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Originally Posted by injury log
You said this: "If MLB allows one game to use its trademarked identities for free, it has no leg to stand on to stop anyone else from using those trademarked identities. " That's what I was replying to. MLB very certainly would have a "leg to stand on" protecting their trademarks even if they fail to enforce them in isolated cases.
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Failing to enforce is different than simply choosing to not enforce the trademark in one situation and not another. That is what I meant.
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A trademark is not abandoned by failure to police, except in specific cases - if you look over judgments of loss of trademark on those grounds, it's usually in instances where one company used another's trademark for decades. Abandonment is usually established because of a trademark owner's failure to actually use their trademark, and there's clearly no danger of a court finding MLB has abandoned their trademarks on those grounds.
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Usually is not the same as always. The bolded parts of your statement leave a gaping hole for this specific case.
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Yes, seriously(?). The purpose of a trademark is to identify the originator of a product or service. A trademark still serves a purpose if it is not universally enforced. If OOTP uses the word 'Yankees' as a team nickname, that doesn't create any confusion among fans buying Yankees tickets about whether they are buying tickets to see an MLB game. But if another baseball team in New York also called themselves the Yankees, that would potentially create confusion. Enforcing a trademark in the latter case is far more important than in the former.
It would be unduly burdensome for trademark holders if they were obligated to police even inconsequential violations just so they could maintain their rights in cases of consequential infringement.
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MLB clearly has come to the conclusion that OOTP's use of MLB trademarks is not inconsequential. Considering the popularity of OOTP, the cost of purchasing the game on a yearly basis, and the significance of MLB's presence in the game, I'd say they're probably correct.
We can argue about the semantics of trademark law until the mods tell us to shut up. The ultimate point is that Markus and OOTP are making money at least partly due to MLB's presence in the game. It's ultimately Markus's responsibility to gain the rights to use MLB's trademarks. As others have mentioned in this thread and elsewhere, it's really a surprise that we've gotten this far without MLB saying something. Everything I've posted until I quoted you was in response to a different poster saying that MLB was wrong to ask for the names to be taken out. MLB is not wrong to ask for that, and I was trying to explain why. Just because I don't have the legal knowledge to prove it to a judge doesn't mean I'm wrong.
EDIT TO ADD: As for inconsequential trademark violations, have you seen this?
http://awfulannouncing.com/2014/mlb-...-podcasts.html