I don't approve, I'm just pointing out that it can be done, has been done, and the legal system countenances it when a company does it.

All I'm saying is that claims that "Scrolls" cannot be trademarked because it is a common English word are not made knowledgeably.

If a common word bears no relationship to the goods (like "Apple"), it's a "fanciful" trademark and is accorded the strongest protection. "Scrolls" for a game involving scrolls wouldn't be "fanciful", IMO.

If a common word describes the goods (which I think "Scrolls" does), it's a "descriptive" trademark, and is protected so far as the public actually associates the mark with your goods.

"Elder Scrolls" is either a fanciful or a solid descriptive trademark, with a history of many years of exclusive use and a public association with only one company. Whether "Scrolls" infringes on that is a question that is open to argument; but since one party is determined to settle the matter in court, then the matter has to be settled in court.

Not all trademarks are of equal strength. 'Scrolls' is likely to be a weak TM in this context, but a TM nevertheless.

Yes, in US trademark theory, it's most likely "descriptive". For a descriptive trademark to stand, it has to be already associated in the public mind with the trademark owner's goods.

If I designed a computer, and marketed it as a "Potato" Computer, that would be a fanciful trademark, entitled to strong protection. But if I were to make the decision to power it by a battery consisting of dissimilar metals embedded in an Idaho Russet, that would reduce my trademark to "descriptive". Since it's been done: see http://totl.net/Spud/media/news.bbc.co.uk/, I probably could not get a solid trademark on it.

Similarly, I think there's a case to be made that "Scrolls" is descriptive in the case of Notch's game. "Elder Scrolls" may also be descriptive, but it's entrenched by long and well-known use.

There are two separate causes of action for TM infringement - confusion and dilution (blurring). Whether it is descriptive, suggestive, arbitrary or fanciful is only relevant for the latter and not for the former.
From what I've heard thus far, it seems that Bethesda is focusing on confusion in their claim, so this is kind of irrelevant.

This is a case where Swedish law is apparently going to apply. I admit to not knowing much of anything about Swedish law. However, I did find the following:

"Confusing similarity may be invoked also for the benefit of a symbol which has a reputation in this country if the use of another similar symbol would take unfair advantage of, or would be detrimental to, the distinctive character or reputation of the symbol having the reputation."

"A trademark may not be registered.... (5) if the mark contains an element which is likely to convey the impression of being the title of another person's protected literary or artistic work, where the title is distinctive...."

In the US, though, strength of the mark is a factor that may be weighed in a confusion case; it doesn't just apply to dilution arguments. However, it is a secondary factor; actual or potential confusion is of dominant importance, so your point is well taken. See http://www.law.northwestern.edu/journals/njtip/v2/n2/1/

I know it can be done and has been done - not just with words, but with colours as well. I think I read about yet another colour case quite recently, and the company that did it was Scandinavian - territory which is known for favouring society's well-being over corporate greed. It's just...because it is becoming a common practice, it doesn't mean it's a good thing to do. The whole intellectual property law is shifty enough without more potential precedents.

Ah well. Lets hope the case will be handled by the same Beth's lawyers who keep failing to stop Interplay from making Fallout MMO.