Epic suing Nreal (AR glasses) over name

[Valhoven]

Reminded me at first glance of Monster Energy forcing Ubi's transmog of Gods and Monsters to Immortals Fenyx Rising.

Not sure how this plays out with China involved and a 2021 US launch of Nreal looming. Epic is the developer behind Fortnite and, relevant here, the Unreal Engine, which was the game engine (specifically fourth-gen) for titles like the FFVII remake, Gears of War series, and PUBG – just some FYI there for dawgs unaware.

Will paste Verge article below:

Epic Games sues AR company Nreal for sounding too much like ‘Unreal’

It claims Nreal’s name is ‘virtually identical’ to the Unreal Engine’s

Epic Games has sued smart glasses maker Nreal for infringing on its Unreal Engine trademark. Epic, which filed the case late last week, claims it’s “no coincidence” that Nreal’s name “looks and sounds virtually identical” to Unreal’s branding. As Nreal plans a US launch later this year, Epic wants to recoup damages and scuttle its application for a trademark.

Epic argues that on top of “Nreal” sounding a lot like “Unreal,” both companies are competing in the same space. The China-based Nreal makes an augmented reality headset known as the Nreal Light, which projects 3D objects into real space, and it’s developed a demo game called Nreal Tower. Its glasses shipped in Korea last year, and Nreal has gradually expanded their availability, announcing plans for a US launch in the second quarter of 2021.

Meanwhile, Epic’s Unreal Engine is a ubiquitous game-making tool that’s also used for films and general purpose 3D design. Epic has signaled interest in augmented reality, although it hasn’t indicated that it’s building hardware. And the lawsuit notes that “Epic expects Unreal Engine to feature prominently in the creation of a virtual metaverse, a real time three-dimensional social platform where friends meet to interact and have enjoyable experiences.” Nreal’s glasses even support the Unreal Engine. Epic claims that all this potential crossover could confuse customers.

Epic and Nreal have been quietly fighting over the “Unreal” trademark for years. Epic filed to block Nreal’s trademark in 2018, and the companies discussed a settlement after that. But Epic’s suit claims the discussion was “fruitless.” And Nreal recently tweeted a promiseof “big news” on May 20th, saying that “something you’ve all been waiting for is on its way.” Epic sued the day after that tweet.​

Sauce: Go to external page

 

[Valhoven]

Related, UE5 enters today into developer early access. Full release is projected for early 2022. Beautiful and a game-changer, nyuck-nyuck. Check it out or skip around at a minimum to see the powerhouse v.5 is:

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[Diogenes of Sinope]

Any law experts in here? Can Epic lose this?

 

[Law Talkin’ Guy]

Any law experts in here? Can Epic lose this?

They could, but probably not. Unreal is pretty clearly a trademark of Epics and Nreal is pretty damn close to it and isn’t particular distinct from it. At first glance
I’d say Epic’s legal position is overwhelmingly stronger.

Even if Epic is unable to do anything in China they’d likely be able to get an injunction to block Nreal from operating in the US in any meaningful capacity.

 

[Woldog]

They could, but probably not. Unreal is pretty clearly a trademark of Epics and Nreal is pretty damn close to it and isn’t particular distinct from it. At first glance
I’d say Epic’s legal position is overwhelmingly stronger.

Even if Epic is unable to do anything in China they’d likely be able to get an injunction to block Nreal from operating in the US in any meaningful capacity.

I disagree, while the names Unreal and Nreal are very similar there is no doubt what they do is vastly different.
Nreal - Creates Augmented reality glasses
Unreal - Is a video game making engine.

For Epic to win this case they actually have to prove that Nreal operating in the USA will actually cause them monetary loss from the similarities to the Unreal Engine. (of which I don't see much).
Trademark disputes over names like this usually fail because no one is going to mistake one product for the other. An example of a case that would win

Person 1 has a premium membership website called Sherdog that is an MMA forum
Person 2 develops a premium membership website called Sherdawg that is an MMA forum.
Person 1 sues and shows that there is a distinct similarity that could impact their potential monetary gains.

An example of a case that may fail
Person 1 has a premium membership website called Sherdog.com that is an MMA forum
Person 2 has a premium membership website called sherdog.com.au that is a forum for the latest dog trimming equipment.

Person 1 has to prove that people are being confused by Person 2's website and that they are losing money because of it.

I personally can't say I've ever bought a pair of glasses expecting a video game engine.

 

[Nova44]

They could, but probably not. Unreal is pretty clearly a trademark of Epics and Nreal is pretty damn close to it and isn’t particular distinct from it. At first glance
I’d say Epic’s legal position is overwhelmingly stronger.

Even if Epic is unable to do anything in China they’d likely be able to get an injunction to block Nreal from operating in the US in any meaningful capacity.

How about Blizzard suing that tv show for having a dog called Diablo?

 

[Law Talkin’ Guy]

I disagree, while the names Unreal and Nreal are very similar there is no doubt what they do is vastly different.
Nreal - Creates Augmented reality glasses
Unreal - Is a video game making engine.

For Epic to win this case they actually have to prove that Nreal operating in the USA will actually cause them monetary loss from the similarities to the Unreal Engine. (of which I don't see much).
Trademark disputes over names like this usually fail because no one is going to mistake one product for the other. An example of a case that would win

Person 1 has a premium membership website called Sherdog that is an MMA forum
Person 2 develops a premium membership website called Sherdawg that is an MMA forum.
Person 1 sues and shows that there is a distinct similarity that could impact their potential monetary gains.

An example of a case that may fail
Person 1 has a premium membership website called Sherdog.com that is an MMA forum
Person 2 has a premium membership website called sherdog.com.au that is a forum for the latest dog trimming equipment.

Person 1 has to prove that people are being confused by Person 2's website and that they are losing money because of it.

I personally can't say I've ever bought a pair of glasses expecting a video game engine.

Proving damages is not a requirement of trademark infringement, especially if Epic only seeks an an injunction to block the sales of the product.

The test is likelihood of confusion as to the source of the product, not what the product is. Of course no one would look at AR glasses and think “is this the Unreal engine?” The test is would a person think “Nreal eh? I wonder if this is made by the same people as the Unreal Engine?” What trademark protection is for is protecting an entity’s right to exclusively profit from its own goodwill.

The unreal engine is tech. Nreal AR glasses are tech. The businesses are close enough that there could be consumer confusion if a person sees the glasses, is familiar with Epic’s Unreal Engine and thinks “hmm, I guess Epic’s getting in on peripherals like Facebook did with Occulus” then that’s enough. Lastly, they don’t need to prove anyone actually has been confused, instead it’s an analysis over the possibility of confusion.

 

[Woldog]

Proving damages is not a requirement of trademark infringement, especially if Epic only seeks an an injunction to block the sales of the product.

The test is likelihood of confusion as to the source of the product, not what the product is. Of course no one would look at AR glasses and think “is this the Unreal engine?” The test is would a person think “Nreal eh? I wonder if this is made by the same people as the Unreal Engine?” What trademark protection is for is protecting an entity’s right to exclusively profit from its own goodwill.

The unreal engine is tech. Nreal AR glasses are tech. The businesses are close enough that there could be consumer confusion if a person sees the glasses, is familiar with Epic’s Unreal Engine and thinks “hmm, I guess Epic’s getting in on peripherals like Facebook did with Occulus” then that’s enough. Lastly, they don’t need to prove anyone actually has been confused, instead it’s an analysis over the possibility of confusion.

I also didn't factor in that trade mark law in Australia is different to the US lmao.
I personally don't think the tech is close enough to confuse anyone. But I am almost not a United States Judge.

 

[Law Talkin’ Guy]

But I am almost not a United States Judge.

And this could be key too. If they end up drawing a 75 year old judge who barely understands technology past the 1980s Nreal is going to be fucked.

 

[Woldog]

And this could be key too. If they end up drawing a 75 year old judge who barely understands technology past the 1980s Nreal is going to be fucked.

That straight up made me laugh out loud at work.
The best thing about the United States legal system is their laws are somewhat open to interpretation for the judges to dole out decisions as they see fit. Whereas in Australia the law is near absolute regardless of mitigating circumstances the judge has to rule how the law would punish it. They are able to shave off a bit but there are minimum and maximum sentences that they can't avoid.

For instance when I was young and dumb I was drinking one night at a club and went out to the car to wait for my mate, I hopped in the front seat with the door open to wait for him. I had the keys but he was driving home as he wasn't drunk. The police drove past and breath tested me, I was clearly well over the limit and because I was sitting in the drivers seat (feet on the ground, more resting against it) they decided I was planning to drive despite me telling them and they booked me for drinking driving. During my court appearance I told the judge this and he agreed I likely was not intending to drive. But he also said because of the laws he would have to convict me. I was convicted of drink driving however he suspended my licence for 3 months (which was the minimum) and he opted not to record the conviction, so essentially I lost my licence for 3 months and that was it. In the eyes of the law I was not convicted of any crime nor was I even in a court room that day for a crime.

 

[Valhoven]

Great back and forth. The points brought up have me wondering though how in all Middle-earth Monster Energy was able to provide a cogent enough analysis of consumer confusion between an energy drink and video game? I always thought the Gods and Monsters case strange but now even stranger. Set me straight, shinobis, esq.

cc: @Law Talkin’ Guy, @Woldog

 

[Law Talkin’ Guy]

Great back and forth. The points brought up have me wondering though how in all Middle-earth Monster Energy was able to provide a cogent enough analysis of consumer confusion between an energy drink and video game? I always thought the Gods and Monsters case strange but now even stranger. Set me straight, shinobis, esq.

cc: @Law Talkin’ Guy, @Woldog

I don’t think they were to be honest. I think they basically just bullied their way into getting what they wanted on their reputation alone, namely that they’re apparently extremely litigious and that the game developer wouldn’t want to spend hundreds of thousands in legal fees trying to fight off Monster Energy Inc. from a borderline frivolous law suit. Apparently Monster has a reputation for being absolute world class assholes when it comes to suing just about everyone, so when you get a cease and desist letter from them, even when you know you’re in the right, sometimes you’re better off just changing your course of action than to try and take them on and find yourself with a Pyrrhic victory at best.

 

[Plissken]

Change the name to Ncanny or something. With them both being in tech and videogame applications this could be a problem for them. It's a bit different than Monster Energy or Monster Cable suing those in entirely different fields.