Back in September, Microsoft announced on their Play XBLA website that they’d made some moves to renew the Killer Instinct trademark. Unfortunately, the United States Patent and Trademark Office has performed a combo breaker on Microsoft’s attempt.
Here was the posting as it appeared back on September 17th:
With all due respect to our friends in the media who like to frequent trademark sites, we thought we’d break this one ourselves. 🙂
Our legal eagles have authorized us to say: “We have either renewed or refiled a trademark application in various jurisdictions.”
That’s it! Have a good Monday!
Unfortunately, Rösti over on internet message forum NeoGAF noticed a November 29th update to that filing on the USPTO’s website—and it’s not good news. Microsoft’s filing has been refused as of now, as the USPTO says that Microsoft must address an issue stemming from “likelihood of confusion”.
Reading over the document, here’s the basics of their issuance:
Registration of the applied-for mark is refused because of a likelihood of confusion with the mark in U.S. Registration No. 3370331. Trademark Act Section 2(d), 15 U.S.C. §1052(d); see TMEP §§1207.01 et seq. See the enclosed registration.
Applicant’s mark is KILLER INSTINCT for “video game software” and “entertainment services, namely, providing online video games.” Registrant’s mark is KILLER INSTINCT for “entertainment services in the nature of a television series featuring drama.
Okay, so wait—what is filed under U.S. Registration No. 3370331? A trademark filed in 2005 for a television drama called Killer Instinct, registered by Fox Television Studios. (The show has no relation to Rare’s fighting game franchise.)
Part of the problem—and this is where things get funny—is this argument from the USPTO:
This evidence establishes that the goods and services are commonly marketed under the same mark. Specifically, the evidence shows that television shows are commonly made into games. Therefore, applicant’s and registrant’s goods and services are considered related for likelihood of confusion purposes.
Basically, they’re saying that since it’s common for video games to be based off TV shows, Fox might want to make a Killer Instinct game for their Killer Instinct TV drama. And, if there’s another game called Killer Instinct, then people could get confused!
Nevermind, of course, that there already was a Killer Instinct game—many, in fact—originally released in 1994.
Unfortunately, I don’t know enough about IP laws and trademarks and all of that to know what the easy solution to all of this is. If I were to guess, I’d say that the “easy solution” would be to just re-title the series under a different name, should Microsoft ever want to do something with it again. It sucks, sure, but if Microsoft and/or Rare don’t have all of the proper ownership rights to the Killer Instinct trademark, there might not be a lot they can do in this case—even if the game proceeded the TV series by many, many years. (And even if there’s no way on God’s green Earth that we’ll be getting a game based on the Killer Instinct TV drama anytime soon.)