In American trademark law, companies have to defend their trademarks against unauthorized use. For the most part, this is common sense: Coca-Cola wants to be sure the drinks bearing its logo are actually Coca-Cola products and not some imitator, for example. Where trademark law gets a little fuzzy is when people start trademarking short, common words in everyday usage, like the notorious case of Tim Langdell, who used his trademark for the word “Edge” to go after everything from games publication Edge to game titles like Electronic Arts’s Mirror’s Edge. A judge cancelled his trademark in 2013, but he’s just one instance of many — and it’s not a problem we’re likely to see an end to anytime soon.
Take the case of Action Alien aka Alien Wasteland (above), a first-person shooter with dino-monsters which is the creation of a single individual. Its creator, Devdan, informed players via a Steam community post yesterday that he had received legal notice from inXile Entertainment, claiming that the title infringed on its Wasteland trademark. It would be difficult to confuse Devdan’s colorful 3D shooter with the grim and gritty isometric RPG of Wasteland 2, but for inXile’s legal representatives, that hardly matters: you defend your trademarks or you risk losing them.
Wasteland 2 (inXile Entertainment, 2014).
“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,” Devdan writes in the community post. “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.”
If Devdan fought the cease and desist, it would be interesting to see how it might play out. Mojang fought a similar cease and desist from Elder Scrolls developer Bethesda Softworks in 2012 and won… er, sort of. But taking something to court costs money, and though inXile and Mojang aren’t huge game companies compared to, say, Electronic Arts, they still possess far greater financial resources than one guy with a computer.
“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 [taken] down from Steam, I decided to change the title to solve this issue,” Devdan explains. “Even though this has been a great loss in time and efforts for a very questionable [complaint].”
Wasteland Kings (prototype of Nuclear Throne, Vlambeer, 2013).
It’s not the first time inXile has contacted smaller independent studios over its Wasteland trademark. In 2013 — in fact, just a few months after the court ruling that struck down Langdell’s “Edge” trademark — Vlambeer announced it had received a similar notice concerning Wasteland Kings, which would then become Nuclear Throne.
“Although we aren’t sure Wasteland Kings and Wasteland are confusing enough for this to be an issue, both us and InXile really don’t want to spend development time on arguing over trivialities,” Vlambeer co-founder Rami Ismail wrote at the time. “After almost 90 emails [among the team], we decided upon the new name, one that we felt […] not only resolved the trademark issue but is also more gender-inclusive.”
One striking note of difference between Vlambeer’s interaction with inXile and Devdan’s experience is that the former seemed to find a quick and peaceful solution. Ismail wrote that an ordinary inXile employee — not a legal representative — had reached out to him, and that this changed the tenor of the conversation from the outset. “The e-mail we received was short, amicable and to-the-point. It was followed up by a quick conversation on Skype,” Ismail said. “Things can be friendly, rather than formal for the sake of formality.”
inXile maintains that it began discussions with Devdan on a similarly friendly note, but it appears things turned sour. According to associate producer Thomas Beekers, Devdan even asked for money in exchange for changing the name of his game.
“Asking to be paid for infringing on someone’s rights is certainly a new one for us, so of course we refused,” Beekers writes on inXile’s official forums. “We do not know if the developer of Action Alien was aware of our Registered [sic] 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.”
The real point at issue isn’t whether inXile is right in going after tiny developers of small games over its trademarks — it has to, according to current wisdom in American trademark law. The actual crux of this story is whether a common word like “wasteland” — or “edge,” or the pet name “hon” — should be trademarkable in the first place. Common sense says it shouldn’t be. And it’s difficult to see how any of this helps the people trademarks were meant to protect.
(h/t Kotaku.)
Disclosures: I was a Kickstarter backer on another of inXile’s games, Torment: Tides of Numenera. Rami Ismail is a patron of Critical Distance, another site I am involved with and one which has no connection to ZAM.
