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.