Cinemark Files Trademark Infringement Lawsuit Against Roblox Over User-Generated Content

from the brought-by-actual-lawyers-who-should-actually-know-better dept

Wed, Jun 22nd 2016 12:38pm — Tim Cushing

Today's misguided IP infringement lawsuit comes from Cinemark USA, one of the largest theater chains in the United States. Its target is Roblox, a multiplayer online sandbox game where users can create their own "worlds" using blocks -- putting it somewhere between Minecraft and Second Life.

Cinemark is accusing Roblox and a few dozen of its users of trademark infringement, thanks to the latter's creations. According to the lawsuit [PDF], various users have created versions of Cinemark theaters (complete with branding) and placed them in their own worlds, or uploaded for others to use in theirs.

It's one thing for Cinemark to pursue these Does for trademark infringement. (Although it's bound to be a waste of time, money, and reputation...) It's quite another to go after Roblox for content created by its users. Just because there's no built-in protection for service providers against claims of trademark infringement (like Section 230 of the CDA or the DMCA safe harbor) doesn't mean targeting the platform, rather than the actual wrongdoers, is the right way to approach this.

But this filing makes no distinction between Roblox and its users, despite there being a long list of usernames included. The better way to do this (again, assuming suing users, many of whom are likely to be under the age of 18, is somehow "better" than simply asking Roblox to take the content down) would be to serve Roblox a subpoena for account holder information as part of pre-trial discovery, rather than blowing through the entire filing referring to both Roblox and Does as inseparable "defendants."

Now, it's understandable that Cinemark might be concerned about unauthorized brand use. One of the stipulations of maintaining this indefinite protection is to assert your control over it. Litigation isn't the only option, but it seems to be the most popular one.

As for consumer confusion, it's highly unlikely Roblox users would consider user-generated content to be an authorized marketing attempt by the theater chain… especially when things like the following carry Cinemark branding.

Upon information and belief, subscribers/registered users and the general public can purchase virtual weapons, namely guns, for use inside the virtual playgrounds/workshops to kill other subscribers/users/members of the public, for virtual monies, inside virtual theaters or worlds bearing The Marks. Users virtually reenact tragic, violent real-world events involving an active shooter scenario at a Cinemark theater bearing The Marks.

On the other hand, some people are just as incapable of competently directing their complaints as Cinemark is.

Cinemark has received actual complaints from customers in the United States concerning the graphic violence and games associated with The Marks on Defendants’ website and/or virtual playgrounds/workshops.

Cinemark wants Roblox to be responsible for this infringement because it's likely the only entity involved that isn't judgment proof. But other than listing it as a defendant, Cinemark only directly refers to the platform once in the allegations, with a paragraph that alleges no wrongdoing (but implies that Roblox inappropriately and directly profits from users' infringing activity.)

On information and belief, subscribers and the general public are able to create an account, develop a virtual playground/workshop, purchase monthly or yearly memberships to the platform, and purchase monetary credits from Defendant Roblox Corporation in order to further the user’s virtual playground/workshop within the platform. On information and belief, Defendant Roblox Corporation also pays monetary sums to users, including the remaining Defendants for developing virtual playgrounds/workshops visited by others. On information and belief, the Defendants accept monetary credits from users who visit the Defendants’ virtual playgrounds/workshops.

Throughout the rest of the complaint, the Does and Roblox are referred to collectively as "defendants," even though there's almost zero chance the company will remain a defendant for long.

The usual claims are included: Lanham Act violations, unfair competition, dilution, and vanilla trademark infringement. Then there's a rather unusual one: "Texas common law business disparagement." This is tied to the user-generated sandboxes where visitors are given guns and allowed to shoot up a virtual theater.

By using The Marks in connection with virtual mass shootings in connection with Cinemark’s movie theaters, Defendants knowingly and/or recklessly make false statements that disparage Cinemark’s good name, business reputation, services, products and goods. Defendants did so with the intent to cause, and actually caused, pecuniary loss to the Cinemark in violation of the laws of Texas. Defendants knowingly and/or recklessly create virtual playgrounds/workshops where children can purchase and use virtual guns to cause mass shootings at virtual movie theaters under The Marks creating the false statement that Cinemark’s movie theaters are “unsafe”.

LOL. "Intent to cause pecuniary loss." Some idiot thought it would be funny or edgy or whatever and other idiots agreed. The only intent here was to appeal to the lowest common denominator. No one's going to "shoot" up a Roblox theater using Roblox weapons and come to the conclusion Cinemark theaters are unsafe, just as no one's going to play a few levels of Doom and decide further exploration of Mars by NASA is a bad idea because the planet contains a portal to hell.

The interesting thing about this particular allegation is that Cinemark kind of admits its lawsuit is being brought against minors. Roblox's target market is kids, and its user base skews young. This could be why Cinemark has decided to bundle in the platform maker as a defendant, even though there's almost no chance Cinemark will be pursuing anyone other than the Does once Roblox files a response and a judge looks it over.

Even without a response being filed, Cinemark is already losing. It has filed two motions: one for a preservation of evidence order and one for expedited discovery. Both have been rejected by Judge Reed O'Connor, who finds Cinemark's breathless pleadings a bit much.

From the order on the preservation request [PDF]:

Plaintiff avers that “Defendants are in possession of extensive electronic data that is essential to Cinemark’s claims that could easily be overwritten, transferred, or expunged.” Pl.’s Mot. 4, ECF No. 3. Plaintiff argues that “[m]oreover, Defendants’ electronic data mayeven be lost through Defendants’ computer’s and/or servers’normal use. For example, information and data contained on a computer’s hard drive are automatically written over and replaced with new data.”

[...]

[C]inemark does not prove that Roblox would “flaunt [its] obligation under the federal rules without a preservation order.” Id. Cinemark does not provide any evidence that the relevant electronic data will be destroyed absent a court order.

[...]

“To supplement every complaint with an order requiring compliance with the Rules of Civil Procedure would be a superfluous and wasteful task, and would likely create no more incentive upon the parties than already exists.” Hester v. Bayer Corp., 206 F.R.D. 683, 685 (M.D. Ala. 2001).

The expedited discovery request [PDF] fares no better, as Cinemark makes no showing as to why it needs to have (a) Roblox deposed, (b) production of all electronic evidence completed, and (c) immediate leave to file all non-party subpoenas -- all within 10 days of service.

It seems the better way to do this is to serve Roblox with requests to remove infringing content. And to do it correctly. None of this "any IP dispute can be resolved with a DMCA takedown notice" crap. It appears Roblox has already taken steps to delete content containing infringing marks. Its rules of conduct expressly forbid the posting of infringing content and it bans users/deletes accounts of those violating these terms. But to decide the next step (or the best option) is to sue, combining an entity that isn't legally culpable (Roblox) with a few dozen Does, all of which may be in the game's target range (ages 8-18), doesn't say much for Cinemark or the legal team representing it.

Cinemark-v-Roblox (PDF)Cinemark-v-Roblox (Text)

Cinemark-Order-Discovery (PDF)Cinemark-Order-Discovery (Text)

Cinemark-Order-Expedite (PDF)Cinemark-Order-Expedite (Text)

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Filed Under: section 230, trademark, user generated content
Companies: cinemark, roblox

40 Comments

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Anonymous Coward, 22 Jun 2016 @ 12:45pm

since when has anyone given a flyin' fuck about who they are suing and why? the whole object of the procedure is to wield the big hammer and frighten the other into submission or pound them to death by forcing all monies to be used up! the ones to blame, as usual, are the politicians who have always been more concerned with helping, through laws, their contributors, ignoring completely everyone else!
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John Fenderson (profile), 22 Jun 2016 @ 1:21pm

I wonder
Twice, I have been named as a defendant in lawsuits. Not because I actually had anything to do with the behaviors the suits were about, but because my name appeared in some documents and they just named everyone they could in the initial filing. In both cases, my name was dropped in the first round of litigation without any action or representation on my part aside from reading the letters I got sent.

Could this be what's in store for Roblox? It sounds like it might be.
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Anonymous Coward, 22 Jun 2016 @ 1:41pm

There is a cases here for wondering about why they are passing on free advertising.
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SirThoreth (profile), 22 Jun 2016 @ 1:44pm

Deja Vu
Didn't we already have this pretty much sorted out after the Marvel lawsuit vs. City of Heroes?
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JoeCool (profile), 22 Jun 2016 @ 1:50pm

They missed the point
Defendants knowingly and/or recklessly create virtual playgrounds/workshops where children can purchase and use virtual guns to cause mass shootings at virtual movie theaters under The Marks creating the false statement that Cinemark’s movie theaters are “unsafe”.

No, I think people got the idea theaters might not be safe when a real person shot up a theater in real life. It had nothing to do with games.
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JoeCool (profile), 22 Jun 2016 @ 1:54pm

Re: They missed the point
Replying to myself - I thought about the next board meeting.

"What have we done to protect our customers?"

"We spent millions of dollars in lawyers fees making sure no one can shoot up our theaters... in a game."

"What about the actual theaters?"

"Uhhhhh - we'll get back to you on that."
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TexasAndroid (profile), 22 Jun 2016 @ 2:08pm

Re: Deja Vu
https://www.engadget.com/2005/12/14/marvel-vs-city-of-heroes-lawsuit-settled/

That was copyright, and was settled out of court. Not sure we ever found out the exact terms of the settlement.

I know that COH from almost the beginning forbid copycat characters, and was pretty good about finding the infinite Wolverine clones and "Generic"ing them. That was an ability that the GMs had to give a character a random name and look. Pretty effective way to remove copyvio characters.
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SirThoreth (profile), 22 Jun 2016 @ 2:31pm

Re: Re: Deja Vu
You're correct that it was settled, but trademark infringement was also one of the issues brought up as well:

http://usatoday30.usatoday.com/tech/news/2004-11-11-marvel-sues-over-avatars_x.htm

http://www.pe terdavid.net/2004/11/14/marvel-vs-city-of-heroes/

However, Cryptic definitely appeared like they would eventually win, and the outcome there made it pretty clear that lawsuits like this are generally a waste of time, anyway.
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Anonymous Coward, 22 Jun 2016 @ 3:37pm

Cinemark has received actual complaints ...
"... which we paid actual money for..."
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Anon, 22 Jun 2016 @ 8:08pm

Re: I wonder
Roblox has been through this multiple times - and every solution has been just asking the user to rebrand their games.
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Notice, 22 Jun 2016 @ 8:09pm

Mind you
Roblox is a game development platform - more comparable to Steam mixed with a game engine if anything.
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Anonymous Coward, 23 Jun 2016 @ 1:34am

It's pretty difficult to create an accurate Cinemark cinema in a block-building world.

Firstly it's hard to create teenagers having noisy sex across 2 or three seats near the front during childrens movies..(seriously).

Also hard to re-create the embedded dirt, popcorn and occasional human feces found on the floors in some rows after various films are shown.....

However I'm sure theres a way to create a block to resemble the (illegal) wages paid to staff that drop below minimum due to 'claw-backs'...
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Friend, 23 Jun 2016 @ 5:47am

Re:
Not exactly. Roblox is not like Minecraft for example - it has way more advanced features to create pretty realistic stuff.
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Anonymous Coward, 23 Jun 2016 @ 8:23am

Clearly not thinking this through.
If software developers have to suppress trademarks in user content, they will do it portably and extensibly, like they do with everything else. Which means that embedding those filters in other products becomes trivial.

And personally, I've been waiting for an RBL that will backtrace any content or product owned by a particular trademark holder or one of his subsidiaries for some time now.

It will happen eventually. I think the MPAA is aware of that, which is why they've been floating so much FUD trying to make society afraid of software developers. (hackers are going to take down the grid!)

Really this comes down to a race between us depriving these guys of their strangle hold on the American consciousness, and them pimping the country hard enough that the state eventually starts rounding us up and putting us in cattle cars on their behalf. We'll win. But it doesn't hurt to hedge ones bets.

IMHO sensible hackers should consider joining the CMP or other shooting club. It doesn't matter where you come down on gun control. Organized self defense is a skill that when called upon, doesn't give you a choice to opt out.
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James Pizzata, 23 Jun 2016 @ 8:30am

This is stupid!
Users on ROBLOX may be the problem here. They make parodies of these corporations for fun and to be a joke.
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Andrew Bereza, 23 Jun 2016 @ 10:12am

"A multiplayer sandbox game where users can create their own "worlds" using blocks"
This statement represents just how badly techdirt has misinterpreted what ROBLOX is. This is like calling YouTube "An online video editor where users can upload multiple clips and add audio, which puts it somewhere in between Windows Movie Maker and Adobe Flash"

ROBLOX isn't a multiplayer game, its a platform. Several game creators, many of them underaged, have pulled in six figures of real-life revenue from their "worlds using blocks." ROBLOX has dished out millions of dollars to content creators on its platform, and it allows creators like myself to publish their games on Xbox One, Android and iOS.

ROBLOX games are built in LUA, an actual scripting language which can take years to fully master. ROBLOX also allows its users to upload 3D .fbx files, basically allowing them to create 3D environments with insane complexity.

This article is misinformed and lazy. It makes ROBLOX look like a fun little building toy when in reality it is paving the way for (and paying for the college tuition of) the next generation of video game developers.
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Lana, 23 Jun 2016 @ 10:22am

Pathetic
Are you actually fucking kidding me?
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MAX_GEE, 23 Jun 2016 @ 10:24am

Cinemark clearly doesn't understand user generated content very well, lmao.

ROBLOX should be fine, they are protected under the DMCA. If companies don't want their brands being used, they can request its removal, and content moderators will prevent any content associated with it from showing up.

A majority of Cinemark's claims are bullshit.

ROBLOX games cannot play movies. While its semi-possible, it would be like trying to cram an entire movie into a gif file, where each frame is an individual file on the content servers, the server would hit its limits very fast, it just doesn't work like that.

If a user is making a game that simulates a movie-theater shooting, then its definitely against ROBLOX's ToS, and the place should be reported so that a moderator can take the game down, and ban the IP of the user in question. With a platform as open and free as ROBLOX is, content that is purely made within the engine cannot be detected. ROBLOX themselves are not going out of their way to slander Cinemark's name, and they should not be blamed for the actions of a user.

Also, for Gods sake, what makes them think it is going to ruin any of their business.

Do you really think that a kid is going to be like

"Hey Mommy, this game is simulating a shooting at a Cinemark!"

and then their Mother will be like

"Whoa, we shouldn't go to Cinemark anymore, we should go to another theater, where this likely won't happen, because its obvious that these shootings only occur at Cinemark theaters! My opinion has been influenced by ROBLOX, and not by the events occurring in real life!"

Do you see how stupid that sounds? This is essentially what Cinemark is suing ROBLOX over, because they think this kind of stuff will actually happen, and in significant numbers! It goes to show how clueless some people are.
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Privyet Droog (profile), 23 Jun 2016 @ 11:11am

Re: "A multiplayer sandbox game where users can create their own "worlds" using blocks"
(btw his games are legit great so listen to this guy)
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Anonymous Coward, 23 Jun 2016 @ 2:48pm

Re: Re: "A multiplayer sandbox game where users can create their own "worlds" using blocks"
Cine mark is fucking stupid for surfing a company for online weapons in a virtual theater based of cine mark
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Cinemark is dumb, 23 Jun 2016 @ 3:42pm

" YOUR AN IDIOT "
you guys are fucktard for suing a online game like serious its a multiplayer sandbox kys.

please dont sue me for this comment
Its a game ffs, calm down, idiots
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Mr. Boogerson, 23 Jun 2016 @ 4:14pm

You're being retarded. Honestly, don't be so ignorant. ROBLOX is for imagination, and you guys are just taking that seriously? You could've sued Rockstar for having an ingame theater, you idiots.

Did Starbucks get mad when ROBLOX made their Starbucks groups? No. Did the Ku Klux Klan send threats to ROBLOX for making outfits that symbolize them? No.

Grow a real stick and get out, faggot.
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Anonymous Coward, 23 Jun 2016 @ 6:20pm

Funny.
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Psychotic Father of the Monsters, 23 Jun 2016 @ 9:35pm

umad?

Shut down this game then: https://www.roblox.com/games/299151637/umad
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David, 24 Jun 2016 @ 9:58am

Re: "A multiplayer sandbox game where users can create their own "worlds" using blocks"
You skid, LUA? Really, LUA? I agree with a lot you said, but when I saw LUA, I really don't think you grasp the concept of coding at all. It's Lua, there's a massive difference. You don't even know the name of the language you're scripting in.
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Kyle Hulse, 25 Jun 2016 @ 12:13am

Re: Re: "A multiplayer sandbox game where users can create their own "worlds" using blocks"
First things first, learn proper English. 'Skid' is not a word.

LUA is a pretty standard programming language, get off your high horse. I am a pretty popular game developer on ROBLOX, and I also use Unity. I stuck with ROBLOX.

They provide server-space, access to all platforms and an amazing development environment.

ROBLOX is currently paying my College tuition fees.

;)
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DaHui, 25 Jun 2016 @ 8:12am

Re:
NO YOU GET OUT. I AM SICK OF ROBLOX FUCKTARDS LIKE YOU THINKING YOU DOMINATE EVERY SINGLE DAMN THING. THEY HAVE THE RIGHT TO SUE ROBLOX. SO INSTEAD OF ACTING LIKE ANNOYING 2 YEAR OLDS GROW THE HELL UP AND STOP COMPLAINING. GO TO HELL BITCH.
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smashduck (profile), 25 Jun 2016 @ 9:56pm

Re: "A multiplayer sandbox game where users can create their own "worlds" using blocks"
In regard to your statement regarding what roblox is, I would like to give a few thoughts.
The comparison of ROBLOX to Minecraft and Second Life was supposed to be an easy to understand analogy. Going into more detail would be pretty much useless and would prolong the article. They are not misinformed and lazy, in fact, they provided the most information I could find, and any other discussions talked about this article or linked to it. The flaw with your arguement is that you're looking it from an insider's perspective. Outsiders who don't know about roblox can easily understand the core concept.

I would also like to point out that it's lua, not LUA.
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smashduck (profile), 26 Jun 2016 @ 8:46am

Re: Re: "A multiplayer sandbox game where users can create their own "worlds" using blocks"
I just realized how convoluted and unclear my first arguement was.
Here, let me clarify.
I don't really agree with both sides. I do agree that they could have given a better analogy to explain roblox quickly, but I think we should cut them some slack, really.
The main purpose of this article was to inform people that Cinemark is suing a gaming platform with user generated content.

An ideal explanation would go along the lines of this:
ROBLOX is a social interactive platform where members can play and develop games, interact with others with groups, and trade items in a stock market-esque economy.
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Anonymous Coward, 26 Jun 2016 @ 9:06pm

Re: Re:
Whatever? Is that you?
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Annonymy, 28 Jul 2016 @ 5:24pm

Re: "A multiplayer sandbox game where users can create their own "worlds" using blocks"
Wow, Did you mean minecraft because roblox uses bricks and powerful modeling tools, so the bricks are basically kind of like moldable clay
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tycoon, 10 Aug 2016 @ 5:27pm

theirs no money
I create roblox games myself and theirs hardly any money and games become unpopular in a mater of days and their is a such a thing as fan fair which is protected in the constitution
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Anonymous, 29 Aug 2016 @ 11:24pm

Mk..
"Roblox is a game where users create their own world's which puts it inbetween Minecraft and Second Life."

Seriously? Get your facts straight lol. Minecraft came out in 2009, Second life came out in 2003 which is only a year before Toblox did (2004). And Minecraft has nothing in common with Roblox besides the fact that "there's squares"
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Benjamin Fugman, 11 Dec 2016 @ 5:03am

But Cinemark Theaters
Doesn't it occur to Cinemark and their legal team that some things need to have the right branding for tge sake of historical acuracy? The sad fact is that what hapenned in Aurora in 2012 happened in a Cinemark theatre, proving the theater to be no safer than any other location. A man was able to bring a number of very real weapons bought at real gun shops. He entered their location unhindered and really, not virtually, but really killed 12 innocent and unsuspecting people. Who are now dead, permanantly, and several more are injured and worse with Cinemark demanding $800,000 from the survivors to pay for Cinemark's littigation against said survivors. Do they think just because they won their case against the survivors that thebatrocity did not occur, or that they can play it off like it did not occur in a theater containing their branding? It really doesn't matter if It's Roblox or some other platform, people will continue to stive for accuracy in reinactlents, so as long as reinacting the Aurora shootings is on peoples mind the Cinemark branding is going to be right there alongside it. Of course they can kepp being denyyers every step of the way. It works for the turkish government, right. I even believe there are still hollocaust deniers. But at the end of the day, no amout of denial is going to just blank out public memory. Cinemark may think they're trying to brush off their connection to the incident by putting so much effort into legal denial, but all it really does is draw more attention to their connection and casts them as a new monster, perhaps just as bad as a psychotic killee ruining lives for the support of their own ego. There's been a nosesical claim going around that corporations are people, if that were true, the majority of them would fall under the definition of Psychopath or Sociopath.
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Benjamin Fugman, 11 Dec 2016 @ 5:13am

ROFLCOPTER
I've just seen a picture of one of the Roblox cinemark theater logos that their complaiining about. I could make a much more acrarate one using Roblox's solid modeling tools, but that would probably get them more pissed. lol
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Benjamin Fugman, 12 Dec 2016 @ 3:54am

Re: But Cinemark Theaters
Woops the last pare of the title on that was meant to include "are unsafe"
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TopTiger, 24 Aug 2018 @ 1:44pm

Not Roblox
ITS NOT ROBLOX ITS THE IDIOTS ON ROBLOX BUT< ROBLOX SHOULD PUNISH PEOPLE MORE SEVERLY FOR ANYTHING THAT VIOLATES THEIR RULES!!!!!!!AGAIN ITS THE IDIOTS ON THERE!!!!!!
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TopTiger, 4 Sep 2018 @ 1:04pm

STUPID CINEMARK
CINEMARK IS OUT OF ITS MIND ITS THE IDIOTS ON ROBLOX THEY SHOULD BE UPSET WITH.NOT ROBLOX,ITS NOT THEIR FAULT.CINEMARK SHOULD SHUT THEIR MOUTHS AND CASE THEY ARE OUT OF THEIR MOVIE WARPED MINDS!!!!!!!!!!!!!!>:(
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franklin, 21 Jun 2019 @ 12:08am
my roblox account was hacked. I get almost no help from roblox. in fact, they cancelled my daughters account that was well build out with hundreds of dollars spent. Every customer support email was wrong. Every one. They do not seem to know anything and blames everything on Google.
1. They said i have to enter my credit card information on each purchase...wrong
2. they said they do not keep credit card information...click, click there it is
3. When my card was used just who got the Roblux
4. When my card was used who got the money?
5. they gave me intructions to get Google History. Difficult to follow but after a day google sent back...0 history
6. They said i had to get google history. they cannot. a few days later they had google history but only 16 out of 39 illegal transactions.
Now my daughter's account is suspended. i old them to remove the credit card info and reopne her account. they said...what credit card information. What a huge waste of time and listening to my daughter crying.
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grammasthebest (profile), 18 Aug 2019 @ 3:04pm

SUING ROBLOX
Has anyone else sued Roblox that is not for copyright infringement but for being accused and banned for stuff they are not guilty of? HOW did you start your suing process? I WANT TO SUE ROBLOX and would like all info on how to do it.
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