name refers to Dell Computer. As others have pointed out, wargames have been around for a helluva lot longer than the movie "Wargames" and there is no obvious association between the domain name and the movie. When I see the word "wargame" I think of Panzer Blitz (or perhaps the National Training Center), not Matthew Broderick.
I wonder if the fact that the movie came out so long before the advent of the Web will be a factor. Also, it is interesting that you obtained the domain name back in 1998, well after the advent of the popular Web. One would think that if MGM were interested in using the Web to capitalize on the value of their Wargames property, they would have done so in 1995, '96, or '97. Best of luck to you, Rogers, and keep publicizing this. They have the money, but you have the power of the pen.
Keep up the good fight! MGM can't reasonably argue their trademark because:
A) "War games" is a phrase in common usage, and therefore an indefensible trademark. The military practices war games all the time. Children play war games.
B) They can't reasonably argue that a consumer is going to be confused between visiting an interactive web site storefront and watching a movie. They are simply different activities. The owner of a trademark for "Scott Paper Towels" doesn't have a universal trademark for all things "Scott". (e.g. www.scottusa.com, www.scottflyrod.com, etc.) Thus, "War Games: The Movies" doesn't constitute a trademark on all things related to War Games.
B) They simply haven't been rigorous in defending their trademark. You could trademark anything, but the legal precedent has sided with those who have defended their trademarks from infringement. It's pretty obvious that MGM has not defended their trademark since your site's inception in the late 90s. Assuming that War Games: The Movie was a trademark they cared about they should have complained about the infringement YEARS ago. It's also sadly obvious that this is just an underhanded means to cheat you of your source of income (one that isn't trading on MGM's War Games: The Movie trademark).
Been through this time-consuming process myself once...
DNJournal.com, which is the "official" voice of the domain industry, offers some great information/ sources/ contacts/ resources you may find helpful.
You are in the right on this one; and, handled & argued correctly, you will win. Only problem then is that they've got 30 days (if I recall correctly) to file a lawsuit to try to take it from you, which is going to get real expensive fast...
Wish you the best.
MGM should find a more appropriate name like Wargames_themovie.com or Wargames_Movie.com. Their movie is not a game. trying to leverage you out of your name is lame.
and Dell trying to squash dellcomputerssuck.com is also lame. dell should make computer that are so awesome that dellcomputerssuck.com has no traffick. making sucky computers and harassing their already disgruntled ex-customers is no way to do business.
We've had something similar in South Africa, but here it wasn't as much a trademark infringement as it was a freedom of speech issue. Since we've only had it just over a decade, freedom of speech is still a higly valued right in South Africa.
Our main {monopoly} landline telecoms company sued a company for pointing out that they are not what they claim to be. Company telkom.co.za sued website hellkom.co.za (view both, this is not vague), but withdrew the lawsuit. It's thought that the withdrawal was based another lawsuit that was won by the small guy.
Rogers, don't give up... this is rightfully yours, and big companies should be held accountable. Someone once said... power tends to corrupt, absolute power corrupts absolutely. Money makes the world go round... but money comes from the small-fry... if only we'd learn to put out money where our mouth is... I suggest we boycott the upcoming Wargames movie. If you can get bloggers worldwide to not go watch it MGM might lose a bit of money.
Also google "laugh if off black lable"
All the best.
Do keep us informed.
There's another factor here: this will NOT be good publicity for MGM. A lot of the target market for the movie aspires to run a web site or a web business. You're clearly not a cybersquatter, you have a legit mark and you got there first. I'm not a lawyer but I do understand the law here and basically I don't see how they have a case; though the wrinkle about being an indefensible mark is also interesting--only worsens their case though. Unfortunately they do have enough to make it look like they have a case on paper and cost you a ton of money.
They're beating up on you, because they have the cash and they can. Big bully trying to make you give up your lunch money. That simple.
The next time I see any press about the movie sequel, all I'll remember is that this is a big company sticking it to an entrepreneur just because they can. Sort of a Tom Cruise effect.
Congratulations for fighting back.
I have to disagee with Francois on the dellcomputerssuck domain as it it apparent that there was a predatory use by the registrant which satisfied the bad faith prong of udrp process and in effect sealed the finding of cyber-squatting.
The situation and circumstances here however are quite dissimilar to the cases mentioned and the tactics being employed here by the complainant should be of great concern not only to domainers but to anyone in favor of justice.
As the complainant in this case is apparently no stranger to the process and can apparently afford suitable representation they either know or ought to have known that their action is being brought in bad faith.
The udrp was initially set up to provide tm holders with a cost effective and efficient means of resolving the most blatant of abuses, not as a forum for the interpretation of the law.
The circumstances in this case illustrate anything but a blatant case of registrant abuse and as such the mere filing of the udrp appears to be an abuse of process.
My advise would be for your lawyer to seek a determination of reverse domain name hijacking which would not only compensate you for the time, energy and expense you will incurr in defending this frivolous and vexacious case but will also send a message to corporate bullies that tactics such as those employed in this instance will not be tolerated.
I worked for a major domain name registrar for almost 3 years and am very familiar with domain name disputes such as the one you're having.
I recall one of the higher profile disputes in th 1990s between eToys and online toy ecommerce site and etoy, a european artistic site. Even though etoys was formed after etoy they sued etoy for infringing on their trademark by having the domain name etoy.com. Eventually etoys gave up their suit.
I don't know the specific legal criteria for winning those types of disputes nor do I think it's fair for domain squatters to unfairly sit on a domain and hold it for ransom, but it bugs me that major corporations feel entitled to every single permutation of their company and product names automatically.
Many people don't realize it, but the domain speculation business in which people buy up domains that have current or future value is a billion dollar industry. If you look at after market sites like afternic.com and buydomains.com and see some of the asking prices of domains run into the tens of thousands of dollars for a name that cost the original registrant a wholesale cost of $6.50.
Good luck with your suit.
P.S. - You probably know this one, but "Hearts of Iron" www.heartsofiron2.com is a great PC/MAC WWII strategy game.
MGM's full of it. Movie titles aren't trademarkable. Yet that's what they're trying to do; they registered their trademark as "entertainment services" in 2001, claiming a first use of 1983 -- but that first use was the movie title.
to make it worse you KNOW the movie will suck and will have all sorts of pretty graphics over everything, making hacking look like a quick shake of the mouse. Dear hollywood. stop remaking good films that don't need it and come up with an original idea for the 1st time in years.
you stick with it.
Are you sure his name isn't actually 'Nathan A. Hole'?
This kind of crap happened back in 99 when movie company's were finally putting up websites for customers to go check out trailers.
MGM is just way too late in the game and is just realizing it now. Soon enough anyone who sets up a domain will have to worry about some other big corporation taking over the naming rights because they the money to pay a lame "kiss ass" lawyer.
All movie company's should be slotted into a Movie domain and then they can sub register under it.
Picking on somebody who plays strategy battles for a living doesn't seem like a particularly smart move on MGMs behalf.
I'm sure you've got an approach, but a few ideas anyway:
- Whatever you do, don't even flinch at any sum of money they offer you. If they say that they'll give you $2,000,000 for the domain and you look like accepting, they can argue that you only registered the domain for profit.
- I hate this corporate bullying and so do many others. You may not have the personal time and financial resources to win this in the court system, but you can easily win the PR war. Its now on slashdot, meaning a hell of a lot of people who would go and see this movie are now on your side.
Take the media offensive. A lot of people are going to be behind you on this one.
Hey guy.
I took a cruise through your game site, wargames.com and you need to fix your biox covers. The fact that you require the browser to scale the images down, *really* slows dont the speed of your site. Pic either a height or width and then use your favorite image editor and shrink them appropriately.
Best of luck!
P.S. if for some obscure reason MGM wins, I think that there are a lot of people out there that will be quite irate and just might actualy frag the site.
will Matthew Broderick be in the movie?
Keep up the good fight. We're behind you 100%. I'm sick of giant corporations screwing the little guys in court.
I know you have prolly heard it all already, but I had to put my $0.02 in...
There are a lot of generic terms out there that could be trademarked...the problem as I see it is, you have to prove that the term is too generic to trademark...
I am not even sure how they trademarked the term as the military has been using it since the 1950s to describe their "battle ready testing" scenarios, or "War Games"...
It would be like someone trying to trademark the term "battle simulation"...
I hope your lawyer is a good one.
Domain War: Nissan computer Vs: Nissan Motor company
www.nissan.com
Vs
www.nissanusa.com
Failure cases:
When losing your domain is quite an autoscore!
Give 'em Hell, Rogers! We both know there's a separate legal "reality" for rich corporations, but that doesn't give them the moral authority to pinch what is rightfully yours.
Make them choke on it.
John
"A 1999 law made it illegal to buy a domain linked to a famous person or trademarked name with the intention of extorting money out of a trademark holder. But that law does not prevent speculators from buying or selling addresses linked to famous names."
I hope you win. You have an excellent site and I will try to spread the word as much as possible.
as steve says above. it aint good PR>
so it may sound stoopid but write to Rupert Murdoch direct. It isnt that hard
He knows a good headline when he sees one, and he knows a bad one when
it is on the horizon.
Hole... the name says it all.
Honestly, I hope that they should not have a case.
I know that way before the movie came out, the term was in common use for tabletop miniature games such as Napoleanics, as well as 25mm Boer Wars, Battletech, and many others. Including that old favorite, Nuclear War (hey it is a card game, but we had to play something in the pizza place after the hobby shop closed down).
We were wargamers, and we played war games. British vs. Zulu, Warsaw Pact vs. NATO etc... Of course I was also a Role-Playing Gamer too... My point is that this term Wargames is a common one used prior to 1982 to refer to the whole set of tabletop and board games that it seems you sell.
My point is that that term was in common use before that time for the products you sell... Good luck.
Ian
you're being used to help publicize the new movie in the blogosphere. tool.
Read up on trademark law, and counter-sue. A trademark applies only in the very specific industry niche for which the trademark is filed.
Also, a trademark can not be filed and sit there unused (trademark squatting is not allowed); it must be actively used in order to retain the trademark, and in order to actively enforce trademark protection.
Tell them to *bleep* off and register wargames.tv or wargames.movie instead, since not only is it better PR to not stomp on the little guy and steal his name because you want to release a new movie based on a decades-old idea with the little guy's name, but using the .movie or .tv top level domain is in accordance with best practices and best for all involved.
Also: there is NO basis for confusion, dilution of brand, or anything else. I don't look at your site and say "Gee, is this that movie with Ally Sheedy and that kid who played Ferris Bueller?"
If the law is followed, and if ICANN guidelines are followed, they have NO case whatsoever.
Did they ever come to you and simply say "hey we see you have this domain, how about 10 grand for it?" I know the attorney would not do that because then he is not making money filing legal papers, etc. It would have saved the studio money in the long run to be nice, at least until you said "no I don't wnat to sell" if you so decided.
Good luck with this battle, I know this doesn't count for much at all, but here's one more geek who won't pay a dime towards this movie, and won't ever forget how they tried to screw you. I'd like to think that one day corps like MGM would learn to apply a modicum of intelligent thought before unleashing the lawyer attack dogs, but that would be wishful thinking it seems.
Don't make an offer to MGM to sell them the domain name, or even mention money to them. I've heard of such offers being falsely reported to the arbiter as extortion attempts, leading to the domain being taken away.
I wish there was a way we could donate to your legal fund. I think it is ridiculous that a company like MGM and Sony uses the legal system to go after and sue people for music copyrights and filch unsquatted domains.
I think you have a right to the domain. I wish everyone could help you defend it and keep wargames.com as board game related site. Wargames should refer war games and boardgames and serve a much higher purpose over being some movie studios bitch.
Never Surrender!
you registered it in 98, and squatted on it until this year, the same year they decided to make a movie.
web.archive.org*/www.wargames.com
i know you said this, im just playing devils advocate as it looks to me like you are just trying to play it off as a legitimate site.
An ass "Hole" who attacks an innocent person on Sept 11. I didn't think we welcomed that type here in America.
So, a productive, useful website which offers a continual stream of content may be replaced with a tiny fragment of a movie promotional campaign... and then sit there idle once the movie's flash has subsided.
Man, do I love the way money and corporations are destroying the web.
9 years to figure out how to sell military wargames like Axis & Allies and Battle of Britain online????
i could understand if the domain they were after was someone just sitting on the domain, but you run a business off the thing they should have no right's to it, besides its been 24 years since first movie. I hope the judge plain straight and tell's them if they want it, they better make ya an offer.
I hate lawyers. Scum, the damn lot of them.
Well, I definitely think that a "War Games" retailer has just due to the name. That said, I must confess that I am sorely disappointed in the site itself.
Not for the design, but 24 tabletop games? That's it? Where is Axis & Allies? Squad Leader? Up Front and all the rest of the old Avalon Hill games. What about Star Fleet Battles...I believe that's back in availability. Classic Battletech. :|
Sure many if not most table top games are out of print. But it's still be nice to see a "limited OOP" section.
Get more table-top games....
- Jason "The Saj"
PS - In truth, had I come to the site and seen a bunch of good ol' tabletop games I'd be in for the fight w'th ya.
Sorry, one more time (you need comment edits)...this page came up second for that in a google search.. hah
If you search on the following terms, domain dispute naf bias, you can discover a lot about the bias in domain disputes.
Did you know that Google uses NAF for its disputes?
and there is a thing called PREVIEW COMMENT, which you are forced to do. there is no excuse for you :)
or are you the person who opens an executable named THIS WILL ERASE YOUR HARD DISK.EXE, and then blindly clicks OK when it pops up a window asking you for permission to erase your hard disk?
Your strongest defense will be three fold:
1. The domain is in active use, and you are not attempting to gain by causing confusion with the "Wargames" trademark.
2. Prove prior art on "Wargames." Specifically, prove that the term was in wide use before the movie came out. Furthermore prove that the term was widely known before then, thus the trademark isn't a "unique" term. A quick google search turned up instances of "wargames" being used as early as the mid 1960s. If you can prove prior art, you may be able to at least be able to claim that they should not have been granted exclusive use to the term in the first place.
3. You are not in competition with the owner of the wargames trademark as they make movies, and you are in retail. Since the uses do not overlap, you thus can argue that you are not actually causing any material harm to the plantif's "enjoyment and utilization" of their trademark.
Good luck
Well, maybe some things to check :
- is "wargame" a common word (present in an English dictionnary). AFAIK, a common name can't be trademarked, resulting in Microsoft registering "MS Windows" and "Microsoft Windows" and not "Windows".
- did you contact Groklaw ? the EFF ?
I'm not sure this could help... But commonsense tells that MGM should lose his suit. When you look at the other web names reclaimed by that Lawyer, they were clearly bearing the "DELL" word which is *not* a common word or "alienware" (by prepending www to the name which is clearly an attempt of cybersquatting)...
I'm almost sure you've seen it, but wikipedia has a wargaming page that points to several uses of the term "wargames" long before the movie. In some cases, wargame was even printed on the box.
There is no reason you shouldn't win. Good luck.
You very well deserve the right to overcome this 'small business man versus huge corporation' dispute.
Thanks for not giving in and showing us all that we can indeed resist companies like them.
Go for it and good luck!
What is this? Are we nuts?
There are thousands of films out there that use common words on title. We can't use them ever because they are "protected" by a copyright paper?
This means I can't have a website named Godfather even if it is a website talking about my nice godfather and how much I love him? Or even worse, no website called Aliens, Metropolis, or High Noon. Just because someone made a movie with those words as titles!
Wargames is a term. It is used widely to describe a specific type of games.
I realy do hope you win this case my friend, cause if you don't then we all have to go under the will of the studios anytime they decide to use a title of a movie that uses common words somewhere.
It's a case that will affect the whole web. You better use this in your defence, make the judges understand that it's a matter of freedom of speech and not a simple copyright case.
Good luck with your legal battle and keep us updated on your progress.
Since you dont have any respect for copyright yourself, I hope that you loose and that you have to pay the legel expences for the other side.
You have used oscommerce (http://www.oscommerce.com) to build your site. An inexperienced user (which you obviously are) can set that up in under a day, so what you did the following 700+ days is beyond me...
The copyright clearly states that you are *not* allowed to remove the copyright oscommerce text in the bottom of the page, which you did.
Just a comment on your wargames.com website: you should correct the aspect ratio for the games artworks. The way it is now, with strictly "square" artworks, makes everything looks deformed, what in turn causes the site to be seen as unprofessional.
I don't know if fixing those images will help you in your battle with MGM, but it'll surely not harm it. Also, you'll probably see an increase in sales, since the more pleasant a site looks, more interested persons keep coming back.
to the guy complaining about OS Commerce's tag. The product is licensed under the General Public License, aka GPL. They can REQUEST you keep the tag there, but the GPL is very specific that such modifications ARE permitted.
Some Open Source developers try to enforce unenforcable additional restrictions, but then they are violating the very license they are releasing their products under.
If they don't like the GPL's permissive nature as to changes like that, then they should choose a more restrictive license that better reflects that.
id like to donate to your legal fund. you got a paypal account? post the details...
The product is licensed under the General Public License, aka GPL. They can REQUEST you keep the tag there, but the GPL is very specific that such modifications ARE permitted.
The makers of osCommerce require that you remove their logos and marks from the public facing portion of your store when you modify the software and templates.
My ecommerce software integrates extensively modified osCommerce code with additional database tables and a custom-programmed Java class library to bring data in from my suppliers and keep it up to date. I'm working on RSS feed support and some other stuff I need to contribute back to the project to fulfill the GPL, but it's not ready for release, and it won't be finished until this legal hassle is resolved.
Just wondering about "Google" the movie...
the main problem that wargames trademark was registered in 1983...
Not a problem at all. War games have been played by military forces throughout history. This "trademark" should never have been granted, and by pursuing this, they run the risk of losing it.
Look at Microsoft, and how they went after the company Lindows. Microsoft essentially claimed that Windows users were too stupid to tell the difference between "Windows" and "Lindows." In court, it became apparent that the judge was going "revoke" the trademark on Windows as being an "everyday" word. Microsoft settled with Lindows by paying THEM (Lindows) $20m to change their name (to Linspire), rather than risk losing the name "Windows."
I see an awful lot of parallels, here.
I know you did not do it willingly, but thanks for actually fighting this. Lawsuits like this are out of hand. We need to stop all these corporate takeovers of the common people. We make the internet what it is, a public forum for people to express ideas and in some cases make a buck. Without us, the internet would just be a giant playground of advertising (as it is getting closer to becoming thanks to Google text ads, pop-ups, and the like).
I would honestly look to either a:
boycott MGM and their movies (War Games 2 especially)
or B:
Support their movies whole heartedly to show them they do not need to trample on people, but as fans, we will see good movies.
I have to lean toward option a right now. We do not need MGM, they, and others, need us.
This reminds me of the Ford vs Jaguar case (papers available here:www.eff.org)
I'm sorry to hear they are trying to use lawyers to illegitimately steal your domain. Just because they have an INTEREST in the domain name, doesn't mean they have a RIGHT to it. Hopefully the EFF can help you rally support for your battle. Stick to your guns, Rogers, it won't be easy.
You actually appear to be a cyber-squatter yourself. After checking the Wayback machine internet archive, you have had no website at wargames.com for the last eight years, even though you've owned it for the last eight years. It appears that you got notice from MGM and then put in your "1,000 hours" of web development by using an open source shopping cart system (possibly taking up one of the 1,000 hours to setup) and then spending 999 hours finding images and descriptions of computer and board games related to warfare and loading them into the shopping cart. I would hardly agree with you that that constitutes "development." If so, it significantly cheapens real web development. This case appears to be a situation of a geek (not derogatory, for I am one myself) registering a domain name a long time ago because it had a special significance to him. That significane being the movie of the same name. You got a legalish notice from MGM, freaked out, and went into overdrive to concoct a legitimate appearing use for the name and are now pandering your "David and Goliath" situation to the internet community. I hope MGM does take the name from you, just as you took it from the internet community and did nothing with it for so many years and now have a mediocre "store" in place. When someone types in wargames.com, they are looking for the movie, not for a copy of "Rise of Nations".
Let me ask you this, if I ordered a copy of one or more games, do you actually have them in stock? Are you even setup to take credit card payments (other than Paypal)?
Now as much as I liked watching the original Wargames, I prefer playing
I have a credit card processor, sales and use tax permit and all the other stuff necessary to run an online business.
The main reason Wargames.Com took two years to launch was because it's hard to get relationships with suppliers in a niche like tabletop and computer wargames. I'm still searching for somebody who can hook me up with Days of Wonder games like BattleLore and Memoir '44, which are killer games created by a wargame designer here in Florida.
From The Browser Blog:
But wait! The Browser is not an attorney, and does not play one on television. But we noticed something curious about MGM's trademark of the term. Although the movie came out in 1983, MGM did not bother applying for a trademark until 2001 - three years after Cadenhead got the domain. If Cadenhead can prove he acted in good faith, that might be enough of a loophole to let him slay the MGM lion.
When someone types in wargames.com, they are looking for the movie, not for a copy of "Rise of Nations".
I'm curious who 'IP' might be. Is sockpuppets.com active?
I'm not a lawyer, but if they are requesting arbitration, that doesn't sound like a legal fight. It doesn't involve any courts whatsoever.
Can't you countersue in court to get some sort of declaration that the domain is legally yours? It seems this would trump any results of private arbitration.
IP:
I'm a computer and table-top gamer. If *I* were to type in wargames.com, I'd expect the sort of content already there.
Also, the domain name wargames.com was not "taken" from the internet community, it was purchased. After he bought it, it was his to do with as he pleased for however long he owned it, including doing nothing. Noone was wronged here, so stop trying to make a victim.
The word "wargames" has special significange to a lot of people like myself, and not because of a mediocre 80's movie - because it is a genre of game that we enjoy.
It seems most movie end in "...themovie.com", MGM should do exactly the same thing since war games is really a generic term.
Keep pushing - there's little chance you'll lose unless you give up!
When you talk to your laywer, ask if the phrase "Open, Notorious, Continuous, and Exclusive" might be of use in undermining their case and/or trademark.
Your lawyer should locate someone in the Pentagon who is willing to contribute as a friend of the court. They would be good friends to have. MGM may have a swamp full of lawyers, but the Pentagon has nuclear weapons!
Everyone keeps saying "wargames" is common. I agree of course, and suggest that if push comes to shove, ask how they came up with the title of the movie.
The sequel is going to suck. The premise even isn't all that original (even the description of the characters are generic and unrealistic...the hacker is handsome and has a cute girlfriend? That's not reality! ;) ) and the feel of "throw this together" is very strong.
WarGames was very culture-specific, but wowed people who didn't know computers back when you really had to know something about computers other than using the mouse to click the Start button like it is now. It was a classic for a reason.
Sad to admit, I was actually going to try to write a sequel (the right way, with respect to the original material) before I found out about this abomination. Sad that Hollywood is truly out of ideas.
Why don't they just go after "wargamesmovie.com" like every other film out there nowadays that has a website (which is virtually every one of them)!?
(bs.)
Good luck! don't know if anybody has suggested it but i'd speak to the owner of nissan.com he had a 10 year long battle w/ the auto company over the rights to the domain and he won!
This Hole guy sounds like a (ass)Hole to me
Seems real simple to me: (From a dictionary)
war game
noun Military.
a simulated military operation, carried out to test the validity of a war plan or operational concept: in its simplest form, two opposing teams of officers take part, and when necessary, military units of the required strength are employed.
[Origin: 182030]
Term's been around for a lot longer than their movie.
The two areas are different. One refers to gaming stuff and one to a movie. You cannot register a copyright or trademark for a name in an non-related field. There are thousands of companies called Apex, and none of them are infringing. Why? Bceause they are either in a limited geographical area or, more importantly in this case, in non-related fields of business. So sure, nobody can make a movie called wargames without infringing on MGM's trademarks. But MGM came late and a valid business in a non-related field got there first and registered the domain. Too bad! MGM get thee back to thy ivory towers and sit on it. And somebody for Godsakkes lose this money grabbing lawyer who gives humanity a bad name.
What a bunch of asshats. They're going to waste a ton of money on lawyers and fees.. all the while costing you more money. When they could have just registered something like "wargamesmovie.com" ( which is being squatted by some dude in India ) . But in this day and age the American business entrepeneur/consumer has no rights, if you have the money you can do anything.
From my experience and understanding the correct legal term for an internet domain is "fully qualifide domain name". If it wasn't fully qualifided, how could you have registered it to begin with? Another thing that is perplexing legally, to me, is that I don't understand how a fully qualifide domain name sould be considered any differently than the laws that cover fully qualifided names for vanity license plates for vehicles. A judge would laugh someone out of court if they tried to take someones vanity license plate name from them!
Whats the difference? It's fully qualifide vanity in my opinion. There really is no trademark infringement going on, just a bunch of corporate welfare whining because they didn't act quick enough to register their vanity. Too bad. This country is sick. I can't believe we my taxes went to pay for the opportunity to have such a ridiculous "electronic super-highway". It's turned into the greatest corporate welfare give-away in the history of human industry. You know it once was illegal to transact any commercial business on the internet. When excatly did they change that law?
The obvious answer:
Challenge them to a game of TIC-TAC-TOE, winner gets the domain!
Thanks for putting the story out. And good luck with your fight, eh!
I know at least one movie I won't be seeing next year.
This is not an ad, nor am I associated with this firm, but Greenberg and Lieberman have lots of experience with domain names and large companies claiming trademark violation. They'll even talk with you about it some on the phone for free. aplegal.com
Download the Domain Master podcast titled 92006 from www.webmasterradio.fm to hear an attorney from G&L discuss similar cases.
Good luck!
From what I've read, trademark owners seem to prevail, even in cases of someone having a legitimate website running under a domain.
I'd say your best bet is to fire up a boycott against the new movie...maybe enough ruckus in the blogosphere may get them to change their minds. But then again, it is a movie company, and from what I've seen, they're not too bright when it comes to public relations.
If they fuck you on this, I certainly won't be watching that film.
Yes, they're filming a sequel and are sending out their goons to grab your site.
Apparently there will be a Wargames Follow-up called Something like Wargames: The Lost code or something.
Good luck with this one. It's another case of a huge company trying to steamroll the little guy because he has something they want. The least they could do is offer to pay you a fair price for the domain and make you WANT to sell it. I wish you luck, fight the good fight!
I feel for you bro! We are in the same boat, you with MGM and me with Harrah's over www.wsop.com. Maybe we can join forces, exchange information, or whatever it takes to win! I sent you an email as well.
I am not a Lawyer but as far as I know Trademarks are all tied to a domain. If they registered "WarGames" then they had to register it with context, like, to movies, music for the sound track etc. If you had a store that sold war games in the local mall their Trade Mark doesn't apply to your domain (unless that have trademarked WarGames in the retail domain as well). Trademarks have to be filed for each domain in which you want protection, as I understand it.
Since as you put it 6 out of 9 people didn't even respond then their laywer knows he has a 67% chance that you're going to roll over without a fight. I suggest that you have a lawer write a nasty letter back. Talk to your lawyer about whether or not you should consider a counter suit to challenge their WarGames trademark on the basis that its simply 2 words combined or something to suggest that its bunk. If you do that I suspect they'll come to the table with an offer to settle with you and negotiation begins. If they think you can potentially make a real threat to their trademark you'll be in a better position to negotiate.
In my opinion, you could probably get them to pay you way more for the domain than you would probably ever make from your business or use of the domain. I think you should get at least $5 million for the domain, IMHO!
David
Hi, I had the same with the domain deusto.com, that a publishing company in Spain, call Editorial Deusto, demanded from me, because they registered the mark 5 years after I registered the domain !!!!
You can read it in english here: wolfb.com
There are many posts about the case, but it was resolved at the end in Spanish, and I won.
If you want to contact me (maybe I can help) contact me at hombrelobo.com (use the form on the right, please)<>
Np.. You are fine... Your site has been up an running for a long time..I bought ny first game from you years ago..
Rock on..
dude your website is IMPOSSIBLE TO READ -omg-
As a part of the likely target demographic for this movie, I think someone in their legal department should have been able to work out the likely result of MGM rolling out a stupid, bullying lawsuit like this.
A strange game. The only winning move is not to play.
As I understand it if they have not filed a trademark application for the name in your home country then they can have no claim on the name as they must be bound under the laws which govern the land you live in. If however you live in America I wish all the very best to you and hope that things fall in your favour, I know how very corrupt the American legal system is in favour of the big corperations so I would recomend in that case you get a good lawyer - and do everything in your power to make as many people as possible aware of this case being brought against you. If you do your PR work well then they will back off, as negative publicity is somthing that corperations do not want.
I had a similar threat from a gay pornstar whose stage name was kevin williams. I told him to get lost because my name actually was kevin williams and not just a stage name. he never contacted me again.
hey man, good luck - send e-mail to Colbert Report (which he does not) and if he has any balls he will make this story so embarrassing for mgm that they will apologize to you...unbelievable these mgm assholes!!!
hope the movie (if they make it) will fail fail fail...
Good luck! Your site is operating in a different market, so trademark infringement should be irrelevant.
I guess it doesn't stop lawyers bullying you so I hope you'll get to keep it!
Dear Mr.Candenhead and friends (please read please),
WHAT IS WRONG WITH YOU PEOPLE!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?! Look... I have nothing against Mr.Cadenhead PERSONALLY, but mgm deserves the domain name. Mr.Cadenhead can switch to ".org" or ".net" can't he? MGM is a great company! They (and HBO) make the greatest movies! Mr.Cadenhead PLEASE GIVE MGM A CHANCE!!!! You've seen their movies!!! People are saying that what they are making sucks! GIVE THEM A BREAK!!!
READ THE ABOVE COMMENT
PLEASE READD IT!
READ THE COMMENT ABOUT READING THE COMMENT ADDRESED TO MR.CADENHEAD!
Why couldn't MGM use the dot net? Is it so difficult for them to go after a domain that someone isn't already using that isn't just squatted on?
Visitor, sounding like a paid industry plant doesn't help their case or dissuade others from theirs. Seriously, what does the "quality" of MGM's movies have anything to do with this case? Oh right, nothing at all.
"GIVE THEM A BREAK" Who went after who here again? Why can't a company that has raked in millions upon millions selling shitty movies just give some random guy a "break"? Oh yeah, I remember, it's because they're a bunch of bloodsucking corporate hacks who will never be satisfied with having ONLY 3 different mansions and 5 different colors of the same car. Gtfo.
To the moron that said give MGM a break. If this lawyer and MGM had a frigging clue, they'd know that the domain names of movies are www.TitleOfMovieMovie.com (like www.eragonmovie.com 20th century Fox) or in MGM's case they already do www.mgm.com as the official site. Sony does the same thing ( www.sonypictures.com ).
As a Web Design Company owner for the last decade (dinosaur years in Internet time) I'd say MGM has to fire this Hole idiot. He's about to lose them a lot of money! A first year law student could pokes massive holes (pun intended) in this one!
MGM should cut their loses (that is, not registering Wargames.com before you did), and instead cut you a big check to place a banner on your site that links to their own hosted WarGames movie page. You get to keep the domain, they get hits from your link, and everybody wins, right?
Of course, they probably expected you to just lay down your arms at the sight of their mighty army of lawyers. Because that's how these big companies usually get their way, isn't it?
Dont give up man, dont give up. Too many big companies think they can push the little people round. Dont give up.
If u start struggling for cash to fight with, u should set up one of those paypal donation type accounts. If you'd have had one now, I'd have dropped $20 to you. Not much, but if all the people commented did, it might help even a little with legal bills.
Supporters, go DIGG this story!
I hope that you win this case. I came across this article looking for information regarding dealing with squatters. While sites like BuyDomain.com really piss me off (I am shocked by my own emotional response towards them) because they effectively hold domains for ransom that they have no valid use for, which I feel stifles growth and great new potential websites. But while I hate squatters, I in no way feel "big money" should be able to use the "legal" process to intimidate or bankrupt valid "small guys". Personally, I would love to see a major fine go against plaintiffs who lose a case (making them think twice about a case where a valid user owns a domain [or other court case]). Hold in there... the big difference in your case and the ones you cite is that those really seem like sites intending to leverage the plaintiffs name with no "valid" use of their own. You clearly have you OWN use.
Hi!
Wilserv Corporation (www.wilserv.net), a company formed in 2002 wants my URL which I've had since 2000. I've been doing business as Wilserv Industries since abbout 1981. They complained to the World Intellectual Property Organization Arbitration and Mediation Center. Now I'm trying to understand the difference between that group and NAF.
Willi
Both groups can handle domain name disputes under the UDRP. From my read of cases, WIPO's more domain owner friendly and NAF's the opposite.
Have you considered trademarking 'wargames' yourself? There are 47 product categories of trademark, so it is possible for a single name to be legally trademarked by 47 different people...which I am curious to see just how the arbitrators would sort out.
Trademarks are meant to prevent confusion among consumers about who manufactured which product, and protect a given business' brand identity. So long as you are not competing with a business in the same product category, you may market a good or service under the same name.
Unless MGM has trademarked all 47 product categories, you may be able to find one appropriate your own business that does not conflict with yours, in which case it would probably be first come, first serve.
Have you considered trademarking 'wargames' yourself?
I couldn't get a registered trademark to sell wargames at Wargames.Com. My use would be dismissed as "merely descriptive," just as MGM was rejected when it tried to register WARGAMES as a trademark for computer games (in addition to movies).
I was the webmaster of Dellpromos.com when Nate Hole came. I didn't own the domain but was using it with an agreement with the owner that I would share revenue. I used the actual name, "Dellpromos.com" when I applied for an affiliate account with Dell. It was accepted by them. I acted as an affiliate for about 8 months before I got a cease and desist. I hadn't done anything without getting their permission but that didn't seem to affect them. I shut down the site immediately and started a different site that did not infringe on the name, but even though they promised to give it affiliate status if I shut the other one down they lied the whole way through it. I didn't cybersquat, I used the name with them being notified and approving me. I only put up coupons and links to reviews for Dell products, no other company. I wish I had owned the domain so I could have responded to their arbitration hearing but the owner didn't bother. Don't trust anything he (Nate Hole) says and good luck.
You know, Kelsi Grahmer (sp?) was in a movie about war games involving submarines... maybe MGM should sue him, too. I mean, they say "wargames" atleast 3 times. Also, I would like to know where the movie creators came up with the term. I'm sure if you did enough digging you'd find that they stole the term from someone else, who should steal it back and give you free reign to run your non-infringing site.
Hi, y'all!
I am EXTREMELY pleased to report that WIPO decided in my favor. See messages above dated January 21, 2007. Mr. Cadenhead's comment "WIPO's more domain owner friendly and NAF's the opposite" provided me with some crucially needed moral support and proved to be prescient. THANK YOU, sir!!!
Willi
OMG, it took you 2 years and 1000 hours to set up an OSCommerce site? OSC takes about 2 mins to install, an SSL cert takes an hour, payment gateway takes 2 days.
I really hope that you dont lose the domain, but if you didnt do anything with it for 7 years you might not have a leg to stand on. We set up ecom sites all the time, 2-3 weeks max for a bespoke, custom, one off, technically advanced website.
I really really hope you can back up your "2 years of work" claims, or your gonna lose the domain. I've seen it happen loads of times.
Congratulations on your victory! I read the entire brief on the NAF website:
domains.nationalarbitrationforum.org
Could you please tell me what your final legals fees came to so I know what to expect when I get the letter?
i love your war games and i loved to be in the war and i have my uncle that gose in the war his name is mat.
I hate to post this again, but no one answered back,
Could you please tell us what your final legals fees came to so I know what to expect when I get the letter?
I think it was around $4,000, including legal fees, arbitration fees, and photocopy and mailing costs.
Hopefully you can turn this around and not only win, but counter them by having them pay your legal expenses and wasting your time.
Good luck. Fight the good fight.
Are you sure it's N.J. Hole, and not A. Hole?
FUCK PCK..GSG ALL DAY EVERY DAY.I.E, RIVERSIDE COUNTY
I have to agree on pretty much every point. This lawyer seems like a real nutcup too. If the names been 'theirs' since 83 then why havent they registered it long before 2008. Thats along time to wait to do something.
Also being acommon visitor of wargames.com I have to say you honestly do have a unique purpose unrelated to the movies. I wish you the best of luck in this case and can only believe the only chance they have against you is, twisting the laws to consort their needs.
Again, that lawyer is a schmuck, talk about doing whatever to make a buck.
ask them $10,000,000 for the name get a lawyer that will take 50% of the winnings on contingency, If he wins but no fee if he does not. This will play them at their own game It will take them years of court cases
at least 10 years as each of your lawyers steps down (at no cost to you)
the next get rich one will take his/her place! tell lawyer before they
take on case that you will not settle for less than say $8 million. you boys will either grown up & very rich or have the company & name by the time it is sorted out! good luck...
You should counter-sue MGM for making a movie bearing such simularity to the name of your website. Furthermore, since it was such a crappy film, you should insist that they compensate you for tarnishing your website's good name with their straight-to-video blunder.
I see wargames.com is still a gaming reference. Yay!
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