Boakes signed an agreement with Dreamcatcher to publish Dark Fall in the US. But I remember reading a post several years ago (in the JustAdventure forum I think) that Dreamcatcher broke the contract by not paying Boakes residuals as was contracted. That was probably the reason for the "Cease and Desist" -- not unlike what happened with Lace Mamba recently. Dreamcatcher broke the contract by non-payment, so Boakes sent the "Cease and Desist" saying they couldn't publish the Dark Fall games anymore. If a publisher breaks a contract due to non-payment, does that mean they lose publishing rights? Is a "Cease and Desist" from a citizen of the UK legally binding on a North America-based company? I have no idea.

Boakes was certainly not the only developer who was never paid by Dreamcatcher. Other victims were Detalion, Galilea, Microids, and Frogwares (as reported in the JustAdventure and AdventureGamers forums by people who worked for these development houses or, in the case of Frogwares, ran them). Of these, only Frogwares has managed to survive. The rest went bankrupt and/or had their assets sold off because they weren't paid.

Anyway, I blame Dreamcatcher for the mess. It wouldn't surprise me if the people at Nordic Games never heard of Boakes' Cease and Desist (or the reason for it) before Boakes brought it up.

I can't blame Boakes for wanting to be paid for his work, but I don't think it was in his best interest to badmouth Nordic Games and GOG. But if he's really strapped for cash, a Facebook post certainly got their attention without the expense of paying a lawyer. And most of his fans won't care what he does as long as he produces The Last Crown.

Generally speaking, no, but...

http://en.wikipedia.org/wiki/Fundamental_breach

So the totally unrelated Darkfall MMO now on Steam is totally unrelated to this rights war? Only it seems to be, given that it's not the first Darkfall MMO.

It is completely different genres and setting?

The MMO is a fantasy Swords & Magic PvP centric things, the games talked about here is first person horror adventure set in the present time... or am I missing something now? I would say they are as far related as possible and the names are just a fluke

The Dark Fall games are fracking awesome first-person adventure games, nice horror elements too

Yeah, exactly. But usually trademarks rule out the possibility of such flukes. Hence the question. If Boakes has not defended his IP like he should have done (according to law) then he could very easily have lost those rights. Hence why his games were removed and the MMO then emerged.

The MMO is an indie development and self published. It is just a likely someone not checking trademarks and going through the right rigorous legal thingies.

But yeah, if Iceberg or Darkling had been on the ball, I think they could have made the MMO change name. It is probably too late now.

i think the author needs to apologize to gog for his post since all the other outlets are happily selling his game.

Well there is evidence of them still using the name with Lost Souls only being 4 years old. So I don't think they would have flat out lost it just like that. But by not defending their trademark against the first MMO they're actually in a pretty bad position now.

That's the problem with the law being written by those who profit from it. Lawyers do love to make work for themselves, which means that simply owning something isn't enough. You've got to pay them to defend against all possible threats. That's exactly why Notch got sued over 'Scrolls'. The law made it necessary.

But I think that trademarks have to be constantly disputed to be 'owned' - as it was with the whole Notch and Scrolls affair. Which means that I can go an make a caffe called McDonald's Burgers, and if McDonalds do not sue me, they are automatically relinquishing away their trademark. Or something like that. Which means it is that on the onus of the trademark owner to maintain the rights of the trademark, and it is this which have not happened here. It is not an automatic process.

Now that the Darkfall MMO have been in use, I think it is too late to get the trademark (if there ever was one) back.

edit - so it is not a matter of whether the name is still in use, but if the trademark owners are willing to fight to maintain it.

Both are actually important. Fighting to maintain a trademark which you do not actually use yourself is not enough, as Tim Langdell found out.

But yeah, in any case, we're agreed that this doesn't bode well. One possibility is that Darkfall simply becomes un-trademark-able. Sort of like Jaffa Cakes, for want of a better example. Meaning that anyone will be able to use the name.

I seem to remember that trademarks have to be used to be retained, hence the re-release of eg. confectionery products that you havent seen in years suddently appearing on the market as a limited edition periodically.

Except his games were removed from GOG at his request and Dark Fall: Lost Souls is still up on Steam. I'm not sure how you can link the removal of his games from here to the appearance of a different game on Steam.

Not exactly true. He posted on FB, then GOG removed the games on their own as a gesture of good will. They are waiting for the mess to be sorted out before returning them.

He's under no legal requirement to defend anything other than any trademarks involved.

Or at least that's how it is in the US, you get the copyright automatically and you only have to enforce it if somebody infringes and you want them to compensate you for it. You're under no legal requirement to use it or lose it. Same goes for patents.

Now, there may be reductions to what you can be awarded if the party infringing was led to believe that you wouldn't be enforcing your rights, but you don't lose the rights just by virtue of not using them.

Unfortunate but true.