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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Intellectual Property Law
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I run a gaming forum and received a "trademark infringement"

Resolved Question:

I run a gaming forum and received a "trademark infringement" email from a gaming publisher about their game that one of our member is trying to sell.

Basically the member posted "Selling [game-name]" as the post title and "I want to sell [game-name]" as the post content.

That's it. Seems to be ridiculous and in no way shape or form trademark infringement. Do I need to get a lawyer? Or can I just ignore this email?
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  Dimitry K., Esq. replied 1 year ago.
Thank you for your post. Please allow me to assist you.

Did you remove the offending post? Was the software posted protected and unable to be sold or transferred, or you do not know?
Customer: replied 1 year ago.

No I didn't remove it yet. They said I have 10 days to respond.


 


It was a beta gaming account for a game that is still in development and not yet released. Those that accept the invitation to the beta are not supposed to transfer the account or resell it to anyone else as part of the TOS.


 



So basically this person was trying to sell his beta account on our gaming forum.


 


 


 


 


 

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up, Mike.

In that situation removal of the post is warranted. Copyright infringement does not simply encompass the individual or entity that is trying to infringe, but third parties who facilitate the transaction. This is the reason why, for example third party selling sites such as Ebay are so vigilant in removing products that are suspected of being knock-offs or are otherwise not permitted to be sold. A very good example of that is Rosetta Stone who happens to be exceedingly vigilant and aggressive in protecting their copyright. In this situation if you cooperate and remove the posting, then you can show that you were not a party to the potential infringement and your liability is lessened. Please understand that I do not know if this company will pursue you, but they most surely CAN pursue you if they so choose.

Hope that helps.

Customer: replied 1 year ago.

Does the fact that EU courts ruled last year that it's perfectly legal for consumers to resell digital software licenses regardless of what the TOS says make any difference?


 


http://www.joystiq.com/2012/07/03/eu-court-rules-its-legal-to-resell-digital-games-software/


 


The member that posted it is in Europe, but my company is in the US.

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up, Mike.

If you have a US company then you are bound by US law. Jurisdiction over international listings and postings can get dicey but by virtue of you registering your entity in a US locale, US law would govern. The courts can provide some secondary review to foreign laws, but they are primarily basing their decisions on the US Constitution, US Federal and US State laws, not foreign rulings. Since in the US companies are still allowed to limit the license, US law would control.

I am sorry.

Dimitry K., Esq., Attorney
Satisfied Customers: 38598
Experience: I assist my clients with IP questions that arise in their daily course of doing business.
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