“Dronvire of Rigel Four in the lead, closely followed by Costigan, Northrop, Kinnison the Younger, and a platoon of armed and armored Space Marines!” – E E Doc Smith, First Lensman, 1950
Corporate bullying is usually the prerogative of the big American media corporations. While trademarks are important it is also important that they are used correctly. Warner Brothers famously sued a young girl when Harry Potter first came out for having a fan-site. In no way was the site intended to generate revenue from the Harry Potter franchise and eventually Warner Brother’s backed down, but only after the PR nightmare that ensued, both in the UK and America. Had the website been a commercial venture intended to create revenue the result would have been different, and quite rightly so. Trademark law extends further than the internet however. One area where it’s always been much harder to apply trademarks has been the written word. You cannot go into a book shop today without seeing shelves full of vampire and werewolf stories. The reason for this is because vampires and werewolves are not trademarkable. When Bram Stoker wrote Dracula in the C19th there was already a rich cultural history of vampire stories. Elves, dwarves and orcs are a staple of the fantasy genre coming as they do from mythology. You will only find hobbits in Tolkein’s Middle Earth. This however is not trademark law, but copyright law. There is nothing to stop me from creating a world filled with elves, fairies, angels, vampires or werewolves. Due to the limitations on copyright I can even write a vampire novel and call the main protaganist Dracula. But the moment I call my race of short hairy footed men hobbits or call my old grey haired wizard Gandalf I’m crossing a line as these are characters inextricably linked to one specific fantasy world.
In December 2012 Games Workshop forced Amazon to remove a novella by the author M C A Hogarth titled Spots the Space Marine claiming trademark infringement. It’s ironic given that Games Workshop started out creating a role playing game that borrowed so heavily from the works of Tolkein that they now feel obliged to defend the term “Space Marine”. In the world of board games and role playing there is only one Space Marine, that of the Warhammer 40K universe. And quite rightly Games Workshop must protect it’s gaming trademarks. Were I to create a game centred around a squad of soldiers flying around the universe killing aliens I would have to name it something else due to the real confusion having another role playing game called “Space Marines” could cause. It’s the same reason I cannot create a new board game called Monopoly, it already exists and is uniquely associated with buying and selling property while making your family and friends bankrupt in the process. And this is what is important, can my name for a game cause confusion, would people buy my game thinking it was something to do with the Warhammer 40K universe? The answer is yes, but only if what I am creating is a role playing game.
The term Space Marine in science fiction is so generic there can be no confusion. It’s the same reason you cannot trademark the words dragon or elf, it’s a science fiction trope. It is literally the idea of taking the US Marine corp and moving them into the science fiction setting. What else are they but Space Marines? Heinlen’s Starship Troopers, Haldeman’s The Forever War and E E Doc Smith’s Lensman series all use the idea of elite military forces in space. The film Aliens introduces us the the Colonial Marine Corp. The idea of a Space Marine is as generic to science fiction as an elf is to fantasy. One of the first uses in science fiction is the short story Captain Brink of the Space Marines by Bob Olsen, written in the 1930’s. Were I to see a book with the title “Space Marines” my first thought is to the authors above and not to the board and computer games of Games Workshop. It is for this same reason that the Dragonlance novels based on the Dungeon’s and Dragons board game clearly state on them that they are based on the game. Otherwise they are just another generic fantasy novel.
It is for these reasons that Games Workshop cannot claim trademark infringement for the use of Space Marine in a work of fiction. In fact the term is so generic it has already been used as a movie title resulting in Games Workshop’s own movie being titled Ultramarines instead. Given the internet’s ubiquity and the speed that causes can gain pace via social media it remains to be seen if they will back down quickly or if they will risk a PR nightmare such as recently caused by Applebee’s sacking of a waitress for embarrassing one of their more bigoted customers.
M C A Hogarth’s blog can be found here
Update (Feb 8th, 2013) : First, a big thank you to all of you who are visiting this blog, It’s relatively new and the response has been fantastic (okay, not huge, but this post already has the most views of any post I’ve made). In a strange way I must also thank Games Workshop, as a result of this PR farce they have highlighted everything that is wrong with the way trademarks are being enforced. Some news, while I’m yet to see anything from Games Workshop other than “no comment” it would appear Amazon have seen the light and realised their claim is baseless. Spots the Space Marine is back on Amazon’s website here