A few weeks ago, I expanded my horizons. I hung out with three other grown men and played a fantasy-based card game called Dominion. Shortly after I arrived, you could hear the voice of our host's wife ring from the kitchen:

“NERDS!”

But the problem with diversifying one's geek is that something gets confused in translation. By this I mean, my brethren no longer understands what I’m talking about. Case in point:

‘Hey Guys, want to play Arkham Horror next week?’
‘Oh, you mean that new Batman video game?’
[Asplode]

Timeline for the Uninitiated:

-In the 1920s, H.P. Lovecraft wrote a series of short stories and novellas about a spooky town that stood on the edge of modern civilization and the abyss of dark eldred god country- Arkham, Massachusetts.
-In the ‘70s, Batman-creative icon, Denny O’Neill, tipped his hat to an obscure New England cult horror author when he christened the home for Bats’ rogue’s gallery, Arkham Asylum.
-In 1987, Chaosium started publishing an adventure boardgame based on Lovecraft’s work, ‘Arkham Horror.’
-This past year, Rocksteady Studios released an acclaimed video game called ‘Arkham Asylum,’ featuring Batman.

Oh yes, Mr. O’Neill’s innocent homage confused my comic-centric friends and thereby unwittingly sparked a trademark confusion blog.

Titles and Trademarks have a well-established legislative history that focuses on the difference between a single work or a series. A series can include the expansion packs that Chaosium has released over the years and may apply to Rocksteady’s future plans for the Batman franchise. But I’m not going there.

Focusing on the actual and likely confusion this situation presents, my buddies- well-rounded, pop-cult intelligentsians, who also conveniently fit into the sophisticated (?) target market of both companies- actually did confuse the video game for the board game. Now, Chaosium has a federally registered trademark covering “board game requiring players to use strategy” and they could conceivably move into video games, if they haven’t already, so why wouldn’t they enforce their rights against Rocksteady?

Answer (IMO): This was not an honor among niches thing. The Lovecraft Licensor let DC run with Arkham way too long. This was due in part to the fact that Lovecraft wasn’t a valuable asset from a cult experience perspective until relatively recently. In terms of its publishing cycle, I would place that at around the late ‘80s. And what started off as a one off tip in a single comic book issue, has taken on a life of its own separate and apart from the initial roots of the Lovecraftian source text. Arkham Asylum has a rich history both on the page, video game and screen. For many years, the two franchises operated largely separately and without any likelihood of consumer confusion, but as the two properties recently converged in the gaming space, confusion surfaced. Are the two companies seeing a dip in sales or any other damage as a result? I would argue that Chaosium is more vulnerable to a loss than Rocksteady, but nothing has been published that I can find on the topic. Bottom line, had this been anyone else, I believe the Lovecraft Licensee would have enforced its trademark rights and may have given the Batman Licensee a run for its money.

Special thanks to Jeff Rosa for kicking my tail at Magic: The Gathering and knowing more about Miskatonic University than Nyarlathotep, The Crawling Chaos.

Next Week (promise!), we will continue in the same vein: Batman vs. C’thullu vs. Space Marines vs. Orcs. Copyright Style.

Please feel free to email me directly steven at newleaflegal.com

www.newleaflegal.com