inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by kilobug » May 4th, 2016, 7:42 am

I agree the law protecting trademarks is too broad in scope - but changing the law won't be done on that forum.

InXile action may seem a bit too much, but if what Brother None said is true (and I've no reason to doubt it) then there is nothing to cry wolf for. They tried to find a win-win situation with the dev (changing name, but inXile doing promotion for them), they got an attempt to extort money from them (which is indeed abusive, even we don't agree with the law, the devs did break the law, when you broke the law asking your victim for money is definitely not a sane attitude), inXile then answered with C&D (nice way doesn't work, let's try hard way). I would have preferred inXile to not get involved at all, but the way they handled it definitely doesn't justify outraged.

PS : and please don't mix copyright and trademark laws, those are two very different laws, with different mechanisms, effects, pros and cons, ... there is nothing about copyright here, only about trademark laws.

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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by Vainamoinen » May 4th, 2016, 8:30 am

Only a moral person can be in a dilemma. An evil choice is a black and white choice. Showing the player his action’s consequences is always “preaching”. Possible allegory to RL issues is always “political”. And these are still all valid design decisions.

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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by Firkraag » May 4th, 2016, 8:52 am

kilobug wrote:I agree the law protecting trademarks is too broad in scope - but changing the law won't be done on that forum.
Never said that. Though, we still discuss it... well, as long as it will be tolerated.

One of the reasons I suggest some people to be civil about it, by the way.
kilobug wrote:PS : and please don't mix copyright and trademark laws, those are two very different laws, with different mechanisms, effects, pros and cons, ... there is nothing about copyright here, only about trademark laws.
Point taken.
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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by Firkraag » May 4th, 2016, 9:27 am

kilobug wrote:InXile action may seem a bit too much, but if what Brother None said is true (and I've no reason to doubt it) then there is nothing to cry wolf for. They tried to find a win-win situation with the dev (changing name, but inXile doing promotion for them), they got an attempt to extort money from them (which is indeed abusive, even we don't agree with the law, the devs did break the law, when you broke the law asking your victim for money is definitely not a sane attitude), inXile then answered with C&D (nice way doesn't work, let's try hard way). I would have preferred inXile to not get involved at all, but the way they handled it definitely doesn't justify outraged.
Actually. Come to think of it...

Did Dan Games broke the law? Or we assume it simply because inXile said us so? I would like someone to provide some solid evidence, backing that claim before accepting it to be true. The law itself may be complex and questionable, but C&D is not equal to court decision, right? And real answer for that question can only be given in court. And we know, that small indie developer doesn't have enough money and will to go through that proccess. Unless, someone explains how exactly this case is trademark infringement, I advice you to not repeat that statetement, like it's confirmed truth.

And what with Wasteland Workshop" DLC? If it's infringement, too, inXile wouldn't be able ignore it.
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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by kilobug » May 4th, 2016, 10:57 am

Firkraag wrote:Did Dan Games broke the law?
IANAL, but my understanding of trademark is owning a trademark means no one else than you can use that word (even if it's a common word) in the name of any product of the same kind - you can call a submarine tour operator "Undersea Windows", but you can't call an operating system "Virtual Windows" without infringing on Microsoft's trademark on Windows.

As inXile owns the name "Wasteland" for "Computer products, namely, computer game program[...]" : http://tmsearch.uspto.gov/bin/showfield ... dklm8.2.13 so basically no one can use "wasteland" in the name of any video game (since 2007 the date at which it was registered).
Firkraag wrote:And what with Wasteland Workshop" DLC? If it's infringement, too, inXile wouldn't be able ignore it.
Probably because inXile doesn't have the strength for a legal battle with Bethesda. So yes, the strength of inXile compared to the (supposed) infringer is to be considered. That's a real serious problem in US legal system (and, to a slightly lesser extend, to most of the world's legal systems) that the bigger/stronger party has a very unfair advantage, whatever it is right or wrong. But that's not something inXile can fix, and their level, while it is problematic and unfair to do selective enforcement, what else can they do ? That you can't defend your rights when someone stronger than you violate them doesn't mean you should automatically let people weaker than you violate them.

Since I don't see much harm done by "Alien Wasteland", it would probably have been wiser for inXile to completely ignore the issue. But them offering first a win-win solution to the indie dev is a token of goodwill, but then they tried to abuse that token of goodwill, so I won't blame inXile for enforcing their right.

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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by Firkraag » May 4th, 2016, 11:26 am

Someone on reddit pointed out, that tons of "Alien" games don't care about that game at all.

So, to summarize it. Unfair law allows you to claim unreasonable rights over using certain words to name products within certain industry, demands you to act like a bully to someone who has less money and legal power, than you when they break your unreasonable rights and hope you wouldn't be bullied by someone who has more money and legal power, than you - because your unreasonable rights mean nothing to them and they can make you loose your IP, if they make a good case.

That strikes me, as system that promotes injustice and conflicts.
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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by IHaveHugeNick » May 4th, 2016, 11:36 am

Nothing gets the crowd going like fight against the system.
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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by Firkraag » May 4th, 2016, 11:55 am

Hm... I'm using less broad definition of system, that you're implying, but whatever.
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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by Drool » May 6th, 2016, 12:30 pm

Again, that game predates inXile's trademark by two years.

If you want to complain about laws that have existed for roughly 100 years that's fine, but please pick examples that make sense.
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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by dorkboy » May 6th, 2016, 3:50 pm

@Drool
Seems to me like the complaints are largely due to examples that don't make sense.
If, say, some dev out there (other than inXile) was to make a game in the Wasteland setting and calling it Wasteland 3... sure.

But "For the next N years no video game may, without proper authorization, contain the word 'wasteland' in the title."? I wouldn't exactly call that a tell tale sign of a legal system at the height of its sanity.
You want to contribute to that decline? Fine. I don't.
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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by Stuurminator » May 6th, 2016, 4:42 pm

dorkboy wrote:You want to contribute to that decline? Fine. I don't.
You may or may not want to, and InXile may or may not want to, but in the courts, "want" doesn't count for a whole hell of a lot.

If InXile is not seen to be rigorously defending its trademark, then someone who does come along and make a video game named "Wasteland 2.1: The Better One" can point to previous, grayer examples of the word "wasteland" being used as precedent for InXile not defending the trademark. I don't know about you, but I think that's ridiculous - but it still happens. It's definitely not something to gamble your IP over.

And for what it's worth, Bethesda's use of the name "Wasteland Workshop" does threaten InXile's hold on the trademark in this way, but InXile can't do anything about it due to the massive difference in budgets. This makes it all the more essential that they are seen to defend that trademark elsewhere.

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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by dorkboy » May 6th, 2016, 6:12 pm

@Stuurminator
Sorry, was someone suing inXile? Am I in a court room?

So, to recap - they "have no choice" but to prepare for a hypothetical battle they probably wouldn't win, by attacking parties that pose no real threat. Do I want to support to that kind of pointlessly destructive behaviour? No, I don't.
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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by SagaDC » May 6th, 2016, 9:00 pm

dorkboy wrote:So, to recap - they "have no choice" but to prepare for a hypothetical battle they probably wouldn't win, by attacking parties that pose no real threat. Do I want to support to that kind of pointlessly destructive behaviour? No, I don't.
I'm just guessing, but I suspect that InXile ended up approaching the creator of Alien Wasteland because there was already an issue of brand confusion. Just look at any Youtube video about Alien Wasteland, and you'll find that every one of them is incorrectly labeled as part of the Wasteland franchise - even the ones on the developer's official Youtube channel. This is a bad thing, especially since many of the videos are extremely negative in tone.

It's due in part to Youtube's sloppy auto-sorting software, but it wouldn't have happened if Alien Wasteland didn't have such a similar title. Even if they got it fixed with Youtube, there's no guarantee that someone or something else wouldn't end up getting mixed up in the future because of the similarity between the titles.

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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by IHaveHugeNick » May 7th, 2016, 7:41 am

dorkboy wrote:@Stuurminator
Sorry, was someone suing inXile? Am I in a court room?
You are attempting to discuss legal matters and then complain when people make arguments based on current legal status?
dorkboy wrote: So, to recap - they "have no choice" but to prepare for a hypothetical battle they probably wouldn't win, by attacking parties that pose no real threat. Do I want to support to that kind of pointlessly destructive behaviour? No, I don't.
On the virtual discussion board you can pretend the law doesn't exist. A business exits in the real world - you know, that place outside - and they have to operate within current legal framework, whether you like it or not.

There's all sorts of issues with other games using Wasteland name - search engine results in particular, on Steam, You Tube, Google, will not differentiate between the different Wasteland's, which leads to brand confusion. It's a serious problem, especially since this game is shovelware garbage.

These are serious problems they have to consider when contacting the other dev, so let's stop pretending they just went and told him, "you can't use this name because fuck you, that's why".
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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by dorkboy » May 7th, 2016, 11:14 am

IHaveHugeNick wrote:
dorkboy wrote:@Stuurminator
Sorry, was someone suing inXile? Am I in a court room?
You are attempting to discuss legal matters and then complain when people make arguments based on current legal status?
[...]
On the virtual discussion board you can pretend the law doesn't exist. A business exits in the real world - you know, that place outside - and they have to operate within current legal framework, whether you like it or not.
[...]
These are serious problems they have to consider when contacting the other dev, so let's stop pretending they just went and told him, "you can't use this name because fuck you, that's why".
No, I wasn't attempting to discuss legal matters, I was attempting to point out that I have a choice in terms of what type of behaviours and systems I lend my support to, just as inXile have choices to make in terms of how they pursue protecting their brand(s).
The law is not some absolute, omnipresent entity - its existence, being a series of interpretations and rulings, becomes a whole hell of a lot more tangible once lawyers get involved.
Whose lawyers in this case? And are you telling me the apparent relativity of The Law vis-a-vis Bethesda and Devdan is not a case of who can fuck whom?
Cause I don't buy it.

The point that SagaDC brings up is interesting, but is it really solved by sending a C&D to the one man development team behind the game formerly known as The Alien Wasteland?
Or, for that matter, does it solve the issue of visibility on search engines? Not sure how much those algorithms care about trademarks.. :?

Don't get me wrong, I can appreciate that inXile want to protect their self interests. But I'm hoping they'll continue doing so in a way that doesn't suck.
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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by Stuurminator » May 7th, 2016, 11:27 am

dorkboy wrote:No, I wasn't attempting to discuss legal matters, I was attempting to point out that I have a choice in terms of what type of behaviours and systems I lend my support to, just as inXile have choices to make in terms of how they pursue protecting their brand(s).
It doesn't matter if you lend your support to the law, you are subject to it regardless. You're suggesting that InXile should refuse to protect their trademark, thus forfeiting it, in protest of trademark law.

Asking someone else to martyr themselves for the sake of your own ideals is generally considered a dick move.

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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by SagaDC » May 7th, 2016, 11:43 am

dorkboy wrote:The point that SagaDC brings up is interesting, but is it really solved by sending a C&D to the one man development team behind the game formerly known as The Alien Wasteland?
Well, keep in mind that InXile didn't start with a C&D. They actually tried to contact him to resolve the issue without lawyers, but the developer of Alien Wasteland first refused to acknowledge that there was a problem, and then asked for money in exchange for fixing the problem that he had caused.
dorkboy wrote:Or, for that matter, does it solve the issue of visibility on search engines? Not sure how much those algorithms care about trademarks.. :?
That's where the trademarks come into play. If Dan Games had spent five minutes checking the official Trademark database, they would have seen that they were potentially infringing on an existing trademark.

I mean, seriously. I've never used the USPTO.gov website before today, and it took me less than five minutes to discover that there were three other patents for the "Wasteland" video game trademark (all of them owned by InXile). I'm guessing that Dan Games didn't even think to check ahead of time.

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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by dorkboy » May 7th, 2016, 1:13 pm

@Stuurminator
There's no way for me to explain my opinion to you within those false dichotomies, because it's not as extreme as you may wish to argue against.
And I'm not disputing that lawyers can subject someone to a whole lot of law, and then some.
Nor am I, as far as I know, under any kind of legal obligation to publicly state that I think IP (++) laws necessarily make a whole lot of what I consider to be common sense. Which is both fortunate and unfortunate, because quite often I don't happen to think they do.
Equally, there is to my knowledge no law, whether physical or otherwise, that compels me to take an active interest in the current product catalogue of, say, EA (to pick a random example).

Anyways, somewhere between being a dick and a martyr there's trying not to be a dick, and I certainly don't think inXile has a particularly bad track record in that regard. Hopefully this can continue, yeah?

@SagaDC
So in other words; no and no, respectively?
There's also 0 trademarks for "alien wasteland" (both words), so I can't say I blame a non-lawyer (presumably) for getting it (nominally) wrong. ;)
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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by SagaDC » May 7th, 2016, 1:39 pm

dorkboy wrote:@SagaDC
There's also 0 trademarks for "alien wasteland" (both words), so I can't say I blame a non-lawyer (presumably) for getting it (nominally) wrong. ;)
True, but that's why you do a search for any other trademarks that share a word with what you're trying to trademark. It's a basic function on the trademark search engine. Like I said, I mucked with it for the first time ever earlier this morning, and I figured it out in just a few minutes.

By simply selecting "basic word search", entering "Alien Wasteland" into the Search Term box, and then clicking "live" (active trademarks only) and "results must contain Any Search Terms (OR)", I came up with 282 trademarks that use either word. Most of them were related to the word "Alien" so I ignored that and focused on "Wasteland" instead. That came up with 11 trademarks involving the word "Wasteland", three of which are related to video games (all owned by InXile).

I discovered this in about five minutes, using nothing but my rudimentary knowledge of the internet and a freely available search engine. Devdan actually wanted to monetize his product and enter it into a competitive gaming market, so the fact that he overlooked doing a basic trademark search is a pretty major misstep.

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Re: inXile forces indie dev to change title of $1.99 game from 'Alien Wasteland'

Post by dorkboy » May 7th, 2016, 3:27 pm

@SagaDC
But you did use more than just rudimentary internet knowledge and that search engine, didn't you - namely, knowing what to look for.
The idea that a live trademark on a single, non-unique dictionary word means that that word cannot even appear in any other title in any way, shape or form is not necessarily the most intuitive one I've ever heard.
Compare that to the idea that the entire title has to be unique, like, say, Candy Banner Scrolls or Alien Wasteland. I can see how someone acting in good faith and not being fully clued in to the full nonsensicality of (U.S.) IP legislation might find the idea that they cannot use a common dictionary word as part of their title to simply be too insane to possibly have any merit. I have no trouble running that thought experiment.
Doesn't mean they'd be able to convince a judge that they're right, of course. ;)

What's a non-competitive gaming market, btw? :?
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