Hi, I had legal questions regarding using names of competitor games. 1)Would I be allowed to use the name of the other game when I describe that I am it's competitor? 2)If I have a forums and others talk about the competitor on it, am I liable for it? What if I wrote down in the rules when they register that anything anyone posts is liable to them and in no way affiliated to my company. Than can people still talk about the competitor game if I am not the one that did it? Would I be required to constantly delete their posts even if they are the liable ones? Thank You

First a disclaimer: If you ever have to ask "will this get me in trouble," and you don't want to pay an attorney to find out, you shouldn't do it. Simple. Remember-- Just because you might have a DEFENSE doesn't mean you can't get SUED. But as for your question:

1) truthful competitive advertisement is legal under US trademark law and is in fact encouraged to ensure competition by the FTC. i.e., saying "compare our product to X brand!" is legal, provided you are truthful in your advertising and in no way display or suggest that the competitor's mark endorses or is affiliated with your own.

2) ISPs, website hosts, and those who facilitate the ability for users to comment (i.e. comments on a blog) or upload content (i.e. youtube) are to some degree shielded from liability for defamation and privacy rights (invasion of privacy, false light, etc.) claims by the Good Samaritan Act (ss. 230(c)) of the Communications Decency Act. Specifically, 47 U.S.C. §230(c)(1) states that, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Under most state laws, publishers were traditionally as liable as the speaker.

In lay-man terms, this means that a person who hosts a site or service that allows other "information content providers" (e.g., users of that site who publicly comment on the forums or comments portion of the site) may *technically* be shielded from liability.

HOWEVER-- This does not mean that you are risk free. On the contrary, by directly facilitating comment towards your competitor the competitor could 1) demand under threat of legal action that you disclose all of the IP addresses of users who make potentially defamatory or professionally damaging remarks on your site, and 2) bring a suit against you as a publisher under state law. While you might be able to raise the CDA/GSA as a defense, you will still be out potentially thousands in legal fees. If you want to create a forum regarding your competitor on your site, you should really consult a media/internet attorney to fully discuss the risks and liabilities.

Would I be fully shielded if I specifically write down when people register that anything they say is not affiliated with us and is at their own liability. This way it requires them to agree or not be allowed to register and post.

And by saying talk about the competitor game in our forums I don't mean making specific forums about their game. I mean that let's say people just start talking on their own about comparing our game with the competitor in a general forum.

Thank You

Quote: Original post by Avneet
Would I be fully shielded if I specifically write down when people register that anything they say is not affiliated with us and is at their own liability. This way it requires them to agree or not be allowed to register and post.

Just because the law is on your side doesn't mean you won't get sued. That's the main point you should probably take away from madelelaw's response.

Personally, my policy would be to delete any posts that you yourself would be uncomfortable posting.

Quote: Original post by Avneet
Would I be fully shielded if I specifically write down when people register that anything they say is not affiliated with us and is at their own liability. This way it requires them to agree or not be allowed to register and post.

And by saying talk about the competitor game in our forums I don't mean making specific forums about their game. I mean that let's say people just start talking on their own about comparing our game with the competitor in a general forum.

Thank You

There is no such thing as "fully shielded" if your name or product is affiliated with anything that could raise a potential defamation suit. No amount of disclaiming or contracting away liability will prevent a third party from bringing the action to your doorstep-- like I said, you can have an ironclad defense, but you have to go to court to raise that defense.

This is at least partially because you may be the only "named" defendant-- your company and/or product will be the most obvious target for a suit, not the anonymous individuals who post on your site.

So no. If you are concerned and determined to do this, you should consult an attorney to cover the specific facts and the potential risk you might face. The $250-$300 initial consultation (or sometimes free) is substantially less than the $250-$300 an hour you'll be spending over the course of weeks or months in the event of litigation.

I understand the point of being sued. In American you can practically bring out law suits for anything. What I'm trying to find is how protected I am besides the usual can just bring up a lawsuit. If I was to fight them putting a lawsuit on me with a lawyer, would I have a good chance to win if I specifically pointed out facts on how anyone who posted took liability for their own actions and are not affiliated with us.

Here are two other ideas I have.

1) If someone not affliliated to us hosted the forums, does that exempt us? Seeing as how everywhere online I go I see people comparing games on public forums. I hope at least at that point we aren't liable if it isn't even our website.

2) If the people hosting the server and forums(not "officially" affiliated with us) were to host it internationally in countries where we know law suits from America rarely touch, would be than be exempt. One for the fact that officially there is no way to even prove our connection to them, and two because anything that could have lawsuits against them are from other countries and still not affiliated with us.

I'm just trying to get all this side down. I've been seeing many developing sites with forums and they all have people posting about the game in development and it's competition(yet the developers never compare it themselves). There hasn't been any law suits against all these sites(including almost every game on mmorpg.com where you can go to the dev sites and see the same thing happen). I understand that people can always put the lawsuits on me, but I'm looking at how good of a chance I have to win it if this scenario ever happened to me.

Thank You

Your questions go outside the scope of general information, which I gave you. You're asking for a legal opinion concerning risk assessment and liability, which can only be given by a licensed attorney who is subject to attorney-client confidentiality and knows all of the facts of the matter, including the parties, the exposure of the various marks, companies, etc. and the particular case law and statutory law of your state. I suggest contacting one.


In some jurisdictions (such as Australia) limiting liability in your terms of use or having someone else host the forum for you does absolutely nothing for you. If you host a forum through a third party website or software but you still have control over the forum as an admin, you may still be held liable.

In other jurisdictions (such as the US) websites, administrators and third party service providers are considered immune from liability under the Good Samaritan Act mentioned above. Further limiting liability via your user agreement isn't necessary under the statute. The CA Supreme Courtsays as much, so as far as clearly limiting host liability CA is fairly safe. CA went so far as to protect an individual who republished a defamatory e-mail to a newsgroup. CA also has anti-SLAPP laws in place that would allow you to recover attorney's fees, etc. in the event that you are sued for defamation by virtue of hosting the forum (as opposed to being the original speaker).

[Edited by - madelelaw on May 26, 2009 8:18:25 PM]

Thank You very much for your help. The California side makes me feel better.