Game Developer Forced To Change Game's Name Because 'Wasteland' Is A Trademark, Apparently
from the wasted dept
Several years ago, we wrote about InXile, a game studio that rode Kickstarter success to producing Wasteland 2. The theme of the post was about how open and awesome InXile had been to its backers and other Kickstarter projects, bringing a gracious attitude to the former and promising to use some of the game's proceeds to pay it forward to the latter. These actions built a nice reputation for InXile, somewhat unique in gaming circles, by engaging with fans and customers alike, while also acknowledging the rest of the industry. In short, InXile was human and awesome.
Yet, since then, InXile has occasionally acted aggressively in enforcing the trademark it has on the term "Wasteland" for the gaming industry. First, in 2013, it forced a smalll gaming studio to change the name of a game it had originally called Wasteland Kings to Nuclear Throne after InXile contacted them. And, now, InXile has gone a step further and fired off a cease and desist letter to a single developer attempting to produce his own shooter game, which he had entitled Alien Wasteland.
Otherwise, an important thing you may have noticed is that the title of the game has changed from The Alien Wasteland to Action Alien. The reason behind this is simple ; a developer from inXile Entertainment, the company which released the RPG Wasteland 2 has contacted me claiming that titling my game "The Alien Wasteland" was an an infringement to their trademark "Wasteland".The new name for the title will be Action Alien. Which...meh. And that sucks, because the two games don't share any similarities. And, while we shouldn't simply excuse InXile's actions as a matter of the necessities of trademark law -- more on that in a moment -- the majority of the blame, as usual, should rest with the USPTO's approval of a trademark that simply doesn't do the job of being a source-identifier.
Because both games have almost nothing in common and no case of confusion was ever reported for almost two years since my game was first announced, I have been calmly explaining through long emails why we should have no worries about this. But I finally ended up receiving a cease and desist letter from their lawyer asking to either stop using "wasteland" or to prepare facing legal actions against me. Since I don't have the time nor the strength to deal with legal actions from this developer and its lawyers, or even taking the risk of having my game to be took down from Steam, I decided to change the title to solve this issue.
Go into all the technicalities if you like, but nobody in gaming circles sees the word "wasteland", particularly when combined with other title words, and immediately identifies it with any particular studio. Hell, I'd wage money that if you actually took a survey and told gamers to respond with the first gaming-related thing they could think of when they heard the word "wasteland", the majority of respondants would say "Fallout". And with good reason: Fallout was a spiritual successor to the original Wasteland game. Giving this kind of control over a word like this to be wielded throughout a gaming industry bursting with post-apocalyptic settings tells us a great deal about how well the USPTO understands the gaming industry, which is to say it doesn't it all. If we're still going to go about pretending that trademark law has something to do with protecting customers, then the approval process for specific industries needs to be tightened up.
But the USPTO shouldn't be the only ones in the crosshairs, here. Too many gaming sites are entirely too willing to swallow pleas by trademark bullies about the requirements of trademark law, such as Kotaku.
“We always look for amicable win-win solutions in these cases,” said Beekers of inXile, “where we seek to protect our mark as any prudent business would do, while also helping the other party promote their game and provide a bigger reach than he otherwise would get, so that both parties benefit. In fact, that offer still stands now.”It's not as hard as Kotaku makes it sound. After all, if we're going to approach this not only from a legal standpoint, but also a moral judgement standpoint, then InXile as all kinds of options when it comes to how it polices its trademarks. It could, for instance, not send threat letters to other studios making games with titles that don't cause any customer confusion. It could at least attempt to work out some kind of cheap trademark licensing arrangement so that it wouldn't have to stand in the way of a simple gamemaker trying to get his product to the market. Or, hey, here's a thought: it could return to being the human and awesome company it pantomimed for its Kickstarter campaign and choose to not trademark an overly broad, fairly common term so often used in the gaming market. Were it to be the believer in the gaming industry it once claimed, that would seem to be the logical choice.
It’s hard to tell if the inXile folks are being more aggressive than necessary or simply reacting to the absurd lengths US law demands of companies, if they want to keep control over their trademarks.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: games, trademark, video games, wasteland
Companies: inxile
Reader Comments
Subscribe: RSS
View by: Time | Thread
A trademark on "Wasteland" could be pretty reasonable on games whose titles begin with "Wasteland", I think. Given that inExile are the current owners of the Wasteland IP, I don't see it as unreasonable that they could be granted protection against games titled something like Wasteland: Not Actually Anything To Do With That Other Wasteland (which seems like a reasonable consumer protection measure), or against some other company making a Wasteland 3 without inExile's permission.
But going after Alien Wasteland just feels like overreach. You can't just give trademark protection on descriptive terms like "Wasteland" in any and all uses. It's mad.
[ link to this | view in thread ]
[ link to this | view in thread ]
The one point in InXile's favor...
On the other hand, when Bethesda went after Mojang because "Scrolls" supposedly infringed the "Elder Scrolls" trademark, they were able to reach an agreement where Mojang could continue to call their game Scrolls. So refusing to negotiate is definitely scummy.
[ link to this | view in thread ]
Oh, god, please let InXile be TechDirt readers!
http://www.shopwasteland.com/
http://www.wastelandmovie.com/
http://thewasteland.touchpre ss.com/
http://www.pbs.org/independentlens/films/waste-land/
http://www.wastelandweekend.com/
http://ww w.azlyrics.com/lyrics/10years/wasteland.html
http://shop.tcgplayer.com/magic/tempest/wasteland
http:// www.thewastelandgaming.com/
...and the clear winner...
http://www.kongregate.com/games/entforge/wasteland-siege
Can we go full, please? I've already popped the corn.
[ link to this | view in thread ]
Ridley Scott?
Honestly, he'd have a better claim, especially if you read it as 'Alien: Wasteland'.
[ link to this | view in thread ]
Wasteland: Prophecy
[ link to this | view in thread ]
[ link to this | view in thread ]
Wasteland
And then Cable TV replace it as a vast wasteland.
Now maybe inExile will become a vast wasteland.
Intellectual Property is a vast wasteland.
I wonder if they got a trademark on the individual words "waste" and "land"?
What about the letters "W","a","s","t","e","l","n","d" ?
Would they need separate trademark applications for the upper and lower case versions of each letter?
Fonts?
[ link to this | view in thread ]
We reached out to the developer of The Alien Wasteland (now Action Alien) directly looking to find an amicable resolution without involving lawyers. The C&D only happened because the developer was unwilling to recognize the issue, only offering to change the game's name if we paid him for it. Asking to be paid for infringing on someone’s rights is certainly a new one for us, so of course we refused.
We do not know if the developer of Action Alien was aware of our Registered trademark when he initially named his game and bear absolutely no ill will towards the creator of Action Alien or the game. We always look for amicable win-win solutions in these cases, where we seek to protect our mark as any prudent business would do, while also helping the other party promote their game and provide a bigger reach than he otherwise would get, so that both parties benefit. In fact, that offer still stands now."
[ link to this | view in thread ]
[ link to this | view in thread ]
Flashbacks to Edge Games
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
As soon as I see that I know this must be a licensed game based on the longstanding DC comic series.
[ link to this | view in thread ]
Re: Flashbacks to Edge Games
[ link to this | view in thread ]