[Update: In fairness, this blog had it first, then we posted it, then Kotaku. Sorry for any confusion. Also, the guy who runs the blog decided to take his original post down. Here is the explanation. Again, sorry for any misunderstanding on my end. — Robert Summa]
In a case of WTF, the ESA has deemed Kotaku to be the target of their ridiculous threats over a t-shirt in which we posted about here first — a day earlier in fact, not that we’re bragging or anything. Apparently, the ESA is the sole owner of text-in-a-box designs and has threatened Kotaku to make the post disappear or they will be very very angry and shake their wrinkled fists in the air at Kotaku.
Earlier this week the Entertainment Software Association sicced their lawyers on us. Demanding that we take down the post about the shirt, calling it an advertisement and saying that the shirt would create consumer confusion and a “substantial likelihood that the ESRB certification marks will face tarnishment and dilution.” OK, so they were confused. So we wrote back to point out that the post was in fact editorial content and not an ad and that we have nothing to do with the shirt. Problem solved. Nooooo. The ESA responded demanding that we remove the post, image and links and prove we had done sone within three days. Our response: Go to hell. Sure, it was much more eloquently stated, but the fact is that the ESA can’t control editorial content of a website. As a matter of fact, they probably can’t stop the shirt seller either, since the creation is so obviously a parody.
Check out the letter that was sent to Crecente after the jump. To Whom It May Concern: The Entertainment Software Association (ESA) owns both Federal Trademark and Federal Copyright Registrations for all of its ratings in a rectangular box, with a rating tag line. As such, the rating in a box design may only be used in connection with entertainment software that has been rated by the Entertainment Software Rating Board (ESRB) and under no circumstances may the ESRB ratings be modified, or used to sell merchandise.
It has come to our attention that Kotaku is advertising on its website www.kotaku.com, a t-shirt that is using an unauthorized “E” rating in a rectangular box (see attached). The rectangular box design and tag line on the t-shirt is virtually identical to the ESRB’s rating in a box design and tag line (hereinafter “rating in a box design”).
We believe that this t-shirt ad will result in consumer confusion, and a substantial likelihood that the ESRB certification marks will face tarnish and dilution. This matter is of serious concern to the ESA. Therefore, we write to demand that your company immediately remove the t-shirt from your website, and cease from displaying the t-shirt, or any other rating in a box design similar to the ESRB’s, whether used in conjunction with promoting, or advertising the sale of merchandise or otherwise.
Please provide us confirmation that the t-shirt has been removed, by responding to this email within five (5) days. If you have any questions, please feel free to contact me at the number below. Thank you for your immediate cooperation. Christina L. Boone Entertainment Software Association 317 Madison Avenue – 22nd Floor New York, NY 10017
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