Regarding the trademark issue with inXile Entertainment...
No news about the game development in this post, unfortunately ! But considering how much attention my trademark issue with inXile Entertainment has recently taken, I would like to give more details about my exchange with them regarding the title of my game to clear up the situation.
Despite what they said, I wouldn't call the way how inXile has reached me out to be 'friendly'. When someone drops you an email with things like "You may not be aware but wasteland is a registered trademark so The Alien Wasteland from a licensing perspective is no different from the Alien Call of Duty or something similar, and is infringing on our trademark", the first impression wasn't really sympathy, but why someone would bother me for a so widely used word used to describe an environment, like desert, forest or mountains ?!
The purpose of a trademark is to prevent someone from maliciously using a brand in order to create confusion and trick consumers into buying a product thinking it was another one. I have started to spend a lot of time writing emails where I say in short that Wasteland 2 is a post-apocalyptic turn-based role playing game with a top view, while my game The Alien Wasteland is a colourful action first person shooter with destructible environments featuring aliens. Just looking at the logo artwork of each game is enough to see that there aren't any attempts to mislead consumers.
I though it would be enough to show them that we shouldn't be worried about this, but all these efforts were useless since the following replies I received from them were just standing over the same point "US trademark law dictates that if a company (us) does not defend their mark, they stand risk of losing it or losing the right to defend against malicious use down" and implying the use of lawyer, which makes look like the 'friendly email' was more of a 'friendly cease and desist email'.
Despite their claims to look for an amicable solution, no clear offers was ever made in their emails, they just sent me a blog post of Vlambeer's game 'Nuclear Throne' where Vlambeer announces that he is changing the name of his game originally called Wasteland Kings due to a trademark conflict with inXile. I had to find out later in the comments that it was in exchange of a short media coverage from inXile in their social networks.
Now it wouldn't have been an issue for me to change the name of the game if it was still in development like it was the case with Vlambeer. But it is very hard to change the name of a game once it has been known for years. To be short, it is basically consisting in losing all the referencing on search engines, building it all over again with a new name, editing every text and graphic asset containing the title, which is including many graphic assets inside the game itself but also the multiple ones on Steam, Indie Gala Store, Indie Game Stand, Itchio, IndieDB, Facebook, Twitter, etc... on the trailer, on the Steam trading cards, etc... and also taking the risk to have the title change badly interpreted by the public. This is a hard and long work for a supposed trademark infringement which was looking quite insane to me, especially when I was already extremely busy with game development.
But arguing was going nowhere because of the "US trademark law dictates" reason, I had pretty much no choice but to change the title to cease the annoyance. So I have been thinking about a solution which would be a real win-win solution instead of a 'friendly' win-lose solution. I offered to change the name of the game on Steam and do as much as I could to change it everywhere else in exchange of a compensation to help me cover all the costs and the time involved into this painful process. Let me clear it up that the compensation I asked is absolutely nothing compared to the millions of US dollars inXile has earned through their kickstarter campaigns and sales on Steam.
Awaiting for their feedbacks about this offer, not even a single reply or attempt to negotiate was ever sent, despite they have been claiming since the beginning to be looking for an amicable solution. Instead I received a cease and desist letter from their lawyer asking not only to "cease the use of the 'wasteland' mark", but to completely "cease making available in any form or any website The Alien Wasteland game", and that "inXile reserve its rights with respect to your use of the mark, including its right to seek damages, lost profits, your profits, injunctive relief, attorneys' fees and costs, and treble damages, as authorized by the Federal Lanham Act and state law."
The initial version of my game was basically a shooter featuring aliens on a wasteland, hence why I found the title 'The Alien Wasteland' to be fitting to the game. Before choosing this title, I have been searching for a while on Steam and the Internet to make sure no games was titled 'The Alien Wasteland'. The full title since the beginning has always been 'The Alien Wasteland' with a 'The' in order to make it even more distinct. I never thought there could have been any issues with inXile's RPG Wasteland 2.
Last but not least, during my exchange of emails with inXile, I had to send them a list of games using 'wasteland' in their titles. While they had their reasons to not pursue most of them, they have let me know that they are considering one game of the list is infringing their trademark the same way as mine. I wouldn't name this game to not put the developer behind it or inXile in an even more uncomfortable situation, but if inXile is really following its logic of "US trademark law dictates", then a cease and desist letter should be sent soon to another indie developer, if not already.
So this is pretty much all I have to say about this issue for now. Thanks for reading and to everyone who offered me some help.
Devdan
http://actionalien.com
UPDATE 13 September 2016 : I finally decided to throw up the list of all games and games-related things I could find which have "wasteland" in their names :
Fallout 4 Wasteland Workshops : http://fallout.wikia.com/wiki/Wasteland_Workshop
Wasteland Angel : https://en.wikipedia.org/wiki/Wasteland_Angel/?snr=1_7_7_151_150_1
Wasteland Bar-Fight : http://wbf.kybernesis.com
Wasteland Game Studio : http://www.wastelandgamestudio.com/
The Waste Land : http://digitaltribegames.com/waste-land/
A3Wasteland : http://a3wasteland.com
Call of Ctuhulhu: The Wasted Land : https://en.wikipedia.org/wiki/Call_of_Cthulhu:_The_Wasted_Land
Wild Wasteland : http://www.kongregate.com/games/kashur/wild-wasteland
Project Wasteland : http://armorgames.com/play/7203/project-wasteland-0
Wasteland Siege : http://www.miniclip.com/games/wasteland-siege/en/
Motor Wars Wasteland : http://www.martiangames.com/index.php?params=game/542/Motor-Wars-Wasteland/
Wasteland Jumper : http://www.gamesfreak.net/games/Wasteland-Jumper_5652.html
Tony Hawk's American Wasteland : https://en.wikipedia.org/wiki/Tony_Hawk%27s_American_Wasteland
Wasteland Gaming : http://www.thewastelandgaming.com/
...
All these games are infringing Inxile trademarks right ? So following this logic, what are they waiting to "friendly" contact all these people and send them some cease-and-desist letters ?
Despite what they said, I wouldn't call the way how inXile has reached me out to be 'friendly'. When someone drops you an email with things like "You may not be aware but wasteland is a registered trademark so The Alien Wasteland from a licensing perspective is no different from the Alien Call of Duty or something similar, and is infringing on our trademark", the first impression wasn't really sympathy, but why someone would bother me for a so widely used word used to describe an environment, like desert, forest or mountains ?!
The purpose of a trademark is to prevent someone from maliciously using a brand in order to create confusion and trick consumers into buying a product thinking it was another one. I have started to spend a lot of time writing emails where I say in short that Wasteland 2 is a post-apocalyptic turn-based role playing game with a top view, while my game The Alien Wasteland is a colourful action first person shooter with destructible environments featuring aliens. Just looking at the logo artwork of each game is enough to see that there aren't any attempts to mislead consumers.
I though it would be enough to show them that we shouldn't be worried about this, but all these efforts were useless since the following replies I received from them were just standing over the same point "US trademark law dictates that if a company (us) does not defend their mark, they stand risk of losing it or losing the right to defend against malicious use down" and implying the use of lawyer, which makes look like the 'friendly email' was more of a 'friendly cease and desist email'.
Despite their claims to look for an amicable solution, no clear offers was ever made in their emails, they just sent me a blog post of Vlambeer's game 'Nuclear Throne' where Vlambeer announces that he is changing the name of his game originally called Wasteland Kings due to a trademark conflict with inXile. I had to find out later in the comments that it was in exchange of a short media coverage from inXile in their social networks.
Now it wouldn't have been an issue for me to change the name of the game if it was still in development like it was the case with Vlambeer. But it is very hard to change the name of a game once it has been known for years. To be short, it is basically consisting in losing all the referencing on search engines, building it all over again with a new name, editing every text and graphic asset containing the title, which is including many graphic assets inside the game itself but also the multiple ones on Steam, Indie Gala Store, Indie Game Stand, Itchio, IndieDB, Facebook, Twitter, etc... on the trailer, on the Steam trading cards, etc... and also taking the risk to have the title change badly interpreted by the public. This is a hard and long work for a supposed trademark infringement which was looking quite insane to me, especially when I was already extremely busy with game development.
But arguing was going nowhere because of the "US trademark law dictates" reason, I had pretty much no choice but to change the title to cease the annoyance. So I have been thinking about a solution which would be a real win-win solution instead of a 'friendly' win-lose solution. I offered to change the name of the game on Steam and do as much as I could to change it everywhere else in exchange of a compensation to help me cover all the costs and the time involved into this painful process. Let me clear it up that the compensation I asked is absolutely nothing compared to the millions of US dollars inXile has earned through their kickstarter campaigns and sales on Steam.
Awaiting for their feedbacks about this offer, not even a single reply or attempt to negotiate was ever sent, despite they have been claiming since the beginning to be looking for an amicable solution. Instead I received a cease and desist letter from their lawyer asking not only to "cease the use of the 'wasteland' mark", but to completely "cease making available in any form or any website The Alien Wasteland game", and that "inXile reserve its rights with respect to your use of the mark, including its right to seek damages, lost profits, your profits, injunctive relief, attorneys' fees and costs, and treble damages, as authorized by the Federal Lanham Act and state law."
The initial version of my game was basically a shooter featuring aliens on a wasteland, hence why I found the title 'The Alien Wasteland' to be fitting to the game. Before choosing this title, I have been searching for a while on Steam and the Internet to make sure no games was titled 'The Alien Wasteland'. The full title since the beginning has always been 'The Alien Wasteland' with a 'The' in order to make it even more distinct. I never thought there could have been any issues with inXile's RPG Wasteland 2.
Last but not least, during my exchange of emails with inXile, I had to send them a list of games using 'wasteland' in their titles. While they had their reasons to not pursue most of them, they have let me know that they are considering one game of the list is infringing their trademark the same way as mine. I wouldn't name this game to not put the developer behind it or inXile in an even more uncomfortable situation, but if inXile is really following its logic of "US trademark law dictates", then a cease and desist letter should be sent soon to another indie developer, if not already.
So this is pretty much all I have to say about this issue for now. Thanks for reading and to everyone who offered me some help.
Devdan
http://actionalien.com
UPDATE 13 September 2016 : I finally decided to throw up the list of all games and games-related things I could find which have "wasteland" in their names :
Fallout 4 Wasteland Workshops : http://fallout.wikia.com/wiki/Wasteland_Workshop
Wasteland Angel : https://en.wikipedia.org/wiki/Wasteland_Angel/?snr=1_7_7_151_150_1
Wasteland Bar-Fight : http://wbf.kybernesis.com
Wasteland Game Studio : http://www.wastelandgamestudio.com/
The Waste Land : http://digitaltribegames.com/waste-land/
A3Wasteland : http://a3wasteland.com
Call of Ctuhulhu: The Wasted Land : https://en.wikipedia.org/wiki/Call_of_Cthulhu:_The_Wasted_Land
Wild Wasteland : http://www.kongregate.com/games/kashur/wild-wasteland
Project Wasteland : http://armorgames.com/play/7203/project-wasteland-0
Wasteland Siege : http://www.miniclip.com/games/wasteland-siege/en/
Motor Wars Wasteland : http://www.martiangames.com/index.php?params=game/542/Motor-Wars-Wasteland/
Wasteland Jumper : http://www.gamesfreak.net/games/Wasteland-Jumper_5652.html
Tony Hawk's American Wasteland : https://en.wikipedia.org/wiki/Tony_Hawk%27s_American_Wasteland
Wasteland Gaming : http://www.thewastelandgaming.com/
...
All these games are infringing Inxile trademarks right ? So following this logic, what are they waiting to "friendly" contact all these people and send them some cease-and-desist letters ?
