Last weekend, we reported that Sony is trying to register a trademark for "Let's Play," a term that for years has been commonly used to describe videos of people playing through and often recording their reactions to video games.
The United States Patent Office said it would likely reject Sony's application in its current form, but gave Sony six month to address its concerns, namely that Sony's application is too similar to an existing trademark. If Sony does that, the trademark will go through. Now, one law firm is trying to stop Sony from registering the trademark before it's too late by proving that "Let's Play" is a generic term.
"If Sony gets this trademark, someone will have to pay hundreds of thousands of dollars trying to cancel the trademark and fighting Sony's lawyers, and then you have the burden of proof for canceling their mark and that's going to be a very difficult, uphill battle," Stephen McArthur, an attorney who spends his time counseling clients on trademark and copyright issues in the video game industry, told me.
If Sony managed to register this “Let’s Play” trademark, the company would be in a good position to sue any YouTuber or Twitch streamer who uses the term to promote their videos, including "Let's Play" king Pewdiepie, who has the most popular channel on YouTube with 41 million subscribers.
On December 29, the USPTO responded to Sony's application saying it was too similar to a trademark from a company that provides a similar service.
The trademark in question is for “LP Let’z Play,” which the USPTO describes as an entertainment service that provides “online and offline opportunities for video game enthusiasts to meet and participate in live video game tournaments and on-demand console gaming.”
"The problem with that is that LZ Let's Play has abandoned their trademark," McArthur said. "So all Sony has to do is show the trademark office that this trademark is abandoned. As soon as they show that, than Sony's application will go through."
Which is why McArthur's is filing a letter of protest. McArthur explains that a letter of protest is an obscure procedure that allows third parties to submit evidence for the USPTO to consider before a trademark is published.
By providing the USPTO with blog posts from 2005 discussing "Let's Play" videos without any mention of Sony, the "Let's Play" subreddit, and videos from Pewdiepie and others, the letter can hopefully show that "Let's Play" describes video game streaming in general, not Sony's video game streaming.
"Whoever's examining Sony's application might not be a gamer, and you really have to be in the games industry to realize that 'Let's Play' is a ubiquitous term," McArthur said.
If the letter of protest works, then Sony's "Let's Play" trademark is dead. If it doesn't work, McArthur said, it could take hundreds of thousands of dollars to enter a legal battle with Sony after the fact, which gamers are not guaranteed to win.
"Hopefully they get my letter in time, because I really do think that if they see all this evidence, once they're aware of what 'Let's Play' is, I think they will reject Sony's trademark,"McArthur said.