Forums - Microsoft Discussion - Killer Instinct trademark application/renewal refused by the USPTO

Copy and pasted from NeoGaf

On the 17th of September, Microsoft announced via their PlayXBLA hub that they for Killer Instinct "either renewed or refiled a trademark application in various jurisdictions.", as discussed here: http://www.neogaf.com/forum/showthre...iller+instinct

New data as of the 29th of November shows that this application has been refused by the The United States Patent and Trademark Office (USPTO) because of likelihood of confusion:

Quote: 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.

Trademark 3370331 is a simple word mark "KILLER INSTINCT", and it's owned by Fox Television Studios, Inc.:

Quote: 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.”

The most apparent use of the mark by Fox is that of the Killer Instinct crime drama television series aired in 2005, which is also what is directly referenced. There may be other uses of the mark in Fox's shows.

Quote: In this case, the following factors are the most relevant: similarity of the marks, similarity and nature of the goods and/or services, and similarity of the trade channels of the goods and/or services.

In a likelihood of confusion determination, the marks in their entireties are compared for similarities in appearance, sound, connotation, and commercial impression. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567 (C.C.P.A. 1973); TMEP §1207.01(b)-(b)(v). 

In the present case, applicant’s mark is KILLER INSTINCT and registrant’s mark is KILLER INSTINCT. Thus, the marks are identical in terms of appearance and sound. In addition, the connotation and commercial impression of the marks do not differ when considered in connection with applicant’s and registrant’s respective goods and services.

Therefore, the marks are confusingly similar.

A few examples of tv series that have been turned into video games are given, with Lost being a prime example. Upon these examples, this is stated:

Quote: Thus, upon encountering KILLER INSTINCT for “video game software” and “entertainment services, namely, providing online video games” and KILLER INSTINCT for “entertainment services in the nature of a television series featuring drama, “consumers are likely to be confused and mistakenly believe that the respective goods and services emanate from a common source.

Seemingly, Microsoft (and Rare?) has been halted a bit, and who knows what might happen to this game now, a name change maybe? Though with Fox being Fox and Microsoft being Microsoft, this could potentially turn into an ugly fight. If Killer Instinct is deemed important enough that is.

Microsoft may respond to the refusal by providing evidence and arguments in support of the registration.

The document in full: http://tsdr.uspto.gov/documentviewer...20121129134915



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I always figured Rare/Microsoft were just doing their due diligence by renewing the trademark. I'd be really surprised if either party intended on making a sequel. Maybe a HD re-release. Like we need more of those.

if they spell it diferently, they should have the trademark right? if KI does get made then i'm buying nextbox, if the game comes out good.

looks like i may be breaking my 8 game cap exclusives rule, for this one game

Didn't MS publicly say that it was already renewed?

Veknoid_Outcast said:
I always figured Rare/Microsoft were just doing their due diligence by renewing the trademark. I'd be really surprised if either party intended on making a sequel. Maybe a HD re-release. Like we need more of those.

Don't think MS has any intent in making a Killer Instinct game.  

Fighting games(with few exceptions) are a dying breed.



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I think they would make a new one, but it would be a 10-15 dollar XBLA game. There is no way they would release a 60 dollar KI game after it has been away for so long. I also don't think their is a base that warrants a retail release anyways.

I'm not surprised, it's their own damn fault for not making anything KI related.

zumnupy10 said:
Veknoid_Outcast said:
I always figured Rare/Microsoft were just doing their due diligence by renewing the trademark. I'd be really surprised if either party intended on making a sequel. Maybe a HD re-release. Like we need more of those.

Don't think MS has any intent in making a Killer Instinct game.  

Fighting games(with few exceptions) are a dying breed.

It's sad really. So many genres and sub-genres are fading from memory. There are plenty of great games out nowadays, but I just wish all the hits weren't concentrated into a few static genres.



favourite fighting eva, the combos were so addicting!! if they eva came ou with ki4 id go buy a ms system

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I don't envy anyone having to deal with these guys. I've been through the wringer a few times but, in a way, it's nice to see that even Corporate Behemoth Inc. can run afoul of the USPTO just as easily as Joe LLC.