Review-Bombing: The Ethical Case

Updated:

Aleron has been granted a supplemental register for his trademark.  Originally, he applied for a principal register.  His original attempt was repealed because the judge ruled that the mark was too generic to be effective.

In his new attempt, the judge removed that ruling and granted the trademark.  A special hat tip goes to Irene Woodhead, who pointed out that the reason the ruling was removed is because Aleron’s lawyer has amended the ruling from a Principal to Supplemental Register.

So, what’s the difference.  A supplemental registration means almost nothing legally except what would already apply under common law.  He has five years to prove that his mark has acquired “secondary meaning”, a legal term meaning that his generic mark is so infused with his brand that when people think LitRPG, they think “Aleron Kong”.  I find it difficult to believe that this will happen.  The amended filing in question.

The applicant seeks registration of the mark on the Supplemental Register (i.e., a change of the words ‘Principal Register’ to ‘Supplemental Register’). NOTE: The applicant has separately filed an Allegation of Use, to change the basis of this application from Section 1(b), intent-to-use, to Section 1(a), use in commerce.

http://tsdr.uspto.gov/documentviewer?caseId=sn87193675&docId=OOA20170112124254#docIndex=17&page=1

Principal Register

Aleron has made numerous shifting, conflicting, and convoluted claims over the course of his filing.  It appears that he is using attorney/client privilege to shield himself from criticism, claiming that all of these filings are from his attorney, and that he abandoned the claim nearly a year ago.  I find this statement absurd and without merit.

He can easily post any emails or letters he’s written to his attorney asking her to stop, and if she failed, he would have grounds for disbarment against her and grounds for recouping any financial transactions he committed with her.  A lawyer must legally do what the client wishes, and many an aggrieved lawyer has recommended actions which the client has not undertaken.

So, the first claim that Aleron made was that a trademark/service mark, (hereafter referred to as simply “mark” for brevity’s sake), is not enforceable.  I find this claim moronic.  The whole point of a legal apparatus is to enforce laws.  Otherwise, what’s the point of laws?

Aleron applied for a service mark.  A mark is designed primarily to protect the consumer, under the provision that a consumer has a right to know what good or service they are purchasing and where that good/service originated from.

The primary feature of a mark is it’s distinctiveness.  A mark that is too vague or generic is not considered registrable.  This was the case with Thrifty Inc. where the court ruled that “Thrifty Inc” is too generic to qualify.

In the original ruling for Principal Registration filed by Aleron, the court ruled that the mark failed on distinctiveness.

The attached evidence, excerpts from GoodReads, The Verge, Magic Dome Books, and Blaise-Corvin, shows the wording “LITRPG” is commonly used in connection with similar publishing services to mean “a popular sub-genre amongst Korean, Japanese and Russian readers . . . [i]t’s a mixture of Science Fiction, Sword and Sorcery and MMO/Reincarnation elements within the books.”  Therefore, the wording “LITRPG” merely describes a characteristic of applicant’s entertainment information and publishing services—namely, the subject matter of applicant’s publications.

For the above reasons, the proposed mark “LITRPG” directly and immediately conveys information about applicant’s entertainment information and publishing services.  Accordingly, the proposed mark is merely descriptive of the identified services, and registration is refused under Trademark Act Section 2(e)(1).

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Original Article with amendments:

I’m not calling this a drama-alert because it is a more serious problem.   I actually wanted to give Aleron Kong the benefit of the doubt here, because even though he attempted to do something, he didn’t actually do anything. The pitchforks and fires were out too early for that.  But now he has done something.

What initially riled my feathers wasn’t just what he attempted to do, it’s his sanctimonious video that he posted in response to people asking serious questions.

So let’s talk about Aleron’s behavior, what lead to the problem, and the ethics of when review-bombing is acceptable.

Quick overview of the legal scenario:

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Background

About a year ago, Aleron Kong attempted to trademark the term “LitRPG”. This is the full docket of the claims and here.

He claims, with absolutely no evidence to back it up, that there were several other groups trying to steal the term, so he wanted to trademark it first in order to prevent that.

Outside from the fact that he has no evidence to back any of these claims up, (that which can asserted without evidence can be dismissed without evidence), the whole thing appears dubious.  He even seems to admit this seems implausible because he acknowledges it:

Back in the day, as silly as this sounds, there was CONSTANT friction and strife between the various litrpg authors and companies. There was drama, lies, verbal attacks, fake accounts made to start flame wars… basically everything you saw today but on a larger scale smh

What’s this “back in the day” nonsense?  His first book was published in November 2015, that was two years ago.  This isn’t ancient history before the internet.  Though I am glad that he acknowledges that this sounds like a load, because it does.

But that’s not what I’m really looking at right now.  I’m looking at the filing for trademark.  It says:

FIRST USE: 20151101. FIRST USE IN COMMERCE: 20151101.  

Here, he’s literally claiming that LitRPG didn’t exist before November 1 of 2015.  Guess when he wrote his first book?

We know that this isn’t the first LitRPG book by that name, because D. Rus had his book out with the term LitRPG in it before then in 2014.

This is further compounded by the fact that he used to call himself the “Father of LitRPG” before he switched it to “The Father of American LitRPG”, both titles he gave himself.  A great salesman strategy, but something only an absolute liar would ever call themselves.

Even ignoring the Russians like D. Rus, Mahanenko, and Andrei Livadny; I know for a fact that D. Wolfin, Stephen Morse, Scottie Futch, Charles Dean, Harmon Cooper, Robert Bevan, and Brent Roth wrote before Aleron. Likewise, Google reports that the term first popped up in 2012.  The largest spike was in June 2015, before Aleron wrote.

Simon Vale of Magic Dome Publishing clarified this issue (thanks) with this post.  This is backed up by the Google Trends data on the search history for LitRPG.

Aleron Kong has just registered the acronym LitRPG as a trademark. In order to clarify our position, we wish to state the following:

1) The name LitRPG – as a description of a new genre of Science Fiction – was originally created by Dmitry Rus, Dem Mikhaylov and Vasily Mahanenko in 2012. Less than a year later, Dmitry Malkin – the science fiction editor of EKSMO Publishers – and literary agent Alex Bobl created a book series counting almost a hundred titles which was entitled LitRPG.

2) This term was then brought into the US by LitRPG fans who followed D. Rus’ and V. Mahanenko’s works in Russian (see here for proofs – http://www.jcafe24.net/index.php?board=123.0 ). But it became very widespread only after the translation and publication of the first books by D. Rus (July 18, 2014) and V. Mahanenko (April 20, 2015) in English whereas the first book by A. Kong was published in November 20, 2015.

3) We have never planned to use our rights as LitRPG pioneers to have it registered as a trademark or do anything of the sort. Not only would that be unethical, but we simply can’t think of it as something that belongs to anyone in particular. It belongs to all of us.

4) We will always support anyone who is willing to use the LitRPG term for his/her own purposes freely and unconditionally. This includes gathering proofs and making statements in court (if necessary).

Dear friends and colleagues! We all agree that Amazon should create an independent LitRPG category. We have asked for this many times but have only received as a response that such a step hasn’t got enough support from readers. But we’re certain that if we persevere with our efforts, at some point Amazon will hear us. So please find some time to send a letter to their customer service in order to bring this subject back to the table.

There’s two major pieces in that.  The first is that if anyone has a legitimate claim to the title, it would be the above people.  The second is that the deny that they have ever sought to try to use the mark as a means of restricting competition, which is the claim that Aleron makes.

The overall point is that by calling himself the “Father of LitRPG”, Aleron is essentially  saying, “Trust me, I’m a liar”.

Anyway, this is further compounded by the fact that the trademark states:

“Providing a website featuring entertainment information in the field(s) of movies, television, literature, and social media; Publishing of books, e-books, audio books, music and illustrations.”

You see, in order for a trademark to have any effect, you have to establish what categories the trademark belongs under.  Hence there’s no “generic” category for trademarks.

However, his trademark is not about movies or television except insofar as it references a website that talks about those.  Instead, the trademark applies to the “publishing of books, e-books, audiobooks (sic), music and illustrations.”  These are all related to books, it doesn’t say anything about trying to trademark it for movies or television.  That’s a very relevant point in a second.

After an initial uproar over this trademark application with the LitRPG community fervently against Aleron’s attempt at trademark, and with the trademark office itself rejecting the claim, it died down.

Aleron swore that what very obviously looks like a power play is absolutely not a power play.   Unfortunately, his own UK agent, (Craig Fletcher), in an attempt to defend Aleron, published this from Aleron.

The number 1 reason I filed was so that no one would ever grab the LitRPG name and force me and other authors to not write in the genre. I had and have NO intention of doing that to others. One, it would just be a seriously dick move. And two, IT WOULDN’T WORK! lol

Anyone who understands anything about law would tell you it would be damn near impossible to enforce it! Also, it would just be a bone head move that would piss people off. Despite the fact that those points are obvious to me though, I know for a fact other authors and or publishing companies had that very idea. So I took steps to protect myself, and by extension, the genre, which is a focal part of my life. I LOVE LitRPG. It saved me in some very real ways. But I digress.

The second reason I did it is that I’m a business man. I see the potential in LitRPG, and if ever a movie is made, I’d like to be a voice in that room. A copyright might have, probably wouldn’t have, but might have helped that happen. So I figured, why not?

Once again, I’m glad that he acknowledges that this would be “a seriously dick move”.  Because from the outside, that’s exactly what this appears to be.  But constantly reminding people you’re aware that you’re doing shady things while swearing you’re not isn’t a great argument.

He also has numerous sets of contradictory claims.  He’s saying that he needs to protect the industry, then saying that it would be non-enforceable.  If it’s non-enforceable, then you don’t need to protect the industry from unnamed nefarious forces.  These are literally two contradictory statements, they cannot both be true.

However, once given a trademark, it is entirely enforceable, see the court cases listed in the update.   That’s the whole reason trademarks exist, and we’ll cover exactly what this would grant him at the end of this.

His next contradiction is that you can’t say that:

1. You were totally not going to use this as a weapon or a way to enforce things because you know from a legal standpoint this is entirely impossible.
2. You’re a businessman who wants to weasel hump his way into a movie deal and would absolutely abuse this.

This is even more bizarre since he wouldn’t have a trademark in that area, a movie studio wouldn’t even consider it (see the above filing).

He only has a trademark on books, audiobooks, etc., by his own filing.  If this was really his intention, he probably should have clarified that with his attorney.  Aleron’s defense seemingly is that he hired an incredibly inept attorney.  This is very convenient since attorney/client privileges allow him to say pretty much whatever he wants about his attorney’s handling of the case.

But to the point,  these are two directly contradicting claims.  Either he was doing it from the goodness of his heart or he was doing it as a businessman, but both claims can’t be true.

In fact, it’s because everyone believes point 2 about Aleron (he is, in fact, a good businessman), and no one believes point 1 (he does not do perform any altruistic act that conflicts with his business) that this dispute arises.

This is evidenced in his personal conduct.  He routinely uses his own group “LitRPG” to promote himself and his friends, and not to promote the community at large except when they agree to give him publicity.  He flagrantly breaks his own group rules whenever it benefits him.  Again, this is good business (point 2), but it’s not some selfless and altruistic act (point 1).

He uses the “LitRPG” term of his group to sucker people in, without realizing that it’s essentially his own personal safe space.  Say anything he doesn’t like, or ask a question he doesn’t like?  Oh that hammer ban will becoming right down.  It’s not hard to see that this serves no benefit for the community at large and it strictly serves him.  He has been kicked out of moderation roles in Reddit and other communities for precisely this reason, his flagrant double-standards.

It’s the absolute stunning hypocrisy that he displays that infuriates me.  As Martin Luther said, “Be a sinner and sin boldly”.

Actions speak louder than words.    But this is simple and easy to prove.  If Aleron really wanted to prove he could give up power to the community, he’d resign from his LitRPG group and give it to the community, and use his own author page to promote himself.

I expect a 0% chance of that happening, which is the same percentage I’d give him to not abuse the trademark if he were given it.  Actions > Words.  Trust is earned, not given.

Anyway, he continues:

Now, as for refiling, I honestly had no idea it was happening til this morning. Apparently the lawyer I hired a year ago to do it refilled. When I called to ask this morning, she said a refile was part of the service I’d paid for. Never occurred to me that the lawyer would do MORE work when I wasn’t pestering her lol

So that’s what happened. I’m honestly only telling you b/c you asked. And other than close friends of mine, you are the single solitary person who took the time to approach me and request an explanation.”

He was CC’d by the copyright office, so maybe he doesn’t check his email or just ignored the email from the patent office.  It’s true that the attorney would do whatever she was paid to do as part of a contract, but this seems… really strange to say the least.   Attorneys normally contact clients when performing an action on their behalf, or he didn’t remember that he paid her money to do something (?)

There were three distinct changes made.  The first, as noted above, is that the mark was changed from Principal to Supplemental.  Second, the filing was split.  It separated out the merchandising claim from the book-related claims.  Third, it changed from “Actual Use”, (1A) to “Actual Use/Intent to Use” (1A/1B).

That this could all happen without his knowledge is not plausible.  That it could happen against his express orders is an offense for disbarment.  Each of these filings jointly increase the amount of time a ruling goes on.  If Aleron paid up front, his lawyer would essentially be agreeing to provide five years of service.

Filing under “Intent to Use” means his attorney will have to refile the claim again with the proof that he is actually using the trademark or ask for an extension on that.  Either way, she’s signed up to do a lot of free work in that initial contract.  And the fact that the contract has been expanded without his knowledge is another curious item.

This is all incredibly weird even further still to me because one of the requirements for filing a trademark is that the person filing is not ‘trying to “occupy the field” and inhibit competition, rather than establish a legitimate trade under the mark’.

In short, if he claims he is just trying to hold onto the trademark to prevent other people from getting it, his claim is immediately void and null because that’s not what trademarks are granted for.

There’s no such thing as squatter’s rights to a trademark, and his public admission of this purpose means that even if he were granted it, he could immediately have it taken away by whatever nefarious group(s)? are trying to do this.  In short, Aleron expects people to believe:

1. His attorney had no idea what to file the trademark under, so she filed it under books, e-books, audiobooks, music, and illusions and forgot about movies and television.
2. His attorney didn’t tell him that if he was intending to squat on this, regardless of intention, his claim would be immediately void.
3. His attorney agreed to refile the trademark claim without his knowledge.
4. She updated the claim to include merchandising without his knowledge.

Assuming this was true, this would be a ringing endorsement to never hire that attorney.  Sure, this is theoretically possible.  Attorney’s do have “single contract” blanket agreements where they will perform all the necessary steps and refiling.  But Aleron says he didn’t know that this was what he signed up for.  Again, possible but highly incredulous.

Anyway, being caught in this situation, many people asked him understandably why he is attempting to do something that is blatantly stupid and will only engender ill-will towards him at best, and probably lead to a drop in readership, acceptance amongst his peers, and other actions at worst?

The response here could have been simple.  He paid a lawyer a year ago, part of that payment was any necessary re-filings, he’ll drop it very soon.  Case closed.  That would be the professional way of dealing with something.

Instead, he posted this nonsense.  If you don’t want to watch it, he essentially talks about how this is internet drama and what about the people in Las Vegas, what about the people in Puerto Rico, use Amazon Smile, etc.

Essentially he’s using a fallacious moral argument called “Not as Bad As”.  Roughly it goes, why worry about the evil I’m committing because there’s some greater evil somewhere else?  It’s an argument that has an effective rate of 0.

As Seneca put it, Bonitas non est pessimis esse meliorem.  (To be good, it is not enough to be better than the worst.)

It’s worse to shoot someone than to kick a puppy, but you don’t get away with kicking a puppy because someone else was shot.

Anyway, Aleron continues.

So that’s what happened. I’m honestly only telling you b/c you asked. And other than close friends of mine, you are the single solitary person who took the time to approach me and request an explanation.

Given that he published the video before this was published by Craig Fletcher, he clearly was asked multiple times to explain himself, and he choose to wrap himself in tragedy as a shield against criticism.  It’s the most insulting and disgusting thing I’ve ever witnessed.

Yes, compared to the Vegas shooter, he’s not the worst human being alive.  Congrats on that achievement, put a medal on the wall.

But is that really the moral standard he holds himself to, and does anyone seriously think that’s the moral standard that should be used when judging other people’s actions?

Anyway, what we have here is a mountain of evidence that his intentions were for the worst of reasons and we have literally not one shred of evidence that it was done for a good reason.

But, there’s a crucial point: Even assuming that he had every intention of doing evil, he hasn’t actually done anything wrong yet.  However, he has now done evil.  It’s now a question of how much more evil will he do in the interim.  He just took the ring of power and has told us he has no intent on abusing it.

Copyright vs. Trademark

A lot of people are seemingly confused by the difference between a copyright and a trademark.  A copyright only grants ownership of a particular property to an owner.  For example, Aleron Kong owns the copyright to his The Land series, but that grants him no ownership of any other title.

In contrast, a trademark is a claim that you own a particular brand, and if anyone else attempts to use that brand, they are diminishing the value of your own brand.  This is intended to protect the consumer, who wants to buy a quality product that they recognize, and the producer.

Should a trademark be given, Aleron would have the authority to do two things:

1. Claim any title with LitRPG in it is infringing on his trademark and diminishing the value of his brand.  That means add legal disputes to any titles that exist.
2. Claim rentier fees in order to license out his brand to other authors, t-shirt sellers, etc.

The second one is a common corporate strategy.  The technical name for it is “brand licensing”.   Essentially, he’d become the arbitrator of what is and is not LitRPG, and anyone attempting to enter the market would have to pass through him as the gatekeeper.  Additionally, he’d have the right to strike down anyone, anywhere, at any time.

So this negates Aleron’s claim that it wouldn’t be enforceable.  It would have the entire weight of the law behind it, barring substantial challenges to his claim.

Likelihood of grant?

It should have been Virtually none.  But apparently, it’s 100%.  As discussed above, the trademark must be to a particular good and service offered by a particular entity.  One of the tests for that is if the term attempting to be trademarked is simply a descriptive term.  If so, it fails the trademark test.  A trademark must be inherently distinctive.

The attached evidence, excerpts from GoodReads, The Verge, Magic Dome Books, and Blaise-Corvin, shows the wording “LITRPG” is commonly used in connection with similar publishing services to mean “a popular sub-genre amongst Korean, Japanese and Russian readers . . . [i]t’s a mixture of Science Fiction, Sword and Sorcery and MMO/Reincarnation elements within the books.”  Therefore, the wording “LITRPG” merely describes a characteristic of applicant’s entertainment information and publishing services—namely, the subject matter of applicant’s publications.

For the above reasons, the proposed mark “LITRPG” directly and immediately conveys information about applicant’s entertainment information and publishing services.  Accordingly, the proposed mark is merely descriptive of the identified services, and registration is refused under Trademark Act Section 2(e)(1).

Does this mean it’s completely dead?  No.  There’s one other test that can be used, and that’s the “secondary meaning” test.  But the secondary meaning test means that your brand is so popular that it conveys a meaning outside of the words itself.  This is very difficult to prove and requires that a product be around long enough to even merit consideration for that claim.

The cynical side of me thinks that this is why instead of filing to cancel the claim, he let it get near the verge of expiring, then updated the claim to “Intent To Use”, which has a larger timespan and the ability to file continuous extensions on.

Aleron’s claim could still potentially be true, but since he can cancel the trademark claim at any time, the answer of why he hasn’t done so seems a huge thing to consider.

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Should he be review bombed?

Well let’s get to this.  There’s a thread on Reddit asking if he should be review bombed.  Blaise Corvin (edited: I confused two different people, my bad bro!) came out against it, but I don’t like his reasoning.  I don’t think Aleron should be review-bombed, but for an entirely different reason.

Blaise’s reasoning:

Please /DO NOT/ go on a retaliatory crusade against Aleron’s books because you don’t like him as a person. That’s wrong. Period.  Art should be judged on its own merit. What you think of the artist should not matter.

Blaise is both right and wrong here.  You shouldn’t go after Aleron because you don’t like him as a person. That’s irrelevant.  Maybe he’s a wonderful person, but after watching his holier-than-thou video, I think he’s a gonif. But that’s not a good enough reason to review bomb him.

However, you absolutely should review bomb when someone engages in anti-consumer behavior.  You are a consumer.  If someone is engaging in anti-consumer behavior, it is absolutely your right to hit that person in the wallet and make them pay attention.

We’ve seen how review bombs can completely change company behavior.  A few small examples:

• Mass Effect 3’s horrific ending:  Changed after review bombs.
• Elder Scrolls, Skyrim:  Removed paid mods after outcry.
• Grand Theft Auto 5 tried to stop mods.  The review bomb hit, they quickly back-peddled.
• The Star Wars Battlefront 2 loot box gambling system.

This has happened numerous times with other games where companies did blatantly anti-consumer things, got a review bomb, and then stopped.

So it’s very clear that a review bomb is a powerful, potent weapon for consumers to use against companies and individuals that engage in anti-consumer behavior.  I’m an advocate for the consumer, not the producer.  It’s not hard to avoid this problem:  Don’t do dumb things and you won’t face consumer backlash.

At this point, with his numerous lies, bullshit behavior, and threat of legal enforcement, I can’t see any reason to defend him.  At the end, here’s what Aleron has done to his reputation.

1. That he has lied multiple times proves he is not trustworthy.
2. That he refuses to engage anyone who disagrees with him proves he is a coward.
3. That he attempted to manipulate the law to profit off other’s work proves he is a leech.
4. But he didn’t shoot anyone from a Vegas hotel window.  So he has that going for him.