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".

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.
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.

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 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.
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.

Filed Under: games, trademark, video games, wasteland
Companies: inxile


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  • identicon
    Anonymous Coward, 6 May 2016 @ 1:36am

    I kind of wanted to be with inExile on this one because, as Tim points out, Wasteland has some historical importance in gaming but no, I think Tim's right and inExile are overreaching.
    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 May 2016 @ 8:22am

      Re:

      But Wasteland is too common of a term. It shouldn't be granted solitary trademark status for a game title. Doing so basically means that any other project that might appropriately be called a wasteland game would have to pick a different descriptor that might be less accurate or descriptive. At most, I'd only grant them a trademark on "InExile's Wasteland." With the plethora of mobile games and online games and the limitations of human imagination and the English language, this kind of thing is going to keep happening all too often until all the useful words are taken. New games will have to have a randomly generated combination of meaningless words for a title and will sound like bad translations from foreign languages.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 May 2016 @ 1:40am

    When you let the lawyers/IP department do whatever they want you always get the same result.

    reply to this | link to this | view in chronology ]

  • identicon
    Bruce C., 6 May 2016 @ 1:56am

    The one point in InXile's favor...

    At least they aren't going after uses of "Wasteland" outside of gaming. The "we have to defend our trademark" argument has some shred of relevance within the industry. A real trademark troll would be going after the Wasteland movie or the shopping site, too.

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Daydream, 6 May 2016 @ 4:13am

    Ridley Scott?

    So if InXile is going nuts over the 'Wasteland' in 'Alien Wasteland', why didn't Ridley Scott going whacko over the 'Alien' in 'Alien Wasteland'?

    Honestly, he'd have a better claim, especially if you read it as 'Alien: Wasteland'.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 May 2016 @ 4:37am

    Wasteland: Prophecy

    When gamers revolt against asshole studios like inExile its prophesied that the studio's office will become wastelands.

    reply to this | link to this | view in chronology ]

  • identicon
    Baba O'Reilly, 6 May 2016 @ 5:04am

    It's only teenage wasteland

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 6 May 2016 @ 5:43am

    Wasteland

    I thought network TV was a vast 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?

    reply to this | link to this | view in chronology ]

  • identicon
    Lo, 6 May 2016 @ 6:20am

    "Thanks for contacting us about this.

    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."

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 6 May 2016 @ 6:38am

    I suspect that in a world where legal costs wouldn't bankrupt smaller companies all the claims from InXile would be laughed off and ignored. But hey, Intellectual Property!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 May 2016 @ 7:07am

    Flashbacks to Edge Games

    Reminds me of Edge games and how they decayed into a lawsuit factory suing anyone who used Edge in any game name.

    reply to this | link to this | view in chronology ]

    • identicon
      s7, 6 May 2016 @ 3:31pm

      Re: Flashbacks to Edge Games

      Reading about that story, lead me to the Edge (game)https://en.wikipedia.org/wiki/Edge_%28video_game%29, which after reading the story couldn't be bought because they'd been shut out of the e-stores by Edge Games. When it came back up for sale, I bought a copy for both Android, iOS, and for my 3DS. fun game.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 May 2016 @ 7:21am

    To be fair, Nuclear Throne is amazing and seems like it was built around the name.

    reply to this | link to this | view in chronology ]

  • icon
    crade (profile), 6 May 2016 @ 12:26pm

    "but nobody in gaming circles sees the word "wasteland", particularly when combined with other title words, and immediately identifies it with any particular studio"

    As soon as I see that I know this must be a licensed game based on the longstanding DC comic series.

    reply to this | link to this | view in chronology ]


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