Gettin' Sued (Part 2)

Read to the end for a sleeper Metroidvania that I love.

Very quickly before the article — I am never going to charge for my Substack. I don’t write enough to justify that, and a lot of the writing I do in here is just selfish navel gazing anyway. But I am really enjoying writing on here, and I feel like if I can get a couple hundred subscribers, I might be able to start doing it more regularly (also I am not employed full-time at the moment.) So if you like these occasional missives and feel like contributing, I would really appreciate it. If not, I still appreciate you reading. Thanks.

Two things to know about me in advance of this story:

1. I am terrible at naming things. My wife named my old podcast and my band. I pick a new username for every platform, and each is uniquely bad (agoldmund for twitter, malicegoldman for instagram, and so on), and a lot of times a username is based on either a series of nonsensical phonemes that pop into my head, or I choose the name of something I am literally looking at in the moment. I mean, you’re reading a newsletter called “The Cool Dude Zone.” So yeah, naming things does not come naturally to me.

2. I wouldn’t say I have oppositional defiance disorder, per se, but I have an allergic reaction to being pushed around by people who I feel have some kind of outsized power relative to me. I think this is an asset as a journalist, but on a personal level, it’s self-destructive more often than not. I have walked off of more than one job because I thought a boss was being disrespectful. I apologize to my friends and family for being this way

These two personality traits collided a couple months back, but to understand the story, we have to go back a few years.

I have terrible ADHD and find it incredibly hard to reliably stick to any kind of schedule, even when it is a schedule of doing things that are good for me. One of the ways I have discovered I can sometimes stick to a schedule is by being beholden to other people. For example fear of disappointing co-workers is greater than my fear of finishing work projects, so I tend to make my deadlines. I love making music, but the prospect of getting started can feel incredibly overwhelming. So in 2019 or so, in an attempt to more regularly play music, I started a Twitch channel where I could train a camera on my synthesizers and start plugging in wires and plonking on keys, in the hopes that knowing even a couple people would be watching would help me make music on a more regular bases (spoiler: it hasn’t.)

When Twitch prompted me for a username, I plucked “tuffshed” out of the aether. If you have no idea what a Tuff Shed is, well it’s a line of pre-fab sheds you can order online that come easy to assemble and in a variety of attractive models that can be delivered and installed in your home or workplace. It is also the title of a prank phone call by my hero, Longmont Potion Castle. Unsurprisingly, the username was available.

I have, over the years, used the channel off and on, but it has always gone fallow after a while because I have a hard time committing to it. Performing live is stressful in the best of circumstances, and adding the video production aspect to it can be agonizing. Also, a lot of composing and recording music for me is trial and error until you hit on something that sounds good. It can be really anxiety inducing under that spotlight.

That said, this winter found me in one of my brief moments of trying to revive the channel (which I am still trying to do, please follow and subscribe at twitch.tv/tuffshed) by both doing music content, and playing video games in the persona of a 3D anthropomorphic goblin named Alan. He’s pretty cool you should follow him on twitter.

Alan the Goblin in some kind of off-brand, non-tuff shed.

Anyhow, I am not sure I had even started streaming again at that point, but on January 8th, I received an email from Stephanie Butler, Manager of Risk & Legal Management at the Tuff Shed corporation. It read:

Hello Mr. Goldman,

It has been brought to our attention that you have the following Twitch account:  twitch.tv/tuffshed

Our company has a trademark on the words Tuff Shed and request that you cease using “tuffshed” in your account name.

As a formality, I am attaching a cease and desist letter for your review.

now I’m sure that as a corporation, sending cease and desist letters is a formality. But as some dickhead running a twitch channel where he voices a cartoon goblin and plays Halo, it was very jarring. It got even weirder when I dug into the C&D.

Cease and Desist sent by Tuff Shed

The letter has the standard “stop using the name Tuff Shed” language, but also includes reference to something called “Bama Sheds,” which meant nothing to me. As near as I can tell, the author used an existing C&D when was mean to target someone who was rebranding Tuff Sheds for sale, and just changed the name at the top. So that was confusing.

My first impulse was to fire off an email saying I would change the name of my Twitch channel, which I did, following by immediately posting about it on Twitter. But as I was posting through it, I decided to look up their Trademark filings, and as I did I could feel the spark of that old fire for getting into pointless confrontations with people I think are bullying me.

Tuff Shed Trademarks (courtesy US Patent and Trademark office)

As I mentioned in my last post, a trademark does not give you blanket control over a word or phrase. It protects you from “reasonable confusion” between your product and someone else’s. Tuff Shed’s trademark filings have no mentions of computers, hardware, software, streaming video. They narrowly cover physical buildings, materials, and construction services. I don’t think anyone is going to confuse Alan the Alex Goblin trying to speedrun Pizza Tower with a pre-fab shed available for purchase and installation at your local Home Depot, but I’m not a lawyer. Fortunately, I was contacted by someone who was.

Nathan Shaffer, a partner at the law firm Orrick, Herrington & Sutcliffe LLP, reached out after seeing my twitter threat and said that he would be willing to write a pro bono response to Tuff Shed’s C&D. This guy is no joke, and this was some serious legal power to have on my side. So I decided that yes, this would be a great idea.

Nathan quickly composed a polite but forceful letter to let Tuff Shed know that their lawsuit had no merit. Most of it is pretty pro forma — lots of legalese, citations of existing case law. But I did want to highlight a couple things.

I love that the bit at the top that takes a swing at the product itself, because it’s true that the name Tuff Shed is trying to gussy up something pretty banal and not that impressive. It’s a damn shed. A shed that in old commercials they tried to make seem cool with hard rock guitar and a motorcyclist. But what I find much much funnier is that he turn that criticism immediately around on to me. I myself and pretty banal and very I “[have] nothing to do with things that are traditionally considered to be ‘tuff’ like sheds where ‘tuff’ things like tools are stored.” It turns out that sometimes your strongest legal argument is that you are a velveteen dandy who spends to much time online and orthogonal to toughness. Whatever, I’ll take it.

The only other thing I wanted to highlight is the idea of Tuff Shed expanding into maintaining a twitch account. I cant imagine the Tuff Shed corporation’s video game streams being that interesting, but I feel like I would livestreams of shed assembly would be hypnotic as content goes. I don’t plan on doing it. I can’t even hang a towel rod. But just — I feel like that’s an untapped market.

So far, I haven’t heard anything from Tuff Shed since firing off the response. It’s possible that I’ll never heard from them again. It’s also possible that tomorrow I could be served papers while I’m shuffling down the street. Anyone can sue anyone for anything at any time, and as I said at the top of this story, I am being kind of a stubborn asshole. But I am being a stubborn asshole that is on the right side of legal precedent, and if I do get sued, I hope I can count on all of you to help fund my legal defense. Because it would be hilarious (TUFF SHED DO NOT SUE ME). Until such time as I receive an injunction against using the name Tuff Shed on twitch, you can watch me on Wednesday 4/26 at 9PM ET. I’m gonna play guitar real loud. Should be fun!

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I have been replaying Guacamelee! 2 for the first time in many years, and I think it might be my favorite Metroidvania. I have never played a precision platformer that feels so accessible, and ramps up the difficulty so gradually. Plus the character design and story are vivid and colorful and silly. And it’s cheap. And you play as a luchador fighting your way through hell. Get into it.