Publisher Bethesda is claiming that the creator of Minecraft violated its trademark.
Screengrab: evilhayama/Flickr

A day after challenging Bethesda Softworks to settle a legal dispute with a videogame battle, Minecraft creator Markus “Notch” Persson joked that he might have made a strategic miscalculation, even as he vowed to continue fighting.

The reassessment came after Persson’s geeky public challenge to a Quake faceoff, which the Swedish game designer sees as the ideal way to end a lawsuit threat from Bethesda over the title of his upcoming game Scrolls.

“If it came to a Quake III tournament, I have a feeling we just might have to change the name,” Persson told Wired.com, noting that Bethesda owns the brand and has several professional Quake players on its payroll. “In retrospect, Quake III might have been a poor choice.”

It’s the latest round in an ongoing tiff between Bethesda and Mojang, Persson’s indie game-development company. Several weeks ago, Bethesda threatened to sue Mojang for trademark infringement, claiming the title of Scrolls conflicts with the trademark on its series The Elder Scrolls, which consists of open-world role-playing games like Oblivion and the upcoming Skyrim.

The indie developer scoffed at the threat, calling it “nonsense” on his blog and saying he hoped Bethesda wasn’t “pulling a Tim Langdell.” Then he hatched his idea for a Quake-off, hoping to pit three of Mojang’s best players against three of Bethesda’s and avoid a legal battle.

“Remember that scene in Game of Thrones where Tyrion chose a trial by battle in the Eyrie?” Persson wrote on his blog Wednesday. “Well, let’s do that instead [of going to court]! I challenge Bethesda to a game of Quake III. If we win, you drop the lawsuit. If you win, we will change the name of Scrolls to something you’re fine with…. I am serious, by the way.”

Though Persson says he has not heard back from Bethesda yet, he thinks a stunt like this could be a great way for the Fallout publisher to save face, telling Wired.com in an e-mail that a Quake tournament could “bring both parties a lot of good PR.”

Persson said his lawyers are currently in contact with Bethesda’s, though he admits he’s not sure what kind of progress is being made, saying he finds it all “terribly boring.” When contacted for comment by Wired.com, Bethesda did not respond by press time.

Still, Persson vowed not to back down from the legal challenge.

‘If we’re going to court, I will fight this for as long as it takes.’

“If we’re going to court, I will fight this for as long as it takes,” he said. “It’s a bogus claim, and [Bethesda has] several one-word-named games that share a noun with other games that precede [its] games.” For example, Persson points to upcoming Bethesda shooter Rage, saying its trademark conflicts with Sega’s Streets of Rage beat’em-up series.

Still, some legal experts say Bethesda might have legitimate grounds. Attorney and game industry analyst Mark Methenitis told Wired.com that the publisher was just doing what any prudent trademark holder would normally do.

“The basic question here is whether the two trademarks are likely to be confused,” Methentis said in an e-mail. “There’s a pretty well-established test for this under U.S. trademark law, and based on those factors, Bethesda has a reasonable argument.”

These factors, which include “similarities of the goods involved” and the physical proximity of goods, according to legal resource BitLaw.com, seem to support Bethesda’s case. While hard-core gamers would generally know the difference between Scrolls and The Elder Scrolls — one is a card game and the other is an epic fantasy adventure — Methentis says average shoppers might think the two are related, since both titles include the word scrolls, both are games and both have similar fantasy themes (at a very shallow level).

“To me, the real question is the strength of The Elder Scrolls,” Methentis said, pointing out that people usually refer to The Elder Scrolls games by their subtitles: Morrowind, Oblivion, Skyrim, etc. “Even then, I wonder about the relative strength of Scrolls without Elder. That strength of the mark factor, along with evidence or lack of evidence of actual confusion, could be the determining factor.”

Though if Persson has his way, the determining factor will be Quake III skills.