After months of wrangling, the trademark case between Trion Worlds Inc. and Palladium Books is effectively over. For those just joining this legal party, Palladium Books sued Trion Worlds Inc. over its use of the term “Rift” in the new MMORPG “Rift: Plane of Telara.”  Trion Worlds counter-sued.  You can read the story from the beginning by starting from my first post on the issue.   Today, Trion Worlds Inc. and Palladium Books submitted a “Joint Stipulation of Dismissal” to the federal court.  Here is the full text of the very short filing.

Pursuant to Federal Rule of Civil Procedure 41(a)(1), the parties to the above action hereby stipulate that this action and all claims and counterclaims should be dismissed with prejudice, with the parties to bear their own fees and costs.

Assuming the judge approves, this will end the lawsuit.  Since both parties requested the dismissal, I find it highly likely that the court will approve. I am very curious about what the final settlement entails. Since there is no more lawsuit, whatever negotiations took place between the parties is likely to stay secret forever. I expect some press releases from both parties after the judge signs off on the dismissal. I will keep you apprised if I hear anything.

Trask, The Last Tyromancer

The case goes before a jury on February 28, 2011 with a estimated length of 5-10 days. That said, mediation between the parties was on the table, so the court date is really meaningless if mediation produces a settlement.

I will, of course, keep you up to date on any developments.

Trask, The Last Tyromancer

I do not buy or use miniature transport cases, so I have no personal interest in the Battlefoam v. Outrider case. It is just a noteworthy legal issue in the gaming community, so I write about it.  I bear no particular malice or even interest toward either party. I have more important things to do with my life than fret over the behavior of some game accessory makers.  I really strive for fair and accurate information when reporting business or legal issues (see my rant posts for my opinion) on Livingdice.  For as much as I do not care, I know some people do care and bear real malice towards Battlefoam. I had to shut off comments to extinguish flame wars that rarely break out on LD.  Apparently one of these zealots decided to take action using my site as a weapon, so on to the astroturfing!

Two days ago, I received an email from “Mark”  through the LD contact form informing me of a similarity between two web sites. One is the new Battlefoambrigade.com website and something called “Special Ops Brigdade,” a site for paintball enthusiasts. I took a look and they indeed did look similar, but so do many web sites, so I did not consider it newsworthy. Here is a side-by-side image of the two sites to save you some time.

Though I thought it a trivial issue, someone believed it worthy of my attention and tried very hard to interest me in the topic.

A day passes and I get another email from someone named “Doug” about the same issue and a link to a Special Ops forum discussion. (Update: the forum is no longer available, not sure why.) I took a look at the forum and noted the first poster was a new forum member with only a single post to his name.  At this point, I grew suspicious. I smelled an astroturfing attempt.

A quick check of the two IP addresses provided by my contact form revealed both initial emails came from the same general location (a town north of Atlanta, Georgia).  I also responded to both emails and they bounced as invalid.

Do I have direct rock-solid proof of astroturfing? No, but there is enough evidence for me to believe there is and since it is my site, that is enough.

So, I have a message for potential astroturfers out there seeking to use Livingdice.com as a forum for your propaganda. Keep your petty flame wars on the forums. I want no part of it.  Oh, and go straight to hell.

Trask, The Last Tyromancer

Sabol responded to the letter and tabletopgamingnews.com has Sabol’s annoyed response.  I found this fascinating, but one section of the letter mentioned an attached patent application. I contacted Sabol and asked for a copy of the attachments sent with the lawyer letter and they kindly obliged.

Battlefoam Laser Cutting Foam Patent Application

Up to this point, I could not view the patent application or the technical specifications of the patent application because it was not through the US Patent Office’s lengthy review process.  Since Battlefoam moved to publish the document to fortify their case for royalties, I thought it useful to actually publish the Battlefoam patent application. This allows the entire gaming community to examine the source of this legal wrangling.

Update: Battlefoam issued a clarification on their letter.

Trask, The Last Tyromancer

Trask, The Last Tyromancer

As in the Palladium Books v. Trion Worlds case, the dismissal arose from a lack of jurisdiction by the court. Essentially, the New Hampshire judge did not believe Battle Foam proved a New Hampshire court was the correct venue for the case and that the burden on proof was on Battle Foam. That is not really doing the opinion justice and the judge had some pointed words for the plaintiff. I normally do not reprint large sections of court rulings, but I think my readership will find these excerpts interesting. First, the judges thoughts on the merits of the complaint.

While the complaint is replete with seeming hyperbole, including allegations of industrial espionage, unauthorized access to Battle Foam’s manufacturing facility, and theft of trade secrets, it contains relatively few concrete factual assertions.

Another contention made by Battle Foam was customers, specifically one fellow named “Jim Kavourias”, confused Battle Foam and Outrider Hobby products. Outrider responded that Mr. Kavourias had a pre-existing relationship with Battle Foam through their “Diablo Bats” company.

Rather than editorialize, I will let the judge speak for himself on this issue.

It is, of course, possible that the fifth round pick of the Florida Marlins in the 2000 draft is both a fan of Diablo bats and a collector in the war gaming miniature market who is familiar with Battle Foam’s products. It is also possible that the baseball player who provided the testimonial for Diablo bats and the confused customer who contacted Battle Foam simply share the same name. A third possibility is decidedly less savory and, hopefully, is not the case here.

This is concluding section of the opinion and once again the judge speaks with greater clarity than any summary I can muster.

Battle Foam bears the burden of establishing that this court may properly exercise personal jurisdiction over Wade. It has failed to point to any evidence even remotely suggesting that Wade has the minimum contacts with this forum necessary to support this court’s exercise of personal jurisdiction over him. Accordingly, Wade’s motion to dismiss is granted.

Parenthetically, the court suggests that prior to refiling this complaint in another forum, Battle Foam and its counsel might give serious consideration to the legal claims they are advancing, as well as the factual allegations leveled against Wade to ensure that they are supported by legal authority and an evidentiary basis (e.g., allegations that Wade “intentionallyd directed [his] tortious activities toward New Hampshire,” Complaint at para. 6; that Wade and Outrider Hobbies, “using Battle Foam’s misappropriated trade secrets, have introduced products of inferior quality to the marketplace under the FOAM CORPS mark that consumers believe to be Battle Foam products,” id. at para. 23; that Wade “surreptitiously obtained access to and/or information from Battle Foam’s industrial facility and misappropriated trade secrets . . . which are the subject of Battle Foam’s ‘410 patent application,” id. at para 21; etc.). As currently developed, the record in this case contains some suggestion that Battle Foam’s evidence of consumer confusion regarding the parties’ respective marks may be suspect. And, there is a reasonable basis to question why this suit was filed in this forum. At a minimum, a bit of sober reflection by Battle Foam and its counsel would seem to be in order.

And, in a final win for Outrider, the court ordered Battle Foam to pay costs to the defendant.

In accordance with the Order of Chief Judge Steven J. McAuliffe dated June 29, 2010, judgment is hereby entered, and that the defendant shall recover his costs of the action from plaintiff, if appropriate.

Now that the court ruled, it is all over unless Battle Foam re-files in a different venue. I will stay on top of the story and let you know if anything develops.

Here are the original documents for your examination.

Battle Foam v. Outrider Dismissal Order

Battle Foam Owes Costs to Outrider Hobbies

Trask, The Last Tyromancer

Update: I blocked all commenting on this post. I have no urge for the forum flame wars to spill over on to this site.

Here are the Palladium filings:

Palladium Books Response to Trion Worlds California Complaint

Palladium Books Counter Claim Against Trion Worlds California Complaint

Trask, The Last Tyromancer

YOU ARE NOTIFIED THAT the Court has scheduled the Initial Case Management
Conference for September 10, 2010 at 8:30 a.m. before the Honorable Charles R. Breyer. The joint
case management statement due not less than seven days prior to conference, all other deadlines
remain as set.

Trask, The Last Tyromancer

A. For a declaratory judgement that:

1. Trion Worlds has not and does not infringe any of Palladium Books’ rights in the Marks and has not and does not engage in any false designation of origin or unfair competition under 15 U.S.C. & 1114, 15 U.S.C & 1125; and

2. Palladium Books’ ’353 Registration is merely descriptive, lacks secondary meaning and is not entitled to trademark protection under the Lanham Act or common law.

B. For an order canceling Defendant’s Registered Trademarks Nos. 2,045,806; 3,036,181; and 3,213,944 under 15 U.S.C & 1064 and 15 U.S.C & 1119.

C. For costs;

D. For such other and further relief as the Court may deem just and proper.

The Trion requests are broad and potentially very damaging to Palladium. The first request kills any hope of a re-file of the Palladium lawsuit. Secondly, stripping  trademark protection altogether completely eliminates any future issues with the trademark for Trion and the final request asks Palladium for court costs.  Orders granting the first two are bad for Palladium, but paying Trion’s court costs (the cost of which is unknown) is a potentially painful penalty to Palladium.

Here is the original filing.

Trion_Worlds_Palladium_Books_Countersuit

I will continue to monitor the case as it proceeds.

Trask, The Last Tyromancer

In short, the court dismissed the complaint filed by Palladium.

The full filing is below, but here is the important bit.

For the reasons stated above, the Court grants Trion’s motion to dismiss under Fed. R.Civ. P. 12(b)(2) for lack of personal jurisdiction. In addition, the Court denies Palladium’s request for expedited discovery. Finally, Palladium’s motion for a preliminary injunction is denied for lack of personal jurisdiction.

I will save you some time and just say the court did not rule on the trademark issue at all. The reason for the dismissal was a lack of jurisdiction by the Michigan court. The motion for discovery and the injunction for the E3 trade show were also denied.  That said, I wonder if Palladium will re-file in a California court, where there is no doubt about jurisdiction over Trion.

Here is the full document.

Palladium Books v. Trion Worlds Decision

I will keep you apprised, as always.

A special thank you to Jason at the “Jason Richards Cannot Be Trusted” blog for the use of his clever logo.

Trask, The Last Tyromancer