Ubisoft Bows To Monster Energy To Rename An Upcoming Game Horribly

from the scared-of-the-monster dept

Veteran Techdirt readers will have been so tempered by stories about Monster Energy playing the trademark bully at this point that the mere mention of the company should cause them to roll their eyes. Still, the history of what we've covered in the Monster's attempt to win the trademark-protectionist championship are still constructive in one very important way: Monster Energy regularly loses these disputes. That in itself shouldn't be terribly surprising; the company's decisions on just how often to enforce the trademark rights it has are often so absurd that it would be a shock if it put together any sort of real winning streak. But what is surprising is when victims of Monster's bullying choose to actually concede to the bullying, given that losing track record.

But it happens, even when the victim is a large enough entity that it could fight if it wanted to. A recent example of this is how Ubisoft changed the name of an upcoming video game after Monster Energy opposed its trademark application for it.

Ubisoft's Gods & Monsters recently underwent some rebranding, switching its name to the demonstrably-worse Immortals Fenyx Rising a few weeks ago. It has gone over like a lead balloon. In fact, it had our team wondering if we should just refuse the new name and stick with the old one!

As uncovered by TechRaptor, Monster Energy opposed Ubisoft's trademark for the title "Gods & Monsters." The logic goes that Monster has enough of a presence within video games that Ubisoft's use could reasonably cause confusion among consumers.

Logic which runs counter to the purpose of trademark law, to how trademark law actually works in terms of market designations, as well as to good business and marketing. Taking those in reverse order: the name change is almost objectively terrible. I have yet to find any publication that thinks the title switch was even a wash for Ubisoft, never mind beneficial. The universal opinion seems to be, and I agree with it, that Ubisoft to one extent or another participated in a bit of self-harm by this rebranding.

Now, on to the actual legal question. The consensus here too seems to be that Ubisoft could have easily have won this battle on the merits, but didn't want to simply to avoid any delay stemming from a legal battle.

Playing armchair attorney, this seems like something Ubisoft probably could've won, no? My guess is that it has less to do with whether or not Ubisoft cared to spend the money on this legal battle, and more to do with just getting the game out on shelves. Immortals has been delayed already, and its sales factor into Ubisoft's fiscal year that ends in March 2021. Fighting a protracted trademark infringement case would further delay the game. Going ahead with the name Gods & Monsters would result in an injunction. Ubisoft may be in the right, but it doesn't have the time to prove it.

Which is all probably true, but only if Ubisoft couldn't have gotten a declaratory judgement when Monster Energy first opposed the trademark application. Because it is quite clear that there is no infringement here. Whatever participation Monster Energy has in the video game space, most of which is mere sponsorship and advertising, it still isn't a maker of video games. Ubisoft should have needed merely to point that out to get its use declared legit. Couple that with the broader question as to whether literally anyone would make the association between a video game called Gods & Monsters and an energy drink company and I would guess getting a court to side with it would have been fairly easy for Ubisoft.

But Ubisoft decided against that route and bowed to Monster Energy's bullying. Which is how we get Immortals Fenyx Rising instead of Gods & Monsters. An objectively worse name. For no reason, other than trademark bullying.

Cool.

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Filed Under: gods and monsters, immortals fenyx rising, monster, trademark
Companies: monster energy, ubisoft


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  1. identicon
    Anonymous Coward, 18 Sep 2020 @ 7:56pm

    Meh. It's difficult to find the motivation to get up off the couch to cheer Ubisoft on for any reason. Sure, they're not EA. But all of this over the name of a game that will launch come hell or high water for the sake of year end revenue numbers? Again I say, meh.

    If the game is good then it's a good game. People will play it regardless of the name. Why care so much?

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 18 Sep 2020 @ 8:45pm

    Re:

    In unrelated news, Advanced Dungeons and Dragons(R) has announced a new rulebook, to be tentatively titled "Manual of Creatures Advocating Alternate Ethical Systems." There is a new chaotic evil character class, "M*r", with subclasses "Toxic Mr Litigators," "Ogilopoly Mr Giants," and "M**rs of Business Adversarity". Combat rules have been revised to allow bluffing, bullying, and financial extortion.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 18 Sep 2020 @ 8:48pm

    Re:

    I'll agree that Ubisoft is not nearly the most sympathetic victim, considering that Ubisoft is no stranger to strongarming with IP.

    That said... Gods and Monsters isn't new either. Justice League: Gods and Monsters was already a thing. It looks to me like Monster Energy just picked a gamble when choosing someone to bully and for some reason, Ubisoft folded.

    reply to this | link to this | view in thread ]

  4. icon
    Kutukecil (profile), 18 Sep 2020 @ 9:35pm

    i like this game

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 18 Sep 2020 @ 10:10pm

    Re: Re:

    Ubisoft didn't even bother to roll.

    reply to this | link to this | view in thread ]

  6. icon
    Dave (profile), 19 Sep 2020 @ 2:00am

    Traditionally, these apparently bonkers trademark infringement cases were actually used to garner free publicity for both parties. It's a rebuttable presumption that it's going on here.

    Next up, Fenwick's objects to the new name.

    reply to this | link to this | view in thread ]

  7. icon
    JoeCool (profile), 19 Sep 2020 @ 4:37am

    How confusing!

    First thing I thought of when I saw their new name was the Fenix game development language.

    reply to this | link to this | view in thread ]

  8. identicon
    Pixelation, 19 Sep 2020 @ 6:46am

    Luckily...

    I won't be confused any longer.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 19 Sep 2020 @ 8:04am

    Monster does not make video games,
    Is there someone going to a gamestop looking to buy energy drinks, they do not own the word monster , monsters the word has been used in plenty of games before monster the company existed . Ubisoft would have won the case had they gone to court.
    You are not supposed to sue people unless you use the trademark in that business your mark is registered in in the case of a generic word like
    Monster

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 19 Sep 2020 @ 10:16am

    To one degree or another I associate both Monster Energy and Ubisoft with upset stomach, so there's some legitimate chance of confusion.

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 19 Sep 2020 @ 11:45am

    Yet another way in which Ubisoft sucks.

    reply to this | link to this | view in thread ]

  12. icon
    OldMugwump (profile), 19 Sep 2020 @ 12:09pm

    Lawyers: Professional cowards who earn more than you do

    Yellow-bellied candy asses who take your money in exchange for telling you to run from bullies the size of a poodle.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, 19 Sep 2020 @ 5:58pm

    Re:

    Are you from the future? It isn't out till December.

    reply to this | link to this | view in thread ]

  14. identicon
    bob, 19 Sep 2020 @ 7:01pm

    cameo time

    And after launch we find Ubisoft inserted one more creature. The Mcan of legalt. The most ugly, puny, easily killable thing you will ever come across.

    reply to this | link to this | view in thread ]

  15. icon
    asscombinator (profile), 19 Sep 2020 @ 11:30pm

    you're a moron

    first, the new name is no different than the old name. this public news was a free ad for both parties -they thank you for helping. some manager wanted to change the name and get a bonus for getting free ads, or they planned it from the beginning. there you go -a simpler and more reasonable explanation.

    reply to this | link to this | view in thread ]

  16. icon
    Stephen T. Stone (profile), 20 Sep 2020 @ 3:22am

    the new name is no different than the old name.

    Old name: Gods & Monsters
    New name: Immortals Fenyx Rising

    Yeah, no, I don’t see any differences there~.

    this public news was a free ad for both parties

    Ah, so you’re one of the fools who believes in that “any publicity is good publicity” bullshit.

    some manager wanted to change the name and get a bonus for getting free ads

    I’ve literally never heard of any game company ever doing this before, and I doubt Ubisoft would ever want to be the first.

    or they planned it from the beginning

    And if you believe that, I think I could interest you in buying a bridge I happen to own.

    This was not some devious (and ridiculous) plot to get “free advertising” for the game. I mean, if Ubisoft really wanted that free advertising, they would’ve chosen a far better name; if Monster Energy wanted that free advertising, they wouldn’t have filed a lawsuit that makes them look like assholes. Stop believing in dumbass conspiracy theories and go read a book that isn’t written by a right-wing grifter.

    reply to this | link to this | view in thread ]

  17. identicon
    Anonymous Coward, 20 Sep 2020 @ 4:39am

    Monster Energy runs all these losing cases because they're quite simply tax evading.

    Run stupid case: claim you spent $10 million fighting it in "administration", when you ACTUALLY spent only a few 100k....sign taxes as a loss

    do this 20-30 times a year....suddenly you're claiming 100s of MILLIONS of dollars as losses and not paying tax.

    reply to this | link to this | view in thread ]

  18. icon
    PaulT (profile), 20 Sep 2020 @ 6:13am

    Re: you're a moron

    "first, the new name is no different than the old name"

    Are you hallucinating or just illiterate?

    "there you go -a simpler and more reasonable explanation."

    Not really. Let's apply Occam's Razor here. On the one hand, a massive multinational corporation announces a new IP at a major launch event where they could have announced any name they chose, in order to change it to something completely different a year later so that they can gain some free publicity closer to launch. On the other hand, they announce a title completely relevant to the content that happens to contain a specific word that another company sues over every time it appears in a trademark, and rather than fight for it they opt to use an alternate title while there's still time to rebrand their marketing.

    One of these sounds way more likely, and it's not the one supported by the guy who thought that "Immortals Fenyx Rising" and "Gods & Monsters" contained the same letters.

    reply to this | link to this | view in thread ]

  19. identicon
    Anonymous Coward, 20 Sep 2020 @ 1:23pm

    Re: Prior uses

    Given the list in the parent post, I approve of a name change solely on the basis that it may make searching for relevant hits easier later. Suppose the game does well enough to be notable and stay in the market for an average or better period of time. If I want to learn about it to decide whether to buy it (or how to get better at playing it), will I have an easier time getting Google, Yahoo, et al. to find relevant hits if the game is called "Gods and Monsters" or if it has the new name? Sure, if I thought about it, I might be able to encourage the search engine to find relevant results by throwing in "Ubisoft" "game", etc., but not everyone will think to try that (especially people who don't know if the publisher was Ubisoft, Activision Blizzard, Epic, Valve, etc.). It's better for users if the game has a unique title, especially if it's still short enough that blog posts, Wikis, etc. about it actually use the full title.

    It's a shame that it took a baseless legal threat to prompt the name change, but hopefully the change will ultimately be for the better.

    reply to this | link to this | view in thread ]

  20. identicon
    Anonymous Coward, 20 Sep 2020 @ 3:11pm

    Dear Sirs: As proprietor of Phoenix(R) Baking Powder, I demand that you change the name of your game immediately. If you do not know, your lawyers will tell you that baked goods including cakes have been part of entertainment gatherings for millenia now, and so naming a game after my product will cause brand dilution and product confusion. (The spelling difference is not significant enough to make a distinction: many of my customers are not classical scholars.)

    reply to this | link to this | view in thread ]

  21. identicon
    Crafty Coyote, 20 Sep 2020 @ 3:44pm

    Ubi Soft- if this headline doesn't sum up their business practices, nothing will. https://www.thegamer.com/ubisoft-china-bugged-mug/

    reply to this | link to this | view in thread ]

  22. icon
    PaulT (profile), 20 Sep 2020 @ 11:35pm

    Re: Re: Prior uses

    Well... the current search results for just "God and Monsters" does return the Ubisoft game first right now despite the name change, and if you only search "Immortals" without remembering to include the full subtitle it doesn't. That might change as the game gets more popular, but it's not the first reusly right now. Also, the Ubisoft does seem to be the first videogame using that title, although there's always some obscure title somewhere that uses a title.

    But, names are reused all the time. People don't seem to get confused by the terms "The Avengers" referring to both a Marvel comic book series and a 60s TV show along with its movie adaptation. While Marvel did have to adjust the title slightly to comply with trademark law in the UK, people don't have a problem adjusting to that.

    reply to this | link to this | view in thread ]

  23. icon
    Scary Devil Monastery (profile), 21 Sep 2020 @ 1:27am

    Re: Lawyers: Professional cowards who earn more than you do

    "Yellow-bellied candy asses who take your money in exchange for telling you to run from bullies the size of a poodle."

    Well, yea, but in the US tort law has ensured there's even odds that poodle can walk away with gagging bagfuls of your money if it can be established that it thinks you looked at it funny.

    And the only viable defense is that you give some yellow-bellied candy ass - a lawyer - half of what you'd otherwise stand to lose.

    That's how it works when, for a significant proportion of your working population, their income is directly tied to proving grievances in civil courts.

    reply to this | link to this | view in thread ]

  24. icon
    Scary Devil Monastery (profile), 21 Sep 2020 @ 1:30am

    Re:

    "Huh, I feel like I've heard that name before.. Oh yeah:"

    You miss the salient point; That ubisoft's lawyers found the similarity between a can of raw sewage similar enough to the game of their client they considered it a real risk of trademark conflation.

    Obviously that is not the case for the film, song, album or audio drama...

    reply to this | link to this | view in thread ]

  25. icon
    PaulT (profile), 21 Sep 2020 @ 1:52am

    Re: Re:

    "That ubisoft's lawyers found the similarity between a can of raw sewage similar enough to the game of their client they considered it a real risk of trademark conflation."

    Erm, no, Monster's lawyers went on their usual "block everything with a trademark application that mentions the word "monster"" trip, and Ubisoft decided it would be better to just change the name rather than fight a pointless legal battle while they're trying to market the game's release. It would be way more costly to change the name after release or during its upcoming marketing push than it is now, so they took the path of least resistance. Ubisoft are not the aggressors in this story, and were quite happy with the title until the usual trademark troll raised it head.

    reply to this | link to this | view in thread ]

  26. icon
    Scary Devil Monastery (profile), 21 Sep 2020 @ 5:13am

    Re: Re: Re:

    "...Ubisoft decided it would be better to just change the name rather than fight a pointless legal battle while they're trying to market the game's release."

    Only if Monster's lawyers were already on a tort-spam tour which had hit up every other use of the "M" word (from your list and otherwise) and Ubisoft was that one example where the legal team decided to cave. To be fair, I can't say that isn't the case either...

    "...so they took the path of least resistance."

    It ought to have been an open-shut case either way, given that Ubisoft's legal team isn't exactly...unproven...when it comes to either launching or smacking down tort.

    "Ubisoft are not the aggressors in this story, and were quite happy with the title until the usual trademark troll raised it head."

    Please read my comment again; "That ubisoft's lawyers found the similarity between a can of raw sewage similar enough to the game of their client they considered it a real risk of trademark conflation."

    Under normal circumstances I'd have expected the Ubisoft legal team to simply return a "we can't for the life of us see ANY similarity between a computer game and an energy drink, so unless you pay us much money to cover our administrative fees we'll countersue". Instead they apparently found a real risk and Ubisoft subsequently caved, rather than take the easy win and call Monster's fairly obvious bluff.

    I can't imagine Ubisoft being happier with the new title which honestly reads like something an eight grader with dyslexia might come up with. To me it looks like neither the Ubisoft legal or marketing teams were firing on all cylinders here.

    "...until the usual trademark troll raised it head."

    What I really find odd there is that there are still so many Trademark trolls who go for the tort-spam approach. Trademarks are usually far better defined than any other part of IP so unlike patents you don't need to rely on having a portfolio of 20,000 obsolete patent claims on owning the sole right to hold a rectangular communications device to your ear with your arm at a specific angle and similar nonsense just to fend off the idiot claiming that they own sole right to build devices with rounded corners.

    You just need to demonstrate that there is no practical or commercial tangent or risk of conflation between your product and competitor's product for you to win a trademark case. Which in the case in the OP should have been fairly self-evident.

    reply to this | link to this | view in thread ]

  27. icon
    Scary Devil Monastery (profile), 21 Sep 2020 @ 5:16am

    Re: Re: Re: Re:

    Addendum;

    Also, I forgot to add a last line in my original reply. "/s".

    This may put things in better context...😅

    reply to this | link to this | view in thread ]

  28. icon
    PaulT (profile), 21 Sep 2020 @ 5:38am

    Re: Re: Re: Re:

    "Only if Monster's lawyers were already on a tort-spam tour which had hit up every other use of the "M" word (from your list and otherwise) and Ubisoft was that one example where the legal team decided to cave."

    I might be thinking of Monster Cable rather than Energy to be fair, but there is certainly an entity who will sue anyone trying to trademark something using the word "Monster".

    "Under normal circumstances I'd have expected the Ubisoft legal team to simply return a "we can't for the life of us see ANY similarity between a computer game and an energy drink, so unless you pay us much money to cover our administrative fees we'll countersue". Instead they apparently found a real risk and Ubisoft subsequently caved, rather than take the easy win and call Monster's fairly obvious bluff."

    No, the problem is that the game is set for release on 3rd December 2020. They have no major investment in the title of the game as yet, and I'm sure that it's standard for a new IP to have alternate titles in case of legal problems when registering those IPs. By caving now and changing the title, they won't lose too much in investment before the legal case goes through.

    However, if they fought it and they lost, they would have to destroy all marketing materials, recall the entire physical manufactured run across 6 platforms and do new runs with the new title, then completely remarket the game under the new title. Even if they won, there would be a time of uncertainty where they might not be able to confidently release DLC, merchandising, etc. By bailing now, they avoid confusing people with a marketing push on a name they might not be able to use, and avoid manufacturing a bunch of unsellable stuff they then have to dispose of at their own expense.

    "I can't imagine Ubisoft being happier with the new title which honestly reads like something an eight grader with dyslexia might come up with"

    Whereas their previous title was not only used many times across many types of media, it was first coined al least a century ago. Is that really better? At least the new title is directly referencing the main character of the game "Fenyx" rather than a generic title, and I'd assume the spelling of the name is to avoid similar trademark issues with the many, many things out there containing the word "phoenix".

    "You just need to demonstrate that there is no practical or commercial tangent or risk of conflation between your product and competitor's product for you to win a trademark case. Which in the case in the OP should have been fairly self-evident."

    You've been here long enough to know that just because it doesn't make sense to dispute a trademark, that doesn't mean they won't try anyway. I suspect Ubisoft knew this and that's why they had alternate versions ready to go should the trademark be disputed. If this was someone disputing the new Assassin's Creed game title they're probably fight, but on a new IP it might be easier just to lock in to a different name that's not going to cause them launch delays and expense.

    reply to this | link to this | view in thread ]

  29. icon
    Scary Devil Monastery (profile), 21 Sep 2020 @ 7:30am

    Re: Re: Re: Re: Re:

    "You've been here long enough to know that just because it doesn't make sense to dispute a trademark, that doesn't mean they won't try anyway."

    True enough, and you might have a point, if what went down was like this;
    "So, we're a puttin' them screws on you and we might not have much of a case, but given how soon you want to launch that game, do you really wanna take the chance?"

    "and I'd assume the spelling of the name is to avoid similar trademark issues with the many, many things out there containing the word "phoenix"."

    I'd honestly think that'd be less of an issue given how generic the word "phoenix" is through art, history, mythology, etc...then again the same holds true for words like "Monster" and for all I know, "Cake". At some point no doubt a copyright lawyer may claim the trademark on "Troll".

    Still can't help but wonder what Monster gets out of this. Other than being dicks, I mean.

    reply to this | link to this | view in thread ]

  30. icon
    Tostie14 (profile), 22 Sep 2020 @ 7:05am

    There is a Monster Energy videogame

    I'm certainly not in favor of Monster Energy's bullying tactics. However, I think it's worth pointing out there actually is a Monster Energy Supercross video game that has been published. Given that they do have a presence in this industry, it adds a little more legitimacy to their opposition to the trademark filing.

    reply to this | link to this | view in thread ]

  31. icon
    PaulT (profile), 22 Sep 2020 @ 7:29am

    Re: There is a Monster Energy videogame

    Not really. If you can have the movie Monster and the movie Gods and Monsters (both fact-based dramas) competing without confusion in that market, you can have have a supercross title that bears no possible similarity to the Greek mythology themed game without any risk.

    reply to this | link to this | view in thread ]

  32. icon
    Tostie14 (profile), 22 Sep 2020 @ 7:34am

    Re: Re: There is a Monster Energy videogame

    I agree with you that there really isn't any chance of market confusion. I just simply wanted to add a detail that refuted any argument that said that Monster Energy isn't in the video game business so therefore they shouldn't be allowed to bully.

    reply to this | link to this | view in thread ]

  33. icon
    PaulT (profile), 22 Sep 2020 @ 8:04am

    Re: Re: Re: There is a Monster Energy videogame

    Yeah, I get the point, but the main reason they're associated with gaming at all is their sponsorship of sport events, including esports and supercross.

    "I just simply wanted to add a detail that refuted any argument that said that Monster Energy isn't in the video game business so therefore they shouldn't be allowed to bully."

    I'm not sure anyone's really saying that. The article states this:

    Whatever participation Monster Energy has in the video game space, most of which is mere sponsorship and advertising, it still isn't a maker of video games.

    Which is true. Monster sponsor some eSports tournaments, and they do sponsor a supercross tournament which, as you correctly mentioned, has has a game version of it made. But, that's an extraordinarily flimsy excuse for claiming to own a common English language word in the videogame space, which has probably been used thousands of times in that space before either Ubisoft filed their trademark or Monster Energy encountered the market.

    reply to this | link to this | view in thread ]

  34. icon
    John85851 (profile), 24 Sep 2020 @ 12:17pm

    Re: There is a Monster Energy videogame

    I can maybe, sort-of see the confusion:
    Little Billy: Grandma, please get me that 'monster' video game.
    Grandma goes to the store: Hmm, is that "Ubisoft's Gods & Monsters" or "Monster Energy Supercross"? I don't know.

    Then she brings home the Disney's Monsters, Inc video game.

    reply to this | link to this | view in thread ]

  35. icon
    PaulT (profile), 24 Sep 2020 @ 11:04pm

    Re: Re: There is a Monster Energy videogame

    Or Sony's God Of War ("but Grandma, I have a Switch...")

    These scenarios are just as likely, and no trademark would stop them happening. The only reason why grandma wouldn't now be getting the new title confused is that the most recent videogames containing the word in the title are digital only releases, not because she wouldn't still get confused.

    reply to this | link to this | view in thread ]

  36. icon
    OldMugwump (profile), 2 Oct 2020 @ 11:14am

    Re: Re: Lawyers: Professional cowards who earn more than you do

    "Even odds" is a vast exaggeration.

    There is a risk of that, yes. But MOST of the time courts come to reasonable decisions.

    We can't be complete cowards unwilling to accept any risk whatsoever, and expect to keep our freedom.

    Otherwise some bully with a pocket knife will take over.

    reply to this | link to this | view in thread ]


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