Sony's "Let's Play" Trademark Denied For the Wrong Reason

This article first appeared on USgamer, a partner publication of VG247. Some content, such as this article, has been migrated to VG247 for posterity after USgamer's closure - but it has not been edited or further vetted by the VG247 team.

Do you know what a Let's Play video is? It's when a YouTuber or streamer plays through a game for the enjoyment of their audience. Let's Play is a contraction of "Let Us Play", indicating the shared aspect of the experience. It's a known concept in the gaming community and Let's Play videos or streams are rather common these days.

Sony Computer Entertainment, who recently got into the whole streaming thing thank to the PlayStation 4's Share feature, apparently tried to take this community concept and trademark it. NeoGAF user Seraphis Cain noticed that Sony tried to file an application for a Let's Play trademark back in late October. In particular, the application was to cover services that included "Electronic transmission and streaming of video games via global and local computer networks; streaming of audio, visual, and audiovisual material via global and local computer networks."

In late December, the United State Patent and Trademark Office (USPTO) sent a letter to Sony, rejecting the trademark application. As an enthusiast, you might think it was rejected because Let's Play is a concept that did not originate with Sony and everyone is already using on a regular basis. No, the trademark was refused because it's too similar to another registered trademark. That trademark is for "LP Let'z Play", which was filed in 2013 by Let'z Play of America, a company that apparently provides live video game tournaments and "on-demand console gaming". Sony has six months to respond to the rejection.

We frankly don't know what specific use Sony Computer Entertainment has for the Let's Play trademark. It could be for an ad campaign, as Sony has previously trademarked "Greatness Awaits", "The Best Place to Play", and "Push the Boundaries of Play" for PS4 marketing. It's more likely that Sony want to use the term in tandem with the PS4's Share feature.

Of course, the big question is: can Sony legally trademark Let's Play? Possibly. The idea behind a trademark is that it's a phrase or logo that's supposed to be tied to very specific product, service, or company. A company can trademark common words and phrases if you can show that a phrase has acquired a very distinct secondary meaning. For example, as Slate points out, Avon owns the trademark for "Let's Talk", but so do a bunch of other companies for different goods and services.

Sony has to prove that the Let's Play term is distinctive to its services. The worry here is that the USPTO may be completely blind to the existing works in our community and allow the trademark to be registered. A search should show that Sony and the PlayStation 4 do not hold a monopoly on the term "Let's Play" in any way, shape, or form. The issue here is if Sony did receive the trademark, it looks like they could prevent others using the term "Let's Play" to cover game streams. That'd be an actionable situation - Sony would have to legally act and it may decline to do so for your average streamer - but the company would be within their rights to do so. (The public backlash would be considerable.) In addition, those who are already using the term prior to the registration should technically be in the clear... which covers a ton of people.

To see how trademark can go horribly wrong, you only have to look at the long history of Tim Langdell and his trademark for "Edge". Alternatively, you can look to when King tried to trademark "Candy" and "Saga" when tied to any video games. The developer backlash was swift and immediate on the "Candy" side, and King eventually abandoned that trademark in the US. King did try to enforce its Saga trademark against Stoic Studios' Banner Saga. That was ultimately resolved, though King still hold the "Saga" trademark.

So hopefully, this notification is putting Sony's attempt in the limelight, which hopefully may make it harder for the company to finalize its trademark application.