Inxile Force One-Man Studio To Change Game Name

Goshdarnit, inXile, not you too. You were the ones who gave the people the elaborate, old-school, spiritual-sequel RPGs they’d long desired, not the ones who chased down unrelated games with vaguely similar names to their own. I know, I know: absurd legal complexities mean that sometimes firms are forced to strong-arm other firms into changing the names of things, otherwise they risk losing their long-held trademarks. But that doesn’t change the fact that this has been abused in the past, and to many of us simply looks like The Man bullying the little guy.

In this instance, the Wasteland 2 devs have, after attempted amicable resolutions failed, done a legal frown at one man studio Dan Games, developer of a shooter named The Alien Wasteland. Or ‘Action Alien,’ as it is now unhappily named. They do claim they will help to promote the game if Dan so wishes, however.

The cease and desist bomb was dropped because their most recent completed game was, of course, the post-apocalyptic RPG Wasteland 2, and they have registered the trademark ‘wasteland’ as part of that. I.E. they are attempting to claim ownership of the common English word ‘Wasteland.’ Oi, Fargo, T.S. Eliot wants a word.

However, the way trademark law works, as I understand it (and I probably don’t), is that trademarks need to be actively protected, otherwise any old opportunist can go make something with the same title as your thing, and even try to snag the trademark for themselves. So, abstractly, inXile may need to do this in order that they can call their next post-apocalyptic RPG ‘Wasteland 3’, and so that they don’t end up in a situation where they’re being forced to re-title Wasteland 2 because someone else has won ‘wasteland’ at the USPTO.

It is all properly cuckoo, yes.

On inXile’s part, they claim that Dan Games refused to reach “an amicable resolution without involving lawyers”, instead asking for money if he was to change the name of his game.

In a statement, a representative wrote “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.”

Dan Games, aka Devdan, claims in a Steam update that “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.”

The eventual result was a cease and desist letter, and Dan Games electing to change the game’s name rather than lawyer up.

It’s all the more sad because inXile, a dev comprised of assorted Black Isle and Interplay refugees, are more accustomed to losing their game-babies than most. Fallout is in Bethesda’s hands and Wizards of the Coast won’t let go of Planescape: Torment – but did let inXile use ‘Torment’ for their upcoming spiritual sequel Torment: Tides of Numenera.

It’s a messy business that no-one comes out of particularly well, and as in the case of Bethesda’s The Elder Scrolls vs Mojang’s Scrolls shines a grim light on why trademark law desperately needs to be changed. This world has far more people and far more products in it than it did at the time those laws were devised: it is flat-out crazy to maintain that words from the dictionary can be the sole province of one company or another.

I guess the good news for Dan Games is that, suddenly, a whole bunch of people are talking about Action Alien. Hopefully he’ll take inXile up on their offer to help promote it, too.

The bad news for me is that, had this happened just a few days earlier, I’d have been able to make an ‘April is the cruellest month’ pun.

From this site

105 Comments

  1. Premium User Badge

    JiminyJickers says:

    I’m a bit disappointed in inXile for this bullying behaviour. Surely, there is a difference between defending a trademark and going after anyone with vaguely similar words in their game title.

    I mean, we had the debacle with Candy Crush Saga people going after Banner Saga. Given that the Banner Saga didn’t have to change their name, I’m sure the Candy Crush Saga people didn’t lose their trademark.

    • ramshackabooba says:

      There is a difference with the Candy Crush Saga thing. In this case, “Wasteland” is the trademark (wrongly given for sure). So basically it’s as if Banner Saga was named Banner Candy Crush Saga, in which case it definitely would have had to be changed.

      • solidsquid says:

        Candy Crush Saga did, in fact, have a trademark on both “candy” and “saga”, so just The Banner Saga was enough to infringe on one of the words they had trademarked

        • frightlever says:

          Actually they had applied for trademarks but abandoned the attempt as it was doom(TM iD Software)ed to be rejected so they rage(TM id Software) quit the attempt. id Software shouldn’t have either the “Doom” or “Rage” trademarks, neither should inXile have a “Wasteland” trademark. The fact they chose to use a common single word name for their games, or continuing franchise, doesn’t give them a right to it.

          And to clarify for Alec, who still doesn’t seem to get it, the trademark will have been granted as applicable to video games, and possibly some related properties, but if someone wanted to make “Wasteland” hamster blankets they’d probably be okay, or at least someone else would be sending the cease and desist. A single word can be trademarked by several companies – in general it won’t be monopolised by just one company. Still immoral, however.

          • Shuck says:

            The problem is titles being trademarked. Traditionally the titles of creative works weren’t trademarked – multiple books or movies might share the same name without problem. (And that was before the contemporary glut of both.) Trademarks were seen as being for business or product names and logos, not for “art.” Now it’s all about “intellectual properties” and sequels and potential spin-off products and as a result games (and a certain class of film) are seen as being more similar to an automobile or vacuum cleaner than a work of art. Copyright used to be seen as sufficient to protect a work of art, with each new work protected by its unique content, not an association with a name. With current game franchises going back to the Atari 2600 days, the name is literally the only thing the individual games have in common (and the only thing the company owns that has value going forward).
            All of which explains absurdities like the zombie corporation that is now Atari recently claiming ownership of the words “haunted house” in relation to games – despite the fact that the old Atari game was not the first to have that title, and many other games with the title have been released before they got around to trademarking it.

    • Anti-Skub says:

      The problem with the majority of these cases is trade mark law, rather than the studios. I seriously doubt inXile care one way or another whether this guy uses the name, the problem is if they are seen to not be protecting their trade mark.

      Someone could come along at a later date and make a game called Wasteland 3 and when inXile tried to stop them their case would be weaker as the lawyers on the other side could say “Well you let this guy call his game Alien Wasteland”. I’d bet it is a particular problem for Wasteland as there would be some debate over whether or not it was technically inXiles IP.

      It’s stupid, and shitty for little developers, but it’s the way trade marks work that’s the issue.

    • Anti-Skub says:

      Oh, I only read the start of the article and then skipped to the comments. Just noticed Alec already pointed this out.

    • Pazguato says:

      Agreed.

    • Danest says:

      None of this trademark business really matters that much.
      Inxile should have understood that it’s highly likely that their fans are not in favor of this kind of “kicking the little guy” behavior. This is very bad PR for them, even if it’s legally viable. Awful but legally viable is the realm of EA and the like, the people who inxile fans might just not like. Very bad PR, I’m re-considering my support of Inxile over this, and I don’t care about the legal details. I thought they were different, and therefore worthy of more support.

  2. Bodylotion says:

    I do love Inxile and I do understand they want to protect their licenses but I also think they are exaggerating here, just like Bethesda did with the “Scrolls”.

    I guess he shouldn’t be using the word “Alien” either for that matter ;)

    • crowleyhammer says:

      Yeah he’s screwed and will have to call it Action Action, then the Action 52 Devs will come for him and on it rolls.

  3. Unsheep says:

    It would have been somewhat understandable if the two games were very similar in look, concept and gameplay,…but they are miles apart. It’s like confusing Doom with XCom2.

    • Anti-Skub says:

      You’ve got to remember that lawyers aren’t likely to be gamers. The people who actually decide the outcome of these cases aren’t likely to see the difference between Xcom and Doom. What they see is two video games, and in their eyes those two things are the same.

    • Premium User Badge

      Kyzrati says:

      That’s not how trademark law works, unfortunately. When you “own” a word, you own it for the entirety of a so-called “class” as defined by the USPTO. And video games–*all* video games (along with a bunch of other semi-related things)–fall under Class 9. Gameplay, aesthetics, or even genre don’t mean anything here.

    • Premium User Badge

      gritz says:

      Or like confusing Fallout with Fallout 3!

  4. Geebs says:

    I’m sure TS Eliot would consider the act of nicking his title to be evidence of artistic maturity.

  5. tiltaghe says:

    I wonder how does that work under the hood in the film industry? I come with this comparison simply because of my familiarity as a cinephile. I always check out films and notice these ones with exact same name, sometimes they are remakes, sometimes completely different, often based on the same book or other original material… but anyway they coexist and the year of release is the second part of the ‘identity tag’ of the film then

    • AyeBraine says:

      It’s not exactly under the hood. Film producers and authors have all forms of copyright on their movies, but in most cases, they do not trademark the movie titles (or anything else like character images, concepts and word combinations – like Lucas Films does).

      Registering a trademark is a voluntary choice, and it is separate from copyright. It’s singling out some part of your IP, invention or a product and trying to lay exclusive claim on it – where the burden of proving it’s even yours and pursuing infringements is on the trademark holder. You can’t lose copyright unless law or a contract states so – but you can lose a trademark if you fall into obscurity.

      For example, Glock trademarked (I rephrase) “a polymer framed pistol whose slide looks square when seen from the back and rectangular from the side”. I kid you not. And they pursue that claim very actively, which forces other pistol manufacturers to cut away corners on their pistols, making them rounder or stepped etc. They even crack down on blank replica and airgun manufacturers. If they didn’t, sooner or later a court might say “just stop it, will ya? there’s a ton of these square gats out there!”, and they’d lose their trademark or something.

      Meanwhile, these same competitors actually “plagiarize” Glock’s insides (as much as it’s applicaple in firearms, which is not that much; but the inspiration is VERY obvious), and Glock sometimes has to step in to protect their patents/copyright. And there goes another round of weaseling – adding superfluous little parts, changing their shape etc.

      • Hedgeclipper says:

        “but you can lose a trademark if you fall into obscurity”

        Pretty much the opposite really – you loose the trade mark if it becomes ‘generic’ and everyone uses it for your class of product – classic examples are Hoover and Kleenex. I’m not even sure if there’s a legal test for ‘obscurity’.

  6. MrPete says:

    Well, Doom and X(-)Com are both about shooting Aliens that are invading somewhere.
    I wonder why no one in the respective companies saw the obvious danger of someone wanting to shoot aliens and buying the wrong game. (/funny)

  7. JamesTheNumberless says:

    Well if you were inXile you wouldn’t really want Google searches for “wasteland game” to bring up another studio’s game. Also, what are people going to call this game for short? It’s not going to be “Alien”. What if it does well and there are sequels? Monster Wasteland? Vampire Wasteland? Zombie Wasteland?? it’s harsh but you can see why they’ve done this.

    Maybe RPS could do a write up on the lovable independent British studio who have had a Chinese developer spring up recently with an almost identical name to them, yet are not currently suing anybody?

    • gunny1993 says:

      Well yeah, because that would be stupid, given that china doesn’t exactly go ham after blatant trademark infringement.

      • JamesTheNumberless says:

        It wouldn’t have to have anything to do with China though.

        • XxBrentos9xX says:

          Yeah, actually it does. If a Chinese company is trying to rip-off, say, a European company, that European company will have to try to file it with the Chinese courts. UK courts would have no say whatsoever on what some company can or cannot do in another country. They could try and persuade them with whatever they like, but ultimately it will not be up to them.

          • XxBrentos9xX says:

            It’s the same with the ‘Wasteland’ name. If a Japanese company came out with, oh idk, ‘Wasteland: Tokyo’ and got a C&D letter from InXile, they could laugh it away unless Japan wanted to follow through themselves. Different matter if they tried to localize it though…

    • Premium User Badge

      basilisk says:

      Well, Cracked is wildly exaggerating this one. Other than having the same title and sharing some broad themes implied by the title, the two poems really don’t have anything in common. Literally nothing of what makes TSE’s poem such a landmark (the polyphony, the complex structure, the dozens of allusions and quotes, the death-and-rebirth cycle the whole thing is built on) is present in Cawein’s much shorter and simpler work:
      link to d.lib.rochester.edu

      You could argue that Ezra Pound deserves more credit for helping make “The Waste Land” what it is, certainly, but the inspiration from Cawein, even though it is likely, is really just a footnote.

      • Ross Angus says:

        I love this site. Where else would one get such informed, passionate feedback, without the whiff of an insult? Long may it continue.

        (I’m not being ironic @basilisk, promise!)

    • anHorse says:

      Cracked: basically horseshit

      • Monggerel says:

        Yes, but the comment section keeps surprising me with both their relative civility and willingness to call out inaccuracy (eg. every article and video has dozens of comments with hundreds of upvotes pointing out the bullshit).

      • Phasma Felis says:

        Most of the time it’s quite well-researched, actually.

  8. LionsPhil says:

    However, the way trademark law works, as I understand it (and I probably don’t), is that trademarks need to be actively protected, otherwise any old opportunist can go make something with the same title as your thing, and even try to snag the trademark for themselves.

    I’m just going to keep linking this, you know.

    • Neutrino says:

      Interesting article. Looks like Inxile are definitely in the wrong. We need some sort of crowd funded organisation that looks out for this sort of abuse and fights back on behalf of the victim. I’d be prepared cough up.

      • frightlever says:

        link to eff.org basically, but this is kinda low rent for them to get involved. They were the ones who busted open the podcast patent abuse from last year or so.

    • Neutrino says:

      Just wanted to add that nothing pisses me off more about our society than money being the thing that decides who gets their way.

      • Press X to Gary Busey says:

        It’s slightly better than just the side with political currency deciding at least.
        It’s still possible to fight the challengers’ lawyer dollars with time and energy if it’s not you who are on the wrong side of the law.

    • Anti-Skub says:

      The article is talking about when companies try to sue others just for using a name or phrase regardless of context. A good example would be in my hometown (in Scotland) there was a little family owned cafe called McBeals, name after the owner. They were sued by 20th Century Fox for infringing the Ally McBeal trademark. That is the kind of enforcement that is unnecessary.

      This is, however a case of two video games using the same word in their title. inXile might be being over cautious, but it’s not what that article is talking about.

      • Horg says:

        The relevant point is that a trademark holder cannot lose the rights to their mark as a result of another party infringing upon it. The excuse that companies frequently cite for heavy handed litigation, trademark protection, is nonsense. However, it has been repeated so frequently that a disturbingly large number of people have taken it as fact, including Alec it seems.

        • Tacroy says:

          I can’t imagine this article having the same snarky tone if it was about a tactical RPG named “Alien Doom”

    • Llewyn says:

      That’s fine, but it’s not actually relevant. That EFF piece covers referential use of trademarks: the equivalent situation here would be a Wasteland 2 fansite. This case covers use of similar marks for unrelated products, which is a far less clear-cut situation.

      I also have a couple of more general concerns with EFF’s advice around IP law (as opposed to their position). Firstly it’s heavily US-centric. This is perhaps understandable, but not always an accurate representation of the global situation. Secondly it leans at times too much towards wishful thinking; that is, it assumes that all courts will follow (and interpret) precedents sensibly, whereas corporate lawyers have to assume that they generally won’t.

      All that said, the blanket assumption that entities have to forcibly protect trademarks against any conceivable similarity is still deeply flawed, and it’s sad that these comment threads are always full of armchair lawyers asserting that This Is How It Is*.

      *Note, I’m also an armchair lawyer, but all I’m asserting is that if this area is professionally relevant to you you should seek appropriate qualified advice rather than believing armchair lawyers.

      • suibhne says:

        Those nuances are important. But the more important point here is that Alec, a journalist, repeated the old trademark canard apparently without attempting even 5 minutes of research, then covered that lack of diligence by citing his own ignorance.

        I’m a big fan of RPS and even of Alec’s other stuff, so I’m not just pitching a random snit. I was genuinely disappointed and puzzled to see the lack of effort on this point (probably more particularly because the result is reinforcing a questionable legal interpretation that’s so often problematic).

      • frightlever says:

        From memory, it goes back to Hoover which allowed their trade-marked name to be used as a synonym for “vacuum cleaner” in popular parlance for decades, then when they tried to enforce their trademark over some issue or other I can’t remember, their position was legally judged to be extremely weakened and the word was thought too generic to be a trademark.

        There’s a good chance I dreamed this.

    • popej says:

      Definitely understand the argument that website is making and my sympathies are almost always with the little guy. However the website is arguing from a common sense/ethical standpoint, neither of which necessarily apply in trademark cases (sadly). They haven’t proven that the belief that trademark must be defended is unnecessary. Stupid maybe, expensive definitely, but not unnecessary.

      There remains the matter of precedent in common law systems. These companies litigate so readily because of the fear of a future hypothetical situation where entity x has nicked part of their name and then says to the court “well, they didn’t raise any objections when entity y used their trademark so what’s the big deal this time?”. This might seem like a small thing but it really isn’t when you’re on the back foot trying to justify your defense. Once this happens there is a risk of it snowballing.

      There’s also the matter of perceived brand damage. Again this is largely an irrational fear. Having said, perhaps it isn’t that far fetched to imagine a situation where a companies brand is damaged by the actions of another entities misuse of a trademark.

      Obviously this is only the tip of the iceberg. Lawyers would argue all day about the merits of defending trademark (for obvious reasons).

      It’s not really a black and white thing which that website seems to suggest.

      • Diatribe says:

        EFF is a nonprofit organization of pro bono lawyers specializing in First Amendment and intellectual property law in the United States. It’s not exactly the opinion or argument of a random guy off the street. The opinion also includes links to cases, which is courts saying “this is how the law works,” so it’s not just an opinion piece.

        The website is making a legal argument, from lawyers who specialize in this area of law, citing court cases for their holdings. So while it’s cute that you come in to lawsplain’ everything to us, compared to these guys, you have no idea what you’re talking about.

    • April March says:

      I pretty much went to the comments expecting someone to post about this.

      Keep fighting the good fight, Phil.

    • Michael Anson says:

      From the USPTO: “Throughout the life of the registration, you must police and enforce your rights. While the USPTO will prevent another pending application for a similar mark used on related goods or in connection with related services from proceeding to registration based on a finding of likelihood of confusion, the USPTO will not engage in any separate policing or enforcement activities.”

      That’s from the “Basic Facts” PDF available on the USPTO website. You DO need to enforce your trademark from competing products. Not referential sites, but competing products. Your article does not apply to this situation.

      • LionsPhil says:

        I read that as “we won’t stop people for you; you have to be the party actually prosecuting if someone is stepping on your registered turf”. There is no indication I can see in that document that failure to do so leads to loss of the mark; what it then goes on to talk about is the paperwork for declaring you still use it.

        It is admittedly ambiguous.

  9. Carra says:

    Be right back, registering the words “Rock”, “Paper” and “Shotgun”.

    • frightlever says:

      If RPS don’t have their site name trademarked they’re idiots. “Rock Paper Shotgun” is a fairly unique, and witty, combination of words so I see no ethical problem with it being trademarked.

      • Premium User Badge

        Kyzrati says:

        In the US they trademarked it 5 years ago. Here’s a sample of what that looks like. (This information is publicly available/searchable via USTPO’s website. Sometimes it’s fun to see who has and hasn’t actually registered!)

        Apparently they’ve also trademarked it for Class 9, thus including video games as well :P

      • frightlever says:

        Ah, here we go:

        link to trademarks.justia.com

        No worries, they have one.

  10. Rumpelstiltskin says:

    Effectively, they already are helping him promote the game. I’m sure he’ll benefit way more from this PR opportunity than from any potential brand recognition for the word “wasteland” in the title.

  11. PancakeWizard says:

    Wastes was too obvious for Dan Games, I take it?

  12. Premium User Badge

    keefybabe says:

    I said the word, “shit” once so I now lay a copyright claim on everything EA has released in the last 10 years.

  13. Holysheep says:

    What the absolute fuck InXile?
    It looks like they love their money anyway. Wasteland 2 was at an abhorrent 40€ on release.

  14. int says:

    link to gamefaqs.com

    Inxile have their work cut out for them! A Fallout 4 DLC used the word wasteland, and a Tony Hawk game did too. Better start sending letters to Zenimax and Activision!

    • Smoky_the_Bear says:

      Which shows that they are in the belief that they have to have evidence of them defending the trademark. To do this they found the smallest, poorest developer they could that fit their criteria, full in the knowledge that they could easily bully him into achieving their goal. Fucking scumbags.

  15. Infinitron says:

    no case of confusion was ever reported for almost two years since my game was first announced

    Gee, I wonder who could have finally reported it. >_>

  16. C0llic says:

    Many of you may not be aware, but alien wasteland is a very low budget, poorly cobbled together unity game. It may be a one man dev team, but if I were Inxile I would not want my brand associated with it.

    Perhaps it has improved since this video was produced:

    • C0llic says:

      Oops sorry, I linked the wrong video above. This is one I intended to post:

      • Ross Angus says:

        Look at which game YouTube automatically identifies the video as!

        • C0llic says:

          Ha! Indeed, I hadn’t noticed that. In this case, principles aside I have little sympathy for the dev in question. He’s put together a remarkably atrocious game. Yes, it’s only a couple of dollars, but this isn’t a plucky young indie having a lovingly crafted labour of love fucked with. You might think that reading the article on face value.

          • RobF says:

            Last time it was Nuclear Throne though and that’s hardly cobbled together.

          • C0llic says:

            No, not at all. However, this game really shouldn’t be mentioned in the same breath as Nuclear Throne.

            I do take your point, but in this case the game in question is either embarrassingly incompetent or a cynical cash grab. Either way, that should be pointed out because it does effect the real world context of Inxiles actions here.

          • RobF says:

            Neither of these things have any bearing on their right to use the word ‘Wasteland’ in their game name though. Sure, I wouldn’t want the game associated with my game, never mind. But it isn’t. There is no clear route where it could be, same as there was no clear route where Wasteland Kings could be either. There is no reasonable case for ‘trademark dilution’ here and that’s all that concerns me, not whether the game is shit or not.

          • C0llic says:

            Well, the thing is, these kind of articles do tend to garner good will toward the smaller guy. In this case, the article makes no mention of how awful the game in question is (something if i’m honest I do find disappointing, it would only take a google search).

            In other words, rail against the stupidity of copyright law all you want, but this game doesn’t deserve your money or your sympathy.

          • LionsPhil says:

            Yes. This is an even uglier side to this discussion than the “well tough shit, that’s just how the law works, I heard on the Internet from other people who kept telling me ‘tough shit, that’s how the law works'”. Why should only people making “good” things get protected (to where the extent of the protection is basically “people on the Internet at least see it as a bad thing”) from intellectual property law strongarming?

            I could see the argument if it was trying to be a dime-store knockoff leeching off of confused sales, but it blatantly isn’t because it’s a whole other genre.

          • RobF says:

            Yeah, wot Phil said really.

            I have nothing but sympathy for *anyone* caught on the end of stuff like this and companies get to carry on for years doing it *until* it finally reaches someone folks care about, then it’s a thing.

            Trying to make this about the game, as if making a bad game is a terrible thing to do anyway, is pretty awful. Sorry.

          • C0llic says:

            No, but that wasn’t what I was saying really. I posted the video and my comments simply because I didn’t want someone to purchase this out of sympathy and goodwill only to feel cheated – which i’m certain they would.

            Quite honestly, for a game of this quality, this is the best thing that could happen to it. This game does not deserve the press it’s been given as a result. That alone is a great argument against the current state of copyright law.

          • RobF says:

            But it’s getting press that *is* deserved because the press isn’t about the quality of the game, it’s about what’s happening to the developer.

            I don’t think you need concern yourself with whether someone buys a videogame or not! It’ll be OK.

    • PancakeWizard says:

      It’s also interesting to note that for the purposes of trademark/copyright issues, apparently inXile aren’t indie enough now and are picking on a ‘poor one-man team’.

      I want to know why the amicable discussions didn’t prove fruitful. Why was this guy presumably so adamant his game needed this name? It sounds like word bingo.

  17. secuda says:

    And nothing value was lost for gamers.

    • Premium User Badge

      gritz says:

      The only thing more obnoxious than Greenlight low-budget Unity trash games is the cottage industry of terrible youtubers who’ve taken it upon themselves to shit on them in the most childish ways possible.

      Let’s not post any more of those here in RPS, please?

      • secuda says:

        The fact is this game is trash and will newer be any wheare near as good as Wasteland 2, Do you guys really want it to be assosiate with that? or better yet. Do you guys want “Alien wasteland” to take over the whole “wasteland” as a trademark name?

        • Llewyn says:

          Do you guys want “Alien wasteland” to take over the whole “wasteland” as a trademark name?

          Please don’t post about things you don’t remotely understand.

          • secuda says:

            *rolls eyes*
            nice freedom of speech you guys have.
            Dont worry wont come back here again.

        • RobF says:

          “Do you guys want “Alien wasteland” to take over the whole “wasteland” as a trademark name?”

          That will never happen, would never have happened, cannot happen under any sort of trademark law that currently exists.

  18. elderman says:

    Another wrinkle to keep in mind: the Alien Wasteland guy choose a similar type face (sans serif, all caps, similar proportions) to brand his game. This might also pay into inXile’s decision flex their legal muscle.

    Even unsympathetic victims deserve protection from IP overreach, but honestly it looks like everyone wins here. inXile protect their trademark and the small developer gets tons of free publicity for the game for being the victim of heavy-handed lawyering.

  19. omf says:

    Fascinating watching so many people pin this on lawyers and legal issues when it’s a studio we all like. You’d never see this if inXile were the ones being forced down and it was, say, EA who was doing the forcing.

    • Distec says:

      Behold the power of being the “underdog”.

      When you’re inXile, you get some disappointed frowns followed by an admission of “the nature of the beast”.
      If you’re Bethesda, you’re a scumfucker.

      • Emeraude says:

        If you’re Bethesda, you’re a scumfucker.

        I guess it goes without question regardless of any trademark case, which just happens to be coincidental.

  20. Demiath says:

    T.S. Eliot never wrote a poem called “Wasteland”; the title of his 1922 modernist masterpiece is “The Waste Land”. Eliot made a fuss about this distinction himself, so it must be important (especially since it’s a reference to The Fisher King, which somewhat implausibly was Eliot’s favorite Terry Gilliam movie).

  21. Insidious Mental Pollution says:

    It doesn’t look like it’s been pointed out, but a consideration is that when Fargo’s Interplay split from Electronic Arts, they lost the rights to do games under the Wasteland name, hence we ended up with Fallout. I wouldn’t be surprised if at least some part of this (his protectiveness towards the IP) stems from that. That said, the previous name conflict, which turned Wasteland Kings into Nuclear Throne, gave that game a huge boost.

    • frightlever says:

      inXile are gathering trademarks like a squirrel gathers nuts.

      link to trademarks.justia.com

      To be fair, only the Wasteland one is contentious, because it’s a common, single word. I see they also have the TM for “Little Computer People”. I remember playing that on a C64 or a Speccy.

  22. LaughingMan_CK says:

    I would have changed the name to Exiled or alien exile or something

    • April March says:

      The Alien Bard’s Tale: Tides of the Demon Forge’s Fantastic Contraption: Unbound

  23. ninenullseven says:

    I’ll just throw it here. A sad story about abused trademark and small studio that made myriad of highly acclaimed IPs that they wanted to protect:
    link to en.wikipedia.org

  24. Gordon Shock says:

    Just wrote to InXile and said the following:

    This to inform you that due to your recent litigious attitude I will not be purchasing your next release. I am sick and tired of the abuse and predatory behavior that the copyrights and trademarks era we live in has brought on and I do something about it by exercising the only power that matters now, my customer power.

    ******

    If you feel the same feel free to do same.

    • PancakeWizard says:

      I don’t feel like being a twat so I won’t be doing that, no.

      • criskywalker says:

        Sorry, I think the word twat is a trademark, so you’re not allowed to use it.

    • April March says:

      I feel like sending them an email linking to the piece LionsPhil posted above and explaining trademark law doesn’t work that way.

      • Michael Anson says:

        Except trademark law does work that way when you’re talking about products and franchises.

  25. criskywalker says:

    It should be renamed to Alien Waste Land, a game about a Xenomorph that is a janitor.

  26. Tempus Fugit says:

    I’m waiting to read about the inevitable dispute between Hidetaka Miyazaki and David Cage.

    Actually, I’d like to see that.

  27. Michael Anson says:

    People seem to be missing the point that Wasteland isn’t a single game, it’s a franchise, similar to Fallout. New games in the franchise will include Wasteland in the name (Wasteland Tactics, for example), and other video games who use Wasteland in the name may be confused for part of the franchise initially. Trademark law exists specifically so that people cannot capitalize on the popularity of another company’s product’s popularity.

    This is NOT similar to the Ubuntu case, which was clearly an unrelated type of product (not an operating system), and thus not subject to trademark law. From the USPTO: “Throughout the life of the registration, you must police and enforce your rights. While the USPTO will prevent another pending application for a similar mark used on related goods or in connection with related services from proceeding to registration based on a finding of likelihood of confusion, the USPTO will not engage in any separate policing or enforcement activities.” Further, there is precedence in the US court system where declining to defend a trademark against a competing product can cause a trademark to be weakened.

    Further, InXile have quite clearly made multiple attempts to resolve this issue without resorting to lawyers, and were rebuffed every time. Their hand was pretty much forced by the stubbornness of the other developer. So no, this is not the case of InXile being an awful company. They were doing their legal obligation to defend their franchise, and they attempted to resolve the situation amicably, even offering the developer free advertising regardless of the value of the product.

    • tifaucz says:

      If the next Wasteland game was going to be called Alien Wasteland, they should start another franchise. Anyway, I will think twice before buying inXile games again, or promoting them to friends as I did before. I will do my part making sure they lose more from this dispute than letting Alien Wasteland be.

    • elderman says:

      I’m afraid it’s probably true that trademark law exists to prevent people from capitalising on the success of a product from another company. In other words, it’s about corporate strategy, not the public good. That’s not a societal benefit, IMO. And luckily it doesn’t prevent people from capitalising on another company’s success. Fortunately, successful products invite imitators and improvements and spawn competitive markets.

      I think I’m taking your words out of context a bit, Michael Anson, but it’s to make a point. There’s an excess of rent taking in the global economy. Trademark law is part of that.

      To condemn inXile we don’t have to write a legal opinion. You can just say: there wasn’t any reason for confusion on the part of customers and they shouldn’t be allowed to do this. The only reason they have this power is that their can bankrupt a small developer just by taking them to court.

      Of course, it’s simultaneously possible that Dan Games was angling for the free publicity he received after being strong-armed.